Cooper v. Dep't of the Army, 4:13CV3086

• Court: U.S. District Court — District of Nebraska
• Writing for the Court: Warren K. Urbom
• Decision Date: 17 December 2013
• Docket Number: 4:13CV3086
• Citation: Cooper v. Dep't of the Army, 4:13CV3086 (D. Neb. Dec 17, 2013)
• Parties: DANIEL R. COOPER, (skype)# 402-216-0770, Plaintiff, v. DEPARTMENT OF THE ARMY, SECRETARY OF THE ARMY, John M. McHugh, ATTORNEY GENERAL OF THE UNITED STATES, ERIC HIMPTON HOLDER JR., UNITED STATES ATTORNEY FOR NEBRASKA, and DEBORAH R. GILG, Defendants.

DANIEL R. COOPER, (skype)# 402-216-0770, Plaintiff, v. DEPARTMENT OF THE ARMY, SECRETARY OF THE ARMY,John M. McHugh, ATTORNEY GENERAL OF THE UNITEDSTATES, ERIC HIMPTON HOLDER JR., UNITED STATESATTORNEY FOR NEBRASKA, and DEBORAH R. GILG, Defendants.

4:13CV3086

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

Dated December 17, 2013

MEMORANDUM AND ORDER ON

DEFENDANTS' MOTION TO

DISMISS, OR IN THE

ALTERNATIVE, MOTION TO

TRANSFER VENUE

On April 19, 2013, Daniel R. Cooper, who is proceeding pro se, filed a complaint against the Department of the Army, Secretary of the Army John M. McHugh, the Attorney General of the United States, Eric Himpton Holder, Jr., the United States Attorney for Nebraska, and Deborah R. Gilg (collectively, "the defendants"). (ECF No. 1.) The defendants have filed a motion to dismiss Cooper's complaint pursuant to Federal Rule of Civil Procedure 12(b)(3), or, in the alternative, to transfer this action to the United States District Court for the Eastern District of Virginia pursuant to 28 U.S.C. § 1406(a). (ECF No. 17. See also ECF Nos. 18-19.) Cooper has not responded to the defendants' motion. For the following reasons, I find that this action must be transferred to the Eastern District of Virginia.

I. BACKGROUND¹

Cooper is a civilian employee of the United States Army (the Army). (Def.'s Br., Statement of Facts ¶ 6, ECF No. 18.) The Secretary of the Army is John M. McHugh, (id. ¶ 2), and although the Army is engaged in operations worldwide, its principal place of business is located at the Pentagon in Arlington, Virginia, (id. ¶¶ 3-4).

Cooper began working for the Army on September 29, 2008, as a Food Service Worker, WG-7408-2. (Id. ¶ 7.) For the entirety of his employment, Cooper was stationed at the U.S. Army Garrison (USAG) in Ansbach, Germany. (E.g., id. ¶ 5, 30; see also Defs.' Index, Ex. 2, Bacher-Trum Decl. ¶¶ 7, 9, ECF No. 19-2.)

On September 26, 2011, Cooper suffered an injury while performing his job. (Compl. at 3, ECF No. 1.) He ceased working on September 30, 2011, and entered into the Office of Workers Compensation Program (OWCP). (Id.) In May 2012, Cooper informed his first line supervisor, a Mr. Perry, that he would be ready to return to work in July, and he "would be submitting a request for reasonable accommodation upon [his] return to duty." (Id.)

On July 9, 2012, Cooper returned to work and submitted a written request for reasonable accommodations. (Id.) Four managers-specifically, Plans & Operations Division Chief Lockhart-Simpson, Food Program Manager Deese, Supervisory Food Service Assistant Gude, and Food Service Supervisor Perry-responded to Cooper's written request for a reasonable accommodation by issuing a "a new standard operating procedure," or SOP, that was intended to address Cooper's medical limitations. (Id.) Cooper alleges that the SOP conflicted with his doctor's instructions and aggravated his disability, and on July 26, 2012, he made "an amended Request for Reasonable Accommodations in relation to the ineffectiveness of the (SOP)." (Id.) Cooper also told Perry repeatedly that the SOP caused him pain and aggravated his disability. (Id.)

Cooper's complaints were not addressed until August 6, 2012, when he "was temporarily transferred to USAG Ansbach (DES) Vehicle and Firearms Registration Clerk." (Id. at 3.) On October 7, 2012, Cooper was ordered to report back to his Food Service Worker position. (Id. at 4.) Cooper alleges that he was ordered back "after it had been determined by Management, and Human Resources, that [Cooper] would be unable to successfully perform the duties of a Food Service Worker." (Id.) He claims that Alvaro Brown, who was the Deputy Director of Emergency Services at USAG Ansbach, and a Mr. Burgess, who was the Director of Logistics, were responsible for ending Cooper's registration clerk assignment. (Id.)

In addition to the foregoing, Cooper alleges that when he returned to work on July 9, 2012, he was eligible to participate in a "Pipeline Reemployment Program" provided by the Defense Civilian Personnel Advisory Service (DCPAS) Injury and Unemployment Compensation Branch. (Id. at 4.) He states that this program would have given him "a higher probability of . . . successfully completing the duties of apermanent work assignment" after returning to work. (Id.) Cooper alleges, however, that "agency officials" failed to submit his application for entry into this program in retaliation for Cooper's past Equal Employment Opportunity Commission claims "against the management official tasked with performing the duties of generating . . . and submitting the application." (Id. at 5.)

Cooper also alleges that he requested a transfer to the "405th (AFSB) Transportation administrative employment detail" as a reasonable accommodation. (Id. at 5.)² Cooper's request was denied, and the transfer was granted to "a healthy white male food service worker" who made the same request. (Id.) Cooper, who is black, (see id. at 19), claims that this white male received unfair preferential treatment and acquired beneficial skills that ought to have been made available to Cooper, (id. at 5-6).

The complaint states that Perry refused to consider Cooper for temporary work leader duties, and thereby prevented him from advancing "in position, pay, or title"; that management refused to compensate Cooper for "performing work leader duties," refused to promote him, retaliated against him, and denied him bonuses and awards; and that Lockhart-Simpson, Cecilia Mendez, and others subjected Cooper to a hostile work environment. (Id. at 6-7.)³ It also states that Cooper reported his concerns about the Pipeline Program, his job assignments, and his return from leave to Colonel Lawler (the Garrison Commander at USAG Ansbach), but received no response. (Id. at 5.)

On January 10, 2013, Cooper filed a complaint with the Army's Office of Equal Employment Opportunity alleging "discrimination on the basis of Disability (Physical, Wrist), Race (Black), and Reprisal." (Id. at 11.) According to the Office of Equal Employment Opportunity, Cooper's claims were based on the following allegations:

a. On 4 November 2012, [Cooper was] denied traumatic leave because of [his] wrist injury and [was] forced to take sick leave (LS) by Mr. Julian Gude (Supervisory Food Service Assistant, Ansbach 405th);

b. On 20 October 2012, [Cooper was] informed by Mr. Michael Perry (Food Service Worker Supervisor, Ansbach 405th) that because of [his] disability [he] would not be placed in the temporary work leader position within the Klatterbach dining facility;

c. On 20 October 2012, Food Service workers were issued awards, however [Cooper] did not receive one;

d. On 10 July 2012, Mr. Michael Perry (Food Service Worker Supervisor, Ansbach 405th) placed [Cooper] on the same duties within Food Service that caused [his] original injury;

and

e. [Cooper was] not offered a permanent reassignment to the USAG Ansbach Vehicle Registration Office in the position of Vehicle Registration Clerk by Mr. Alvaro Brown (USAG Ansbach Deputy Provost Marshal).

(Id.) The Office of Equal Employment Opportunity issued a final decision dismissing Cooper's claims on January 15, 2013, citing Cooper's failure to file a timely formal complaint. (Id. at 11-12.)

On January 17, 2013, Cooper contacted an EEO counselor to make a pre-complaint claim of discrimination based on disability, race, and "reprisal." (Def.'s Br., Statement of Facts ¶ 21, ECF No. 18.) Then on January 20, 2013, he filed a second formal complaint of discrimination. (Id.) On March 5, 2013, the Office of Equal Employment Opportunity (EEO) issued a final decision on Cooper's second complaint. (Id. ¶ 22.) The EEO dismissed several of Cooper's claims, but it accepted three claims "for further investigation." (Defs.' Index, Ex. 1, Ruff-Geppert Decl. ¶ 10, ECF No. 19-1. See also Defs.' Index, Ex. 1, Ruff-Geppert Decl. Attach. B, ECF No. 19-1.) It described the three accepted claims as follows:

a. Between July 9, 2012, and January 14, 2013, Mr. Tim Burgess (Director of Logistics (DOL), Ansbach), Mr. Lockhart Simpson (Plans & Operations Division Chief, Ansbach), Mr. Cardelion Deese (Food Program Manager, Ansbach), Mr. Julian Gude (Food Service Assistant, Ansbach), Ms. Cecilia Mendez (Schweinfurt COPC, OWCP point of contact),COL Kelly J. Lawler (USAG Ansbach Garrison Commander), and COL Christopher J. Roscoe (Commander, 405th Army Field Support Brigade (AFSB)) failed to respond or provide Mr. Cooper with reasonable accommodations, and or, enter Mr. Cooper into the (DSOC) Pipeline Program;

b. Between July 9, 2012, and January 17, 2013, Mr. Tim Burgess (Director of Logistics, Ansbach), Mr. Lockhart Simpson (Plans & Operations Division Chief, Ansbach), Mr. Cardelion Deese (Food Program Manager, Ansbach), and Mr. Julian Gude (Food Service Assistant, Ansbach), did not consider Mr. Cooper for an administrative detail within DOL, whereas a white physically fit food service worker in the same department was reassigned to various administrative details from March of 2012 to present; and

c. On or about January 14, 2013, Mr. Tim Burgess (Director of Logistics, Ansbach), Mr. Lockhart Simpson (Plans & Operations Division Chief, Ansbach), Mr. Cardelion Deese (Food Program Manage[r], Ansbach), and Mr. Michael Perry (Food ServiceWorker Supervisor, Ansbach) denied Mr. Cooper for the 3rd time the opportunity to perform as acting work leader.

(Defs.' Index, Ex. 1, Ruff-Geppert Decl. ¶ 10, ECF No. 19-1. See also Defs.' Index, Ex. 1, Ruff-Geppert Decl. Attach. B, ECF No. 19-1.) The present status of these three claims is not clear; the parties do not state whether the investigation has been completed or whether the claims have been resolved in a final decision. The complaint merely alleges that Cooper's claims were presented to the EEOC. (Compl. at 9, ECF No. 1.)

The DCPAS Pipeling Reemployment Program, the Food Service Position, and the clerk position in the Vehicle Registration Office were all...