Gamon v. Austin

• Court: District Court, District of Columbia
• Decided: November 14, 2024
• Docket: Civil Action No. 2024-0516
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_________________________________________ ) KENNETH GAMON, ) ) Plaintiff, ) ) v. ) Civil No. 24-cv-516 (APM) ) LLOYD J. AUSTIN, III. ) ) Defendants. ) _________________________________________ )

ORDER

I.

Plaintiff Kenneth Gamon brings a two-count complaint under the Rehabilitation Act

against Secretary of Defense Lloyd Austin, in his official capacity. Am. Compl., ECF No. 12.

Defendant moves to dismiss based on improper venue and for failure to state a claim. Def.’s Mot.

to Dismiss, ECF No. 15 [hereinafter Def.’s Mot.]. Although the court agrees that this District is

not the proper venue, it finds that Plaintiff has stated plausible claims, and it is therefore in the

interest of justice to transfer this matter to the Eastern District of Virginia, where venue is proper.

II.

The parties agree that venue in this District is proper under the Rehabilitation Act,

42 U.S.C. § 2000e-5(f)(3), only if the Secretary of Defense’s “principal office” is in the District of

Columbia. Id. at 7–8; Pl.’s Opp’n to Def.’s Mot., ECF No. 16 [hereinafter Pl.’s Opp’n], at 4.

As evidence that it is, Plaintiff points to two web pages—one from the Department of Defense and

the other from usa.gov—showing the Secretary’s mailing address in the District of Columbia.

See Pl.’ Opp’n, Exs. 2–3, ECF Nos. 16-2–16-3. But the Secretary’s mailing address is not his “principal office.” That is located in Arlington, Virginia, at the Pentagon. See Jones v. Hagel, 956

F. Supp. 2d 284, 288 n.3 (D.D.C. 2013) (observing that “the DOD’s principal office (the Pentagon)

is located in Arlington, Virginia, for venue purposes despite its Washington, D.C., mailing address,

which means that venue under the fourth statutory basis is proper in the Eastern District of Virginia,

not D.C.”) (Jackson, J.) (citation omitted). Plaintiff therefore has failed to show that the Secretary’s

“principal office” is in this District.

III.

Under 28 U.S.C. § 1406(a), the court can, “if it be in the interest of justice, transfer [a case

brought in the wrong venue] to any district or division in which it could have been brought.”

Defendant argues that the “interest of justice” does not warrant transfer because Plaintiff has not

stated cognizable claims. Def.’s Mot. at 8.

A.

Defendant first contends that Plaintiff’s discrimination claim under the Rehabilitation Act

(Count One) fails because he has not pleaded an adverse employment action. Id. at 9–10. Plaintiff

is a school psychologist at a military base in Okinawa, Japan. Am. Compl. ¶¶ 16–17. He suffers

from, among other things, alcoholism. Id. ¶ 21. According to Plaintiff, on February 4, 2021, his

supervisor, “motivated by her knowledge of Plaintiff’s disability of alcoholism,” ordered him to

take a breathalyzer “as a prerequisite to returning to work.” Id. ¶¶ 37–38. The breathalyzer

resulted in a 0.00% blood alcohol content, id. ¶ 41, and presumably Plaintiff was permitted back

to work. According to Defendant, these facts fall short of stating a discrimination claim because

Plaintiff fails to allege that he “experienced a change to the terms, conditions, or privileges of his

employment.” Def.’s Mot. at 11.

2 The court disagrees. Conditioning Plaintiff’s return to work upon the taking of a

breathalyzer test constituted a change to a term or condition of employment. If he refused to take

the test, presumably he would not be permitted back to work. That is enough to make out a claim.

See Dixon v. Blinken, No. 22-cv-2357 (RDM), 2024 WL 4144105 at *2–*3 (Sept. 11, 2024)

(holding that one-time denial of rescheduling of remote workday based on sex was sufficient to

state a Title VII claim).

Defendant also argues that “efforts to assist or improve the performance or conduct of

employees” is not an adverse action, and nor is the “initiation of an investigation into an

employee’s misconduct.” Def.’s Mot. at 11. Defendant notes, for example, Plaintiff’s supervisor

claimed to smell alcohol on him as a reason for ordering the test. Id. at 12. But the court must

draw all plausible inference in Plaintiff’s favor. Applying that standard, Plaintiff has successfully

pleaded that his supervisor’s purpose in ordering the breathalyzer was not a legitimate workplace

inquiry, but to discriminate against him because of his alcoholism. Am. Compl. ¶¶ 33, 35 (alleging

that Plaintiff’s supervisor referenced his “history involving alcohol abuse” when ordering him to

take the breathalyzer, and claimed that she smelled alcohol on him, even though both he and his

supervisor were wearing protective masks and six feet apart due to COVID social distancing).

Defendant also contends that Plaintiff “fails to show that he was treated differently than

any other employee.” Def.’s Mot. at 11. But at the pleadings stage, a discrimination plaintiff is

not required to set forth a specific theory of pretext. See Swierkiewicz v. Sorema N.A., 534 U.S.

506, 514 (2002) (requiring the pleading provide only “fair notice of the basis for [the plaintiff’s]

[discrimination] claims”). So, the fact that Plaintiff has not pleaded specific comparators does not

defeat his claim.

3 B.

Defendant also maintains that Plaintiff has failed to state a claim under the Rehabilitation

Act based on the wrongful disclosure of private medical information. Def.’s Mot. at 13. He

initially argues that Plaintiff “fails to identify the privacy right he refers to that is protected by the

Rehab[ilitation] Act.” Id. Courts have recognized, however, that the Rehabilitation Act contains

confidentiality provisions that, if violated, give rise to a cause of action. See Koch v. Walter, 935

F. Supp. 2d 164, 176 (D.D.C. 2013) (citing 42 U.S.C. § 12112(d) and citing cases).

Next, Defendant argues that his supervisor’s alleged statement in the presence of others

about Plaintiff’s “history involving alcohol abuse” “cannot be interpreted so broadly as a

disclosure of Plaintiff’s medical treatment, recovery, or Alcoholics Anonymous support.” Def.’s

Mot. at 13 (citing Am. Comp. ¶¶ 33, 36). He also contends that the Rehabilitation Act does not

make actionable voluntary disclosures initiated by the employee. Id.

But these arguments overlook the complaint’s well-pleaded allegations. Plaintiff asserts

that the two employees who were present when Plaintiff’s supervisor referenced his alcohol abuse

only learned of his history because of his supervisor’s disclosure. Am. Compl. ¶¶ 47–50. Although

Plaintiff did voluntarily divulge information about his treatment history, he did so only after his

supervisor outed his personal history in front of colleagues. Id. ¶ 36. In such circumstances,

Plaintiff’s response plausibly was not voluntary.

IV.

For the foregoing reasons, Defendant’s Motion to Dismiss is denied. The court, however,

agrees that this District is not the proper venue for Plaintiff’s claims. Accordingly, in the interest

4 of justice, this matter is transferred to the Eastern District of Virginia. Defendant shall respond to

the Amended Compliant within 21 days after docketing in the transferee court.

Dated: November 14, 2024 Amit P. Mehta United States District Court Judge