Crowley v. Napolitano ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
KATE CROWLEY,
Plaintiff,
v. Civil Action No. 12-976 (JEB)
JANET A. NAPOLITANO,
Secretary, U.S. Dep’t of Homeland
Security,
Defendant.
MEMORANDUM OPINION
Plaintiff Kate Crowley is employed as a Special Agent for the United States Secret
Service. Since April 2010, she has been assigned to a protective detail in New York. Believing
that she was given worse travel and overtime assignments than men in the detail – and then was
retaliated against when she complained – Crowley filed this suit alleging employment
discrimination in violation of Title VII. In now moving to dismiss or, in the alternative, transfer
the venue of Plaintiff’s Complaint, Defendant correctly argues that the case does not belong in
the District of Columbia. The Court will thus grant Defendant’s Motion and transfer the matter
to the Southern District of New York.
I. Background
According to Plaintiff’s Complaint, which the Court must presume true for purposes of
this Motion, Crowley works on a USSS protection detail for a former national leader. See Am.
Compl., ¶¶ 1-2. Her detail is based in the New York City area, but also requires travel with the
protectee. See id., ¶¶ 3-4. Travel assignments carry higher compensation as a result of overtime,
1
per diem, and danger pay. See id., ¶ 6. At some point, Plaintiff noticed a “distinct disparity”
between travel assignments given to her male colleagues and those given to her. See id., ¶ 5. In
addition, between February and May 2010, Plaintiff was scheduled for 44 hours of overtime, half
the time assigned to similarly situated male colleagues. Id., ¶ 27. When Crowley raised this
disparity with her supervisors at USSS, she was “assigned to a punishing overtime and weekend
schedule and received a threat at her home.” Id., ¶ 7. Plaintiff also alleges that she has been
regularly singled out and mocked by her colleagues. See id., ¶¶ 33-36, 44-45, 50, 52.
Believing she was treated unfairly because of her sex, Plaintiff contacted the Equal
Employment Opportunity Commission in September 2010. Id., ¶¶ 16-17. On December 16,
2010, Plaintiff filed a formal complaint of discrimination against USSS, and she received a right-
to-sue letter from the EEOC on October 26, 2012. Id., ¶¶ 18-19. She then brought this action
against USSS alleging employment discrimination and retaliation for protected EEO activity in
violation of Title VII of the Civil Rights Act of 1964. Id., ¶¶ 69-72. Defendant has now moved
for dismissal or transfer of venue.
II. Legal Standard
When presented with a motion to dismiss or transfer for improper venue under Fed. R.
Civ. P. 12(b)(3), 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.” Pendleton v. Mukasey, 552 F. Supp. 2d
14, 17 (D.D.C. 2008) (citing Darby v. Dep’t of Energy, 231 F. Supp. 2d 274, 276-77 (D.D.C.
2002)). The Court need not, however, accept the plaintiff’s legal conclusions as true, Darby, 231
F. Supp. 2d at 277, and may consider material outside of the pleadings. See Artis v. Greenspan,
223 F. Supp. 2d 149, 152 (D.D.C. 2002) (citing Land v. Dollar, 330 U.S. 731, 735 n.4 (1947)).
2
“Because it is the plaintiff’s obligation to institute the action in a permissible forum, the plaintiff
usually bears the burden of establishing that venue is proper.” Freeman v. Fallin, 254 F. Supp.
2d 52, 56 (D.D.C. 2003); 15 Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 3826 (2d ed. 1986 & Supp. 2006) (“[W]hen an objection has been raised, the burden
is on the plaintiff to establish that the district he or she has chosen is a proper venue.”). To
prevail on a motion to dismiss for improper venue, however, “the defendant must present facts
that will defeat the plaintiff’s assertion of venue.” Khalil v. L-3 Commc’ns Titan Grp., 656 F.
Supp. 2d 134, 135 (D.D.C. 2009). “Unless there are “pertinent factual disputes to resolve, a
challenge to venue presents a pure question of law.” Williams v. GEICO Corp., No. 10-
1420, 2011 WL 2441306, at *2 (D.D.C. June 20, 2011).
III. Analysis
Venue in Title VII cases is governed by statute. Such an action may be properly brought
(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 . . . .” 42
U.S.C. § 2000e-5(f)(3). “[I]f 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.” Id.
Plaintiff argues generally that venue is proper here because the administration of her
detail was divided between New York and D.C., where the Agency’s Office of Protective
Operations (OPO) is located. See Opp. at 1-3. In so arguing, Crowley correctly notes that venue
should be determined by a “‘commonsense appraisal.’” See Donnell v. Nat’l Guard Bureau, 568
F. Supp. 93, 94 (D.D.C. 1983) (quoting Lamont v. Haig, 590 F.2d 1124, 1134 (D.C. Cir. 1978)).
3
The clear result of this appraisal, however, is that Plaintiff’s claim should be transferred to the
Southern District of New York.
In citing the three subsections of the venue statute, Plaintiff makes no claim that
subsection (3) applies; instead, the Court must focus on (1) and (2). As to the first, Plaintiff’s
Complaint itself alleges that the unlawful employment practices occurred in New York: “This
detail was located in the New York City area.” Am. Compl., ¶ 3; see also id., ¶ 14 (“Since April
2010 and continuing to the present, Ms. Crowley has sustained disparate treatment from the US
Secret Service regarding the disparate assignment of overtime and travel assignments while she
was assigned to a protective detail in the New York area.”). It is true that she alleges that her
travel was split between New York and D.C., and that “the policies surrounding the detail are
issued from United States Secret Service headquarters in Washington, D.C.” Id., ¶¶ 66-67. But
she acknowledges that the “daily operations of that detail are based in the New York City area.”
Id., ¶ 67. Although Plaintiff’s work may have taken her to Washington, the actual unlawful
employment practices – i.e., the creation and approval of the discriminatory schedules – occurred
at the detail headquarters in Chappaqua, New York. See Mot., Exh. 1 (Declaration of Kenneth
T. Jenkins, Jr.), ¶¶ 7-8 (weekly work schedules for Plaintiff’s details “are created, edited, and
approved” in New York, not Washington); see also Mot., Exh. 2 (Declaration of Willie S.
Dinkins II), ¶¶ 8-11, 16, 18. Similarly, while policies and permanent detail decisions may be
made in D.C., this suit complains of discrete discriminatory actions taken against Plaintiff, not of
any discriminatory policies set by USSS. See Am. Compl., ¶¶ 67-68. Finally, Plaintiff’s
complaints of abuse and threats also occurred in New York. See id., ¶¶ 33-36, 44-45, 48, 50, 52.
The first subsection of the venue statute, therefore, does not authorize suit here.
4
Plaintiff similarly fails to satisfy her burden to show that the second subsection of the
venue statute – involving the location of employment records – authorizes suit in the District of
Columbia. Congress “explicitly limited venue under the second prong to the one judicial district
in which the complete set of relevant employment records is located.” James v. Verizon Servs.
Corp, 639 F. Supp. 2d 9, 13 (D.D.C. 2009) (citing 42 U.S.C. § 2000e-5(f)(3)); see also
Washington v. Gen. Elec. Corp., 686 F. Supp. 361, 363 (D.D.C. 1998) (“Congress intended
venue to lie . . . in the one judicial district in which the complete, ‘master’ set of employment
records is ‘maintained and administered.’”). Defendant has submitted a sworn declaration that
the records relevant to Plaintiff’s allegations are located in New York, at the detail headquarters,
and not in Washington. See Jenkins Decl., ¶ 19; see also Dinkins Decl., ¶ 19. These records are
past work schedules and documents used in the creation of those schedules, not general policy
documents. See Jenkins Decl., ¶ 14 (“Information concerning the creation of the work
schedules, including requests for time off, assignments to particular trips, and requests for
overtime, would be received by the former presidents’ detail supervisors and would not be
forwarded to or otherwise maintained by the OPO.”). Plaintiff offers no facts to rebut these
assertions, instead requesting limited fact discovery regarding the location of documents. See
Opp. at 4. The Court finds that given the unequivocal facts set forth in Defendant’s declarations,
such discovery would be fruitless.
Finding that Plaintiff cannot avail herself of any of the subsections authorizing venue, the
Court must determine whether venue is nonetheless proper under the statute’s catchall provision.
This provision, which concerns the respondent’s principal office, only applies if Defendant
cannot be found in New York, which is not the case here. Venue, therefore, does not lie in the
District of Columbia.
5
When venue is improper, the Court must dismiss the claim or, “if it be in the interest of
justice, transfer [it] to any district or division in which it could have been brought.” 28 U.S.C. §
1406(a). “Although the decision to transfer or dismiss is committed to the sound discretion of
the district court, the interest of justice generally requires transferring a case to the appropriate
judicial district in lieu of dismissal.” Ellis-Smith v. Sec’y of Army, 793 F. Supp. 2d 173, 177
(D.D.C. 2011) (citing Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466-67 (1962)). This is what the
Court will do here. In this case, the only jurisdiction in which Plaintiff’s claim could have been
brought is the Southern District of New York, and that is where the case shall be transferred.
IV. Conclusion
For the reasons articulated herein, the Court will issue a contemporaneous order granting
Defendant’s Motion and transferring the case to Southern District of New York.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: February 27, 2013
6