Equal Employment Opportunity Commission v. Outokumpu Stainless USA, LLC
MEMORANDUM OPINION AND ORDER as follows: 1. The Motion to Transfer Venue to the Southern District of Alabama (Doc. 8 ) is GRANTED as further set out in the opinion and order. 2. The Clerk is DIRECTED to take the necessary steps to transfer this case to the Southern District of Alabama. 3. The Motion to Stay (Doc. 13 ) is DENIED as moot as further set out in the opinion and order. Signed by Honorable Judge W. Harold Albritton, III on 9/25/2015. (Attachments: # 1 Civil Appeals Checklist)(dmn, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EQUAL EMPLOYMENT OPPORTUNITY
OUTOKUMPU STAINLESS, USA, LLC,
Case No. 2:15cv405-WHA
MEMORANDUM OPINION AND ORDER
This cause is before the court on a Motion to Transfer Venue (Doc. #8), filed on August 24,
2015, and a Motion to Stay (Doc. #13), filed on August 25, 2015, by the Defendant, Outokumpu
Stainless USA, LLC (“Outokumpu”).
The Plaintiff, the Equal Employment Opportunity Commission (“EEOC”), filed a
Complaint in this case on June 8, 2015. The Plaintiff brings claims for failure to promote on the
basis of race in violation of 42 U.S.C. §2000e-2(a)(1) and 42 U.S.C. §1981a, on behalf of charging
parties Wallace Dubose, Daniel Nickelson, Steven Jones, Victor Oliver, and a class of at least one
other employee adversely affected by the Defendant’s employment practices.
The court has federal question subject matter jurisdiction. 28 U.S.C. §1331.
For reasons to be discussed, the Motion to Transfer is due to be GRANTED and the Motion
to Stay is due to be DENIED as moot.
II. STANDARD FOR MOTION TO TRANSFER VENUE
Section 1404(a) of Title 28 of the United States Code allows a district court to transfer any
civil action to a district where it might have been brought to promote the convenience of the parties
and witnesses and in the interest of justice. The statute places the decision of whether a motion
for a change of venue should be granted within the sound discretion of the court. Hutchens v. Bill
Heard Chevrolet Co., 928 F. Supp. 1089, 1090 (M.D. Ala. 1996); see also Ross v. Buckeye
Cellulose Corp., 980 F.2d 648, 654 (11th Cir. 1993).
The question of whether to transfer venue is a two-pronged inquiry, which first requires
that the alternative venue be one in which the action could originally have been brought by the
plaintiff. 28 U.S.C. §1404(a). The second prong requires courts to balance private and public
factors to determine if transfer is justified. See Miot v. Kechijian, 830 F. Supp. 1460, 1465–66
(S.D.Fla.1993). Courts rely on a number of factors including: (1) the convenience of the
witnesses; (2) the location of relevant documents and the relative ease of access to sources of
proof; (3) the convenience of the parties; (4) the locus of operative facts; (5) the availability of
process to compel the attendance of unwilling witnesses; (6) the relative means of the parties; (7) a
forum's familiarity with the governing law; (8) the weight accorded a plaintiff's choice of forum;
and (9) trial efficiency and the interests of justice, based on the totality of the circumstances.
Manuel v. Convergys Corp., 430 F.3d 1132, 1135 n.1 (11th Cir. 2005).
The facts, relevant to the pending motion, are as follows:
The Plaintiff EEOC is the agency charged with the administration and enforcement of Title
VII. Defendant Outokumpu is the majority owner and operator of a stainless steel processing
facility in Calvert, Alabama which is within the Southern District of Alabama. Outokumpu is
alleged in the Complaint to have engaged in discrimination on the basis of race when it failed to
promote the Charging Parties and a class of at least one other employee to one of six available first
line-supervisor positions that were available at its Calvert, Alabama facility.
The Charging Parties who were employed by Outokumpu at the Calvert, Alabama facility
are Wallace Dubose (“Dubose”), who resides in Hoover, Alabama, according to company records
(Doc. #9-1); Daniel Nickelson (“Nickelson”), who resides in Lisman, Alabama according to
company records; Steven Jones (“Jones”), who resides in Evergreen, Alabama; Victor Oliver
(“Oliver) who resides in Mobile, Alabama; and Joshua Burrell (“Burrell” or “the class member”),
who resides in Mobile, Alabama. Hoover is located within the Northern District of Alabama, and
Mobile, Lisman, and Evergreen are within the Southern District of Alabama. None of the
Charging Parties have a connection to this District.
The Human Resources Manager of Outokumpu states in a Declaration that three
management employees were principally involved in the promotion process at issue in this case:
former employee John Carter (“Carter”) who lives in the United Kingdom; former employee
Darren Gates (“Gates”) who lives in Spanish Fort, Alabama which is in the Southern District of
Alabama, near Mobile, Alabama; and former employee Traci Nix (“Nix”) who lives in
Birmingham, Alabama which is in the Northern District of Alabama. (Doc. #9-1).
Outokumpu also identifies six employees who were promoted to the Team Leader
positions at issue and will serve as comparators in the case. Three of those, James Mosley, Darrel
Mosley, and William Jones are current Outokumpu employees who live in Wagerville, Bay
Minette, and Mt. Vernon, respectively; two, Edward Jordan and Michael Adams, are former
employees and the company’s last known addresses for them are in Saraland and Brewton,
Alabama, respectively, which are in the Southern District of Alabama, and the remaining former
employee, Matthew Dalton, is believed to live out of state. (Doc. #9-1).
In the statement of jurisdiction and venue in the Complaint, Outokumpu states that the
employment practices alleged to be unlawful were committed within the jurisdiction of the United
States District Court for the Middle District of Alabama. It is undisputed, however, that the
challenged employment actions occurred in Calvert, within the Southern District of Alabama.
Outokumpu argues for transfer of venue to the Southern District of Alabama pursuant to 28
U.S.C. §1404(a). The statute requires that the alternate venue be one in which the plaintiff could
have brought the case originally. Outokumpu contends that the case could have been brought in
the Southern District of Alabama because a Title VII case is properly brought in any judicial
district in which the unlawful employment practice is alleged to have been committed, in the
judicial district in which the employment records are maintained and administered, or in the
judicial district in which the aggrieved person would have worked but for the unlawful practice,
but if the respondent is not found within any such district, the action may be brought within the
judicial district in which the respondent has his principal office. 42 U.S.C. §2000e-5(f)(3). The
EEOC concedes this point, and the court finds that the case could have been brought originally in
the Southern District of Alabama.
The remaining issue is whether the applicable convenience factors sufficiently weigh in
favor of transfer. Those factors are (1) the convenience of the witnesses; (2) the location of
relevant documents and the relative ease of access to sources of proof; (3) the convenience of the
parties; (4) the locus of operative facts; (5) the availability of process to compel the attendance of
unwilling witnesses; (6) the relative means of the parties; (7) a forum's familiarity with the
governing law; (8) the weight accorded a plaintiff's choice of forum; and (9) trial efficiency and the
interests of justice, based on the totality of the circumstances. Manuel v. Convergys Corp., 430
F.3d 1132, 1135 n.1 (11th Cir. 2005).
The court begins its analysis with the factor of the weight to be given the plaintiff’s choice
of forum because generally, the plaintiff’s choice of forum is given deference unless it is clearly
outweighed by other considerations. Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253, 260 (11th
The EEOC cites case law from outside of the Eleventh Circuit for the proposition that the
plaintiff’s choice of forum should be given special deference in a Title VII case. See Turnley v.
Banc of America Investment Services, Inc., 576 F. Supp. 2d 204, 217 (D. Mass. 2008).
The law in the Eleventh Circuit, however, is that a Title VII case is subject to the same
§1404(a) analysis as other cases. In Ross v. Buckeye Cellulose Corp., 980 F.2d 648 (11th Cir.
1993), separate lawsuits were filed against a single employer and all of the cases not originally
filed in the Middle District of Georgia were transferred there. On appeal, the plaintiffs argued
that the transfer was an abuse of discretion and that the district courts erred in failing to consider
whether the Title VII venue provision conferred a right or privilege to choose the forum for the
suit. The Eleventh Circuit noted that it was not convinced that suits under Title VII lie outside the
purview of the transfer clause of 28 U.S.C. §1404. Ross, 980 F.2d at 655 n.13. The court cited
28 U.S.C. §1404(a) and reasoned that although it was proper for the Title VII suits be brought in
either the Southern or Northern District of Georgia, there was no abuse of discretion in the transfer
to the Middle District. The court noted that it was undisputed that the defendant’s plant and all
employment records relevant to the suits were located in the Middle District, and it was reasonable
for the court to assume that the overwhelming majority of the witnesses whose testimony might be
relevant resided in the Middle District of Georgia. Id. at 655.
Under Ross, therefore, the traditional analysis under §1404(a) applies in this case. Under
that traditional §1404(a) analysis, while it is generally true that a plaintiff’s choice of forum is
entitled to great weight, Robinson, 74 F.3d at 260, there are considerations which can mitigate
against that weight. One of those considerations is whether the plaintiff’s choice of forum is its
home forum. As the Supreme Court has explained, when the choice of forum is not the plaintiff’s
“home forum,” the “presumption in the plaintiff's favor ‘applies with less force,’ for the
assumption that the chosen forum is appropriate is in such cases ‘less reasonable.’” Sinochem Int'l
Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 430 (2007) (citation omitted).
Another consideration which mitigates against the weight afforded the plaintiff’s choice of
forum is also a factor in transfer analysis, namely, the locus of operative events. Manuel v.
Convergys Corp., 430 F.3d 1132, 1135 n.1 (11th Cir. 2005). In the Complaint filed in this case,
(Doc. #1 at p.2), the EEOC identified the Middle District of Alabama as being an appropriate
venue because the alleged unlawful employment practices were committed within the jurisdiction
of this district. See 42 U.S.C. §2000e-(5)(f)(3) (“any judicial district in the State in which the
unlawful employment practice is alleged to have been committed.”). It appears to be undisputed,
however, that the alleged unlawful practices identified occurred within the Southern District of
Alabama, in Calvert, Alabama. When none of the conduct complained of took place in the forum
selected by the plaintiff, the plaintiff’s choice of forum is of minimal value. Gould v. Nat’l Life
Ins. Co., 990 F. Supp. 1354, 1358 (M.D. Ala. 1998).
Because the Middle District of Alabama is not the EEOC’s home forum and because this
district is not the site of any of the operative facts in this case, the EEOC’s choice to file its case
here, while it is legally proper and will be considered, is not entitled to great weight in the overall
Convenience of Parties and Non-Party Witnesses
The parties are in agreement that the residence of the majority of the material witnesses is
an important factor to consider. See Folkes v. Haley, 64 F. Supp. 2d 1152, 1155 (M.D. Ala.
1999). In analyzing this factor, the court is not to merely tally the number of witnesses who live
in the current forum in comparison to the number located in the proposed transferee forum. See
Carroll v. Texas Instruments, Inc., 910 F. Supp. 2d 1331, 1335 (M.D. Ala. 2012). The court must
look at witnesses likely to testify at trial, and should consider the convenience of nonparty
witnesses more than the convenience of party witnesses. Id.
The EEOC argues that it, not the Charging Parties, is the party in this case whose
convenience the court should consider. The EEOC also argues that the court ought not consider
the convenience of current employees of Outokumpu because employees of a company may be so
closely aligned with their company that they may be considered a party. Id. Given these two
arguments by EEOC regarding the party and non-party status of witnesses, the court will consider
together the factors of convenience of parties and non-party witnesses, affording the appropriate
weight to each.
Outokumpu contends that because none of the Charging Parties reside in the Middle
District of Alabama, and four of the five aggrieved Charging Parties reside in the Southern
District, transfer would be more convenient to these witnesses. Outokumpu says that the vast
majority of likely witnesses, who are current and former employees, live in the Southern District,
that the EEOC office that investigated the charges is located there, and that the witnesses who do
not reside there live either out of state, out of the country, or are in the Northern District of
Alabama, not in the Middle District of Alabama.
The EEOC disputes that the vast majority of likely witnesses reside in the Southern District
of Alabama. The EEOC states that the majority of material witnesses actually live closer to
Montgomery, Alabama than to Mobile because Charging Party Dubose lives in Hoover, and
charging parties Oliver and Nickelson, although they live within the Southern District, live in
towns which are equidistant from Montgomery, Alabama in the Middle District and Mobile,
Alabama in the Southern District.
The EEOC also states that although Outokumpu has pointed to other individuals who live
within the Southern District as being material witnesses, Outokumpu has not made a sufficient
showing of what the witnesses would testify to demonstrate the materiality of these witnesses.
One case relied upon by the EEOC, in analyzing the proof necessary to show what
witnesses would testify to, explained that a party does not have to identify with certainty of its
potential witnesses, or even a summary of the testimony of all of its witnesses, but must provide
enough information so that the court can make an educated guess as to what witnesses are likely to
be called. Carroll, 910 F. Supp. 2d at 1339. In that case, groups of witnesses with varying
degrees of relevant information about a patent case were at issue, so the court needed guidance as
to which witnesses would be called. Id. at 1339. In this case, by contrast, the claims presented
challenge the selection of identified comparators over identified applicants by identified
decision-makers. The court finds, therefore, that in this case, it can discern that the Charging
Parties, a class member, the decision-makers, and the comparators identified as witnesses are
likely to provide testimony in this case, and Outokumpu need not make an additional showing of
the substance of their testimony for the court to consider them as witnesses in the transfer analysis.
Two persons on behalf of whom the suit is being brought, Charging Party Oliver and class
member Burrell, live in Mobile. A decision-maker, Gates, is a former employee of Outokumpu
who the company’s records indicate lives in Baldwin County, adjacent to Mobile County. Two
former employees who are comparators live in towns near Mobile. In addition, if the court
considers the convenience of witnesses who are current employees, although with less weight,
there are three comparators who live within the Southern District. The convenience gained by
transfer for these eight witnesses is compared to the convenience of a Charging Party and former
employee/decision-maker who live in the Northern District, a former employee/decision-maker
who lives outside of the country, and a former employee who is a comparator who lives out of
state. The two Charging Parties who live within the Southern District, but near the Middle
District, will not gain or lose convenience with a transfer. The court concludes that the
convenience of parties and non-party witnesses weighs somewhat in favor of transfer.
Location of Documents
Outokumpu says that it is undisputed that the relevant documents and other sources of
proof are located within the Southern District. The EEOC responds that this factor is less
important in the age of technology because business records are stored and can be shared
electronically. Because the location of sources of proof is a factor the court is to consider under
Eleventh Circuit venue precedent, Manuel, 430 F.3d at 1135 n.1, even though electronic files may
make this factor less significant, it is a factor which the court considers as weighing in favor of
Availability of Compulsory Process
Outokumpu states that none of the witnesses reside in the Middle District of Alabama, so it
is likely that they will be beyond the subpoena power of the court. The EEOC argues that the
witnesses identified are current and former employees whose cooperation can be easily secured by
Outokumpu. The court cannot conclude that this factor, distinct from the consideration of the
convenience of the witnesses, weighs in favor of transfer.
Relative Means of the Parties
Outokumpu says the EEOC can bear any expense that may come from a forum change, as
it filed the case outside of the forum in which its Birmingham office is located. The EEOC argues
that the court should consider that costs to its attorneys are expenses born by taxpayers. The court
cannot conclude that this factor weighs in favor of transfer.
Forum's familiarity with the governing law
Outokumpu has not demonstrated that this factor weighs in favor of transfer.
The Public Interest
The public interest factor is said to include several considerations one of which is the local
interest in the case. Carroll, 910 F. Supp.2d at 1340. “There is a local interest in having
localized controversies decided at home.” Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508–9 (1947).
The more significant the connection to the forum, the greater the interest of the citizens of that
forum in the dispute. See Cellularvision Technology & Telecommunications, L.P. v. Alltel Corp.,
508 F. Supp. 2d 1186, 1191 (S.D. Fla. 2007). The Supreme Court also has noted that “[j]ury duty
is a burden that ought not to be imposed upon the people of a community which has no relation to
the litigation.” Gulf Oil Corp., 330 U.S. at 509.
Outokumpu points out that the Middle District of Alabama has no connection to this case
and no discrimination is alleged to have occurred in the Middle District of Alabama. The alleged
discrimination is stated to have occurred within the Southern District. None of the witnesses,
parties, or sources of proof are located in the Middle District of Alabama. Outokumpu and its
current employees are within the Southern District of Alabama.
There is little to no public interest in having this case decided in the Middle District of
Alabama because this forum has no connection to the case, but there is a very strong public interest
in having the case decided in the Southern District of Alabama where the alleged discrimination
occurred, and where the Defendant and its employees are located. Carroll, 910 F. Supp. 2d at
1340. In light of binding and persuasive precedent interpreting the local interest factor of the
public interest analysis, the court finds that this factor weighs strongly in favor of transfer in this
Considering all of the relevant factors, and the weight to be given them in this case, as
outlined above, it appears to the court that transfer is appropriate. The only connection that this
case has to this venue is that the EEOC chose to file its lawsuit here. That choice is legally proper,
and has been considered, but it is not entitled to great weight, for the reasons discussed. The
assertion that two of the Charging Parties who live within the Southern District of Alabama live in
a portion of the Southern District which is equidistant from Montgomery, Alabama within the
Middle District of Alabama and Mobile, Alabama also has been considered by the court, as well as
the fact that other likely witnesses live outside of either district, but the convenience to witnesses
and parties factors overall weighs in favor of transfer. It is also undisputed that the relevant
documents and other sources of proof are within the Southern District, which is a factor weighing
in favor of transfer. Significantly, the discrimination alleged to have occurred is said to have
taken place in the Southern District of Alabama, and none of the conduct at issue occurred in the
Middle District of Alabama. The interest in this case of the public in the Southern District is
strong, whereas there is little to no public interest in the Middle District, which has no connection
to this case. On balance, therefore, the court concludes because the EEOC’s choice of forum is
not entitled to great weight in this case, the relevant factors for consideration weigh sufficiently in
favor of transfer to the Southern District of Alabama to allow transfer under §1404(a). See Ross,
980 F.2d at 655. Therefore the Motion to Transfer is due to be GRANTED.
For the reasons discussed, it is hereby ORDERED as follows:
1. The Motion to Transfer Venue to the Southern District of Alabama (Doc. #8) is
2. The Clerk is DIRECTED to take the necessary steps to transfer this case to the
Southern District of Alabama.
3. The Motion to Stay (Doc. #13) is DENIED as moot.
Done this 25th day of September, 2015.
_/s/ W. Harold Albritton
W. HAROLD ALBRITTON
SENIOR UNITED STATES DISTRICT JUDGE
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