Collins v. Hagel et al
Filing
52
OPINION AND ORDER that this action is TRANSFERRED to the United States District Court for the Eastern District of Virginia. Signed by Judge William S. Duffey, Jr on 9/28/2015. (anc)
On May 7 and 11, 2011, Plaintiff “report[ed] her treatment to Diversity
Management & Equal Opportunity . . . within the DoDEA.” (Id. ¶ 8).
On May 25, 2011, Plaintiff received from Stan Hays, the principal of the
school where Plaintiff worked and her immediate supervisor, a termination letter
that “points out problems with Plaintiff’s work performance, conduct and ‘general
character traits,’ and states that based upon [Hays’] review, he concluded that her
performance warranted her termination.” (Id.). Plaintiff asserts that she “was not
provided any performance evaluations throughout the year to substantiate and/or
validate Hays’ assessment.” (Id. ¶ 8).
On June 19, 2013, Plaintiff, represented by counsel, filed her Complaint,
alleging that Defendants discriminated against her because of her race (African
American), gender (female), and national origin (West Indies), in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. In Paragraph
Five of her Complaint, Plaintiff asserts that “[a]ll actions/inaction by Defendants,
as alleged, occurred by officers/employees of the United States. As such, Plaintiff
contends that venue in this district is proper for the Defendant [sic] pursuant to
28 U.S.C. § 1391(e). (Compl. ¶ 5).
On September 34, 2013, Defendants filed their Answer [3]. Defendants
assert that Plaintiff has not alleged a proper basis for venue in this district, and
2
“[w]ith respect to the allegations in paragraph 5 of the Complaint, Defendants
admit that the named defendants are employees of the United States. Defendants
deny that venue is determined by 28 U.S.C. [§] 1391(e) but rather by the specific
venue provisions of Title VII of the Civil Rights Act. Defendants deny any
remaining allegations in paragraph 5.” (Ans. at 2-3).
II.
DISCUSSION
A district court may raise the issue of defective venue sua sponte. See, e.g.,
Kapordelis v. Danzig, 387 F. App’x 905, 906-907 (11th Cir. 2010) (affirming sua
sponte transfer, pursuant to 28 U.S.C. § 1406(a), of pro se prisoner’s Bivens action
from New York to Georgia), cert. denied, 131 S.Ct. 1481 (2011); Berry v. Salter,
179 F. Supp. 2d 1345, 1350 (M.D. Ala. 2001); cf. Lipofsky v. New York State
Workers Comp. Bd., 861 F.2d 1257, 1259 (11th Cir. 1988); Nalls v. Coleman Low
Fed. Inst., 440 F. App’x 704, 706 (11th Cir. 2011). When venue is improper,
under 28 U.S.C. § 1406, a court “shall dismiss, or if it be in the interest of justice,
transfer such case to any district . . . in which it could have been brought.”
28 U.S.C. § 1406(a).
In a civil action against an employee of the United States acting in his
official capacity, whether venue is proper is determined under 28 U.S.C. § 1391(e),
3
“except as otherwise provided by law.” 28 U.S.C. § 1391(e)(1).1 Here, Plaintiff’s
claims arise under Title VII, which contains its own venue provision in 42 U.S.C.
§ 2000e-5(f)(3).2 “The venue provisions of § 2000e-5(f)(3) were intended to be the
exclusive venue provisions for Title VII employment discrimination actions and
that the more general provisions of § 1391 are not controlling in such cases.”
Pinson v. Rumsfeld, 192 F. App’x 811, 817 (11th Cir. 2006) (citing Stebbins
v. State Farm Mut. Auto. Ins. Co., 413 F.2d 1100, 1102-1103 (D.C. Cir. 1969)).
1
Section 1391(e)(1) provides:
A civil action in which a defendant is an officer or employee of the
United States or any agency thereof acting in his official capacity or
under color of legal authority, or an agency of the United States, or
the United States, may, except as otherwise provided by law, be
brought in any judicial district in which (A) a defendant in the action
resides, (B) a substantial part of the events or omissions giving rise to
the claim occurred, or a substantial part of property that is the subject
of the action is situated, or (C) the plaintiff resides if no real property
is involved in the action.
28 U.S.C. § 1391(e)(1) (emphasis added).
2
To the extent Plaintiff also claims that she is entitled to punitive damages
under 42 U.S.C. § 1981, in an action asserting both Title VII and Section 1981
claims, Title VII is considered the principal cause of action and the more narrow
Title VII venue requirements apply. See Hayes v. RCA Serv. Co.,
546 F. Supp. 661, 664-665 (D.D.C. 1982); Pinson v. Rumsfeld, 192 F. App’x 811,
817 (11th Cir. 2006) (“[B]ecause Title VII claims are governed by § 2000e-5(f)(3),
and these venue provisions set forth the exclusive venues for Title VII claims, the
proper venue for Pinson’s other claims is irrelevant to this inquiry.”).
4
42 U.S.C. § 2000e-5(f)(3) provides, in relevant part, that the appropriate
venue for a Title VII claim is:
[(1)] in any judicial district in the State in which the unlawful
employment practice is alleged to have been committed, [(2)] in the
judicial district in which the employment records relevant to such
practice are maintained and administered, or [(3)] in the judicial
district in which the aggrieved person would have worked but for the
alleged unlawful employment practice, but [(4)] if the respondent is
not found within any such district, such an action may be brought
within the judicial district in which the respondent has his principal
office. For purposes of sections 1404 and 1406 of Title 28, the
judicial district in which the respondent has his principal office shall
in all cases be considered a district in which the action might have
been brought.
42 U.S.C. § 2000e-5(f)(3). “If the plaintiff brings suit in a jurisdiction that does
not satisfy one of the venue requirements 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).
Here, Plaintiff does not allege any facts to support that venue is proper in the
Northern District of Georgia. Plaintiff worked at Kadena Elementary School in
Okinawa, Japan. (Compl. ¶ 7). The claimed Title VII violations—that Plaintiff
was treated differently from her peers, and ultimately terminated, based on her
race, gender and national origin—occurred in Okinawa, Japan, and Plaintiff would
have continued to work in Okinawa, Japan, if the alleged discrimination had not
occurred. Because this action cannot be filed in Japan, venue cannot be based on
the first or third criteria listed in Section 2000e-5(f)(3).
5
Plaintiff does not allege that her employment records relevant to her
termination are located in the Northern District of Georgia. Rather, assuming they
are not located in Japan, it appears that Plaintiff’s employment records are
maintained by the DoDEA Human Resources Directorate, which is responsible for
“overseeing recruitment and staffing, educator certification and recertification,
classification and compensation, human capital record keeping, labor management
relations, and data integrity” for DoDEA.3 The DoDEA Human Resources
Directorate is located in Alexandria, Virginia. Finally, the principal office of
Defendant Marilee Fitzgerald, the Director of DoDEA, is in Alexandria, Virginia,4
and the principal office of Defendant Chuck Hagel, the Secretary of Defense, is
located at the Pentagon in Arlington, Virginia.5 Both Alexandria and Arlington,
Virginia, are located within the Eastern District of Virginia. Thus, under the
second and fourth criteria listed in Section 2000e-5(f)(3), venue in this action is
proper in the United States District Court for the Eastern District of Virginia, not
3
See http://www.dodea.edu/Offices/HR/index.cfm.
See http://www.dodea.edu/aboutDoDEA/index.cfm (DoDEA “is headed by
a director who oversees all agency functions from DoDEA headquarters in
Alexandria, Virginia.”).
5
See http://www.defense.gov/About-DoD; see also Jones v. Hagel,
956 F. Supp. 2d 284, 288 n.3 (D.D.C. 2013) (in determining proper venue in Title
VII case, stating that the Department of Defense’s “principal office (the Pentagon)
is located in Arlington, Virginia, for venue purposes despite its Washington, D.C.,
mailing address, which means that venue under the fourth statutory basis is proper
in the Eastern District of Virginia, not D.C.”).
4
6
the Northern District of Georgia. See 42 U.S.C. § 2000e-5(f)(3); see also
Lorenzo v. Rumsfeld, No. CV05-00035, 2006 WL 1687772, at *2 (D. Guam June
13, 2006) (in Title VII action alleging DoDEA discriminated against plaintiff by
denying him a teaching position in Okinawa, Japan, venue in District of Guam was
improper because alleged discrimination took place in Okinawa, plaintiff would
have continued to work in Okinawa but for alleged discrimination, and relevant
employment records, and Secretary of Defense’s principal office, were located
within the Eastern District of Virginia; transferring action to Eastern District of
Virginia); Dawson v. Rumsfeld, No. 8:04-cv-1251, 2005 WL 2850231 (M.D. Fla.
Oct. 31, 2005) (in Title VII action, venue was improper in Middle District of
Florida because alleged discrimination occurred during employment with DoDEA
in Germany, employment records were maintained at DoDEA headquarters in
Arlington, Virginia, and plaintiff did not allege discrimination occurred in, or that
but for discrimination, she would have worked in, the Middle District of Florida;
transferring action to Eastern District of Virginia).
Plaintiff fails to show that venue in the Northern District of Georgia is
proper under any of the criteria to establish venue in a Title VII action. Under
28 U.S.C. § 1406, the Court “shall dismiss, or if it be in the interest of justice,
transfer such case to any district . . . in which it could have been brought.”
7
28 U.S.C. § 1406(a). In applying Section 1406(a), “the decision whether to
transfer a case is left to the sound discretion of the district court and is reviewable
only for an abuse of that discretion.” Pinson, 192 F. App’x at 817 (quoting
Roofing & Sheet Metal Servs., Inc. v. La Quinta Motor Inns, Inc., 689 F.2d 982,
985 (11th Cir. 1982)).6
Here, the Court concludes that the interest of justice supports that this action
be transferred, including because Plaintiff’s claims likely would be time-barred if
this action were dismissed for improper venue. See 42 U.S.C. § 2000e-5(f)(1)
(Title VII action must be brought within 90 days of receipt from EEOC of
right to-sue letter); Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir.
1992) (where complaint is timely filed and later dismissed, timely filing of
complaint does not toll the 90-day limitations period); Minnette v. Time Warner,
6
Having found that venue is improper in the Northern District of Georgia, the
Court considers whether transfer is appropriate under Section 1406(a), rather than
28 U.S.C. § 1404(a). Section 1404(a) applies when venue is proper, but the action
may be transferred “for the convenience of the parties and witnesses, in the interest
of justice.” 28 U.S.C. § 1404(a); see also Dubin v. United States, 380 F.2d 813,
816 (5th Cir. 1967) (“In substance, § 1404 is the statutory enactment of the
doctrine of forum non conveniens tempered to allow transfer rather than dismissal.
By contrast, § 1406 operates in cases where the first forum chosen is improper in
the sense that the litigation may not proceed there.”); Thornton v. Toyota Motor
Sales, U.S.A., Inc., 397 F. Supp. 476, 477 (N.D. Ga. 1975) (“Since venue is
improper in this court, transfer under 28 U.S.C. § 1404(a) is foreclosed.
. . . Therefore, the question now becomes whether the case should be dismissed or
transferred under 28 U.S.C. § 1406(a).”).
8
997 F.2d 1023, 1026-1027 (2d Cir. 1993) (in Title VII action, district court abused
its discretion in dismissing action for improper venue; under Section 1406(a),
transfer was in the interest of justice where the 90-day limitation period for Title
VII claims had expired); see also Pinson, 192 F. App’x at 817 (observing that the
Eleventh Circuit “has found such transfers [under Section 1406(a)] required only in
the limited situation when a party was directed by a government official to file in
the incorrect court and the case was time-barred by the time it was dismissed”)
(citing ITT Base Servs. v. Hickson, 155 F.3d 1272, 1276 (11th Cir. 1998); Slatick
v. Director, OWCP, U.S. Dep’t of Labor, 698 F.2d 433, 434 (11th Cir. 1983)).
Because this action could, and should, have been brought in the United States
District Court for the Eastern District of Virginia, the Court, in the interest of
justice, transfers this action to the Eastern District of Virginia. See
28 U.S.C. § 1406(a); 42 U.S.C. § 2000e-5(f)(3).
III.
CONCLUSION
Accordingly, and for the foregoing reasons,
IT IS HEREBY ORDERED that this action is TRANSFERRED to the
United States District Court for the Eastern District of Virginia.
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SO ORDERED this 28th day of September, 2015.
_______________________________
WILLIAM S. DUFFEY, JR.
UNITED STATES DISTRICT JUDGE
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