Chin-Young v. Mattis

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CHRISTOPHER CHIN-YOUNG,
Plaintiff,
v. Civil Action No. 18-2072 (RDM)
MARK T. ESPER, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiff Christopher Chin-Young, proceeding pro se, commenced this suit on August 21,
2018, alleging that, while deployed to Kabul, Afghanistan as a civilian employee in the
Afghanistan Ministry of Defense Advisors (“MoDA”) program, he was subject to discrimination
on the basis of his race, color, sex, national origin, and age. See Dkt. 1 at 3–4, 6; Dkt. 15 at 4,
Dkt. 15-1 at 2. Defendants move, with respect to the Secretary of the Air Force, to dismiss for
failure to state a claim, Fed. R. Civ. P. 12(b)(6), and, with respect to the Secretary of Defense, to
dismiss for improper venue, Fed. R. Civ. P. 12(b)(3), or, in the alternative, to transfer the case to
the Eastern District of Virginia. Dkt. 11 at 1. Because the alleged discrimination did not take
place in the Air Force and because Plaintiff was not in an employment relationship with the Air
Force, the Court will dismiss all claims against the Secretary of the Air Force; and because the
District of Columbia is the improper venue for Plaintiff’s Title VII claims, the Court will transfer
all remaining claims to the Eastern District of Virginia.
I. BACKGROUND
For the purpose of Defendants’ Motion to Dismiss or to Transfer Venue, Dkt. 11, the
Court must accept as true all factual allegations set forth in the complaint. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (per curiam); James v. Booz-Allen, 227 F. Supp. 2d 16, 20
(D.D.C. 2002). Moreover, district courts may “generally . . . ‘consider supplemental material
filed by a pro se litigant in order to clarify the precise claims being urged’ in [his] complaint.”
Crawford v. Duke, 867 F.3d 103, 108 (D.C. Cir. 2017) (quoting Greenhill v. Spellings, 482 F.3d
569, 572 (D.C. Cir. 2007)). In an effort to understand Plaintiff’s claims, the Court has therefore
considered all of the materials he submitted along with his complaint and his explication of the
complaint in his opposition brief. See Fillmore v. AT & T Mobility Servs. LLC, 140 F. Supp. 3d
1, 2 (D.D.C. 2015) (citing Brown v. Whole Foods, 789 F.3d 146, 152 (D.C. Cir. 2015) (noting
that courts should consider “the facts alleged in all of [a pro se plaintiff’s] pleadings” when
evaluating a defendant’s motion to dismiss) (emphasis in original)).
From July 3, 2014 until August 29, 2014, Plaintiff was deployed to Kabul, Afghanistan as
part of the Department of Defense’s MoDA program. Dkt. 1-2 at 1, 2, 21, 34; Dkt. 15 at 4; Dkt.
15-1 at 1. He served as a Senior Information Communications Technology advisor. Dkt. 15 at
4. The deployment was intended to continue for one year but could have been extended for up to
two years. Dkt. 15 at 4–5; see also Dkt. 1-2 at 2, 34; Dkt. 1 at 4. Plaintiff alleges that two
individuals with whom he served in Afghanistan—Dr. Warner, a civilian employee of the
Department of Defense Information Systems Agency, and Colonel Gale, a United States Air
Force officer—discriminated against him on the basis of his race, color, sex, national origin, and
age, which led to the premature curtailment of his deployment after only two months. Dkt. 1 at
5; Dkt. 1-2 at 14, 35; Dkt. 15 at 5.
Plaintiff filed two separate Equal Employment Opportunity (“EEO”) complaints about
the alleged discrimination and his early return from Afghanistan—one with the Department of
Defense Information Systems Agency, and one with the Air Force, presumably as the employers,
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respectively, of Dr. Warner and Colonel Gale. Dkt. 1-2 at 2–3; Dkt. 15 at 6. The Air Force
referred the matter to the Army, and the Department of Defense Information Systems Agency
docketed the matter. Dkt. 1-2 at 7. Plaintiff brought his EEO complaint against the Army to the
Equal Employment Opportunity Commission (“EEOC”), id. at 2, 7, 32, and the EEOC
administrative judge (“AJ”) joined the Departments of Defense and the Air Force as respondent
agencies on March 24, 2017, id. at 2, 32. Plaintiff subsequently requested a hearing before the
EEOC on the EEO complaint that he had filed against the Department of Defense Information
Systems Agency. Id. at 2. The AJ dismissed that case on January 5, 2018, on the ground that it
was the subject of the other EEOC proceeding, and Plaintiff appealed the dismissal. Id. at 3. In
the meantime, the AJ issued her order and decision in the initial EEOC proceeding on April 6,
2018. Id. at 31–37. She specifically addressed the actions of Dr. Warner and Colonel Gale and
granted summary judgment to the agencies, finding “no evidence to suggest a connection
between Complainant’s race, color, national origin, sex, and/or age and the events underlying his
complaint.” Id. at 35–36.
On May 16, 2018, the Army issued its Final Agency Action, in which it informed
Plaintiff that it had “decided to implement [the EEOC AJ’s decision].” Id. at 7–12. The Final
Agency Action advised Plaintiff of his right to appeal to the EEOC Office of Federal Operations
or to file an action in federal court. Id. A few weeks later, the EEOC Office of Federal
Operations affirmed the dismissal of Plaintiff’s EEO complaint against the Department of
Defense Information Systems Agency, on the ground that the claims had already been addressed.
Id. at 3.
Plaintiff filed a pro se complaint for employment discrimination against the Secretary of
Defense and the Secretary of the Air Force in this Court on August 21, 2018. Dkt. 1. In
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response, Defendants moved to dismiss for failure to state a claim and improper venue, or, in the
alternative, to transfer venue. Dkt. 11.
II. LEGAL STANDARD
A. Failure to State a Claim
To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain “‘a short
and plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give
the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957));
accord Erickson, 551 U.S. at 93. Although “detailed factual allegations” are not necessary to
withstand a Rule 12(b)(6) motion to dismiss, a plaintiff must furnish “more than labels and
conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S.
at 555. Instead, the complaint’s “[f]actual allegations must be enough to raise a right to relief above
the speculative level, on the assumption that all the allegations in the complaint are true (even if
doubtful in fact).” Id. (citations omitted).
B. Improper Venue
A similar standard governs a defendant’s motion to dismiss for improper venue. The
Court must “accept[ ] the plaintiff’s well-pled factual allegations regarding venue as true;” must
“draw[ ] all reasonable inferences from those allegations in the plaintiff's favor;” and must
“resolve[ ] any factual conflicts in the plaintiff’s favor.” Darby v. U.S. Dep’t of Energy, 231 F.
Supp. 2d 274, 276 (D.D.C. 2002) (citation omitted). The plaintiff, however, “‘bears the burden
of establishing that venue is proper,’” Varma v. Gutierrez, 421 F. Supp. 2d 110, 113 (D.D.C.
2006) (quoting Freeman v. Fallin, 254 F. Supp. 2d 52, 56 (D.D.C. 2003)), and must offer more
than mere legal conclusions.
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III. ANALYSIS
A. Failure to State a Claim as to the Secretary of the Air Force
Plaintiff alleges violations of both Title VII of the Civil Rights Act of 1964 (“Title VII”),
42 U.S.C. § 2000e-16, and the Age Discrimination in Employment Act of 1967 (“ADEA”), 29
U.S.C. §§ 621–634. For the following reasons, the Secretary of the Air Force is dismissed as to
both claims.
1. Title VII of the Civil Rights Act of 1964
Title VII is the “exclusive, pre-emptive administrative and judicial scheme for the redress
of federal employment discrimination” based on race, color, sex, or national origin. Brown v.
Gen. Servs. Admin., 425 U.S. 820, 829 (1976). Title VII includes a provision that “‘mandates
who may be a proper defendant in civil actions brought by federal employees to enforce rights
under Title VII.’” Mulhall v. Ashcroft, 287 F.3d 543, 550 (6th Cir. 2002) (quoting Hancock v.
Egger, 848 F.2d 87, 88 (6th Cir. 1988)). That provision, 42 U.S.C. § 2000e-16, states in
relevant part that “an employee or applicant for employment, if aggrieved by the final disposition
of his complaint . . . may file a civil action as provided in section 2000e-5 of this title, in which
civil action the head of the department, agency, or unit, as appropriate, shall be the defendant.”
42 U.S.C. § 2000e-16(c) (emphasis added). Although courts have recognized that “[t]his cryptic
phrase provides little guidance to litigants,” Paulk v. Dep’t of Air Force, Chanute Air Force
Base, 830 F.2d 79, 80 (7th Cir. 1987), the D.C. Circuit has explained that “[t]he only proper
defendant in a Title VII suit . . . [against the federal government] is the ‘head of the department,
agency, or unit’ in which the allegedly discriminatory acts transpired.” Hackley v. Roudebush,
520 F.2d 108, 115 n.17 (D.C. Cir. 1975). Based on this statutory authority and precedent; the
fact that all of the discriminatory action alleged in the complaint took place at a joint military
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headquarters (not an Air Force base); and the fact that the “final disposition of [Plaintiff’s]
complaint” was made by the Army (not the Air Force), the Court concludes that the Secretary of
the Air Force is not a proper defendant in Plaintiff’s Title VII claim.
The Court is not convinced, moreover, that Plaintiff’s allegations regarding Colonel Gale
are sufficient to support a Title VII or ADEA claim against the Secretary of the Air Force. “Title
VII [and] the ADEA . . . cover ‘only “employees in a direct employment relationship” with the
employer’ and applicants for employment.” Koch v. Holder, 930 F. Supp. 2d 14, 17 (D.D.C.
2013) (quoting Delbert v. Duncan, 923 F. Supp. 2d 256, 259 (D.D.C. Feb. 14, 2013, which, in
turn, quotes Spirides v. Reinhardt, 613 F.2d 826, 829 (D.C. Cir. 1979)) (dismissing Title VII
claim brought by a former employee of the Securities and Exchange Commission against
Department of Justice because plaintiff in that case was never employed by Department of
Justice). “Only in very limited circumstances may an individual who neither worked for, nor
sought employment with, an agency bring an employment discrimination claim against that
agency.” Koch, 930 F. Supp. 2d at 17. Most notably, the D.C. Circuit has held that a plaintiff
may bring a discrimination claim against a defendant that is not his employer if the defendant
“control[s] access to such employment and . . . den[ies] such access by reference to invidious
criteria.” Sibley Mem’l Hosp. v. Wilson, 488 F.2d 1338, 1342 (D.C. Cir. 1973) (permitting claim
under Title VII against government entity that stood between worker and actual employer); see
also Redd v. Summers, 232 F.3d 933, 940–41 (D.C. Cir. 2000) (holding Sibley exception did not
save Rehabilitation Act claim where non-employer defendant did not serve as intermediary
between plaintiff and actual employer).
Here, Plaintiff does not allege that he ever worked for or applied for employment at the
Department of the Air Force, and, although Plaintiff does attribute the alleged discriminatory
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conduct and curtailment of his deployment, at least in part, to Colonel Gale, he has not “alleged
any facts that would support an inference that [Colonel Gale] controlled access to his
employment at the [Department of Defense].” Koch, 930 F. Supp. 2d at 17. Because the
complaint contains no allegations that might support a Title VII claim against the Department of
the Air Force, the Secretary of the Air Force is dismissed as to that claim.
2. Age Discrimination in Employment Act of 1967
Unlike Title VII, the ADEA does not specify the proper defendant in an age
discrimination case. See 29 U.S.C. § 633a(c) (“Any person aggrieved may bring a civil action in
any Federal district court of competent jurisdiction for such legal or equitable relief as will
effectuate the purposes of this chapter.”). Courts have held, however, that “because the purpose
of Title VII is fulfilled by just naming the agency head, then surely the purpose of the ADEA
will be fulfilled by naming a like defendant.” Ellis v. U.S. Postal Serv., 784 F.2d 835, 838 (7th
Cir. 1986) (quoting Gillispie v. Helms, 559 F. Supp. 40, 41 (W.D. Mo. 1983)); see also Romain
v. Shear, 799 F.2d 1416, 1418 (9th Cir. 1986) (“We agree with the reasoning of [Ellis and
Gillispie] and hold that 42 U.S.C. § 2000e-16(c), identifying the proper defendant in Title VII
discrimination actions, also applies to age discrimination claims brought under the ADEA.”).
Importantly, “the portion of the ADEA applicable to federal employees was patterned after a
similar provision in Title VII,” and thus “the two provisions should be construed consistently.”
Ellis, 748 F.2d at 838 (citing Oscar Mayer & Co. v. Evans, 441 U.S. 750, 755–56 (1979)); see
also Miller v. Clinton, 687 F.3d 1332, 1346 (D.C. Cir. 2012) (explaining that ADEA and
Rehabilitation Act are modeled on and should be construed consistently with Title VII).
Accordingly, for the same reasons Plaintiff has failed to state a Title VII claim against the
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Secretary of the Air Force, he has failed to state an ADEA claim against the Secretary of the Air
Force.
B. Improper Venue as to the Secretary of Defense
Federal law requires that plaintiffs bring suit “in the proper venue” to “ensure[ ] that a
district with some interest in the dispute or nexus to the parties adjudicates the plaintiff’s
claims.” Hamilton v. JPMorgan Chase Bank, 118 F. Supp. 3d 328, 333 (D.D.C. 2015).
Generally, venue is proper in a district (1) where any defendant resides (if all defendants are
residents of the same state); (2) where the events giving rise to the suit occurred; or (3) if “there
is no district in which an action may otherwise be brought,” in any district in which a defendant
is subject to personal jurisdiction. 28 U.S.C. § 1391(b). Title VII has its own venue provision,
however, which states that
an action may be 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, [4] 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 his principal office.
42 U.S.C. § 2000e-5(f)(3). “Where a case involves more than one cause of action, venue must
be proper as to each claim.” Relf v. Gasch, 511 F.2d 804, 807 n.12 (D.C. Cir. 1975); see also
14D Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3807 (4th ed.
2018).
Pursuant to Federal Rule of Civil Procedure 12(b)(3), “a defendant may, at the lawsuit’s
outset, test whether the plaintiff ‘has brought the case in a venue that the law deems
appropriate.’” Johns v. Newsmax Media, Inc., 887 F. Supp. 2d 90, 96 (D.D.C. 2012) (quoting
Modaressi v. Vedadi, 441 F. Supp. 2d 51, 53 (D.D.C. 2006)). “If the Court concludes that venue
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is improper, it must then decide whether to dismiss the action or to transfer the case to a district
where it could initially have been instituted.” King v. Caliber Home Loans, Inc., 210 F. Supp. 3d
130, 134 (D.D.C. 2016); see also 28 U.S.C. § 1406(a) (“The 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.”).
The “standard remedy for improper venue is to transfer the case to the proper court rather than
dismissing it—thus preserving a [plaintiff’s] ability to obtain review,” Nat’l Wildlife Fed’n v.
Browner, 237 F.3d 670, 674 (D.C. Cir. 2001), but the “decision whether a transfer or a dismissal
is in the interest of justice . . . rests within the sound discretion of the district court,” Naartex
Consulting Corp. v. Watt, 722 F.2d 779, 789 (D.C. Cir. 1983).
1. Title VII of the Civil Rights Act of 1964
As explained above, venue for purposes of Title VII is governed by 42 U.S.C. § 2000e-
5(f)(3), which provides for venue in four possible judicial districts: (1) that in which the unlawful
employment practice is alleged to have occurred; (2) that in which the employment records
relevant to such practice are maintained and administered; (3) that in which the aggrieved person
would have worked but for the alleged unlawful employment practice; and, (4) if the defendant is
not found within any such district, then in the district in which the defendant has his principal
office. 42 U.S.C. § 2000e-5(f)(3). The District of Columbia does not satisfy any of these four
bases for venue.
First, the unlawful employment practice is alleged to have been committed in Kabul,
Afghanistan. See Dkt. 1. Second, the complaint contains no allegation or reference to any
employment records that are relevant to this case, nor is there reason to believe that any such
records are located in the District of Columbia. See id. Third, but for the alleged unlawful
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employment practice, Plaintiff would have worked in Kabul, Afghanistan, not the District of
Columbia. See id.
This leaves only the fourth basis for venue: “the judicial district in which the [defendant]
has his principal office.” 42 U.S.C. § 2000e-5(f)(3). Although Plaintiff does not expressly
invoke this provision, he lists a Washington, D.C. mailing address for the Pentagon in his
complaint. Dkt. 1 at 2. The Court takes judicial notice, however, that the Pentagon is located in
Arlington, Virginia. Dkt. 11-1 at 18; Dehaemers v. Wynne, 522 F. Supp. 2d 240, 244 (D.D.C.
2007). The proper venue for Title VII suits against the Secretary of Defense, accordingly, is the
Eastern District of Virginia, see, e.g., Jones v. Hagel, 956 F. Supp. 2d 284, 288 n.3 (D.D.C.
2013) (“DOD’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 [in Title VII] is proper in the Eastern District of Virginia, not D.C.”); Beckford v.
Esper, 2018 WL 4778930, at *2 (D.D.C. Oct. 3, 2018); Saran v. Harvey, 2005 WL 1106347, at
*3–4 (D.D.C. May 9, 2005), and thus venue in this district is improper.
The “standard remedy for improper venue is to transfer the case to the proper court rather
than dismissing it—thus preserving a [plaintiff’s] ability to obtain review,” Nat’l Wildlife Fed’n,
237 F.3d at 674. Here, the interest of justice supports transfer of Plaintiff’s Title VII claim to the
United States District Court for the Eastern District of Virginia. “[I]t would be more efficient
and economical to transfer the case . . . rather than force . . . a pro se plaintiff to re-file and re-
serve his Complaint in another District.” Roland v. Branch Banking & Tr. Corp., 149 F. Supp.
3d 61, 69 (D.D.C. 2015).
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2. Age Discrimination in Employment Act of 1967
Venue for Plaintiff’s ADEA claim is governed by the general venue statute, 28 U.S.C. §
1391. Dehaemers, 522 F. Supp. 2d at 247–48. Under that statute, venue is proper, among other
places, “[where] a defendant in the action resides.” 28 U.S.C. § 1391(e). The head of a federal
department or agency “‘resides’ where he conducts his official duties.” Webster v. Mattis, 279 F.
Supp. 3d 14, 19 (D.D.C. 2017). The Secretary of Defense “performs a significant [portion] of
his official duties in both Washington, D.C. and at the Pentagon in Virginia.” Id. (internal
quotation marks and citation omitted). Accordingly, venue for Plaintiff’s ADEA claim is proper
in both the District of Columbia and the Eastern District of Virginia. The Court’s conclusion
that venue is proper in this district, however, does not end the matter. Rather, “[c]ourts have
consistently transferred cases that raise both Title VII and ADEA claims to courts where venue is
proper for both claims.” Id. In the interest of judicial economy, the Court will therefore transfer
Plaintiff’s ADEA claim, too, to the Eastern District of Virginia.
CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss the complaint with respect to
the Secretary of the Air Force and to transfer venue with respect to the Secretary of Defense,
Dkt. 11, is hereby GRANTED. It is further ORDERED that the action will be transferred to the
Eastern District of Virginia with the Secretary of Defense as the sole remaining defendant.
SO ORDERED.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: September 6, 2019
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