Brown v. Weston Transportation

Filing 67

MEMORANDUM AND ORDER denying 38 Motion to Dismiss. IT IS FURTHER ORDERED that this case be transferred to the United States District Court for the Western District of Missouri. Signed by District Judge Julie A. Robinson on 1/27/15. Mailed to pro se party Ronald E. Brown by regular and certified mail. ( Certified Tracking Number: 7002 2030 0000 9348 8565) (kao)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

RONALD E. BROWN,
Plaintiff,
vs.
WESTON TRANSPORTATION,
Defendant.
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Case No. 14-2456-JAR

MEMORANDUM AND ORDER
Plaintiff Ronald Brown, proceeding pro se and in forma pauperis, filed this action
alleging violations under Title VII of the Civil Rights Act of 1964,1 and the Age Discrimination
in Employment Act of 1967 (“ADEA”);2 and a claim for retaliation based on his complaint about
disparate treatment. This matter is before the Court on Defendant Weston Transportation, Inc.’s
Motion to Dismiss Plaintiff’s First Amended Complaint (Doc. 38), alleging improper venue and
alternatively, failure to exhaust administrative remedies with respect to Plaintiff’s claim of
retaliation. Plaintiff has responded (Docs. 46, 47).3 For the reasons explained in detail below,
the Court denies the motion to dismiss and, in its discretion, transfers this case to the United
States District Court for the Western District of Missouri.
I.

Background
Defendant Weston Transportation, Inc. (“Weston”) is a Missouri corporation with its

1

42 U.S.C. § 2000e et seq.

2

29 U.S.C. § 621 et seq.

3

The Court does not consider Plaintiff’s sur-reply (Doc. 61), which was filed without leave of the court as
required by D. Kan. Rule 15.1.

principal place of business in North Kansas City, Missouri. Weston does not maintain an office
in the state of Kansas, nor does it maintain a store, or retain any employment records in Kansas.4
All employment records relevant to this case, with the exception of payroll records, are
maintained at Weston’s principal place of business in Kansas City, Missouri.5 Plaintiff’s payroll
records are maintained by PeopLease in Avon, Indiana.6
Plaintiff, who is a sixty-two year old African-American male, is a resident of Kansas and
was employed by Weston as a truck driver. Plaintiff alleges that Weston did not pay him as
promised. When he went to Weston’s office in Kansas City, Missouri on August 4, 2014, to
inquire about his pay, Weston’s President, Scott Schriner came out and said that Plaintiff was
“accusing us of stealing,” and terminated Plaintiff. Plaintiff responded that if he was being fired,
Weston needed to pay him his money. Schriner responded, “I am not paying you and you get the
[expletive] out of here.”
Ginger Edwards and Leeann Schriner were present in the office when Plaintiff was
terminated. Plaintiff alleges that a white female employee of Weston, age 50, had issues with
her pay being short, and Weston fixed her pay. Plaintiff believes Weston discriminated against
him because of his race, his gender, and his age. Plaintiff also claims to be a whistleblower
under the Sarbanes-Oxley Act and that Weston retaliated against him for complaining about
different treatment with respect to his pay.

4

Affidavit of Ginger Edwards, Doc. 38, Ex. B.

5

Id.

6

Id.

2

II.

Discussion
Weston moves to dismiss for improper venue under Fed. R. Civ. P. 12(b)(3). Whether to

dismiss a case for improper venue “lies within the sound discretion of the district court.”7 When
a defendant challenges venue, the plaintiff bears the burden of proving that venue properly lies in
the district.8 “In order to meet his burden at the motion to dismiss stage, a plaintiff must present
only a prima facie showing of venue.”9 “In assessing whether a plaintiff has met [his] burden,
the facts alleged in a plaintiff’s complaint are taken as true, but only to the extent they are
uncontroverted by the defendant’s evidence.”10 If a plaintiff pleads multiple claims, “venue must
be proper for each claim.”11 The court’s consideration of evidence and affidavits outside the
pleadings does not convert a Rule 12(b)(3) motion to a motion for summary judgment.12 If the
parties do present conflicting evidence, the court is inclined to give greater weight to the
plaintiff’s version of the jurisdictional facts and to construe such facts in the light most favorable
to the plaintiff.13
The venue provision in Title VII states:
Such an action may be brought in any judicial district in the State
in which the unlawful employment practice is alleged to have been
7

Pierce v. Shorty Small’s of Branson Inc., 137 F.3d 1190, 1191 (10th Cir. 1998) (citations omitted).

8

Johnson v. N. States Power Co., No. 99-2394-GTV, 2000 WL 1683658, at*2 (D. Kan. Nov. 2, 2000).

9

McKinzy v. Mo. Div. of Child Support Enforcement, No. 10-2015-JWL, 2010 WL 2232699, at *3 (D. Kan.
June 1, 2010) (citation omitted).
10

See Pierce, 137 F.3d at 1192.

11

Gen. Bedding Corp. v. Echevarria, 714 F. Supp. 1142, 1144 (D. Kan. 1989) (citing Beattie v. United
States, 756 F.2d 91, 100 (D.C. Cir. 1984)).
12

Topliff v. Atlas Air, Inc., 60 F. Supp. 2d 1175, 1176 (D. Kan. 1999).

13

M.K.C. Equip. Co., Inc. v. M.A.I.L. Code, Inc., 843 F. Supp. 679, 683 (D. Kan. 1994).

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committed, in the judicial district in which the employment records
relevant to such practice are maintained and administered, or in the
judicial district in which the aggrieved person would have worked
but for the alleged unlawful employment practice, but 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 its 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.14
“It has long been settled in this circuit that this provision, rather than the general venue statute,
governs venue in Title VII actions.”15
The general venue statue, however, is applicable to Plaintiff’s claims under the ADEA.16
Venue in a diversity case such as this is governed by 28 U.S.C. § 1391, which states:
A civil action may be brought in-- (1) a judicial district in which
any defendant resides, if all defendants are residents of the State in
which the district is located; (2) a judicial district in which 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 (3) if there is no district in which an action
may otherwise be brought as provided in this section, any judicial
district in which any defendant is subject to the court’s personal
jurisdiction with respect to such action.17
Here, Plaintiff alleges the discrimination began when he was treated differently from a
similarly situated white female employee about payroll issues, culminating in his termination

14

42 U.S.C. § 2000e-5-(f)(3).

15

Pierce, 137 F.3d at 1191.

16

See Kearns v. Henderson, No. 99-2211-GTV, 1999 WL 615891, at *1 (D. Kan. July 16, 1999) (applying
general venue statute to ADEA claim) (citing Rebar v. Marsh, 959 F.2d 216, 219 (11th Cir. 1992)) (holding that
section 1391(e) applies to ADEA claim by federal employee). It is not clear whether Plaintiff’s retaliation claim is
brought under Title VII, the ADEA, or both.
17
28 U.S.C. § 1391(b); see also Mohr v. Margolis, Ainsworth & Kinlaw Consulting, Inc., 434 F. Supp. 2d
1051, 1058 (D. Kan. 2006).

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when he complained about Weston’s failure to pay him. Throughout his employment, it is not
clear where Plaintiff performed his trucking work for Weston; he does not allege, however, that
he worked for Weston in Kansas. Plaintiff’s employment records are kept at Weston’s principal
place of business in North Kansas City, Missouri, and his payroll records are maintained by
PeopLease, Inc., in Avon, Indiana. Therefore, Plaintiff satisfies none of the bases for venue
under § 2000e-5(f)(3) and venue in this district for his Title VII claims is improper. Moreover,
Plaintiff’s allegations show that all or a substantial part of the events or omissions giving rise to
his claims occurred in North Kansas City, Missouri, not the state of Kansas. Venue is also
improper with respect to his remaining claims.
The decision to dismiss Plaintiff’s claims or transfer them to the proper district is
discretionary.18 28 U.S.C. § 1406(a) states: “The district court 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.” “A court usually
should transfer an action, rather than dismiss it for improper venue.”19 Plaintiff states facts
sufficient to support venue in the Western District of Missouri. As such, in the interest of
justice, the Court transfers this case to that district rather than order dismissal.20
IT IS THEREFORE ORDERED BY THE COURT that Defendant’s Motion to
Dismiss for Improper Venue (Doc. 38) is DENIED.

18

28 U.S.C. § 1406(a); Pierce, 137 F.3d at 1191 (stating “the decision whether to dismiss or transfer lies
within the sound discretion of the district court”).
19

Lewis v. Prime Flight Aviation Servs., No. 10-2644-JTM, 2011 WL 744769, at *2 (D. Kan. Feb. 24, 2011)
(quoting Weber v. Ideker, Inc., 978 F. Supp. 1419, 1420 (D. Kan. 1997)).
20

The Court does not reach Defendant’s alternative argument that Plaintiff failed to exhaust his retaliation

claim.

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IT IS FURTHER ORDERED that this case be transferred to the United States District
Court for the Western District of Missouri. The clerk shall take all necessary steps to effectuate
this transfer.
IT IS SO ORDERED.
Dated: January 27, 2015
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE

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