Ebron v. Department of the Army

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SANDRA EBRON,
Plaintiff,
v. Civil Action No. 09-01961 (BAH)
Judge Beryl A. Howell
DEPARTMENT OF THE ARMY,
Defendant.
MEMORANDUM OPINION
The plaintiff, Sandra Ebron, is an African American female over the age of 55, who was
previously employed as a Trends Analyst by the defendant, the United States Army Office of the
Inspector General. Compl. ¶¶ 4-6; Def.’s Mot. Dismiss, Ex. 1. The plaintiff alleges that the U.S.
Army discriminated against her in violation of Title VII of the Civil Rights Act of 1964, and she
now seeks two million dollars in damages, attorney’s fees, and punitive damages. Currently
before the Court is the defendant’s Motion to Dismiss for Failure to State a Claim and Improper
Venue. The Court concludes that the District Court for the District of Columbia is the improper
venue for the plaintiff’s claim, and therefore TRANSFERS the case to the Eastern District of
Virginia and DENIES as moot the defendant’s Motion to Dismiss.
BACKGROUND
On October 15, 2009, the plaintiff filed a complaint in this Court against her former
employer, the United States Army, alleging that the defendant discriminated against her because
of her race and age in violation of Title VII of the Civil Rights Act of 1964. Specifically, the
plaintiff alleges that her superiors berated her, declined to give her awards, and imposed
unreasonable work requirements. Compl. ¶¶ 6-7. In response to this alleged discrimination, the
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plaintiff filed a grievance with the U.S. Army’s Equal Employment Opportunity office
(hereinafter “EEO”) on April 2, 2008. Def. Mot. Dismiss, Ex. 1 (EEO Counselor’s Report, Apr.
8, 2008). After reviewing her claim, the EEO notified her on April 30, 2008 that she had fifteen
days to file a formal complaint with the office. Def. Mot. Dismiss, Ex. 3 (EEO Memorandum,
Apr. 30, 2008), ¶ 2. On May 28, 2008, the plaintiff filed a formal complaint, which the EEO
dismissed on February 11, 2009 for failure to comply with the specified fifteen day filing
deadline. Def. Mot. Dismiss, Ex. 4 (EEO Formal Compl., May 28, 2008), Ex. 6 (EEO Notice of
Dismissal, Feb. 11, 2009). In its decision, the EEO notified the plaintiff that she had thirty days
to file an appeal with the U.S. Equal Employment Opportunity Commission (“EEOC”) Office of
Federal Operations. Def. Mot. Dismiss, Ex. 6 (EEO Notice of Dismissal, Feb. 11, 2009), at 3.
The plaintiff filed an appeal with the EEOC on April 2, 2009, Def. Mot. Dismiss, Ex. 7 (EEOC
Notice of Appeal, Apr. 2, 2009); and the EEOC denied her appeal on July 15, 2009 for failure to
show that the alleged discriminatory actions were sufficiently severe. Compl. Ex. 1 (Ebron v.
Geren, EEOC Decision No. 0120091925, (July 15, 2009)), at *1-2. The plaintiff subsequently
filed a complaint in this Court.
In response to the plaintiff’s complaint, the defendant filed a Motion to Dismiss for
failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), and improper venue
under Rule 12(b)(3). The defendant argues that dismissal is warranted because the plaintiff
failed to exhaust her administrative remedies in a timely fashion, and because the U.S. District
Court for the District of Columbia is the improper venue. In the alternative, the defendant urges
the Court to transfer the case to the Eastern District of Virginia, the proper venue for the
plaintiff’s claims.
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The plaintiff filed an opposition to this motion, which does not refute that the District of
Columbia is the improper venue for her claim, or supply additional information in an effort to
maintain her action in this Court. Rather, the plaintiff argues that the Court should not dismiss
the claim, and instead should transfer the case. Pl.’s Opp. Mot. Dismiss, at 1-2 (“The interests of
justice would be served by transfer because dismissal would, in effect, end Plaintiff’s case.”); id.
at 2 (“It is in the interests of justice to transfer this case because plaintiff did in fact exhaust all
administrative remedies against defendants.”).
FAILURE TO CONTEST IMPROPER VENUE
“It is well understood in this Circuit that when a plaintiff files an opposition to a
dispositive motion and addresses only certain arguments raised by the defendant, a court may
treat those arguments that the plaintiff failed to address as conceded.” Laukus v. United States,
691 F. Supp. 2d 119, 127 (D.D.C. 2010); see also Day v. D.C. Dep’t of Consumer & Regulatory
Affairs, 191 F. Supp. 2d 154, 159 (D.D.C. 2002) (“If a party fails to counter an argument that the
opposing party makes in a motion, the court may treat that argument as conceded.”).
By failing to argue that the District of Columbia is the proper venue for her claim, the
plaintiff concedes that it is not. The Court is not required to further analyze whether the case
was properly filed in this Court. Nonetheless, the Court will discuss Title VII’s venue provision
and why the proper venue for the plaintiff’s claim is not in the District of Columbia, but rather in
the Eastern District of Virginia.
STANDARD OF REVIEW
When presented with a motion to dismiss for improper venue under Federal Rule of Civil
Procedure 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
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resolves any factual conflicts in the plaintiff’s favor.” James v. Verizon Servs. Corp., 639 F.
Supp. 2d 9, 11 (D.D.C. 2009). The Court, however, need not accept the plaintiff’s legal
conclusions as true, and may consider material outside the pleadings, including undisputed facts
evidenced in the record, to determine whether it has jurisdiction in the case. See Jerome Stevens
Pharm., Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253 (D.C. Cir. 2005); Coal. for
Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003); Herbert v. Nat’l Acad.
of Sci., 974 F.2d 192, 197 (D.C. Cir. 1992); Harvey v. Astrue, 667 F.Supp.2d 138, 140 (D.D.C.
2009). “To prevail on a motion to dismiss for improper venue, 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).
DISCUSSION
Title VII of the Civil Rights Act contains a specific venue provision, which “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). Under 28 U.S.C. § 2000e-5(f)(3), all claims brought under Title VII
must be filed in the judicial district where (1) the unlawful employment practice is alleged to
have been committed, (2) the employment records relevant to such practice are maintained and
administered, or (3) the aggrieved person would have worked but for the alleged unlawful
employment practice. 28 U.S.C. § 2000e-5(f)(3) (2010). If the defendant is not found in those
districts, then the plaintiff may bring an action in the judicial district where the respondent has its
principal office. Id.
The plaintiff fails to establish that the District of Columbia is the proper venue under any
basis set forth in the Title VII venue provision. Under the first subsection, the plaintiff may
bring an action in the judicial district where the alleged acts of discrimination were committed.
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The plaintiff alleges that her superiors discriminated against her in the workplace, and does not
allege that any unlawful acts were committed outside her place of employment. See generally
Compl. The defendant has supplied uncontested evidence that the plaintiff’s workplace was
located in Arlington, Virginia, not in the District of Columbia. Def. Mot. Dismiss, Ex. 2, Decl. of
John Robert Leonard, Sr. (hereafter “Leonard Decl.”), ¶ 3 .
Under the second and third subsections of Section 2000e-5(f)(3), venue is also proper in
the judicial district in which “employment records relevant to [the alleged unlawful] 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.” 42 U.S.C. § 2000e-5(f)(3). The
defendant asserts, and the plaintiff does not contest, that plaintiff’s employment records are
located either in St. Louis, Missouri or in Arlington, Virginia. Def. Mot. Dismiss, Ex. 2,
Leonard Decl., ¶ 5. Furthermore, the plaintiff does not allege that she would have worked in the
District of Columbia but for her employer’s alleged unlawful actions. See generally Compl. The
plaintiff therefore fails to establish proper venue through either the second or third subsections of
Section 2000e-5(f)(3).
If the defendant is not found in any of the three previous districts, the plaintiff may file a
claim in the judicial district where the defendant “has his principal office.” 42 U.S.C. § 2000e-
5(f)(3). The Court need not consider this basis for venue because the defendant can be found in
Arlington, Virginia, where the alleged unlawful employment practices occurred, plaintiff’s
employment records are located, and where she would have worked but for the discrimination.
Even if the Court did apply the fourth venue subsection of Section 2000e-5(f)(3), venue
would only be proper in the Eastern District of Virginia. The U.S. Army may have offices in the
District of Columbia, but its principal office is located in the Pentagon in Arlington, Virginia.
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See e.g. Khalil, 656 F. Supp. 2d at 136 (refusing to consider the fourth subsection of Section
2000e-5(f)(3) because employment records and the defendant were located outside the judicial
district, but stating that “while [the defendant] does have offices in the District of Columbia, its
headquarters (and likely its “principal office”) are located in Reston, Virginia.” (internal citations
omitted)).
The plaintiff has failed to establish that any of the alleged unlawful acts occurred in the
District of Columbia, that any employment records relevant to her claim are maintained or
administered in this judicial district, or that she would have been employed in the district but for
the plaintiff’s actions. Title VII’s specific venue provision therefore does not allow the plaintiff
to file her claim in this Court.
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. See Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466-67 (1962);
see also James, 639 F. Supp. 2d at 16 (employment discrimination claim transferred to
jurisdiction with proper venue rather than dismissed in interest of justice); Haley, 667 F. Supp.
2d at 142 (same).
The defendant urges the Court to dismiss this action in the “interests of judicial
economy” because the plaintiff did not exhaust her administrative remedies. Def.’s Reply to
Pl.’s Opp. Mot. Dismiss, at 5. As the defendant acknowledges, the exhaustion requirement is not
a jurisdictional prerequisite to suit, but is more like a statute of limitations, which is subject to
waiver, estoppel and equitable tolling. Def.’s Mot. Dismiss, at 4 (citing Zipes v. Trans World
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Airlines, Inc., 455 U.S. 385, 393 (1982); Jarrell v. United States Postal Serv., 753 F. 2d 1088,
1091 (D.C. Cir. 1985); Hewitt v. Rice, 560 F. Supp. 2d. 61, 64 n.2 (D.D.C. 2008)). While the
defendant argues that plaintiff failed to file both her formal EEO complaint and her appeal of the
decision dismissing that complaint in a timely manner, the plaintiff disputes these assertions and
contends, in any event, that the defendant waived any untimeliness of her claims. Pl.’s Opp.
Mot. Dismiss, at 2. The Court declines to resolve this factual dispute and consider the merits of
defendant’s Rule 12(b)(6) Motion to Dismiss because the case is not properly before this Court.
See Haley, 667 F.Supp.2d 138, 142 n.6.
Dismissal of this suit would require the plaintiff to re-file the action in the Eastern
District of Virginia, where venue is proper. Both parties agree, however, that the re-filed suit
would be barred by the applicable 90-day statute of limitations for filing a judicial complaint.
Pl.’s Opp. Mot. Dismiss, at 2; Def.’s Reply to Pl.’s Opp. Mot. Dismiss, at 5. The Title VII venue
provision expressly refers to transfer of matters, pursuant to 28 U.S.C. §1406(a), which is a
provision that was enacted to avoid “the injustice which had often resulted to plaintiffs from
dismissal of their actions” and “plaintiff’s losing a substantial part of its cause of action under the
statute of limitations.” Goldlawr, 369 U.S. at 466. In these circumstances, transfer of the case
for resolution in the court with proper venue is appropriate.
CONCLUSION
The Court TRANSFERS this case to the Eastern District of Virginia, which is the proper
venue to consider plaintiff’s Title VII claim, and DENIES as moot defendant’s Motion to
Dismiss. An Order consistent with this Memorandum Opinion will be entered.
February 23, 2011
/s/ Beryl A. Howell
BERYL A. HOWELL
United States District Judge
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