In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1017
V ERLAINE JOREN,
Plaintiff-Appellant,
v.
JANET A. N APOLITANO, Secretary of
Department of Homeland Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:08-cv-04757—Elaine E. Bucklo, Judge.
S UBMITTED S EPTEMBER 23, 2010 —D ECIDED F EBRUARY 7, 2011
Before R OVNER, E VANS, and W ILLIAMS, Circuit Judges.
P ER C URIAM. Verlaine Joren sued the Transportation
Security Administration (TSA), alleging that she was
forced to quit her job as a security screener at Midway
After examining the briefs and record, we have concluded
that oral argument is unnecessary. Thus, the appeal is sub-
mitted on the briefs and record. See F ED . R. A PP . P. 34(a)(2)(C).
2 No. 10-1017
Airport after her supervisor discriminated against her
based on her disability, age, and gender and retaliated
against her for settling a previous complaint about the
discrimination. The district court granted the TSA’s
motion to dismiss, concluding that Joren failed to state a
claim for relief under Title VII, 42 U.S.C. §§ 2000e to
2000e-17, and that as a former employee of the TSA, she
was ineligible to seek redress under the Rehabilitation
Act, see 29 U.S.C. §§ 791, 794.
Although Joren alleges discrimination based on gender,
age, and disability, the facts recounted in her second
amended complaint—which we accept as true for pur-
poses of this appeal, see Tamayo v. Blagojevich, 526 F.3d
1074, 1081 (7th Cir. 2008)—focus on her disability.
Joren, who was 63 years old when she filed this suit, has
a blood-clotting disorder that causes chronic leg pain
and bleeding and that occasionally limits her ability to
stand or walk. She asked her supervisor, Arthur Bell, to
accommodate this condition by modifying her schedule,
assigning her to light-duty tasks, or allowing her to
relocate from Midway to an airport in Florida where
“weather conditions might be more hospitable to her
medical condition.” But Bell, skeptical of Joren’s condi-
tion, rejected the proposed accommodations. Instead,
according to Joren, he refused to recognize her seniority,
required her to participate in excessive and unneces-
sary job training, contacted her doctor without her per-
mission, and added notations to her personnel file
that would derail her efforts to transfer to Florida. And
when Joren came to work in December 2003 wearing
a temporary heart monitor that required her to maintain
No. 10-1017 3
a safe distance from x-ray machines, Bell allegedly
refused to give her a temporary reassignment without
a letter from a doctor quantifying what was meant by
“safe distance.”
Joren maintains that her employment situation
became untenable in January 2004 when Bell summoned
her to the airport for a meeting with TSA officials from
Washington. At the meeting Bell confronted Joren re-
garding an unspecified “wrongful situation” apparently
relating to claims Joren had filed with the Social Security
Administration. This conversation greatly distressed
Joren, so she resigned. Later, Bell refused to send Joren
the paperwork she needed to maintain her health-insur-
ance coverage.
Joren’s operative complaint represents her third try
after the district court dismissed her first two as inade-
quate under Rule 8 of the Federal Rules of Civil Proce-
dure. In her first amended complaint, Joren alleged that
the TSA forced her to quit because of her disability in
violation of the Rehabilitation Act, which governs claims
of disability discrimination by federal employees. See
Mannie v. Potter, 394 F.3d 977, 982 (7th Cir. 2005). The
court dismissed this complaint on grounds that the Avia-
tion and Transportation Security Act (ATSA), Pub. L.
No. 107-71, 115 Stat. 597, preempted the Rehabilitation
Act and precluded security screeners from stating a
claim of disability discrimination. Joren amended her
complaint a second time, claiming that she was construc-
tively discharged, subjected to a hostile work environ-
ment, and retaliated against—all in violation of Title VII;
4 No. 10-1017
she also repeated her claim that the TSA discriminated
against her based on her disability in violation of the
Rehabilitation Act. Although Joren styled the first three
claims as arising under Title VII, the district court con-
strued the facts included in each count as alleging dis-
crimination based on disability, which is not covered by
that Act. The court then reaffirmed that Joren’s claims
of disability discrimination under the Rehabilitation Act
were preempted by the ATSA.
On appeal Joren argues that the district court misread
the allegations in her complaint. She insists that her case
has always been about sex discrimination and contends
that the district court erred in concluding that she had
not stated a claim of discrimination based on her gender.
Joren does, however, continue to assert that she was
discriminated against based on her age and disability,
so we will address all three possible claims.
On two of her theories, the district court properly
dismissed Joren’s suit for failing to “ ‘state a claim to
relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 129
S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). To survive a motion to dismiss
on the basis of gender discrimination, Joren needed to
allege that the TSA instituted an adverse employment
action against her “on the basis of her sex.” See Tamayo,
526 F.3d at 1084. Joren alleges that she was forced to
quit, subjected to retaliation, and made to endure a
hostile work environment, but her allegations do not
suggest that gender motivated any of these actions.
Joren’s allegations of age discrimination similarly fail
No. 10-1017 5
to suggest that her age played any role in the treatment
she received.
Joren’s claim of disability discrimination, however,
raises a question of first impression in this circuit: Does
the ATSA prohibit security screeners from successfully
bringing discrimination claims against the TSA under
the Rehabilitation Act? In the immediate aftermath of
the terrorist attacks of September 11, 2001, Congress
passed the ATSA, which established the TSA as the
federal agency responsible for airport security screening.
The ATSA charged the TSA with improving aviation
security and establishing qualification standards for
airport security screeners.
We now join every other circuit to have considered
the question and conclude that the plain language of the
ATSA preempts application of the Rehabilitation Act to
security screeners. See Castro v. Sec’y of Homeland Sec., 472
F.3d 1334, 1337 (11th Cir. 2006); Conyers v. Merit Sys. Prot.
Bd., 388 F.3d 1380, 1383 (Fed. Cir. 2004); see also Conyers
v. Rossides, 558 F.3d 137, 144 (2d Cir. 2009). Specifically,
the ATSA provides that “[n]otwithstanding any other
provision of law, the Under Secretary of Transportation
for Security may employ, appoint, discipline, terminate,
and fix the compensation, terms, and conditions of em-
ployment of Federal service for . . . individuals . . . to
carry out the screening functions.” 49 U.S.C. § 44935(f)
(codified as a note). The Supreme Court has recognized
in other contexts that the use of a “notwithstanding”
clause signals Congressional intent to supercede con-
flicting provisions of any other statute. See Cisneros v.
6 No. 10-1017
Alpine Ridge Grp., 508 U.S. 10, 18 (1993). Our sister circuits
have applied the Supreme Court’s directive to this pro-
vision of the ATSA and concluded that Congress in-
tended to enhance the Secretary’s flexibility in hiring
security screeners to allow selection without regard to
the prohibitions against disability discrimination in the
Rehabilitation Act. See Conyers v. Rossides, 558 F.3d at 144-
45; Castro, 472 F.3d at 1338; Conyers v. Merit Sys. Prot. Bd.,
388 F.3d at 1383. We agree with this approach and con-
clude that the ATSA’s plain language reflects Congress’s
intent to preempt the application of the Rehabilitation
Act to security screening positions.
Because Joren may not bring a claim of disability dis-
crimination under the Rehabilitation Act and because
she has also not stated a valid claim of age or gender
discrimination, the judgment of the district court
is A FFIRMED.
2-7-11