Perry v. Department of Veterans Affairs

Filing 25

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)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BONITA PERRY

CIVIL ACTION

VERSUS

NO. 17-6834

DEPARTMENT OF VETERAN
AFFAIRS

SECTION “R” (5)

ORDER AND REASONS
Defendant U.S. Department of Veterans Affairs moves to dismiss
plaintiff Bonita Perry’s Americans with Disabilities Act claim, and partially
dismiss, or in the alternative sever and transfer, her Rehabilitation Act
claim. 1 For the following reasons, the Court grants the motion.

I.

BACKGROUND
Plaintiff is an employee of the U.S. Department of Veterans Affairs

(VA). 2 In November 2013, she was allegedly transferred to a VA facility in
Fort Polk, Louisiana. 3 Plaintiff alleges that she sought accommodations for
physical disabilities in spring 2014, and sought a transfer to a VA facility in

1
2
3

R. Doc. 16.
R. Doc. 1 at 2 ¶ 6.
Id.

Mobile, Alabama because of mental disabilities.4 The VA allegedly failed to
reasonably accommodate her physical disabilities, and denied her transfer
request in retaliation for seeking accommodations.5 Plaintiff further alleges
that she applied to several positions at VA offices in Alabama and Florida,
but that she was not hired, both because of her disabilities and in retaliation
for seeking accommodations.6
Plaintiff sued the VA in this Court on July 17, 2017, asserting claims
under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. 7
The VA now moves to dismiss part of plaintiff’s Rehabilitation Act claim for
improper venue. 8 In the alternative, the VA moves to sever part of the
Rehabilitation Act claim and transfer it to an appropriate district. The VA
also moves to dismiss plaintiff’s ADA claim under Federal Rule of Civil
Procedure 12(b)(6).

Id. at 2 ¶ 7, 3 ¶ 8. The complaint does not specify the physical or
mental disabilities for which plaintiff sought accommodations.
5
Id.
6
Id. at 3 ¶ 10; R. Doc. 16-3.
7
R. Doc. 1 at 3-4.
8
R. Doc. 16.
2
4

II.

DISCUSSION
The VA first moves to dismiss plaintiff’s Rehabilitation Act claim to the

extent it is based on unlawful employment 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 Alabama and Florida.
According to the VA, these employment decisions were made by the
Montgomery, Alabama Regional Office. 10 As an alternative to dismissing
plaintiff’s Rehabilitation Act claim based on decisions made by the
Montgomery Regional Office, the VA moves to sever this claim and transfer
it to an appropriate district. 11
Venue must be proper for each cause of action in a complaint. See
Tucker v. U.S. Dep’t of Army, 42 F.3d 641 (5th Cir. 1994) (per curiam).
Rehabilitation Act claims, like ADA claims, are subject to specific venue
rules. See 29 U.S.C. § 794(d) (“The standards used to determine whether
[the Rehabilitation Act] has been violated in a complaint alleging
employment discrimination 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

§ 2000e-5(f) applies to Rehabilitation Act claims). Such claims must be
brought in one of three venues: (1) “any judicial district in the State in which
the unlawful employment practice is alleged to have been committed,”
(2) “the judicial district in which the employment records relevant to such
practice are maintained and administered,” or (3) “the judicial district in
which the aggrieved person would have worked but for the alleged unlawful
employment practice.” 42 U.S.C. § 2000e-5(f)(3).
To the extent plaintiff challenges the VA’s failure to reasonably
accommodate her disabilities at the Fort Polk facility, or otherwise
challenges disability discrimination that occurred in Louisiana, venue is
clearly proper in this Court. But venue is not proper as to the Montgomery
Regional Office’s alleged failure to hire or transfer plaintiff.

Plaintiff

concedes that these decisions were made by the Montgomery Regional Office
in Alabama.12

Records relating to these decisions are maintained in

Montgomery. 13 And plaintiff would have worked in Mobile, Montgomery, or
Pensacola, Florida but for these allegedly unlawful employment practices.14
Indeed, plaintiff even filed two separate administrative 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 Montgomery Regional Office. 15
Because venue is not proper as to some, but not all, of plaintiff’s claims,
the Court must determine whether to dismiss the claim for which venue is
improper or sever and transfer it to an appropriate district. Federal Rule of
Civil Procedure 12(b)(3) permits a court to dismiss a claim for improper
venue. Under Rule 21, a “court may also sever any claim against a party.”
Fed. R. Civ. P. 21; see also Applewhite v. Reichhold Chems., 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 misjoined or might otherwise cause delay
or prejudice.”); United States v. O’Neil, 709 F.2d 361, 369 (5th Cir. 1983)
(rejecting the contention that “Rule 21 may be used only to cure misjoinder
of parties”). Once a claim is severed, it becomes an independent action.
O’Neil, 709 F.2d at 368. The court may 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. § 1406; see also FDIC v. McGlamery,
74 F.3d 218, 222 (10th Cir. 1996) (approving of severance and transfer of
certain claims); Toro Co. v. Alsop, 565 F.2d 998, 1000 (8th Cir. 1977) (same);
Prescott-Harris v. Fanning, No. 15-1716, 2016 WL 7223276, at *7 (D.D.C.

15

See R. Doc. 16-2 at 4, 20.
5

Dec. 12, 2016) (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 made
by the Montgomery Regional Office. An employment discrimination suit in
federal court must be filed within 90 days of the final agency action. 42
U.S.C. § 2000e-16(c). The VA issued its final agency decision on plaintiff’s
complaint against the Montgomery Regional Office on April 18, 2017. 16
Thus, if the Court dismissed plaintiff’s Rehabilitation Act claim in part,
plaintiff could not timely refile it in federal court. Severance and transfer
would avert this prejudice to plaintiff. See Herman v. Cataphora, Inc., 730
F.3d 460, 466 (5th Cir. 2013) (noting that transfer is in the interest of justice
“to avoid any potential statute of limitations issues”). Accordingly, the Court
will sever and transfer this claim to the District Court for the Middle District
of Alabama, where the VA made its hiring and transfer decisions and where
records relating to these decisions are maintained.
The VA also moves to dismiss plaintiff’s ADA claim because federal
employees 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 employees who
complain of disability discrimination. Cavada v. McHugh, 589 F. App’x 717,
718 (5th Cir. 2014). Plaintiff does not oppose dismissal of this claim, and the
Court will dismiss it.

III. CONCLUSION
For the foregoing reasons, the Court GRANTS defendant’s partial
motion to dismiss. Plaintiff’s ADA claim is DISMISSED WITH PREJUDICE.
Plaintiff’s 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.

26th
New Orleans, Louisiana, this _____ day of December, 2017.

_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

7