WALKER v. WHEELER

Filing 13

MEMORANDUM OPINION AND ORDER granting in part Defendant's 4 Motion to Dismiss and holding in abeyance Plaintiff's 7 Motion to Amend. See Memorandum and Order for details. Signed by Judge Timothy J. Kelly on 2/18/2021. (lctjk1)

Case 1:20-cv-00235-TJK Document 13 Filed 02/18/21 Page 1 of 7

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JAMES T. WALKER,
Plaintiff,
v.

Civil Action No. 20-235 (TJK)

JANE NISHIDA1,
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff James T. Walker served as a scientist at the Environmental Protection Agency
(EPA) until 2017. Believing that his supervisors had discriminated against him, he sued under
Title VII of the Civil Rights Act of 1964. Defendant, EPA’s acting administrator, moves to
dismiss on several grounds, including that Walker has sued in an improper venue, failed to
exhaust his administrative remedies, and failed to state a claim. In response to the motion,
Walker moved to amend his complaint, and Defendant opposed, arguing that amendment would
be futile on the same grounds. For the following reasons, the Court grants the motion in part
because venue is improper in this District and transfers the case to the Eastern District of
Virginia rather than dismiss it.
I.

Background
Walker is an African-American man born in 1946 who worked as a scientist at the EPA’s

National Center for Environmental Assessment (NCEA) from 1984 until 2017. ECF No. 1
(“Compl.”) at 3. Proceeding pro se, he alleges that in his last few years working there he

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Jane Nishida, the Environmental Protection Agency’s acting administrator, is substituted for
Andrew Wheeler under Federal Rule of Civil Procedure 25(d).

Case 1:20-cv-00235-TJK Document 13 Filed 02/18/21 Page 2 of 7

suffered discrimination and retaliation based on (among other things) his race. See Compl. He
filed his complaint, invoking Title VII as the basis for his claims, in January 2020. Id. He
alleged venue was proper here because “EPA is headquartered in the District of Columbia, EPA
does business in the District of Columbia . . . [and] [m]any of the unlawful practices described
[herein] occurred in Crystal City, Virginia, which is within the metropolitan area of the District
of Columbia.” Id. at 3. Defendant moved to dismiss on several grounds, including that Walker
sued in an improper venue. ECF No. 4. In response, Walker moved to amend his complaint.
ECF No. 7. Defendant opposed his amendment as futile. ECF No. 9.
II.

Legal Standards
On a Rule 12(b)(3) motion, “the court accepts the plaintiff's well-pled factual allegations

regarding venue as true, draws all reasonable inferences from those allegations in the plaintiff's
favor, and resolves any factual conflicts in the plaintiff's favor.” 2 Pendleton v. Mukasey, 552 F.
Supp. 2d 14, 17 (D.D.C. 2008) (quoting Darby v. U.S. Dep’t of Energy, 231 F. Supp. 2d 274,
276–77 (D.D.C. 2002)). A plaintiff has the obligation to bring the action in an appropriate
district; thus, she “usually bears the burden of establishing that venue is proper.” Ellis-Smith v.
Secretary of Army, 793 F. Supp. 2d 173, 175 (D.D.C. 2011) (internal quotation marks and
citation omitted). The court “need not accept the plaintiff's legal conclusions as true, and may
consider material outside the pleadings, including undisputed facts evidenced in the record to
determine whether” venue is proper. Braun v. Dep’t of the Interior, 288 F. Supp. 3d 293, 298
(D.D.C. 2018) (internal quotation marks and citation omitted). To prevail on a motion to

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Given the Court’s decision to transfer the case for improper venue, it need only address the
standards related to venue.
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dismiss, a “defendant must present facts that will defeat the plaintiff’s assertion of venue.” EllisSmith, 793 F. Supp. 2d at 175.
Venue in a Title VII case is governed by statute. Such a case may be brought 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.” 42 U.S.C. § 2000e5(f)(3). Only if venue is not found under these three prongs is Title VII’s fourth, residual prong
triggered to find venue in (4) “the judicial district in which the respondent has his principal
office.” Id. When a plaintiff sues in a jurisdiction that does not satisfy any of the four prongs
listed in 42 U.S.C. § 2000e-5(f)(3), venue is improper. Buesgens v. Coates, 435 F. Supp. 2d 1, 3
(D.D.C. 2006). Under those circumstances, 28 U.S.C. § 1406(a) provides that “[t]he district
court of a district in which is filed a case laying venue in the wrong division or district shall
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.”
III.

Analysis
Walker has not met his burden of showing that venue is proper in this District under 42

U.S.C. § 2000e-5(f)(3). Starting with the first prong, he never alleges that an “unlawful
employment practice” was “committed” in the District of Columbia. 42 U.S.C. § 2000e-5(f)(3).
To the contrary, he alleges that at all relevant times he and his supervisors worked in Crystal
City, Virginia. ECF No. 7-2 at 2. Defendant, for her part, relies on a declaration from an EPA
official confirming that Walker, and the entire Washington Division of the NCEA, moved to
Arlington, Virginia, in 2007 and worked there for a decade until the group moved back to the

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District of Columbia after Walker retired. 3 ECF No. 4-1 at 5–6. Walker’s argument on this
point is two-fold, but neither step satisfies the statute’s first prong. First, he alleges that he and
the Washington Division of the NCEA were only temporarily located in Virginia, pointing out
that the group maintained a mailing address in the District of Columbia. ECF No. 7-2 at 2; ECF
No. 12 at 1–2. Second, he argues that as a result, the intended effects of the discriminatory
practices at issue were directed at the District of Columbia. ECF No. 7-2 at 2; ECF No. 12 at 1–
2. But no matter how long Walker and his managers worked in Virginia, or had planned to, in
the end Walker does not dispute that at all relevant times they worked in Virginia—not the
District of Columbia. Their stationing there provides no reason for the Court to conclude that
Walker suffered discrimination here. Moreover, because Walker—the person to whom the
alleged discrimination was directed—worked in Virginia, there is no factual basis for his
allegation that the intended effects of the discriminatory practices were directed at this District,
either.
Under the statute’s second prong, venue is proper in “the judicial district in which the
employment records relevant to such practice are maintained and administered.” 42 U.S.C.
§ 2000e-5(f)(3). Defendant submits a declaration from another EPA official stating that
Walker’s employment records are maintained in St. Louis, Missouri, and not in the District of
Columbia. ECF No. 4-1 at 6. Walker’s arguments on this point do not help him meet his
burden, either. He argues that under the statute it is not his employment records that count, but
his EEO complaints and related litigation materials. ECF No. 12 at 3–4. And, he contends,

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The EPA official’s declaration allows for the possibility that Walker’s supervisors permitted
him to work at home as an “alternative work location.” ECF No. 4-3 at 2. But Walker alleges
that he lives in Maryland, not the District of Columbia. ECF No. 1 at 3.

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because attorneys in the EPA’s Office of General Counsel can access the online database of
those materials, see ECF No. 4-2 at 1, that makes venue proper under the second prong, ECF No.
12 at 4. But the venue statute “deals not with administrative processing of the litigation but with
the maintenance and administration of employment records relevant to the challenged
employment practice.” See Lee v. England, No. 02-cv-2521 (JR), 2004 WL 764441, *1 (D.D.C.
Mar. 9, 2004) (emphasis added). And in any event, that records are accessible through an
electronic database from a district does not mean they are “maintained and administered” there.
Walker also argues that because his former supervisors relocated to the District of Columbia
after he retired, they must have documents relevant to his claims. ECF No. 12 at 4. Maybe so.
But that does not mean that his “employment records” are “maintained and administrated” there
for venue purposes.
Walker makes no argument under the statute’s third prong that he would have worked in
the District of Columbia but for the discrimination he allegedly suffered. And the fourth,
residual prong, which permits venue in “the judicial district in which the respondent has his
principal office,” does not come into play in this case. That is so because venue is available
under the first prong in a judicial district in Virginia, “the State in which the unlawful
employment practice is alleged to have been committed.” See James v. Booz-Allen & Hamilton,
Inc., 227 F. Supp. 2d 16, 24 (D.D.C.2002) (proceeding to the fourth prong only when “defendant
cannot be found in any other districts where venue is appropriate”).
Walker advances two other arguments, but neither matters under the statute. He argues
that he has pressed other discrimination cases against the EPA in the District of Columbia. ECF
No. 12 at 4. But simply because venue was proper in an earlier case (or the EPA conceded the
issue) does not make venue proper in this one. He also alleges that venue is found in this District

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because the Equal Employment Opportunity Office here processed and decided his claims. ECF
No. 7-2 at 2. But the statute does not provide for venue here for that reason. Saran v. Harvey,
No. 04-cv-1847 (JDB), 2005 WL 1106347, at *4 (D.D.C. May 9, 2005) (“Although she may
have filed her EEOC complaint in Washington, her employment records are not considered
‘maintained and administered’ at the EEOC office for purposes of determining proper venue.”).
What to do now that the Court has concluded that venue in the District of Columbia is
improper? Defendant asks that the case be dismissed and not transferred. The decision “rests
within the sound discretion of the district court,” Naartex Consulting Corp. v. Watt, 722 F.2d
779, 789 (D.C. Cir. 1983), and depends on “the interest of justice,” 28 U.S.C. § 1406(a). This
court has further held that “the interest of justice generally requires transfer[ ] . . . in lieu of
dismissal.” Ellis-Smith, 793 F. Supp. 2d at 177 (citing Goldlawr, Inc. v. Heiman, 369 U.S. 463,
466–67 (1962)); see also James, 227 F. Supp. 2d at 20 (“Generally, the ‘interest of justice’
instructs courts to transfer cases to the appropriate judicial district, rather than dismiss them.”).
In particular, transfer is appropriate when: “(a) the running of the applicable statute of limitations
would preclude a plaintiff from being heard on the merits; (b) a plaintiff made a reasonable
mistake in filing in the wrong district; or (c) substantive issues still remain in dispute.” Beckford
v. Esper, No 18-cv-940 (JEB), 2018 WL 4778930, at *2 (D.D.C. Oct. 3, 2018) (cleaned up).
Here, given how long the case has been pending, the Court is reluctant to dismiss it out of
concern that a statute of limitations might well bar refiling. And although Walker has not
expressed that concern, it is not one that a pro se plaintiff would likely raise on his own.
Moreover, multiple issues remain in dispute, including whether Walker exhausted his
administrative remedies and whether either of his complaints has stated a claim. For these
reasons, the Court finds that it is in the interest of justice to transfer the case to the Eastern

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District of Virginia, a district “in which it could have been brought,” 28 U.S.C. § 1406(a), and let
the transferee court resolve the remaining disputed matters.
IV.

Conclusion and Order
For the reasons set forth above, it is hereby ORDERED that Defendant’s Motion to

Dismiss, ECF No. 4, is GRANTED IN PART. Because venue is improper in the District of
Columbia, this case shall be TRANSFERRED to the Eastern District of Virginia. It is
FURTHER ORDERED that the remaining portions of Defendant’s Motion, and Plaintiff’s
Motion for Leave to Amend Complaint, ECF No. 7, shall be HELD IN ABEYANCE for
resolution by the transferee court.
SO ORDERED.
/s/ Timothy J. Kelly
TIMOTHY J. KELLY
United States District Judge
Date: February 18, 2021

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