# Fleming v. Tennessee Valley Authority

> District Court, N.D. Alabama · July 17, 2023

URL: https://www.frixlaw.com/law-library/cases/9991734

## Case

- **Court:** District Court, N.D. Alabama
- **Decided:** July 17, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION

CHARLES K. FLEMING, )
JAMES HOWARD DUPREE, & )
ERIC WILLINGHAM )
)
Plaintiffs, )
)
v. ) Case No. 5:22-CV-00891-LCB
)
JEFFREY LYASH, CEO, )
TENNESEE VALLEY AUTHORITY, )
)
Defendant. )

OPINION & ORDER

Three individual plaintiffs—Willingham, Fleming, and Dupree—brought suit
together in this Court; they each seek recovery from Tennessee Valley Authority
(TVA) on a slew of federal law claims for alleged employment discrimination.
Before the Court now is TVA’s motion (Doc. 7) for dismissal—or, in the alternative,
for transfer—of all claims asserted by plaintiffs Fleming and Dupree, on improper-
venue grounds.1 On December 27, 2022, the Court stayed these proceedings pending
resolution of TVA’s motion, and this Order lifts that stay. (See Doc. 14.)

1 In that same motion, TVA seeks Rule 12(b)(6) dismissal of any remaining claims asserted under
§ 1981, § 1982, and the Equal Pay Act. (See Doc. 8 at 13–14.) The Court does not herein address
TVA’s Rule 12(b)(6) arguments.
I. BACKGROUND
Each of the plaintiffs alleges that TVA discriminated against him on the bases

of race and pay; each proceeds pursuant to Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq.; the Civil Rights Act of 1866, 42 U.S.C. § 1981; the Lilly
Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5 (amending Title

VII by adding compensation-related discrimination to the list of actionable
offenses); and the Equal Pay Act, 29 U.S.C. § 206(d).2 In addition, both Fleming
and Dupree bring claims under the Age Discrimination in Employment Act, 29
U.S.C. § 621; and under 42 U.S.C. § 1982. Dupree and Willingham both bring

claims under the Americans with Disabilities Act, 42 U.S.C. § 12101, as well. All
“causes of action” and, for the most part, all recitations of fact in the complaint are
set forth in a manner (substantively and stylistically) individualized for each

plaintiff.
It bears noting that these plaintiffs were never co-workers in the colloquial
sense. Willingham is an Alabama resident and former employee at TVA’s Browns
Ferry Nuclear Plant (BFN) in Athens, Alabama. (Doc. 1 at 1, 20.) Fleming and

Dupree—both Tennessee residents—complain of conduct related to their
employment at TVA’s Sequoyah Nuclear Plant (SQN) in Soddy-Daisy, Tennessee,

2 The Court acknowledges, but does not further address, the plaintiffs’ concession regarding their
Equal Pay Act claims’ unsustainability. See Doc. 11 at 2 n.1.
and TVA’s corporate office in Chattanooga, Tennessee, respectively. (Id. at 1, 4, 11,
14.)

On the whole, the facts asserted in support of Fleming’s and Dupree’s claims
relate to Tennessee, not Alabama. The only true exception is Fleming’s allegation
that he was forced to travel to BFN for certification and outage work and, while

there, was given “the unpopular, inflexible and most undesired promotion quality
tasks and shifts.” (Doc. 1 at 7 ¶¶ 33–36.) In addition, Dupree makes one allegation
that is, at least tangentially, related to Alabama: He claims that his superiors
attempted to “steer” him to BFN so that they might hire a white employee to fill his

position at the Chattanooga office. But Dupree never actually transferred to BFN.
(Doc. 1 at 14 ¶ 65(f).)
On these facts, and in light of the venue principles applicable to this

employment dispute, TVA moves to dismiss Fleming and Dupree as parties under
Rule 12(b)(3) of the Federal Rules of Civil Procedure or, in the alternative, to
transfer their claims to the Eastern District of Tennessee. (See Docs. 7–8, 13.)
II. LEGAL STANDARD

A. Venue
Rule 12(b)(3) of the Federal Rules of Civil Procedure affords defendants the
opportunity to obtain dismissal of claims filed in an “improper” venue. The venue-

propriety determination “is generally governed by 28 U.S.C. § 1391” unless
“otherwise provided by law.” Atl. Marine Constr. Co. v. U.S. District Court, 571
U.S. 49, 55 (2013) (emphasis in original) (quoting the statute).

Title VII is just that sort of law, and claims arising thereunder are subject,
exclusively, to a more exacting venue standard, see 28 U.S.C. § 2000e–5(f)(3), than
that imposed by the general statute. Pinson v. Rumsfeld, 192 F. App’x 811, 817 (11th

Cir. 2006). Moreover, where Title VII claims are asserted alongside claims subject
to the general venue provision, “the Title VII venue provision controls.” Green v.
Pickens Cnty. Sch. Sys., 2018 WL 11335575, at *1 (N.D. Ga. Dec. 14, 2018) (quoting
Vincent v. Woods Servs., Inc., 2008 WL 939190, at *1 (D.N.J. Apr. 4, 2008)); accord

Sardinas v. CRST Expedited, Inc., 2019 WL 13255943, at *1 (S.D. Fla. Nov. 25,
2019) (citing Hayes v. RCA Serv. Co., 546 F. Supp. 661, 664 (D.D.C. 1982)); Larkin
v. Mayorkas, 2022 WL 4009897, at *2 (N.D. Ga. June 2, 2022), report and

recommendation adopted, 2022 WL 4009907 (N.D. Ga. June 27, 2022).
More specifically, Title VII suits may be filed in (1) “any judicial district in
the State in which the unlawful employment practice is alleged to have been
committed”; (2) “the judicial district in which the employment records relevant to

such practice are maintained and administered”; or (3) “the judicial district in which
the aggrieved person would have worked but for the alleged unlawful employment
practice.” Pinson, 192 F. App’x at 816–17 (quoting § 2000e–5(f)(3)). The burden of

establishing proper venue lies with the plaintiff. Id. at 817.
A district court in which, for venue purposes, a case has been improperly filed
must either “dismiss, 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). Even
though dismissal is appropriate under the statute, “the interest of justice generally
favors transferring a case” so long as a properly situated court does exist. Abou-

Hussein v. Mabus, 953 F. Supp. 2d 251, 259 (D.D.C. 2013); accord James v. Verizon
Servs. Corp., 639 F. Supp. 2d 9, 15 (D.D.C. 2009) (“Courts generally favor transfer
over dismissal.”); see also Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466–67 (1962).
B. Severance of Claims

A district court has power to “sever any claim against a party.” FED. R. CIV.
P. 21. Its discretion is “broad.” Buford v. Dunn, 2021 WL 718507, at *2 (N.D. Ala.
2021) (citing Swan v. Ray, 293 F.3d 1252, 1253 (11th Cir. 2002)). In that vein, the

Rule permits severance with an eye toward transferring one of the resulting cases to
another venue while retaining jurisdiction over the other. Id. (citing Chrysler Credit
Corp. v. Country Chrysler, Inc., 928 F.2d 1509, 1519 (10th Cir. 1991) (“[W]here
certain claims in an action are properly severed . . . two separate actions result; a

district court may transfer one action while retaining jurisdiction over the other.”)).
III. DISCUSSION
For the forthcoming reasons, the Court finds as follows: (1) Willingham’s

claims, on the one hand, are to be severed from those of Fleming and Dupree, on the
other; (2) The action encompassing the claims of Fleming and Dupree is due to be
transferred to the United States District Court for the Eastern District of Tennessee;

and (3) The Court shall retain jurisdiction over Willingham’s claims, and
Willingham shall file an amended complaint in that case.
A. Venue

All are in agreement that Fleming and Dupree could have filed their claims in
the Eastern District of Tennessee.3 The parties disagree, however, about whether
this Court is likewise a proper venue for adjudication of those claims. For the
forthcoming reasons, the Court is in agreement with TVA.

Fleming was assigned to SQN, and Dupree only worked in TVA’s
Chattanooga corporate office complex. (Doc. 1 ¶¶ 12, 65(f).) The facts asserted by
Fleming and Dupree are, accordingly, almost entirely devoid of any reference to the

State of Alabama and, instead, relate to alleged discrimination that occurred
exclusively within Tennessee. Dupree makes no allegation that he ever worked in
Alabama at all or otherwise reported to supervisors here; he alleges only that he was
offered an opportunity to relocate to Alabama. But Dupree never actually moved to

BFN. (See id. at 14 ¶ 65(f).) Fleming, for his part, did travel to BFN for certification

3 See Doc. 11 at 5 n.2 (“If the court decides to transfer the Dupree and Fleming actions, then the
plaintiffs agree that the Eastern District of Tennessee would be the appropriate venue.”)
Accordingly, the court need not address § 2000e–5(f)(3)’s fallback provision, which provides that
if no venue is proper under any of its first three venue provisions, the action may be brought in the
district encompassing the employer’s principle place of business.
and outage work, where he claims to have been discriminatorily assigned the most
“unpopular” of the “promotion quality” duties. (Id. at 7 ¶¶ 34–35.) But on those

facts, Fleming has failed to carry his burden of establishing that venue is proper in
this Court.
Fleming does not allege any facts that, even taken as true, show he suffered

any legally cognizable discrimination within the state. Unlawful discrimination
under Title VII generally requires identification of an “adverse employment
action”—i.e., a significant change in employment status, including “hiring, firing,
failing to promote, reassignment with significantly different responsibilities, or a

decision causing a significant change in benefits.” Gibson v. Valley Avenue Drive-
In Restaurants, LLC, 2013 WL 6794986, at *6 (N.D. Ala. 2013). Fleming’s
allegation that he received “the unpopular, inflexible and most undesired promotion

quality tasks and shifts” on his trip to BFN does not, as a matter of law, indicate the
existence of any adverse employment action and, thus, is of no use in Fleming’s
quest to recover for unlawful discrimination.
Fleming separately asserts that Title VII’s second venue provision—the

provision regarding the employer’s records—allows his action to be brought in this
Court.4 There is a reasonable expectation, he argues, that BFN would have

4 Plaintiffs make no meaningful argument regarding the records related to discrimination allegedly
suffered by Dupree, but as an employee at the Chattanooga office, it is only reasonable to believe
employment records relating to his receipt of “unpopular” work assignments at BFN.
(See Doc. 11 at 7.) But the statute permits suit in the district housing “the

employment records relevant to such practice”—i.e., relevant to discrimination in
employment. 42 U.S.C. § 2000e–5(f)(3) (emphasis added); see also, e.g., Amirmokri
v. Abraham, 217 F. Supp. 2d 88, 90–91 (D.D.C. 2002). As the Court has already

made clear, neither Fleming nor Dupree makes any mention of an adverse
employment action to which they were subjected in Alabama, much less anything
indicating that their employment records are maintained in Alabama.
In sum: Fleming’s and Dupree’s claims are not properly before this Court and,

accordingly, must either be dismissed or be transferred. See 28 U.S.C. § 1406(a).
B. Transfer
Having found that the Eastern District of Tennessee is the exclusive district in

which the claims of Fleming and Dupree could have been brought, the Court must
decide whether justice calls for their transfer. See 28 U.S.C. § 1406(a). To reiterate,
“the standard remedy for improper venue is to transfer the case to the proper court
rather than dismissing it—thus preserving a [plaintiff’s] ability to obtain review.”

Gyamfi v. Acosta, 2018 WL 3928994, at *2 (N.D. Ala. Aug. 16, 2018) (quoting Nat’l
Wildlife Fed. v. Browner, 237 F.3d 670, 674 (D.C. Cir. 2001)).

that his relevant employment records would be located there, and there exists no reason before this
Court to believe that such records might be located in Alabama.
The Court finds that the interest of justice weighs heavily in favor transferring
the claims of Fleming and Dupree to the Eastern District of Tennessee, where the

alleged discrimination occurred. Notwithstanding the delays inherently associated
with an improper choice of venue, Fleming and Dupree have already suffered
considerable delay as a result of the Court’s decision to grant TVA’s motion for a

temporary stay of the case. The Court finds that any additional delay—namely,
dismissal and refiling—would undermine, rather than promote, justice. Nothing
suggests that deviation from the general rule favoring transfer is appropriate in this
case.

C. Severance of Claims
As TVA concedes, this Court is a proper venue for adjudication of
Willingham’s claims.5 Moreover, the Eastern District of Tennessee is an improper

venue for Willingham’s purposes, as his allegations relate entirely to employment in
Alabama. Thus, the Court is left with two options: (1) dismiss the claims of Fleming
and Dupree, which the Court has already deemed an unjust course of action; or (2)
sever their claims from Willingham’s for purposes of effectuating their transfer to

the Eastern District of Tennessee, the exclusive district in which they may
permissibly be litigated. Needless to say, the Court opts in favor of the latter.

5 See generally Doc. 8.
IV. CONCLUSION
The Court LIFTS the stay on these proceedings and, for the foregoing
reasons, SEVERS Willingham’s claims from the remainder of this action; the Clerk
of Court is accordingly directed to create a new case for Willingham v. Tennessee
Valley Authority and directly assign it to the undersigned. The action encompassing
the claims of Fleming and Dupree is hereby TRANSFERRED to the United States
District Court for the Eastern District of Tennessee. Additionally, the Court
ORDERS Willingham to file an amended complaint in this Court.
DONE and ORDERED July 17, 2023.

LILES C. BURKE
UNITED STATES DISTRICT JUDGE

10

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9991734. Public record. Not legal advice.