Redding v. Mayorkas

• Court: District Court, District of Columbia
• Decided: March 11, 2024
• Docket: Civil Action No. 2022-3264
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

STEPHANIE M. REDDING,

Plaintiff,

v. No. 22-cv-3264 (DLF) ALEJANDRO MAYORKAS, in his official capacity as Secretary of Homeland Security,

Defendant.

MEMORANDUM OPINION

In this action, Stephanie M. Redding seeks relief for alleged disability discrimination by

the Federal Law Enforcement Training Center (“FLETC”) in Glynco, Georgia. Before the Court

is the Secretary of Homeland Security’s Motion to Dismiss or, in the Alternative, for Summary

Judgment, Dkt. 13. For the reasons that follow, the Court will grant the Secretary’s motion to

dismiss for improper venue under Rule 12(b)(3) of the Federal Rules of Civil Procedure and deny

as moot the Motion for Summary Judgment.

I. BACKGROUND

Redding began working for the Transportation Security Administration (“TSA”) on March

13, 2011. First Am. Compl. ¶ 15, Dkt. 12. In March 2016, she was assigned to work at the TSA’s

headquarters in Reston, Virginia. Id. ¶ 20. Redding suffers from severe myopia and chronic dry

eyes, and in 2017, she communicated with TSA officials about her “uncorrected vision no longer

me[eting] the requirements for duty.” Id. ¶¶ 16, 24. On September 28, 2017, Redding applied for

immediate disability retirement with the Office of Personnel Management (“OPM”). Id. ¶ 26.

Before OPM acted on her application, Redding requested from the TSA a reasonable- accommodation reassignment on January 11, 2018 “due to [her] inability to perform the essential

duties of [her] current position.” Id. ¶ 32. She learned that “there were no vacant or anticipated

vacant positions within the TSA that could accommodate” her, and on May 27, 2018, she was

reassigned to work as a Law Enforcement Specialist (Special Instructor) at the Federal Law

Enforcement Training Center (“FLETC”) in Glynco, Georgia. Id. ¶¶ 34, 37. According to

Redding, the “reassignment was improper” because she “did not hold the requisite experience and

required training to be qualified for the position.” Id. ¶ 38. She “struggled with the conditions” at

FLETC and sought reconsideration of the reassignment. Id. ¶¶ 39–45.

On October 1, 2019, OPM approved Redding’s September 28, 2017 disability-retirement

application. Id. ¶ 48. Under federal law, FLETC lacked authority, however, to process her

retirement application because she no longer worked for the TSA and had accepted a reasonable-

accommodation reassignment. Id. ¶¶ 51,64. To receive disability retirement, Redding would need

to reapply as a FLETC employee. Id. ¶¶ 56, 59.

On January 6, 2020, FLETC placed Redding on Absent Without Leave status, and on

March 4, 2020, she received a Notice of Proposed Removal, charging her with “Excessive

Absences, AWOL, and Failure to Follow Instructions.” Id. ¶¶ 69–70. On June 4, 2020, FLETC

issued a Notice of Decision on Proposed Removal, sustaining all charges. Id. ¶ 73. Effective June

17, 2020, Redding was terminated. She filed a disability-discrimination complaint with the Equal

Employment Opportunity Commission, which found there was no discrimination. Id. ¶ 12(e)–(f).

Redding has filed suits against all three agencies involved. First, Redding sued the TSA,

and this Court transferred the case to the Eastern District of Virginia. See Mem. Op., Redding v.

Mayorkas (“Redding I”), No. 22-cv-2174 (D.D.C. Mar. 27, 2023), Dkt. 12. A judge in the Eastern

District of Virginia subsequently dismissed for failure to state a claim. See Mem. Order, Redding

2 v. Mayorkas, No. 23-cv-1325 (E.D. Va. Feb. 5, 2024), Dkt. 35. Redding has a pending Fourth

Circuit appeal and petition for a writ of mandamus in the D.C. Circuit. See Redding v. Mayorkas,

No. 24-1141 (4th Cir.); In re Redding, No. 23-5222 (D.C. Cir.). Second, Redding sued OPM, and

this Court dismissed one count for failure to exhaust and transferred the remaining count to the

Federal Circuit. See Mem. Op., Redding v. Ahuja (“Redding II”), No. 21-cv-2449 (D.D.C. Sept.

18, 2023), Dkt. 41. Redding’s appeal and petition for a writ of mandamus are pending before the

D.C. Circuit. See Redding v. Ahuja, No. 23-5225 (D.C. Cir.). Third, in a suit similar to this one,

Redding sued FLETC in the Northern District of Georgia, and her case was then transferred to the

Southern District of Georgia. See Order, Redding v. Mayorkas (“Redding III”), No. 21-cv-2344

(N.D. Ga. Mar. 7, 2022), Dkt. 20. The Southern District of Georgia then transferred the action to

the District of Columbia, see Redding v. Mayorkas, No. 22-cv-22, 2023 WL 113050 (S.D. Ga. Jan.

5, 2023), but on February 10, 2023, Redding voluntarily dismissed her suit, see Notice of

Voluntary Dismissal, Redding v. Mayorkas, No. 23-cv-64 (D.D.C. Feb. 10, 2023), Dkt. 52.

On the same day she dismissed Redding III, Redding filed the First Amended Complaint

in this suit (“Redding IV”) against FLETC for discrimination under the Rehabilitation Act, 28

U.S.C. § 794. She alleges that FLETC “ignored” her “requested accommodations,” “disciplined”

her, and “unlawfully removed” her. First Am. Compl. ¶¶ 97–99. The Secretary moves to dismiss

for improper venue and failure to state a claim or, in the alternative, for summary judgment.

II. LEGAL STANDARDS

When a plaintiff files suit in an improper venue, the district court “shall dismiss [the case],

or if it be in the interest of justice, transfer such case to any district or division in which it could

have been brought.” 28 U.S.C. § 1406(a); see also Fed. R. Civ. P. 12(b)(3). To prevail on a motion

to dismiss for improper venue under Rule 12(b)(3) of the Federal Rules of Civil Procedure, “the

3 defendant must present facts that will defeat the plaintiff’s assertion of venue.” Wilson v. Obama,

770 F. Supp. 2d 188, 190 (D.D.C. 2011) (citation omitted). “Nevertheless, the burden remains on

the plaintiff to establish that venue is proper since it is the plaintiff’s obligation to institute the

action in a permissible forum.” Slaby v. Holder, 901 F. Supp. 2d 129, 132 (D.D.C. 2012) (cleaned

up). If venue is improper, the Court “shall dismiss, or if it be in the interest of justice, transfer

such case to any district . . . in which it could have been brought.” 28 U.S.C. § 1406(a).

“In considering a Rule 12(b)(3) motion, the Court accepts the plaintiff’s well-pled factual

allegations regarding venue as true, draws all reasonable inferences from those allegations in the

plaintiff’s favor, and resolves any factual conflicts in the plaintiff’s favor.” Tower Lab’ys, Ltd. v.

Lush Cosmetics Ltd., 285 F. Supp. 3d 321, 323 (D.D.C. 2018) (cleaned up). But the Court need

not “accept the plaintiff’s legal conclusions as true,” and it “may consider material outside of the

pleadings.” Id.

III. ANALYSIS

The Court will grant the Secretary’s motion and dismiss this suit for improper venue.

A. Venue

Redding filed this suit under the Rehabilitation Act. First Am. Compl. ¶¶ 93–101. “[T]he

proper venue for litigating a Rehabilitation Act claim is determined by the special venue provisions

of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-5(f)(3).” Beaird v. Gonzales, 495 F. Supp.

2d 81, 83 n.3 (D.D.C. 2007); see 28 U.S.C. § 794(a)(1) (incorporating the procedures of 42 U.S.C.

§ 2000e-5(f) into the Rehabilitation Act). Under these provisions, venue is appropriate in: (1) “any

judicial district in the State in which the unlawful employment practice is alleged to have been

committed,” (2) “in the judicial district in which the employment records relevant to such practice

are maintained and administered,” or (3) “in the judicial district in which the aggrieved person

4 would have worked but for the alleged unlawful employment practice.” 42 U.S.C. § 2000e-5(f)(3).

If the defendant is not found within any of these three districts, the plaintiff may bring suit in “the

judicial district in which the [defendant] has [its] principal office.” Id.

As in Redding I, Redding has not alleged sufficient facts to establish that venue is proper

in the District of Columbia under any of these prongs. See Mem. Op. at 3–5, Redding I. First,

none of the allegedly “unlawful employment practice[s]” occurred in this District. 42 U.S.C.

§ 2000e-5(f)(3). “Courts . . . determine venue by applying a ‘commonsense appraisal’ of events

having operative significance.” Darby v. U.S. Dep’t of Energy, 231 F. Supp. 2d 274, 277 (D.D.C.

2002) (quoting Lamont v. Haig, 590 F.2d 1124, 1134 (D.C. Cir. 1978)). “[V]enue cannot lie in

the District of Columbia when a substantial part, if not all, of the employment practices

challenged . . . took place outside the District.” Id. (cleaned up). Redding alleges that she faced

unlawful discrimination when FLETC “ignored” her accommodation requests, “disciplined” her

by changing her status to AWOL, and “remov[ed] [her] from Federal service.” First Am. Compl.

¶¶ 97–99. But as Redding alleges, and as a FLETC Human Capital Officer represents, the

allegedly unlawful acts and related FLETC decisions occurred in the Southern District of Georgia.

Id. ¶¶ 37, 53; see Porter Decl. ¶¶ 3, 4, Dkt. 13-3. Redding does not contest, see Opp’n at 10–12,

that “FLETC made no decisions pertaining to [her] employment from the District of Columbia,”

Porter Decl. ¶ 5. Venue is thus proper in the Southern District of Georgia under this prong.

In Redding III—Redding’s initial case against FLETC—the Southern District of Georgia

concluded that venue was also proper in the District of Columbia under this prong. It reasoned

that “while [Redding] was ultimately terminated . . . in the Southern District of Georgia, weaved

within [her] allegations are actions taken by employees at FLETC, TSA, and OPM, in Georgia,

Virginia, and the District of Columbia, respectively.” Redding III, 2023 WL 113050, at *3. This

5 Court respectfully disagrees. The First Amended Complaint lacks allegations that any “unlawful

employment practice” by OPM is attributable to FLETC, the only defendant in this case. Indeed,

Redding filed a separate action against OPM.

Second, Redding has failed to suggest “employment records relevant to such practice[s]

are maintained and administered” in the District of Columbia. 42 U.S.C. § 2000e-5(f)(3). A

FLETC Human Capital Officer represents that “FLETC’s employment records regarding Ms.

Redding are in the Southern District of Georgia, with the exception of her interagency Personnel

Records . . . which are located in the Eastern District of Missouri at the National Personnel

Records Center.” Porter Decl. ¶ 6. Such “[d]eclarations of human resource officers and employers

are sufficient to establish where the employment records are maintained and administered.”

Kendrick v. Potter, No. 06-cv-122, 2007 WL 2071670, at *3 (D.D.C. July 6, 2007); see also Slaby,

901 F. Supp. 2d at 134. Neither the First Amended Complaint nor Redding’s opposition brief

contest this representation. Under the second prong, venue is thus proper either in the Southern

District of Georgia or the Eastern District of Missouri.

Third, Redding has failed to allege any facts that she “would have worked” in the District

of Columbia “but for the alleged unlawful employment practice.” 42 U.S.C. § 2000e-5(f)(3).

Rather, she alleges that she was “unlawfully removed from” her employment at FLETC, and

FLETC should have granted her “requested accommodations” to continue working there. First

Am. Compl. ¶¶ 97, 99. So under this prong too, venue lies in the Southern District of Georgia.

Finally, the “residual” venue provision of 42 U.S.C. § 2000e-5(f)(3) does not apply. “By

its plain terms, this fourth residual basis for jurisdiction is only available when the defendant

cannot be found within any of the districts provided for by the first three bases.” Slaby, 901 F.

6 Supp. 2d at 134–35 (cleaned up). Here, the residual cause is not triggered because the first three

prongs of § 2000e-5(f)(3) point to venue in specific districts—just not the District of Columbia.

Contrary to Redding’s contention, the law of the case does not alter the above analysis.

See Opp’n at 10–12. Redding III was transferred from the Southern District of Georgia to the

District of Columbia, so in her view, a “re-transfer” of Redding IV to the Southern District of

Georgia would fail to respect the law of the case. Id. at 11. Redding is mistaken. As a preliminary

matter, “the doctrine [of law of the case] posits that when a court decides upon a rule of law, that

decision should continue to govern the same issues in subsequent stages of the same case.”

Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 815–16 (1988) (emphasis added)

(cleaned up). Plainly, this is a different case than Redding III, which the plaintiff voluntarily

dismissed with prejudice. To the extent that Redding is unable to benefit from law-of-the-case

principles to avoid transfer back to the Southern District of Georgia, that is a consequence of her

own litigation decisions.

Even if the Court treated the law-of-the-case doctrine as a law-of-the-similar-cases

doctrine, see Opp’n at 10, it would still hold that venue is improper. “Under law-of-the-case

principles, if the transferee court can find the transfer decision plausible, its jurisdictional inquiry

is at an end.” Christianson, 486 U.S. at 819. With the utmost respect to the U.S. District Court

for the Southern District of Georgia, the Court cannot conceive of a plausible basis for finding that

venue is proper in the District of Columbia based on Redding’s complaint here. Indeed, the

complaint lacks allegations tying FLETC to the District of Columbia or attributing OPM’s conduct

to FLETC, and the Court may not read such allegations into the complaint. Although the Court

takes seriously the risk of a “perpetual game of jurisdictional ping-pong,” such concerns are

7 attenuated here because, as stated in Section III.B, the Court concludes that Redding has failed to

state a claim and will dismiss this action. Id.

B. Dismissal

Dismissal under Rule 12(b)(3) is warranted for two reasons. First, Redding fails to state a

claim. Although “the standard remedy for improper venue is to transfer the case to the proper

court rather than dismissing it,” Nat’l Wildlife Fed’n v. Browner, 237 F.3d 670, 674 (D.C. Cir.

2001), the Court may dismiss for improper venue “when the outcome is foreordained,” Simpkins

v. D.C. Gov’t, 108 F.3d 366, 371 (D.C. Cir. 1997). Accord McCain v. Bank of Am., 13 F. Supp.

3d 45, 54 (D.D.C. 2014). The D.C. Circuit has held that a district court may dismiss rather than

transfer when a complaint contains “substantive problems,” Buchanan v. Manley, 145 F.3d 386,

389 n.6 (D.C. Cir. 1998), and transfer would merely keep “the case alive only until the next court

looked it over and found it wanting,” Simpkins, 108 F.3d at 371.

Here, transfer would merely delay the inevitable because Redding has failed to state a claim

for disability discrimination under the Rehabilitation Act. To do so, a plaintiff must show “(1) that

the employee had a disability within the meaning of the Act, (2) that the employee was otherwise

qualified for the position with or without reasonable accommodation, and (3) that the employee

suffered an adverse employment action solely because of her disability.” Von Drasek v. Burwell,

121 F. Supp. 3d 143, 160 (D.D.C. 2015); see 29 U.S.C. § 794(a). The Rehabilitation Act

incorporates the standards applied under the Americans with Disabilities Act, see 29 U.S.C.

§ 794(d), which in turn define a “qualified individual” as “an individual who, with or without

reasonable accommodation, can perform the essential functions of the employment position that

such individual holds or desires,” 42 U.S.C. § 12111(8). “[T]hat is, an individual with handicaps

is ‘qualified’ if she can perform the essential functions of her position with reasonable

8 accommodation. If she can perform these functions without reasonable accommodation, so much

the better—she is, of course, still qualified.” Carr v. Reno, 23 F.3d 525, 529 (D.C. Cir. 1994).

The First Amended Complaint alleges that Redding’s “reassignment” at FLETC “was

improper as [she] did not hold the requisite experience and required training to be qualified for the

position assigned to the Behavioral Science Division.” First Am. Compl. ¶ 38. Redding “had

difficulty with the conditions of the assignment to FLETC” and had “ongoing conversations with

FLETC personnel regarding . . . reconsideration of the reassignment as an accommodation.” Id.

¶¶ 57–58. Redding thus concedes that she could not, without accommodation, perform the

essential functions of her FLETC position. Further, she also fails to allege that a reasonable

accommodation would have enabled her to do so. Redding attempted “to locate a suitable

accommodation, including telework, reassignment, use of accrued sick leave, use of advanced sick

leave, and use of annual leave,” but she does not allege, at any point, that such “accommodations”

(assuming they can even be so classified) would have enabled performance of the essential

functions of her position at FLETC. Id. ¶ 42. Redding has thus failed to plead that “with or without

reasonable accommodation” she could “perform the essential functions” of her job at FLETC. 42

U.S.C. § 12111(8). She has thus failed to state a claim under the Rehabilitation Act.

Her arguments to the contrary are unavailing. She contends that the First Amended

Complaint’s use of the word “qualified” was in a “sense . . . different from the term ‘qualified

individual’ [a]s used in the ADA.” Opp’n at 6. But Redding never clarifies, and the Court is

unable to determine, in what other “sense” she used the word “qualified.” Redding further argues

that “FLETC expressed no concerns that [she] was unable to perform the job’s essential functions.”

Id. at 12. The burden of establishing qualification under the Rehabilitation Act, however, rests

with Redding, not FLETC. See Ward v. McDonald, 762 F.3d 24, 31 (D.C. Cir. 2014) (noting the

9 plaintiff must “produce sufficient evidence that . . . she was a qualified individual with a

disability”); Graffius v. Shinseki, 672 F. Supp. 2d 119, 126 (D.D.C. 2009) (“The employee has the

burden of identifying reasonable accommodations.”). And Redding points to no authority

suggesting the Court must consider an employer’s subjective belief about the employee’s ability

to perform the essential functions of her position.

Redding also argues that her “FLETC position was supposed to be a holding spot for [her]

while OPM considered her disability retirement.” Opp’n at 12. But she does not identify any

source of law requiring FLETC to provide jobs to federal employees as “holding spot[s],” much

less any authority finding that an agency’s failure to provide a holding spot might constitute an

adverse employment action.

Second, transfer would not be “in the interest of justice.” 28 U.S.C. § 1406(a). Redding

claims Redding I, Redding II, and Redding IV “are inextricably intertwined” because “FLETC,

TSA, and OPM acted together.” Opp’n at 1. And yet she brought three separate lawsuits, now

pending before different courts. Redding I is pending before the Fourth and D.C. Circuits, and

Redding II is pending before the D.C. Circuit and will be subject to a transfer to the Federal Circuit

if affirmed. If the Court were to transfer this case, the appropriate forum would likely be the

Southern District of Georgia. The Court can only speculate as to why Redding divided the

litigation in this manner and initially filed in different districts. But litigation tactics often burden

multiple courts and prevent efficient adjudication. That is certainly evident here: two courts have

passed on the proper venue of her FLETC claims and two have carefully rejected her

discrimination claims for similar reasons. Because Redding’s claims lack merit, the Court will

dismiss, rather than transfer this case. In so doing, the Court declines to stay this action until the

D.C. Circuit decides Redding I. See Pl.’s Opp’n to Def.’s Notice at 5, Dkt. 20. Redding provides

10 no justification for such a stay, and, in any event, her challenge to the transfer in Redding I has no

bearing on the Court’s analysis here.

CONCLUSION

For the foregoing reasons, the Court will grant the Secretary’s Motion to Dismiss and deny

as moot the Motion for Summary Judgment. A separate order consistent with this decision

accompanies this memorandum opinion.

________________________ DABNEY L. FRIEDRICH United States District Judge March 11, 2024