Opinion
Civil Action No. 04-01556 (PLF).
April 29, 2005
MEMORANDUM OPINION
The case is before the Court on defendant's motion to dismiss or, in the alternative, to transfer venue. Upon consideration of defendant's motion, plaintiff's opposition, defendant's reply, plaintiff's surreply and defendant's sur-surreply, the Court grants defendant's motion to transfer this case to the United States District Court for the Eastern District of Virginia.
I. BACKGROUND
Plaintiff James Macklin is suing his former employer, Mirant Mid-Atlantic, L.L.C. ("Mirant"), for employment discrimination based upon his race and for retaliation. Specifically, plaintiff alleges that Mirant subjected him to disparate discipline, racial harassment, and unlawful termination and retaliation against him for his protected activity.
Plaintiff originally filed suit against Mirant and Potomac Electric Power Company ("PEPCO"). On November 5, 2004, the Court granted PEPCO's motion to dismiss. See Order of November 5, 2004.
Defendant argues that this case should be dismissed or transferred for improper venue because plaintiff has, at all times relevant to the allegations in the complaint, worked for Mirant in Alexandria, Virginia, and that all of the significant discriminatory and retaliatory actions plaintiff alleges occurred in and related to his work in Alexandria, Virginia. See Defendant's Motion to Dismiss for Improper Venue or, in the Alternative, Motion to Transfer Venue ("Def.'s Motion").
Plaintiff admits that he lived and worked in Alexandria, Virginia. See Compl. ¶ 5. He further admits that the discriminatory and retaliatory behavior of his co-workers and managers, the majority of meetings regarding disciplinary action against him, the filing of his discrimination claims with the Alexandria Human Rights Commission and the Equal Employment Opportunity Commission, all occurred in Virginia. See Compl. ¶¶ 16-35. Plaintiff also fails to rebut defendant's declarations stating that he received no disciplinary letters and was not terminated in Washington, D.C., or that the allegedly discriminatory activity took place outside of the District of Columbia. See Pl.'s Surreply at 3-5.
Plaintiff requests discovery because, he alleges, the declarations submitted by defendant would "likely further be disputed" during discovery. See Plaintiff's Surreply to Defendant's Motion to Dismiss for Improper Venue, or in the Alternative, Motion to Transfer Venue ("Pl.'s Surreply") at 6. Plaintiff does not, however, share with the Court what, specifically, this discovery is likely to show or how it relates to the pending motion. With respect to the relevant facts relating to venue, plaintiff should have personal knowledge. If he attended meetings, interacted with co-workers and managers, or received warnings while in the District of Columbia, plaintiff would certainly have knowledge of such facts and would have alleged them. He has had ample opportunity to provide such information to the Court and has failed to do so.
Defendant has presented declarations by Mirant employees that all relevant decisions, meetings, etc., occurred in Virginia. See Reply Memorandum in Support of Defendant's Motion to Dismiss or, in the Alternative, Motion to Transfer Venue ("Def.'s Reply Memo"), Declarations of Hula Edmonds (stating that she, an employee in Virginia, made the decision to terminate Macklin), Naryann Iyer (stating that she and Mike Stumpf, both based in Virginia, made the decision to issue the DML), Karen Morrison (stating that neither Sean Minner nor Charlene Esaw possessed the authority to issue a DML or terminate Macklin), Sean Minner (stating that all of his interactions relating to this matter with plaintiff and other Mirant employees occurred in Virginia where he has a second office). Plaintiff has failed to rebut these assertions.
Plaintiff's only support for the argument that venue is proper in the District of Columbia is that Sean Minner, Human Resource Generalist for Mirant, and Charlene Esaw, Mirant's Director of Human Resources at the time of the events in question, maintained offices at Mirant headquarters in the District of Columbia and that, from these offices, they allegedly carried out "discriminatory advice, recommendations, and reviews" against plaintiff leading ultimately to his termination. See Plaintiff's Memorandum in Opposition to Defendant's Motion to Dismiss for Improper Venue ("Pl.'s Opposition") at 2-4. Plaintiff provides evidence that Minner left a District of Columbia telephone number on an e-mail response to the plaintiff regarding the administrative details of his termination, that Minner issued a letter from his District of Columbia office asking the labor union to grant an extension of time for Mirant to investigate a "Crisis Suspension" just prior to plaintiff's termination, and that Esaw was present at a meeting regarding a Decision Making Leave ("DML") which Mirant ordered plaintiff to take. See Pl.'s Opposition at 3-5, Ex. 2-5; Compl. ¶ 22. Plaintiff argues that these facts indicate that Esaw and Minner effectuated the discriminatory practices in Washington, D.C., and thus, that venue is proper here. See Pl.'s Surreply, at 2-4.
II. DISCUSSION
The parties agree that the governing venue statute is the special venue provision of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(f)(3). See Pl.'s Opposition at 2; Def.'s Reply Memo at 1. That section provides in relevant part:
Such 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, 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).
If a plaintiff brings suit in a jurisdiction that does not satisfy the venue requirements listed above, venue is improper.See Washington v. Gen. Elec. Corp., 686 F. Supp. 361, 363 (D.D.C. 1988) (explaining that the initial inquiry must be with respect to the locus of the alleged discrimination). When venue is improper, 28 U.S.C. § 1406(a) directs courts to "dismiss, or if it be in the interest of justice, transfer such a case" to the proper district. This Court has transferred cases where the situs of the alleged wrongdoing, the records, or the present or potential future workplace is elsewhere. See Amirmokri v. Abraham, 217 F. Supp. 2d 88, 89 — 90 (D.D.C. 2002) (collecting cases); see also Stebbins v. State Farm Mutual Auto. Ins. Co., 413 F.2d 1100, 1102 (D.C. Cir. 1969) (finding that Congress intended "to limit venue to the judicial districts concerned with the alleged discrimination").
Plaintiff does not allege that he would have worked in the District of Columbia but for his termination, nor does he argue that the relevant employment records are now maintained in the District of Columbia. See Pl.'s Opposition at 2. He argues only that enough of the discriminatory events occurred in Washington, D.C., to make venue proper here. Id. Plaintiff bases this assertion on four facts with regard to Esaw's and Minner's presence in the District of Columbia: (1) Minner's District of Columbia telephone number on an e-mail response to plaintiff; (2) Minner's letter from his District of Columbia office asking the labor union to grant an extension of time for Mirant to investigate a "Crisis Suspension;" (3) Esaw's presence at a meeting regarding the DML; and (4) Minner's letter informing plaintiff of Mirant's decision to execute the DML. See Pl.'s Opposition at 3 — 5, Ex. 2 — 5; Compl. ¶ 22. From these four facts, plaintiff argues that "it is only a small step to the reasonable inference" that these recommendations and other administrative tasks carried out by Minner and Esaw occurred in the District of Columbia and that these recommendations played a "key role" in the decisions made by plaintiff's managers. See Pl.'s Surreply at 2-4. Notably, plaintiff does not allege that the meeting Esaw attended occurred in Washington, D.C. Nor does he assert that Minner and Esaw actually made the decisions that he alleges were discriminatory or retaliatory.
The DML letter alone cannot constitute a discriminatory action because it did not, by plaintiff's own admission, alter his pay or benefits, see Pl.'s Surreply at 5, nor did it have an adverse consequence affecting the terms, conditions, and privileges of his employment in any immediate sense. More importantly, plaintiff does not assert that Minner made the decision to issue the DML. Rather, he claims that Minner sent a letter informing plaintiff of the DML and that Esaw recommended such action to executives in Virginia. See Compl. ¶ 22; Pl.'s Opposition at 4. Plaintiff has not submitted this letter to the Court with his other declarations.
This Court has previously explained that "venue determinations of where a claim arose are based on a common sense appraisal of events having operative significance." Counts v. Reno, Civ. Action No. 95-1911, 1996 WL 148510 at *2 (D.D.C. March 28, 1996) (quoting Donnell v. National Guard Bureau, 568 F. Supp. 93, 94 (D.D.C. 1983)). The venue inquiry "focuses on the locus of the alleged discrimination," not peripheral events. James v. Booz-Allen Hamilton, Inc., 227 F. Supp. 2d at 22. "Specifically, venue cannot lie in the District of Columbia when `a substantial part, if not all, of the employment practices challenged in this action' took place outside the District even when actions taken inside the District `may have had an impact on the plaintiff's situation.'" Id. at 20 (quoting Donnell v. Nat'l Guard Bureau, 568 F. Supp. at 94).
This Court has also previously held that recommendations made from a District of Columbia office to a manager or supervisor at another office do "not demonstrate that the unlawful career practices complained of in plaintiff's complaint occurred in Washington, D.C." Counts v. Reno, 1996 WL 148510 at *2 n. 1;see also James v. Booz-Allen Hamilton, 227 F. Supp. 2d at 22 n. 3 ("[Even if] managers voiced their request for removal of the plaintiff from the District of Columbia, those requests do not form the nucleus of the alleged acts."). Plaintiff alleges only that Minner and Esaw had offices in the District of Columbia; he fails to allege that any specific meetings or phone conversations with regard to plaintiff actually occurred there. Moreover, plaintiff does not rebut defendant's assertion that Minner also maintained an office in Virginia. Even accepting all of plaintiff's inferences as true, when compared to the totality of events that plaintiff does not dispute occurred in Virginia — plaintiff's residence and employment, the allegedly discriminatory treatment from other employees, meetings held regarding plaintiff's status, and decisions made regarding the plaintiff, including the decision to terminate him — the recommendations, advice, and reviews that may have occurred in the District of Columbia are insignificant. Although these events "may have had an impact on the plaintiff's situation," a common sense approach indicates that the locus of the operative facts that comprise the alleged discriminatory and retaliatory practices occurred in Alexandria, Virginia. See James v. Booz-Allen Hamilton, Inc., 227 F. Supp. at 20, 22. Thus, plaintiff has failed to properly establish venue in the District Court of Columbia under 42 U.S.C. § 2000e-5(f)(3).
Because venue is not proper in the District of Columbia under the special venue provision of Title VII, the Court grants defendant's motion to transfer venue to the United States District Court for the Eastern District of Virginia.
An Order consistent with this Memorandum Opinion shall issue this same day.
SO ORDERED.
ORDER
For the reasons stated in the Memorandum Opinion issued this same day, it is herebyORDERED that defendant's Motion to Dismiss for Improper Venue or, in the Alternative, Motion to Transfer Venue [10] is GRANTED in part and DENIED in part; it is
FURTHER ORDERED that the motion to dismiss for improper venue is DENIED; it is
FURTHER ORDERED that defendant's motion to transfer venue is GRANTED; it is
FURTHER ORDERED that this case is TRANSFERRED to the United States District Court for the Eastern District of Virginia; it is
FURTHER ORDERED that the Clerk of Court shall transfer all papers in this proceeding, together with a certified copy of this Order, to the United States District Court for the Eastern District of Virginia; and it is
FURTHER ORDERED that the Clerk of Court shall remove this case from the docket of this Court.
SO ORDERED.