Perry v. Department of Veterans Affairs, No. 2:2017cv06834 - Document 25 (E.D. La. 2017)
Court Description: ORDER granting defendants partial motion to dismiss. Plaintiffs ADA claim is DISMISSED WITH PREJUDICE. Plaintiffs Rehabilitation Act claim based on decisions made by the Montgomery Regional Office is SEVERED and TRANSFERRED to the District Court for the Middle District of Alabama. Signed by Judge Sarah S. Vance on 12/26/2017. (CC: USDC MDAL) (caa)
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Perry v. Department of Veterans Affairs Doc. 25 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA BONITA PERRY CIVIL ACTION VERSUS NO. 17-6834 DEPARTMENT OF VETERAN AFFAIRS SECTION “R” (5) ORD ER AN D REASON S Defendant U.S. Department of Veterans Affairs moves to dism iss plaintiff Bonita Perry’s Am ericans with Disabilities Act claim , and partially dism iss, or in the alternative sever and transfer, her Rehabilitation Act claim . 1 For the following reasons, the Court grants the motion. I. BACKGROU N D Plaintiff is an employee of the U.S. Department of Veterans Affairs (VA). 2 In November 20 13, she was allegedly transferred to a VA facility in Fort Polk, Louisiana. 3 Plaintiff alleges that she sought accom m odations for physical disabilities in spring 20 14, and sought a transfer to a VA facility in 1 2 3 R. Doc. 16. R. Doc. 1 at 2 ¶ 6. Id. Dockets.Justia.com Mobile, Alabam a because of m ental disabilities. 4 The VA allegedly failed to reasonably accomm odate her physical disabilities, and denied her transfer request in retaliation for seeking accomm odations. 5 Plaintiff further alleges that she applied to several positions at VA offices in Alabam a and Florida, but that she was not hired, both because of her disabilities and in retaliation for seeking accomm odations. 6 Plaintiff sued the VA in this Court on J uly 17, 20 17, asserting claim s under the Am ericans with Disabilities Act (ADA) and the Rehabilitation Act. 7 The VA now m oves to dism iss part of plaintiff’s Rehabilitation Act claim for im proper venue. 8 In the alternative, the VA m oves to sever part of the Rehabilitation Act claim and transfer it to an appropriate district. The VA also m oves to dism iss plaintiff’s ADA claim under Federal Rule of Civil Procedure 12(b)(6). 4 Id. at 2 ¶ 7, 3 ¶ 8. The com plaint does not specify the physical or m ental disabilities for which plaintiff sought accom m odations. 5 Id. 6 Id. at 3 ¶ 10 ; R. Doc. 16-3. 7 R. Doc. 1 at 3-4. 8 R. Doc. 16. 2 II. D ISCU SSION The VA first m oves to dism iss plaintiff’s Rehabilitation Act claim to the extent it is based on unlawful em ploym ent practices that occurred outside Louisiana. 9 Specifically, the VA argues that venue is not proper with respect to plaintiff’s claim against the VA for its failure to transfer her to the Mobile office and its failure to hire her for positions in Alabam a and Florida. According to the VA, these em ploym ent decisions were m ade by the Montgom ery, Alabam a Regional Office. 10 As an alternative to dism issing plaintiff’s Rehabilitation Act claim based on decisions m ade by the Montgom ery Regional Office, the VA m oves to sever this claim and transfer it to an appropriate district. 11 Venue m ust be proper for each cause of action in a com plaint. See Tucker v. U.S. Dep’t of Arm y , 42 F.3d 641 (5th Cir. 1994) (per curiam). Rehabilitation Act claim s, like ADA claim s, are subject to specific venue rules. See 29 U.S.C. § 794(d) (“The standards used to determ ine whether [the Rehabilitation Act] has been violated in a com plaint alleging em ploym ent discrim ination under this section shall be the standards applied under [the ADA] . . . .”); id. § 794a(a)(1) (providing that 42 U.S.C. 9 10 11 R. Doc. 16-1 at 4. Id. at 5-6; R. Doc. 16-3 at 2. R. Doc. 16-1 at 8. 3 § 20 0 0 e-5(f) applies to Rehabilitation Act claim s). Such claim s m ust be brought in one of three venues: (1) “any judicial district in the State in which the unlawful em ployment practice is alleged to have been com m itted,” (2) “the judicial district in which the em ployment records relevant to such practice are m aintained and adm inistered,” or (3) “the judicial district in which the aggrieved person would have worked but for the alleged unlawful em ploym ent practice.” 42 U.S.C. § 20 0 0 e-5(f)(3). To the extent plaintiff challenges the VA’s failure to reasonably accom m odate her disabilities at the Fort Polk facility, or otherwise challenges disability discrim ination that occurred in Louisiana, venue is clearly proper in this Court. But venue is not proper as to the Montgom ery Regional Office’s alleged failure to hire or transfer plaintiff. Plaintiff concedes that these decisions were m ade by the Montgomery Regional Office in Alabam a. 12 Records relating to these decisions are m aintained in Montgom ery. 13 And plaintiff would have worked in Mobile, Montgom ery, or Pensacola, Florida but for these allegedly unlawful em ploym ent practices. 14 Indeed, plaintiff even filed two separate adm inistrative actions: one 12 13 14 R. Doc. 21-1 at 2. R. Doc. 16-3 at 2. Id. at 1-2. 4 challenging conduct by the New Orleans Regional Office, and the other challenging conduct by the Montgom ery Regional Office. 15 Because venue is not proper as to some, but not all, of plaintiff’s claims, the Court m ust determ ine whether to dism iss the claim for which venue is im proper or sever and transfer it to an appropriate district. Federal Rule of Civil Procedure 12(b)(3) perm its a court to dism iss a claim for im proper venue. Under Rule 21, a “court may also sever any claim against a party.” Fed. R. Civ. P. 21; see also Applew hite v. Reichhold Chem s., Inc., 67 F.3d 571, 574 (5th Cir. 1995) (“Under Rules 20 and 21, the district court has the discretion to sever an action if it is m isjoined or m ight otherwise cause delay or prejudice.”); United States v. O’N eil, 70 9 F.2d 361, 369 (5th Cir. 1983) (rejecting the contention that “Rule 21 m ay be used only to cure m isjoinder of parties”). Once a claim is severed, it becom es an independent action. O’N eil, 70 9 F.2d at 368. The court m ay transfer that severed action “to any district or division in which it could have been brought,” if such transfer is “in the interest of justice.” 28 U.S.C. § 140 6; see also FDIC v. McGlam ery , 74 F.3d 218, 222 (10 th Cir. 1996) (approving of severance and transfer of certain claim s); Toro Co. v. Alsop, 565 F.2d 998, 10 0 0 (8th Cir. 1977) (same); Prescott-Harris v. Fanning, No. 15-1716, 20 16 WL 7223276, at *7 (D.D.C. 15 See R. Doc. 16-2 at 4, 20 . 5 Dec. 12, 20 16) (severing and transferring Rehabilitation Act claim for which venue was not proper). The Court finds that it is in the interest of justice to sever and transfer plaintiff’s Rehabilitation Act claim to the extent it is based on decisions m ade by the Montgomery Regional Office. An em ployment discrim ination suit in federal court m ust be filed within 90 days of the final agency action. 42 U.S.C. § 20 0 0 e-16(c). The VA issued its final agency decision on plaintiff’s com plaint against the Montgom ery Regional Office on April 18, 20 17. 16 Thus, if the Court dism issed plaintiff’s Rehabilitation Act claim in part, plaintiff could not tim ely refile it in federal court. Severance and transfer would avert this prejudice to plaintiff. See Herm an v. Cataphora, Inc., 730 F.3d 460 , 466 (5th Cir. 20 13) (noting that transfer is in the interest of justice “to avoid any potential statute of lim itations issues”). Accordingly, the Court will sever and transfer this claim to the District Court for the Middle District of Alabam a, where the VA m ade its hiring and transfer decisions and where records relating to these decisions are m aintained. The VA also m oves to dism iss plaintiff’s ADA claim because federal em ployees are not covered by the ADA. 17 See 42 U.S.C. § 12111(5)(B). The 16 17 R. Doc. 1 at 1-2 ¶ 2. R. Doc. 16-1 at 10 . 6 Rehabilitation Act is the sole avenue of recovery for federal em ployees who com plain of disability discrim ination. Cavada v. McHugh, 589 F. App’x 717, 718 (5th Cir. 20 14). Plaintiff does not oppose dism issal of this claim , and the Court will dism iss it. III. CON CLU SION For the foregoing reasons, the Court GRANTS defendant’s partial m otion to dism iss. Plaintiff’s ADA claim is DISMISSED WITH PREJ UDICE. Plaintiff’s Rehabilitation Act claim based on decisions m ade by the Montgom ery Regional Office is SEVERED and TRANSFERRED to the District Court for the Middle District of Alabam a. 26th New Orleans, Louisiana, this _ _ _ _ _ day of Decem ber, 20 17. _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 7
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