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Clutter v. Perdue

United States District Court, S.D. Texas, Houston Division

June 25, 2018

Michael D. Clutter, Plaintiff,
Sonny Perdue, Secretary of Agriculture, U.S. Department of Agriculture, in his official capacity, et al., Defendants.



         Pending before the court is a motion to transfer venue filed by defendants Sonny Perdue, Dax Roberson, Ann Coffey, Phyllis K. Fong, Christy Slamowitz, and Lane Timm (collectively, “Defendants”). Dkt. 16. Plaintiff Michael D. Clutter, who is pro se, filed a response. Dkt. 17. Having considered the motion, response, and applicable law, the court is of the opinion that the motion should be DENIED.

         I. Background

         On February 2, 2018, Clutter filed a pro se complaint against Defendants organized into seven different counts alleging various causes of action.[1] Dkt. 1. Clutter was special agent with the U.S. Department of Agriculture (“USDA”) located in Shenandoah, Texas.[2] Dkt. 1 ¶ 4. Defendant Dax Roberson worked as an Assistant Special Agent-in-Charge in Temple, Texas, until February 2016 when he was promoted to Special Agent-in-Charge.[3] Dkt. 1 ¶ 5.

         Clutter alleges that a number of Defendants' actions resulted in a “constructive discharge.” Dkt. 1 ¶¶ 6-8. To begin with, Clutter alleges Defendants violated the Age Discrimination in Employment Act through managerial discrimination by Roberson. Id. In November 2012, Clutter was reassigned a case from another agent. Id. ¶ 9. Beginning in March 2013, Clutter believed that agency policy required him to make certain Giglio or Brady disclosures to the prosecutor; however, Roberson presumably ordered him not to make such disclosures.[4] Id. In December 2012, Clutter filed a whistleblower complaint concerning these alleged disclosure violations. Id. at 13. Later in April 2017, he refused to follow Roberson's orders and made partial disclosures to the Harris County Assistant District Attorney.[5] Id. ¶¶ 13-14. Clutter believes that because of Roberson's refusal to allow the disclosures, he suffered negative consequences which fostered an environment of “constructive discharge.”[6] Id. ¶ 20. Clutter asserts that this discriminatory environment eventually induced his retirement. Id.

         In addition to the alleged issues with the disclosures, Clutter alleges that beginning in the Fall of 2014, Roberson began retaliating against him for previously taken sick leave, and that Roberson threatened and bullied Clutter for attempting to take additional sick leave. Id. ¶ 22. Clutter focuses on a December 2015 email from Roberson. Id. ¶ 22. Clutter wrote to Roberson asking to reschedule a January 2016 training course to a Spring 2016 training course, as he had developed serious unresolved medical conditions in 2015 which required continued medical testing. Id. In Roberson's reply, he brought up a Fall 2014 trip Clutter cancelled because he had to care for his elderly parents; Clutter perceived this as bullying and retaliation. Id. Clutter also alleges that Roberson wrote him saying that if he presented a doctor's note, then he would be excused from the training class, but that such a letter could be detrimental to his physical performance evaluation as an agent. Id. Clutter took this as a threat and harassment.[7] Id. ¶¶ 23-25, 29-31. Clutter also alleges that Roberson violated the Privacy Act by attempting to use information about Clutter's past medical leave caring for his elderly parents to bully him. Id. ¶¶ 23-25.

         Next, Clutter alleges disparate treatment during and after a September 2016 Firearms training.[8] Id. ¶¶ 32-37. Clutter suffered an on-the-job knee injury while attending Control Tactics Training. Id. ¶ 32. Clutter alleges that Roberson told him to “get out there and shoot” even after he complained of his injury. Id. ¶ 34. He also alleges that Roberson made a confrontational comment to Clutter around other agents. Id. Clutter states that he did not seek any medical attention through the Federal Employees Compensation Act for fear of further retaliation from Roberson. Id. ¶ 35.

         At some later point, Clutter found out from one of his supervisors, Patrick Munday, that Roberson had left a “needs improvement” comment in Clutter's FY2016 Performance Appraisal in his personnel file after the Firearms Training. Id. ¶ 39. Clutter believes that because of Roberson's failure to describe how Clutter could improve, he was placed at a significant disadvantage in comparison with other agents. Id. ¶ 54.

         Clutter asserts that he filed an informal Equal Employment Opportunity Complaint with the Agency in 2016.[9] Id. ¶ 50. He contends that Roberson continued to discriminate against him after this complaint. Id. Specifically, he points to three incidents, including Roberson continuing to prohibit him from making the disclosures he believed necessary. Id. ¶ 51. Further, he claims that Roberson harassed him and was overly critical of insignificant matters, including an incident when Roberson sent Clutter an email admonishing him for using the agency phone line for “personal matters.”[10] Id. ¶ 52. Lastly, Clutter takes issue with the fact that Roberson did not provide follow-up guidance on his FY2016 “need improvement” rating. Id. ¶ 53. Clutter further believes that since March 2017, Roberson has placed greater scrutiny on which cases are assigned to Clutter, and there exists an “extraordinary delay” in his case assignment. Id. ¶ 58.

         Clutter also has issues with powerpoints and emails that Roberson shared with multiple agents grouping him in the “older or retirement eligible group.” Id. ¶ 44. Clutter believes that by broadcasting his eligible-to-retire date, Roberson made it so that anyone could easily deduce his age. Id.

         Clutter's other allegations center around the December 2015 sick leave email exchange, the Agency's refusal to allow Clutter to make disclosures he believed necessary, an alleged retaliation against his First Amendment rights associated with refusal to allow him to make disclosures, and a failure to provide him with what he calls “injunctive relief.” Dkts. 35-60.

         Clutter originally filed this action in the Southern District of Texas (“SDTX”). Dkt. 1. On May 16, 2018, Defendants filed a motion to transfer venue to the Western District of Texas (“WDTX”) pursuant to 28 U.S.C. § 1404(a). The motion is now ripe for disposition.

         II. Legal Standard

         “For the convenience of 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 or to any district or division to which all parties have consented.” 28 U.S.C. § 1404(a). “The district court has broad discretion in deciding whether to order a transfer.” Caldwell v. Palmetto State Sav. Bank of S.C., 811 F.2d 916, 919 (5th Cir. 1987). The moving party bears the burden of showing why the forum should be changed. Time, Inc. v. Manning, 366 F.2d 690, 698 (5th Cir. 1966). In evaluating a § 1404(a) motion to transfer, the court examines (1) whether the action “might have ...

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