Schneider, Daniel v. United States Postal Service et al

Filing 18

ORDER granting 6 Motion to dismiss or transfer. This case is transferred to US District Court Eastern District of Wisconsin. Signed by District Judge James D. Peterson on 1/4/2016. (voc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

DANIEL R. SCHNEIDER,
OPINION & ORDER
Plaintiff,
v.

15-cv-263-jdp

MEGAN J. BRENNAN, and
UNITED STATES POSTAL SERVICE,
Defendants.

Plaintiff Daniel R. Schneider contends that while working for the United States Postal
Service (USPS) in Franklin, Wisconsin, he faced discrimination and harassment because of
his disability and that his employer disseminated information regarding his disability to other
employees. He brings this suit against the USPS and Postmaster General Megan J. Brennan
alleging violations of the Rehabilitation Act, 29 U.S.C. § 794a, and the Privacy Act, 5 U.S.C.
§ 552a. (The court will refer to the defendants together as “USPS.”)
The issue before the court is where this case should be litigated. Franklin is in the
Eastern District of Wisconsin, and Schneider lives in Florida. USPS has moved to transfer
the case to the Eastern District. USPS contends that venue in the Western District is
improper under the Privacy Act’s venue statute, and that although venue for the
Rehabilitation Act claim would be proper in either district, the Eastern District is a more
convenient forum and the only district where the claims could be heard together. Schneider
opposes the transfer. Defendants’ motion will be granted, and the case will be transferred to
the Eastern District of Wisconsin.
The Privacy Act has a venue statute that allows suit in four locations: where the
plaintiff resides; where the plaintiff has his principal place of business; where the agency

records are situated; or the District of Columbia. 5 U.S.C. § 522a(g). Under the facts of this
case, venue would be proper only in the Eastern District or in the District of Columbia.
Venue for Schneider’s Rehabilitation Act claim would be proper in either the Western or the
Eastern District. But the interests of justice and the balance of convenience strongly favor
transfer of both claims to the Eastern District, where Schneider’s claims can be resolved
together.

ALLEGATIONS OF FACT
On a motion to dismiss for improper venue, the court may consider the allegations of
complaint and information submitted by affidavits. See Cont’l Cas. Co. v. Am. Nat. Ins. Co.,
417 F.3d 727, 733 (7th Cir. 2005). The court will accept as true the allegations in the
complaint unless they are contradicted by affidavits. See Faulkenberg v. CB Tax Franchise Sys.,
LP, 637 F.3d 801, 809-10 (7th Cir. 2011). The court resolves all factual disputes and draws
all reasonable inferences in the plaintiff’s favor. Id. at 806. In this case, although USPS
disputes the substantive allegations, the facts relevant to the transfer analysis are undisputed.
Schneider worked for USPS in various positions and locations since 1988. In 2009, he
lived and worked in Madison, Wisconsin. Schneider suffered from depression, which in 2011
led him to take a less stressful position with USPS in Franklin, Wisconsin. He commuted
approximately 80 miles from his Madison home to his work in Franklin. The commute itself
was stressful, and Schneider applied for lateral positions in Madison, but his applications
were unsuccessful. Schneider alleges that he sought other reasonable accommodations of his
disability, but that his requests were denied and that he was met with harassment and
retaliation. He also alleges that during the course of this conflict, his USPS supervisors

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improperly disclosed his confidential health information to other USPS employees. Schneider
took a disability retirement in 2013 (unwillingly, he alleges). In 2014, he moved to Florida,
where he currently resides.
Schneider’s daughter lives in Janesville, Wisconsin, which Schneider regards as his
“second home.” Dkt. 12. Schneider spent approximately five weeks in Wisconsin in the year
after he moved to Florida, which Schneider concedes is his “primary residence.” Schneider
plans to stay with his daughter if his presence is required for this litigation, and he contends
that a commute from Janesville to Milwaukee, rather than to Madison, would cause him
“additional stress.” (The court takes judicial notice that the distance from Janesville to
Milwaukee is approximately 70 miles; Janesville to Madison is approximately 40 miles.)
Schneider lists six medical providers and six friends who live in the Madison area who may
testify on his behalf, although he does not describe the subject of their testimony in detail.
USPS manages most of its Wisconsin postal operations from the Lakeland District
Office in Milwaukee. Dkt. 8. The records pertinent to this case are maintained either at the
Lakeland District Office, the Franklin post office, or a centralized record facility in
Greensboro, North Carolina. The majority of the USPS employees most involved in this
matter are still employed by USPS in the Milwaukee area; some have left USPS; none are
located in the Western District of Wisconsin.
This court has subject matter jurisdiction under 28 U.S.C. § 1331 because the action
arises under federal law.

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ANALYSIS
Schneider’s complaint alleges violations of the Rehabilitation Act and the Privacy Act.
Both acts have venue statutes. USPS contends that the venue provision of the Privacy Act
would not allow this suit in the Western District, and thus it has moved to dismiss or transfer
that claim for improper venue, pursuant to 28 U.S.C. § 1406(a). For the Rehabilitation Act
claims, USPS agrees that venue would proper in the Western District, but it has moved to
transfer those claims pursuant to 28 U.S.C. § 1404(a).
A. Privacy Act Claim
For claims under the Privacy Act, venue is proper in “the district in which the
complainant resides, or has his principal place of business, or in which the agency records are
situated, or in the District of Columbia.” 5 U.S.C. § 552a(g)(5). Schneider contends, without
citing any authority, that because he was a resident of the Western District at the time the
cause of action arose, the venue statute would allow suit in the Western District. Dkt. 11, at
3-4. The court disagrees.
The general rule is that courts determine venue based on the facts at the time the suit
was filed, not when the cause of action arose. See, e.g., Daughetee v. CHR Hansen, Inc., No. 09cv-41, 2011 WL 1113868, at *4 (N.D. Iowa Mar. 25, 2011) (collecting cases). The court has
not found any decision specifically addressing this question in the context of a Privacy Act
claim, but the general rule is widely followed. See id. District courts within the Seventh
Circuit consistently follow the general rule that venue is determined at the time an action
commences. Grinnell Mut. Reinsurance Co. v. Ferando, No. 09-cv-3224, 2009 WL 4021351, at
*5 (C.D. Ill. Nov. 17, 2009) (“[R]esidence for venue purposes is determined at the time the

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lawsuit is filed.”); see also Abdul-Ahad v. Top Tobacco Co., No. 99-cv-4067, 1999 WL 967514,
*3 n.2 (N.D. Ill. Oct. 6, 1999) (“[V]enue is determined at the time of filing.”).
Schneider concedes that he was a resident of Florida when this suit was filed. Dkt. 12
¶ 6. The fact that he regards his daughter’s residence as a “second home” is immaterial. Thus,
venue is not proper in the Western District on the basis of Schneider’s residence. The Privacy
Act would provide for venue in this district if USPS records were situated here. But USPS has
established that its records are stored in the Eastern District and in North Carolina. Dkt. 7.
Thus, venue is not proper in the Western District on the basis of USPS records.
The next question is whether the court should dismiss this case for improper venue or
transfer it. Section 1406(a) provides that when venue is improper, the district court “shall
dismiss, or if it be in the interest of justice, transfer such case to any district or division in
which it could have been brought.” District courts have “broad discretion to grant or deny a
motion to transfer the case.” Cote v. Wadel, 796 F.2d 981, 985 (7th Cir. 1986). If dismissal
may prevent the plaintiff from refiling his claim due to time limitations, “‘the interest of
justice’ may require that the complaint not be dismissed but rather that it be transferred in
order that the plaintiff not be penalized.” Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466-67
(1962).
It is possible that Schneider would be time barred from refiling if the court dismissed
his complaint. The statute of limitations for the Privacy Act is two years, § 552a(g)(5), and it
“starts to run when the plaintiff first knew or had reason to know of a violation.” Davis v.
United States DOJ, 204 F.3d 723, 726 (7th Cir. 2000). This case was filed on May 6, 2015,
so the limitations period reaches back to May 6, 2013, about the time Schneider took his
disability retirement. Thus, there is a risk that dismissal of the claim at this point could bar

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refiling based on the two-year limitation. To avoid this injustice, the court will transfer this
claim rather than dismiss it.
Under § 1406(a), the court may only transfer a claim to a district “in which it could
have been brought.” For reasons explained above, the Privacy Act claim could have been
brought in the Eastern District because relevant agency records are located in the Eastern
District, which satisfies the venue provision of the Privacy Act. § 552a(g)(5). The Eastern
District is also a logical venue to try the claim because all the alleged Privacy Act violations
involved disclosures between employees working in the Eastern District.
B. Rehabilitation Act Claims
USPS does not contest venue for the Rehabilitation Act claim in the Western District.
But USPS contends that the court should transfer the Rehabilitation Act claims to the
Eastern District of Wisconsin because it is the more convenient forum and because it would
be in the interest of justice to try Schneider’s claims together. Dkt. 7, at 11-15.
Under § 1404(a) a federal court may “[f]or the convenience of parties and witnesses,
in the interest of justice . . . transfer any civil action to any other district or division where it
might have been brought.” Id. In the Seventh Circuit, transfer is proper where the moving
party demonstrates that: (1) venue is proper in the transferor district; (2) venue and
jurisdiction are proper in the transferee district; and (3) the transfer will serve the
convenience of the parties and witnesses and the interests of justice. Coffey v. Van Dorn Iron
Works, 796 F.2d 217, 219-20 (7th Cir. 1986).
The first two requirements for transfer are not contested. For the Rehabilitation Act
claims, all agree that venue would proper in the Western District and that the Eastern
District is a proper venue with jurisdiction. The Eastern District is a proper venue because

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the Rehabilitation Act’s venue statute allows suit in a district “in which the unlawful
employment practice is alleged to have been committed.” 42 U.S.C. § 2000e-5(f)(3). Most of
alleged violations occurred in Franklin, in the Eastern District. Thus, whether transfer is
appropriate turns on the convenience factors and interests of justice.
1. Convenience Analysis
To analyze convenience, the court considers how accessible the forum is to the parties,
the witnesses, and the evidence. Research Automation, Inc. v. Schrader-Bridgeport Int’l, Inc., 626
F.3d 973, 978 (7th Cir. 2010). Schneider’s choice of the Western District deserves deference
because of an assumed convenience to him. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 25556 (1981). However, “the presumption in favor of the plaintiff’s choice of forum is
diminished when it is not [his] home forum.” U.S.O. Corp. v. Mizuho Holding Co., 547 F.3d
749, 752 (7th Cir. 2008). Courts also give less weight to the plaintiff’s choice of forum where
the plaintiff selects a forum that is not the situs of material events. See Piper, 454 U.S. at 25556. Schneider filed in the Western District after he had moved to Florida, so Schneider’s
choice of forum deserves less deference.
His choice of forum also deserves less deference because the situs of material events is
the Eastern District. Schneider worked in the Eastern District and requested reasonable
accommodations for his work in the Eastern District. Dkt. 1, at 5-14. Alleged retaliation by
USPS took place in the Eastern District. Id. at 5-15. Schneider alleges that he was
constructively discharged from his position in the Eastern District. Id. at 13, 15. Because the
Western District is neither the situs of material events and nor Schneider’s home forum, his
choice of forum deserves little deference.

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Schneider cites a dozen potential Madison-based witnesses that would be
inconvenienced by transferring the case to Milwaukee. The court is not persuaded by
Schneider’s showing of inconvenience for several reasons. First, Madison is within 100 miles
of Milwaukee, so all these witnesses would be within the subpoena power of the transferee
court. Second, the distance that these witnesses would have to travel for trial is modest:
Milwaukee is less than a two-hour drive from Madison. Third, Schneider does not describe
the testimony of any of these witnesses. Schneider makes little showing why each of these
witnesses is important (or, in some cases, even minimally relevant). The court can infer why
some of his health care providers might testify, but Schneider does not explain why he would
need six such witnesses. His family and friends will testify to the extent of his impairments,
which would go to damages. But they would have nothing to say about liability. Fourth,
Schneider has more or less ignored the inconvenience of the Western District to USPS
witnesses, the majority of whom are located closer to Milwaukee. Schneider alleges that these
witnesses are the ones who have committed the wrongful acts, and the court regards these
witnesses as the most important in the case.
The court is also not persuaded by Schneider’s own assertion of inconvenience. If
Schneider stays in Janesville for the trial, he will have to commute regardless of whether the
trial is in Madison or Milwaukee. Granted, his commute will be 30 miles further to
Milwaukee. But this is a minor difference, particularly in light of the fact that he is willing to
undertake a case in Wisconsin while he lives in Florida.
In sum, the convenience factors tip somewhat in favor of transferring the case to the
Eastern District.

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2. Interests of Justice
“The ‘interest of justice’ is a separate component of a § 1404(a) transfer analysis,”
and it may be decisive, “even if the convenience of the parties and witnesses might call for a
different result.” Coffey, 796 F.2d at 220 (internal citations omitted). One important
consideration is that “related litigation should be transferred to a forum where consolidation
is feasible.” Id. “To permit a situation in which two cases involving precisely the same issues
are simultaneously pending in different District Courts leads to the wastefulness of time,
energy and money that § 1404(a) was designed to prevent.” Cont’l Grain Co. v. Barge FBL585, 364 U.S. 19, 26 (1960). This is such a case.
Because the Privacy Act claims will be transferred to the Eastern District, it is only
logical that the related Rehabilitation Act claims be heard by the same court. To decide
otherwise would be an extremely inefficient use of judicial and party resources.
Schneider agrees that “judicial efficiency certainly favors a single court hearing all
claims it can between the same parties.” Dkt. 11, at 13 n.6. But Schneider wrongly argues
that the claims could remain consolidated in the Western District. Id. at 4. Schneider
contends that after this court transfers the Privacy Act claim to the Eastern District, the
Eastern District could then transfer the Privacy Act claim back to the Western District to
consolidate it with the Rehabilitation Act claims. Id. Schneider contends that, “[o]nce
properly brought in a venue dictated by a special venue statute, a Privacy Act matter may
then be subject to a § 1404(a) transfer.” Id. at 4 n.4 (citing Ex Parte Collett, 337 U.S. 55, 60
(1949); C-O-Two Fire Equip. Co. v. Barnes, 194 F.2d 410, 414 (7th Cir.), aff’d sub nom. Cardox
Corp. v. C O Two Fire Equip. Co., 344 U.S. 861 (1952); and an unpublished, non-precedential
case from the Ninth Circuit).

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But Schneider’s argument has two defects. First, the cases Schneider cites do not
make his argument. Those cases establish only that Privacy Act claims are amenable to
transfer under § 1404(a). But they do not establish that § 1404(a) would allow transfer to
any other convenient district. Schneider’s reading directly contradicts the express language of
§ 1404(a), which allows transfer only to “any other district or division where it might have
been brought.” If Schneider could not have filed the Privacy Act claim in the Western
District, the Eastern District would not have the authority to transfer it here.
Second, Schneider’s proposed procedure offends the principle of judicial efficiency.
Why, if all agree that a single court should hear this case, should we undertake to send half of
it to the Eastern District, only to have one of the parties move the court to transfer it back?
The interests of justice do not require such maneuvering.
Schneider’s final argument is that he will get a faster trial in the Western District.
That is a factor this court would consider, but it is not sufficient to overcome the inefficiency
of trying two closely related claims in different districts.

CONCLUSION
The Western District is not a proper venue for Schneider’s Privacy Act claim, and that
claim will be transferred to the Eastern District. The Rehabilitation Act claims will also be
transferred to the Eastern District so that all Schneider’s claims can be resolved in a single
case.

ORDER
IT IS ORDERED that:

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1. Defendants Megan J. Brennan and the United States Postal Service’s motion
to dismiss or transfer this case, Dkt. 6, is GRANTED.
2. This case is transferred to the United States District Court for the Eastern
District of Wisconsin.

Entered January 4, 2016.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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