United States District Court, S.D. Texas, Houston Division
Michael D. Clutter, Plaintiff,
Sonny Perdue, Secretary of Agriculture, U.S. Department of Agriculture, in his official capacity, et al., Defendants.
MEMORANDUM OPINION AND ORDER
H. MILLER UNITED STATES DISTRICT JUDGE
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.
February 2, 2018, Clutter filed a pro se complaint
against Defendants organized into seven different counts
alleging various causes of action. Dkt. 1. Clutter was special
agent with the U.S. Department of Agriculture
(“USDA”) located in Shenandoah,
Texas. 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. Dkt. 1 ¶ 5.
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. 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. 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.” Id. ¶ 20. Clutter asserts
that this discriminatory environment eventually induced his
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. 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.
Clutter alleges disparate treatment during and after a
September 2016 Firearms training. 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.
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.
asserts that he filed an informal Equal Employment
Opportunity Complaint with the Agency in 2016. 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.” 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.
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
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.
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.
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 ...