Chubb v. Union Pacific R. Co.

• Decision Date: 29 December 1995
• Docket Number: No. 95-D-2337.,95-D-2337.
• Parties: James CHUBB, Plaintiff, v. UNION PACIFIC RAILROAD COMPANY, Defendant.
• Court: U.S. District Court — District of Colorado

908 F. Supp. 853

James CHUBB, Plaintiff, v. UNION PACIFIC RAILROAD COMPANY, Defendant.

No. 95-D-2337.

United States District Court, D. Colorado.

December 29, 1995.

Mark J. Kaplan, John J. Rossi, Morrisard, Rossi, Cox, Kiker & Inderwish, Aurora, CO, for Plaintiff.

Mark C. Hansen, Union Pacific Railroad Company, Omaha, NE, for Defendant.

ORDER

DANIEL, District Judge.

THIS MATTER is before the Court on Defendant's Motion to Transfer pursuant to 28 U.S.C. § 1404 filed October 13, 1995, and the Response thereto. Defendant seeks to transfer this action to the United States District Court for the District of Nebraska or the United States District Court for the District of Wyoming, alleging that all people with knowledge of the circumstances surrounding Plaintiff's allegations reside and work in Wyoming or Nebraska.

Plaintiff brings suit under the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq (hereinafter referred to as the "ADA"). Plaintiff claims that, in a previous action brought by Plaintiff against Defendant, Defendant's Superintendent of Termination Operations testified that Defendant could accommodate Plaintiff with regard to his injury by providing Plaintiff a management position such as Manager of Terminal Operations in Denver. Plaintiff further claims that, when Plaintiff requested this accommodation in Denver, Defendant advised Plaintiff that no management position was being offered. Plaintiff asserts that this failure to make reasonable accommodation to Plaintiff's disability and impairments constitutes employment discrimination against Plaintiff in violation of the ADA.

This Court must determine, within that factual framework, whether either Nebraska or Wyoming is a more convenient forum for this action. The ADA does not have a specific venue provision. Plaintiff asserts, without citing any authority, that the venue provision of Title VII, 42 U.S.C. § 2000e-5(f)(3) is applicable to actions under the ADA. Defendant does not discuss this issue. Also, Defendant does not contest that venue is proper in this jurisdiction. Instead, Defendant simply seeks to transfer the case to a more convenient forum.

In evaluating Defendant's Transfer request, the first issue that I must examine is whether venue is proper in this jurisdiction. In that regard, the Court notes that there appears to be a split of authority as to which venue provision applies in an ADA action. The two options are the venue provision of Title VII, 42 U.S.C. § 2000e-5(f)(3), or the general venue provision applicable to proceedings in the federal courts, 28 U.S.C. § 1391. See Popovic v. J.B. Hunt Transport, Inc., 1994 Westlaw 531557 (M.D.La. 1994) (not reported in F.Supp.) (42 U.S.C. § 2000e-5(f) was the applicable statute in an ADA action); but see Gilbert v. Texas Mental Health and Mental Retardation, 888 F.Supp. 775 (N.D.Tex.1995) (since the ADA, the Rehabilitation Act, and 42 U.S.C. § 1983 do not have specific venue provisions, the court applied the general venue statute, 28 U.S.C. § 1391); Wilson v. Pennsylvania State Police Department, 1995 Westlaw 129202 (E.D.Pa.1995) (not reported in F.Supp.) (venue in federal question cases involving the ADA and the Rehabilitation Act are governed by 28 U.S.C. § 1391).

I believe the reasoning in Popovic, supra, is persuasive and that 42 U.S.C. § 2000e-5(f)(3) is applicable in this case. As the court noted in Popovic, Section 12117 of the ADA provides that the "powers, remedies and procedures set forth in section ... 2000e-5 ... shall be the powers, remedies and procedures this subchapter provides to ... any person alleging discrimination on the basis of disability in violation of any provision of this chapter ... concerning employment." I deem the provision in 42 U.S.C. § 2000e-5(f)(3), that provides for the jurisdiction where a case can be brought, to be a "procedure" as stated in Section 12117. Therefore, § 2000e-5(f)(3) applies in the case at hand. Pursuant to this statute, the action is properly brought in Colorado since Colorado is the judicial district in which Plaintiff would have worked but for the alleged unlawful employment practice of Defendant.

Thus, the issue becomes whether the case should be transferred to the United States District Courts for the Districts of Nebraska or Wyoming pursuant to 28 U.S.C. § 1404(a). This statute provides as follows:

For the convenience of the parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.

Id. Section 1404(a) vests the Court with the discretion to transfer cases to other districts to prevent unnecessary inconvenience and expense. Consumers Gas & Oil, Inc. v. Farmland Industries, Inc., 815 F.Supp. 1403 (D.Colo.1992).

The moving party bears the burden to prove that the action should be transferred. Consumers, 815 F.Supp. at 1407. Unless the evidence...