Opinion
CV-00-734-ST
October 11, 2000
FINDINGS AND RECOMMENDATION
INTRODUCTION
Plaintiff, Marilyn R. Wright, filed this action against defendant, Jack Hozack Co, Inc., on May 31, 2000, alleging violations of Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e ("Title VII"), Oregon's employment practices statute, ORS 659.030(c), and a claim for wrongful termination under Oregon law. This court has jurisdiction under 28 U.S.C. § 1331 and 1367. Defendant has filed a motion to dismiss this action, or alternatively, to transfer venue to the Western District of Washington (docket #9). For the reasons that follow, that motion should be granted and this action should be transferred to the Western District of Washington.
ANALYSIS I. Factual Background
Defendant is a Washington corporation in the business of selling electrical parts. Affidavit of Scott Taylor ("Taylor Aff"), ¶ 2. On or about September 23, 1998, plaintiff accepted a position with defendant as an outside sales representative. Affidavit of Marilyn R. Wright ("Wright Aff"), ¶ 3. At that time, and during the entire time plaintiff was employed with defendant, defendant's headquarters was located in Seattle, Washington. Taylor Aff, ¶ 2.
Plaintiff traveled to Seattle to interview for her job with defendant and negotiated the terms of her employment in defendant's Seattle headquarters. Id, ¶ 3. However, plaintiff was a sales representative for the "Oregon Territory," and only two of her 25-35 accounts were located outside of Oregon. Wright Aff, ¶ 3. Plaintiff maintained an office in her home in Lake Oswego, Oregon, including a telephone, fax machine, and computer, which she used in connection with her employment with defendant.
Plaintiff alleges that, during her employment with defendant, one of defendant's employees, Hazen Arnold ("Arnold"), sexually harassed her by making various unwanted comments to her. Complaint, ¶ 3. Plaintiff reported Arnold's behavior to defendant's president, Scott Taylor ("Taylor"), who allegedly took no action against Arnold. Id. Instead, on or about July 19, 1999, defendant terminated plaintiff, allegedly because she objected to Arnold's treatment of her. Id, ¶ 4.
II. Proper Venue
Defendant argues that this action should be dismissed or that venue should be transferred to the Western District of Washington. This case involves claims of sexual harassment under Title VII, which contains the following venue provision:
(3) Each United States district court and each United States court of a place subject to the jurisdiction of the United States shall have jurisdiction of actions brought under this subchapter. Such an action may be brought in any judicial district in the State in which the unlawful employment practice is alleged to have been committed, in the judicial district in which the employment records relevant to such 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, 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. For purposes of sections 1404 and 1406 of Title 28, the judicial district in which the respondent has his principal office shall in all cases be considered a district in which the action might have been brought.42 U.S.C. § 2000e(5)(3).
The Ninth Circuit has held that this venue provision governs a Title VII claim, rather than the general diversity jurisdiction venue statute, 28 U.S.C. § 1391. Johnson v. Payless Drug Stores NW, Inc., 950 F.2d 586, 587 (9th Cir 1991), cert denied, 505 U.S. 1225 (1992). Given the conflict between the two statutes, the court explained that "`well settled principles of statutory construction dictate that the later, specific venue provision (section 2000e-5(f)(3)) applies rather than the earlier, general venue provision (section 1391(b)).'" Id at 587-88 quoting Bolar v. Frank, 938 F.2d 377, 379 (2d Cir 1991) ( per curiam).
Title VII's venue provision contains three options, two of which do not assist plaintiff. Plaintiff admits that the underlying discriminatory statements and conduct in this case took place outside of Oregon. She also admits that, to the best of her knowledge, the relevant employment records are maintained and administered outside of Oregon. Because Title VII's three venue options are stated in the alternative, however, only one need point to Oregon in order for venue to be proper here. Plaintiff argues that Oregon is "the judicial district in which the aggrieved person would have worked but for the alleged unlawful employment practice." Contrary to defendant's assertion, plaintiff is entitled to rely on this third option.
In Matthews v. Trans World Airlines, Inc., 478 F. Supp. 1244 (S.D. N Y 1979), the court refused to dismiss an action filed in New York because the plaintiff, who had been terminated from a flight training program in Kansas, would have been assigned to a position in New York had he not been terminated. The court found that the first two parts of the venue provision pointed to states other than New York, and based its decision exclusively on the provision allowing suit to be brought in the judicial district where the plaintiff "would have worked." Id at 1246.
In this case, plaintiff maintained an office in her home in Lake Oswego, Oregon, and the bulk of her work for defendant was performed within Oregon. Therefore, plaintiff "would have worked" in Oregon but for the alleged unlawful employment practices. Thus, this court finds venue proper in Oregon under 42 U.S.C. § 2000e(5)(3).
III. Transfer under 28 U.S.C. § 1404(a)
Alternatively, defendant argues that this court should transfer this action to the Western District of Washington pursuant to 28 U.S.C. § 1404(a) which provides:
For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.A. Propriety of Applying 28 U.S.C. § 1404(a)
Title VII references both 28 U.S.C. § 1404 and § 1406: "For purposes of sections 1404 and 1406 of Title 28, the judicial district in which the respondent has his principal office shall in all cases be considered a district in which the action might have been brought." Section 2000e-5(f)(3). These liberal venue provisions may not be used to preclude application of 28 U.S.C. § 1404:
The specific venue provision of Title VII, 42 U.S.C. § 2000e-5(f)(3) was amended on the Senate floor to provide:
For purposes of sections 1404 and 1406 of Title 28, the judicial district in which the respondent has his principal office shall in all cases be considered a district in which the actions might have been brought.
In explaining the provision, Senator Dirkson said:
A provision has been added making the judicial district in which the respondent has his principal office available both in case of a change of venue for the convenience of the parties and witnesses under Section 1404 of the Judicial Code, and for dismissal or transfer under Section 1406 of the Code of a case brought in the wrong district. . . .
In light of this, it is illogical that Congress intended to place the venue provisions of Title VII outside the purview of the transfer clause of 28 U.S.C. § 1404.Lewis v. Madison County Bd. of Educ., 678 F. Supp. 1550 (M.D. Ala 1988), quoting 110 Congressional Record 12817, 12819, Column 2, June 5, 1964, and citing EEOC v. Parish Water Works Co., Inc., 415 F. Supp. 124 (E.D. La 1976). See also Ross v. Buckeye Cellulose Corp., 980 F.2d 648, 655 n13 (11th Cir 1993), cert denied, 513 U.S. 814 (1994) ("Appellants have failed to convince this court that suits under Title VII lie outside the purview of the transfer clause of 28 U.S.C. § 1404."); Popovic v. J.B. Hunt, 1994 WL 531557 (M.D. La Sept 14, 1994) (rejecting application of 28 U.S.C. § 1391 but not 28 U.S.C. § 1404 in a Title VII claim); and Dubnick v. Firestone Tire and Rubber Co. of California, 355 F. Supp. 138, 142 (E.D.N.Y. 1973) (allowing suits to be brought in the judicial "district of `principal office,' was . . . designed to facilitate the transfer provisions of 28 U.S.C. § 1404 and 1406 . . . not to open the door to the application of § 1391(c).") (footnotes omitted).
This court also has considered transfer under 28 U.S.C. § 1404(a) despite the venue provision of Title VII. In Harrison v. International Ass'n of Machinists and Aerospace Workers, 807 F. Supp. 1513 (D Or 1992), the defendants contested venue under 42USC § 2000e-5(f)(3). The court held that the defendants were properly "found" in the District of Oregon for purposes of Title VII's venue provision. The defendants sought, in the alternative, for transfer to Maryland on the grounds that transfer would be most convenient for the parties and witnesses and be in the best interest of justice. Rather than rejecting defendants' argument under 42USC § 2000e-5(f)(3), the court weighed the merits of their argument under 28 U.S.C. § 1404(a). Only after reviewing the various factors used to analyze transfer in the interests of justice, did the court hold that defendants had not met their burden and deny their motion. Id at 1516-17.
Thus, this court concludes that it may consider transfer of Title VII actions under 28 U.S.C. § 1404(a).
B. Application of 28 U.S.C. § 1404(a)
A motion to transfer is committed to the sound discretion of the trial judge. Commodity Futures Trading Comm'n v. Savage, 611 F.2d 270, 279 (9th Cir 1979). Section 1404(a) requires two findings to support transfer: (1) that the transferee court is one where the action "might have been brought," and (2) that the convenience of the parties and witnesses and the interests of justice favor transfer. Hatch v. Reliance Ins. Co., 758 F.2d 409, 414 (9th Cir), cert denied, 474 U.S. 1021 (1985).
The purpose of § 1404(a) is to prevent waste of time, energy, and money, and to protect litigants, witnesses, and the public against unnecessary inconvenience and expenses. Van Dusen v. Barrack, 376 U.S. 612, 616 (1964). Congress intended to permit the transfer upon a "lesser showing of inconvenience" than required for dismissal under the doctrine of forum non conveniens. Norwood v. Kirkpatrick, 349 U.S. 29, 32 (1955). Nevertheless, the Ninth Circuit views forum non conveniens considerations as helpful in deciding a § 1404(a) transfer motion. Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir 1986).
The court must balance the preference accorded to plaintiff's choice of forum with the defendant's burden of litigating in an inconvenient forum. Id. Some private interest factors which a court should consider include:
the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09 (1947); Decker Coal, 805 F.2d at 843.
In addition to the above private interest factors, the court should consider a number of public interest factors, including:
the administrative difficulties flowing from court congestion; the local interest in having localized controversies decided at home; the interest in having the trial of a diversity case in a forum that is at home with the law that must govern the action; the avoidance of unnecessary problems in conflict of laws, or in the application of foreign law; and the unfairness of burdening citizens in an unrelated forum with jury duty.Gulf Oil, 330 U.S. at 509; Decker Coal, 805 F.2d at 843.
The defendant must make a strong showing of inconvenience to warrant upsetting the plaintiff's choice. In fact, a showing that a transfer would "merely shift rather than eliminate the inconvenience" is not sufficient. Id; see also Harrison, 807 F. Supp. at 1517.
This action might have been brought in the Western District of Washington where defendant maintains its principal office, the alleged unlawful employment practice is alleged to have been committed, and the relevant employment records are maintained and administered. Thus, the only issue is whether defendant has made a showing of inconvenience strong enough to overcome plaintiff's choice of forum. This court concludes that defendant has carried its heavy burden of showing that this case should be transferred to the Western District of Washington.
The relevant private interest factors weigh heavily in favor of transfer to Washington. The first private interest factor is the location of and access to evidentiary sources. With the exception of a single marketing trip to Tennessee, plaintiff and her alleged harasser, Arnold, only had contact in defendant's offices in Seattle, Washington. Additionally, any documentary evidence concerning plaintiff's employment, or the employment of her co-workers is located in Kent, Washington, where defendant's corporate offices are now located. In short, the bulk of the evidence surrounding defendant's liability is located in Washington.
The next private interest factors to be considered are the availability of witnesses, the cost of obtaining those witnesses, and what compulsory process, if any, may be used to obtain testimony from unwilling witnesses. Here, both Taylor and Arnold are located in Washington. Defendant asserts that all potential witnesses, with the exception of plaintiff, reside in Washington and work at defendant's Kent, Washington office. Plaintiff has not contested this assertion. While it is true that traveling to Washington may pose some inconvenience to plaintiff, the expense and inconvenience to defendant to try the case in Oregon exceeds the expense and inconvenience to plaintiff if the case is tried in Washington.
The third private interest factor is the possibility of and need for a jury view of the premises. This court cannot conceive that a jury view would be necessary, but if it were, the office in which the bulk of interaction between plaintiff and Arnold took place is located in Seattle, Washington.
The fourth private interest factor concerns practical problems that make trial of a case easy, expeditious, and inexpensive.
The public interest factors also weigh in favor of transfer to the Western District of Washington. While not particularly compelling, the public interest factors of having localized controversies decided at home and the unfairness of burdening citizens in an unrelated forum with jury duty favor adjudicating this case in Washington.
Accordingly, defendant's motion to transfer this action to the Western District of Washington should be granted.
RECOMMENDATION
For the reasons stated above, Defendant Jack Hozack Co.'s Motion to Dismiss, or in the Alternative, to Transfer Venue (docket #9) should be GRANTED and this action transferred to the Western District of Washington.
SCHEDULING ORDER
Objections to these Findings and Recommendations, if any, are due October 30, 2000. If no objections are filed, then the Findings and Recommendations will be referred to a district court judge and go under advisement on that date.
If objections are filed, the response is due no later than November 17, 2000. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will be referred to a district court judge and go under advisement.