SAN FRANCISCO (CN) – A federal judge on Monday said he will partly dismiss a class action claiming the Transportation Security Administration discriminated against older employees by shuttering six offices where older air marshals worked.
Lead plaintiff K.H. sued the Department of Homeland Security in June 2015, claiming 90 percent of Federal Air Marshal Service employees affected by the closures were older than 40.
K.H. says he sued under his initials because “public disclosure of his name may compromise national security or endanger his personal safety.”
The decision to close offices in Cincinnati, Cleveland, Tampa, Phoenix, Pittsburgh and San Diego was part of a plan to “purge” the workforce of older air marshals so the TSA could “hire two young field air marshals for every older field air marshal,” K.H. claims.
During Monday’s hearing, U.S. District Judge John S. Tigar said he will strike the plaintiffs’ claim for compensatory damages, but the disparate impact claims will survive.
Wendy Garbers of the U.S. Attorney’s Office argued that K.H. could not claim damages for lost wages because he was reassigned from Tampa to the San Francisco field office, “where his compensation actually increased,” according to the government’s motion to dismiss.
“There are many affected federal air marshals, many of which were unable to take the [relocation] offer and resigned, many who could not make the transition,” class attorney Nicholas Wieczorek responded.
The judge asked Wieczorek if he believed absent class members had more substantial lost wages claims, and Wieczorek answered, “Yes.”
“If there is another class member, now would be the time to add that person as a plaintiff,” Garbers responded.
On the disparate impact claims, Garbers said the Age Discrimination in Employment Act has different standards for whether private and public employers can be held liable. She said the federal government enjoys sovereign immunity unless it intentionally discriminates against employees based on age.
Garbers added that since the Supreme Court’s 2005 ruling in Smith v. City of Jackson upheld the private-sector provision of the law, a majority of courts found that federal employees cannot bring disparate impact claims against the government.
“Certain courts in this district and circuit believe disparate impact claims are recoverable,” Wieczorek countered. “I believe the City of Jackson ruling was trying to broaden the recovery available to those impacted by these claims, facts will dictate if the claims will prevail. I believe it is appropriate to allow that claim to survive and move forward.”
During a case management conference following the motion to dismiss hearing, Garbers asked the judge to rule on a motion for summary judgment prior to hearing arguments on class certification.
“Summary judgment motion will be to put the evidence before the court that these six offices were closed for efficiency, risk and national security reasons and to best align them with staffing air marshals,” Garbers said. “It was a way to use the government resources most efficiently to defeat terrorist threats.”
Tigar responded that defendants often ask the court to consider a motion for summary judgment prior to ruling on class certification in order to put the plaintiffs at a disadvantage, but he found the prospect unwarranted in this case.
“I’m likely to not phase discovery, to hear class certification and let the defendant file a motion for summary judgment after class certification,” Tigar said. “I think that’s where we’re going.”
Wieczorek initially proposed a May 2016 hearing date for the class certification motion.
The judge ordered both parties to submit their joint or competing proposed schedules for discovery, reply briefs and hearing dates by Nov. 23.
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