The opinion of the court was delivered by: Robert L. Wilkins United States District Judge
Before the Court is Defendants' Amended Motion to Dismiss.*fn2
Defendants move to dismiss Plaintiff Ricky Brooks' complaint
for failure to state a claim pursuant to Rule 12(b)(6). Having
considered the full briefing on this motion, and for the reasons set
forth below, Defendants' motion is granted and Plaintiff's complaint
is dismissed with prejudice.
Plaintiff Brooks was employed by the Transportation Security Administration ("TSA") starting March 31, 2002, and later accepted an airport supervisory security screener position at the General Mitchell International Airport in Milwaukee, Wisconsin. (Compl. ¶ 4). On December 3, 2003, TSA removed Brooks from this position and Brooks timely filed an EEO complaint alleging that his removal was due to discriminatory reprisal. (Compl. ¶¶ 9, 10). After a hearing, an EEOC administrative judge informed the parties that he would find unlawful reprisal concerning Plaintiff's termination and scheduled a hearing for damages on September 27, 2005. (Compl. ¶¶ 11, 12). Before the hearing on damages, Brooks and the TSA executed a settlement agreement ("2005 Settlement Agreement"). (Compl. ¶ 12).
As part of the 2005 Settlement Agreement, the parties agreed that Brooks would be reinstated as a Transportation Security Screener after he passed all components of Phase 2 of the TSA screener assessment, which included a medical assessment. (Defs.' Mem. Supp. Am. Mot. Dismiss, Exh.1 ¶ A.4). Notwithstanding the fact that a physician certified that Brooks was capable of performing his job as a screener without imposing risks to himself, co-workers or customers, the TSA medically disqualified Brooks from being a screener at the agency based on his diabetic condition. (Compl. ¶ 13; Defs.' Mem. Supp. Am. Mot. Dismiss, Exh. 2 at 2).
Subsequently, Brooks filed an appeal with the EEOC to enforce the settlement agreement and restore him back to employment. (Compl. ¶ 14). On July 3, 2008, the Office of Federal Operations ("OFO"), EEOC, responded to Brooks' appeal and concluded that the matter required a hearing before an EEOC administrative judge to determine, among other things, how the TSA Medical Guidelines' standard was applied to disqualify Brooks from the screener position. (Compl. ¶ 15). On September 29, 2009, the administrative judge found that TSA discriminated against Brooks by applying the Medical Guidelines disparately when TSA did not give Brooks 65 days to submit additional medical evidence to establish that he was fit to return to duty. (Compl. ¶ 16).
On November 5, 2009, TSA issued a final order and appealed the administrative judge's September 29, 2009 decision finding disparate treatment. (Compl. ¶ 21). Brooks asks this Court to issue a writ of mandamus requiring the Defendants to comply with 29 C.F.R. § 1614.505 and provide interim relief during the pendency of TSA's administrative appeal.*fn3
Defendants have moved to dismiss the complaint pursuant to Rule 12(b)(6). Fed. R. Civ. P. 12(b)(6). "To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain sufficient factual matter, acceptable as true, to state a claim to relief that is plausible on its face." Anderson v. Holder, 691 F. Supp. 2d 57, 61 (D.D.C. 2010) (brackets omitted) (quoting Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)) (internal quotes omitted).
A court considering a Rule 12(b)(6) motion must construe the complaint in the light most favorable to plaintiff and must accept as true all reasonable factual inferences drawn from well-pleaded factual allegations. In re United Mine Workers of Am. Employee Benefit Plans Litig., 854 F. Supp. 914, 915 (D.D.C. 1994). However, where the well-pleaded facts do not permit a court, drawing on its judicial experience and common sense, to infer more than the "mere possibility of misconduct," the complaint has not shown that the pleader is entitled to relief. Iqbal, 129 S. Ct. at 1950. In evaluating a Rule 12(b)(6) motion to dismiss, a court "may consider only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint and matters of which [a court] may take judicial notice." Trudeau v. FTC, 456 F.3d 178, 183 (D.C. Cir. 2006) (quoting EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624-25 (D.C. Cir. 1997)).
A.Brooks is not entitled to relief under the EEOC regulations Brooks seeks interim relief during the pendency of the TSA's November 5, 2009 appeal under 29 C.F.R. § 1614.505. Section 1614.505 states, in pertinent part:
(a)(1) When the agency appeals and the case involves removal, separation, or suspension continuing beyond the date of the appeal, and when the administrative judge's decision orders retroactive restoration, the agency shall comply with the decision to the extent of the temporary or conditional restoration of the employee to duty status in the position specified in the decision, pending the outcome of the agency appeal. The employee may decline the offer of interim relief.
(b) If the agency files an appeal and has not provided required interim relief, the complainant may request dismissal of the agency's appeal. Any such request must be filed with the Office of Federal Operations within 25 days of the date of service of the agency's appeal. A copy of the request must be served on the agency at the same time it is filed with EEOC. The agency may respond with evidence and ...