Ellis v. Gruenberg ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
RICHARD K. ELLIS, )
)
Plaintiff, )
) Civil Action No. 15-0025 (EGS)
v. )
)
MARTIN J. GRUENBERG, )
)
Defendant. )
)
MEMORANDUM OPINION
Pending before the Court is Defendant Martin J. Gruenberg’s
(“Defendant”) Motion to Dismiss or Transfer for improper venue.
Mot. Dismiss or Transfer, Docket No. 6. Upon consideration of
the motion, the response and reply thereto, the applicable law,
and the entire record, the Defendant’s Motion to Dismiss is
DENIED and Defendant’s Motion to Transfer is GRANTED.
I. Background
Plaintiff Richard K. Ellis (“Plaintiff”) alleges that he was
sexually harassed and retaliated against by supervisors in
violation of Title VII of the Civil Rights Act of 1964 during
his employment at the Federal Deposit Insurance Corporation
(“FDIC”). See Compl., Docket No. 1; See also 42 U.S.C. §§ 2000e-
2 et seq. Defendant moves to dismiss or transfer this case to
the Eastern District of Virginia because the majority of events
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giving rise to Plaintiff’s allegations took place at FDIC’s
Office of Minority and Women Inclusion (OMWI), located in
Arlington, Virginia. Def.’s Mem. Supp., Docket No. 6 at 3.
II. Legal Standard
A case may be dismissed or transferred if the venue chosen
by Plaintiff is improper or inconvenient. Fed. R. Civ. P.
12(b)(3). When considering a 12(b)(3) motion, the court must
accept plaintiff’s well-pled factual allegations regarding venue
as true, but need not accept as true plaintiff’s legal
conclusions regarding venue. See Darby v. Dept. of Energy, 231
F. Supp.2d 274, 276 (D.D.C. 2002) (citation omitted). Courts may
dismiss or, “in the interests of justice,” transfer the case to
any district in which the action could have been filed. See 28
U.S.C. § 1406; see also Parker v. Sebelius, Case No. 14-440, 14-
508, 2014 WL 2921026 (D.D.C. June 27, 2014) (citing Pendleton v.
Mukasey, 552 F. Supp.2d 14, 17 (D.D.C. 2008)). “Generally, the
‘interest of justice’ directive allows courts to transfer cases
to the appropriate judicial district rather than dismiss them.”
Id. (citing Ifill v. Potter, No. 05-2320, 2006 WL 3349549, at *1
(D.D.C. Nov. 17, 2006)).
III. Discussion
Title VII contains a specific venue provision which
establishes proper venue under four circumstances:
[1] in any judicial district in the State in which the
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unlawful employment practice is alleged to have been
committed; [2] in the judicial district in which the
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 if the
respondent is not found within any such district, such
an action may be brought [4] within the judicial district
in which the respondent has his principal office.
42 U.S.C. § 2000e-5(f)(3). In his Complaint, Plaintiff alleges
that the District of Columbia is the proper venue because
Defendant’s main office is in the District. Compl. ¶ 3. However,
Defendant is correct that Title VII’s fourth basis for venue is
residual and considered only when venue is not possible under
the first three Title VII venue provisions. Kendrick v. Potter,
CIV.A.06 122 GK, 2007 WL 2071670, at *3 (D.D.C. July 16, 2007)
(“[C]ourts consider the fourth basis for venue, i.e. the
location of the defendant's principal office, only when the
defendant cannot be found within any of the districts provided
for by the first three bases.”) (internal citations and
quotations omitted).
In his response brief, Plaintiff does not advocate for
finding proper jurisdiction under the fourth basis of Title
VII’s venue statute, but rather under the first Title VII venue
provision. Specifically, Plaintiff argues that a “substantial
portion” of the alleged unlawful employment practice occurred in
the District and that the hostile work environment created by
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his supervisors “extended” everywhere Plaintiff worked,
including the FDIC Headquarters in the District. Pl.’s Mem.
Opp., Docket No. 7 at 3-4. Plaintiff notes that in 2013 he was
assigned burdensome tasks outside the scope of his normal duties
in retaliation for rebuffing unwanted sexual advances, and that
many of those tasks had to be completed in the FDIC DC
headquarters. Id. at 3, citing Compl. ¶ 24-25. However,
Plaintiff’s Complaint includes no allegations of harassment that
occurred in the District. Indeed, the majority of alleged
harassment incidents occurred at the FDIC OMWI offices in
Arlington, see e.g. Compl. ¶¶ 10, 11, 12, 13, 14, 17, 32 and 35,
and others allegedly took place in Winchester, Virginia and Los
Angeles, California. Id. at ¶¶ 21, 26.
“Venue determinations of where a claim arose are based on a
‘commonsense appraisal’ of events having operative significance
in the case.” Donnell v. Nat'l Guard Bureau, 568 F. Supp. 93, 94
(D.D.C. 1983) (citation omitted). In this case, the vast
majority of alleged unlawful interactions occurred at the FDIC
OMWI office in Arlington, Virginia. The proper venue under the
first Title VII basis is therefore the Eastern District of
Virginia.
Moreover, Plaintiff cannot establish venue in the District
based on the second or third Title VII venue provisions: he does
not dispute that his employment records are maintained at the
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FDIC Division of Administration (“DOA”) office in Arlington,
Virginia, See Pagano Decl., Docket 6-1 at ¶ 8, and but for the
harassment and retaliation alleged by Plaintiff, he would still
work at the FDIC OMWI in Arlington. For all of these reasons,
the interest of justice weigh in favor of transferring this
matter to the Eastern District of Virginia.
IV. Conclusion
For the foregoing reasons, Defendant’s Motion to Dismiss is
DENIED and Defendant’s Motion to Transfer is GRANTED. An
appropriate Order accompanies this Memorandum Opinion.
Signed: Emmet G. Sullivan
United States District Judge
December 18, 2015
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