Stout v. Napolitano

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
SAMANTHA L. STOUT, )
)
Plaintiff, )
)
v. )
) Civ. Action No. 12-1245 (EGS)
JANET NAPOLITANO, in her )
Official capacity as )
Secretary of the U.S. Dep’t. )
Of Homeland Security )
)
Defendant. )
)
MEMORANDUM OPINION
I. INTRODUCTION
Plaintiff Samantha Stout brings this action seeking
damages, reinstatement, and injunctive relief for alleged
violations of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq. (“Title VII”) based on her gender. She
raises claims of disparate treatment, hostile work environment,
and retaliation for protected activity. Defendant Janet
Napolitano, in her official capacity as Secretary of the
Department of Homeland Security, moves to dismiss pursuant to
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), arguing
that Plaintiff failed to exhaust her administrative remedies and
fails to state a claim upon which relief can be granted.
Defendant also moves to dismiss, or in the alternative, transfer
pursuant to Federal Rule of Civil Procedure 12(b)(3) for
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Plaintiff’s failure to lay venue according to the special venue
provision for Title VII actions, 42 U.S. C. § 2000e-5(f)(3).
Upon consideration of the motion, the entire record, the
applicable law, for the reasons stated below, and in the
interest of justice, the Court will TRANSFER the case to the
United States District Court for the Eastern District of
Pennsylvania.
II. BACKGROUND
Ms. Stout is a white female who was employed by the Federal
Air Marshall Service (“FAMS”) of the U.S. Department of Homeland
Security, Transportation Security Administration (“TSA”)from
December 19, 2010 to June 3, 2011. Am. Compl. ¶¶ 5, 12. She is
4 feet 11 inches tall and weighs approximately 100 pounds.
Plaintiff’s employment with the Federal Air Marshall Service was
conditional – she was required to complete Phase I and Phase II
training programs in order to secure full time employment. Id.
¶ 13. Ms. Stout participated in and successfully completed
Phase I of the required training in Artesia, New Mexico from
January 5 to March 2, 2011. As part of the Phase I training,
she also completed firearms training and exceeded the minimum
standard for firearms qualification. Id. ¶¶ 15-16. Following
her successful completion of Phase I training, Planitiff entered
Phase II training at the William J. Hughes Technical Center in
Atlantic City, New Jersey. Id. ¶ 17. There, Plaintiff was
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trained by David K., a Federal Air Marshal Instructor, and Rolf
W., a Senior Federal Air Marshal Instructor. Id. ¶¶ 7-8. 1
Ms. Stout alleges that she was subject to discrimination
from the outset of the Phase II training. She alleges that her
instructors “engaged in [a] systematic, concerted, and repeated
effort to bring about [her] failure in Phase II training because
of her sex and diminutive stature.” Id. ¶ 18. According to Ms.
Stout, her instructors subjected her to a variety of demeaning
and abusive behavior, including: ridiculing her on the basis of
her sex and size; refusing to provide assistance in hanging her
target for shooting practice and refusing to allow others to
help her; directing the other students in the training to watch
her attempt to hang the target unsuccessfully; kneeling on their
knees to speak with her and bending down to shout in her face;
refusing to allow her to use a magazine loading device or
letting her demonstrate her proficiency during a night shoot;
reducing the quality of her training; creating and maintaining a
hostile training environment; and enforcing standards more
harshly against her. Id. ¶ 19. Ms. Stout alleges that this
purported treatment “reflected a belief by the defendant that
the plaintiff could not be an effective federal air marshal
because she was not a strong tall man” and was “more than
isolated, accidental or sporadic.” Id. ¶¶ 20-22.
1
These names have been redacted in the Amended Complaint.
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Ms. Stout was removed from Phase II training on March 31,
2011 after she failed to pass the firearms certification. Id. ¶
23. She was sent to the Philadelphia Field Office of the
Federal Air Marshal Service and was eventually terminated on
June 3, 2011 for failure to meet a condition of her employment.
Id. ¶¶ 23-24. Plaintiff alleges that if she had not been
subjected to the purportedly discriminatory behavior by her
instructors, she “would have received a passing score on
firearms training and would not have been terminated.” Id. ¶
25.
Plaintiff initiated EEO contact on or about April 1, 2011.
Id. ¶ 45. She was notified of the conclusion of EEO counseling
on June 16, 2011 and filed a formal complaint on June 28, 2011.
Id., Ex. A, Final Agency Decision at 1-2. In her complaint,
Plaintiff alleged that she was discriminated against on the
basis of sex and physical or mental disability, and also on the
basis of retaliation and reprisal. Def.’s Mot. to Dismiss, Ex.
1, EEO Complaint, at 2. Plaintiff received a final decision
from the agency on May 2, 2012; she filed her Complaint this
action on July 27, 2012 and filed an Amended Complaint on May
16, 2013. Defendants have filed a motion to dismiss Plaintiff’s
Amended Complaint, which is now ripe for determination by this
Court.
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III. STANDARD OF REVIEW
Defendants seek to dismiss Plaintiff’s Amended Complaint
pursuant to Fed. R. Civ. P. 12(b)(3) on the grounds that venue
does not lie in the District of Columbia. While the Court must
accept plaintiff’s well-pled factual allegations as true,
Pendleton v. Mukasey, 552 F. Supp. 2d 14, 17 (D.D.C. 2008)
(citing Darby v. United States DOE, 231 F. Supp. 2d 274, 276-77
(D.D.C. 2002)), it is not required as a matter of law to accept
as true plaintiff’s legal conclusions regarding venue, Darby,
231 F. Supp. 2d at 277. To prevail on a motion to dismiss for
improper venue, a defendant must present facts to defeat
plaintiff’s venue assertions. Darby, 231 F. Supp. 2d at 276.
“If the district in which the action is brought does not meet
the requirements of Title VII’s venue provision, then that
district court may either dismiss, ‘or if it be in the interests
of justice, transfer such a case to any district or division in
which it could have been brought.’” Pendleton, 552 F. Supp. 2d
at 17. “Generally, the ‘interest of justice’ directive allows
courts to transfer cases to the appropriate judicial district
rather than dismiss them.” Ifill v. Potter, No. 05-2320, 2006
U.S. Dist. LEXIS 83833, at *3 (D.D.C. Nov. 17, 2006); see also
James v. Booz-Allen Hamilton, Inc., 227 F. Supp. 2d 16, 20
(D.D.C. 2002).
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IV. DISCUSSION
The general venue statute, 28 U.S.C. § 1391(b), does not
apply in Title VII actions. Instead, Title VII of the Civil
Rights Act contains a specific venue provision that “controls
any other venue provision governing actions in federal court.”
Donnell v. Nat’l Guard Bureau, 568 F. Supp. 93, 94 (D.D.C.
1983). In a Title VII action, venue is proper
(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
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). According to the Secretary, the
District of Columbia is an improper venue for this action under
any of Title VII’s four venue categories. Def.’s Mot. to
Dismiss at 16-17. Defendant argues that the matter should be
dismissed entirely for improper venue, or in the alternative, be
transferred to the District of New Jersey, which the Secretary
contends is the proper venue for this action. Id. In her
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Amended Complaint, Plaintiff argues that venue is proper in the
District of Columbia pursuant to Title VII’s venue provision “in
that the unlawful employment practice alleged to have been
committed occurred in the District of Columbia and/or the
employment records of the plaintiff relevant to such practice
are maintained or administered in the District of Columbia.”
Am. Compl. ¶ 3.
The District of Columbia is not the location of the alleged
discrimination, hostile work environment, or retaliation. See
Am. Compl. ¶¶ 5-11, 23-25; Def.’s Mot. to Dismiss at 16.
Plaintiff’s training occurred at the William J. Hughes Technical
Center in Atlantic City, New Jersey. Am. Compl. ¶ 17; Def.’s
Mot. to Dismiss at 16. After failing to receive a passing score
on the required firearms certification, Ms. Stout was terminated
at the Philadelphia Field Office. Am. Compl. ¶¶ 24-25. Ms.
Stout would have been assigned to the Philadelphia Field Office
if she had passed the Phase II training. Def.’s Mot. to
Dismiss, Decl. of Joseph J. D’Angelillio (“D’Angelillio Decl.”)
¶ 11. Plaintiff’s records are maintained at the Atlantic City
training center. Id. ¶ 10. The headquarters of the TSA are in
Pentagon City, Virginia and the headquarters of the FAMS are
located in Reston, Virginia. Id. ¶¶ 14-15.
Plaintiff does not directly refute the Secretary’s
contentions regarding venue. Instead, Ms. Stout argues that it
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was difficult to ascertain the proper venue for her action when
she filed suit because venue could properly lie in a number of
judicial districts. Pl.’s Opp. at 16. Because the Secretary
for Homeland Security is located in the District of Columbia,
she believed her records were located here. Id. She concedes
that the TSA and FAMS are located in Virginia, but argues that
because they are “within minutes of the District of Columbia,”
this Court should retain jurisdiction. Id. at 17. In the
alternative, Plaintiff argues that the Court should transfer
this case to the Eastern District of Pennsylvania instead of
dismissing it. Id.
Even though the Department of Homeland Security is
headquartered in this district, Title VII’s fourth basis for
venue is residual, and is considered “only when the defendant
cannot be found within any of the districts provided for in the
first three bases.” Kendrick v. Potter, No. 06-122, 2007 U.S.
Dist. LEXIS 50880, at *3 (D.D.C. July 16, 2007). Even if the
Court were to apply the fourth basis, venue would not be proper
in the District of Columbia because TSA and FAMS, the relevant
divisions of the Department of Homeland Security, are both
headquartered in Virginia. See, e.g. Khalil v. L-3 Commc’ns
Titan Grp., 656 F. Supp. 2d 134, 136 (D.D.C. 2009) (refusing to
consider the fourth prong because though defendant had offices
in the District of Columbia, its headquarters were in Virginia).
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Under these undisputed facts, venue is not proper in the
District of Columbia, but is proper in the District of New
Jersey, where some of the alleged misconduct occurred, or the
Eastern District of Pennsylvania, where Plaintiff was terminated
and where she would have worked but for the allegedly
discriminatory conduct. See Pendleton, 552 F. Supp. 2d at 17-18(holding that “[w]hen an alleged discriminatory employment
practice is committed in another jurisdiction, the employment
records are located in another jurisdiction, and the aggrieved
person would have worked in another jurisdiction but for the
unlawful employment practice, a plaintiff cannot properly lay
venue in the District of Columbia”).
When venue is improper, the Court may 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). The decision whether to dismiss or transfer
is committed to the sound discretion of the court; however, the
interest of justice generally requires transferring a case to
the appropriate district in lieu of dismissal. See Goldlawr,
Inc. v. Heiman, 369 U.S. 463, 466-67 (1962); see also Ebron v.
Dep’t of the Army, 766 F. Supp. 2d 54, 58 (D.D.C. 2011)
(transferring an employment discrimination claim to the proper
venue rather than dismissing it); Walden v. Locke, 629 F. Supp.
2d 11, 14 (D.D.C. 2009) (same).
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Defendant urges the Court to dismiss this action not only
for improper venue, but for Plaintiff’s purported failure to
state a claim. Def.’s Reply at 9. However, the Court declines
to resolve Defendant’s 12(b)(6) Motion to Dismiss because the
case is not properly before this Court. See Haley v. Astrue,
667 F. Supp. 2d 138, 142 n.6 (D.D.C. 2009) (deciding not to
reach the merits of defendants’ motion to dismiss because venue
was improper in the District of Columbia). In this action,
venue would be proper in two districts: the District of New
Jersey and the Eastern District of Pennsylvania. Because
Plaintiff would prefer the Eastern District of Pennsylvania, and
Defendant has not argued that that venue would prejudice them in
any way, the Court finds that this action should be transferred
to Plaintiff’s preferred choice.
V. CONCLUSION
For the reasons set forth above, the Court GRANTS
Defendant’s Motion to Dismiss, or in the Alternative, Transfer
for Improper Venue pursuant to Fed. R. Civ. P. 12(b)(3) and
TRANSFERS this case to the United States District Court for the
Eastern District of Pennsylvania. An appropriate order
accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
February 24, 2014
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