Smith v. Department of the Army ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SHERI ELLIS-SMITH,
Plaintiff,
v. Civil Action No. 10-1594 (JEB)
SECRETARY OF THE ARMY,
Defendant.
MEMORANDUM OPINION
Plaintiff Sheri Ellis-Smith is a black female who is employed as a contract specialist with
the U.S. Army Corps of Engineers and has served in Germany and Afghanistan. Am. Compl., ¶
9. Since 2008, Plaintiff has filed four administrative complaints against her supervisor in
Germany alleging myriad acts of discrimination based on her race and gender, including, e.g.,
unequal workload, discriminatory work assignments, and non-selection for promotion. Id., ¶ 3.
Plaintiff received a final agency decision that rejected one of her complaints on June 18, 2010.
Id., ¶ 4; Motion, Exh. B (Department of the Army, Equal Employment Opportunity Compliance
and Complaints Review) at 11.
On September 20, 2010, Plaintiff filed this action under Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e et seq., against Defendant, the Secretary of the Army. Her amended
Complaint, filed November 29, 2010, alleges claims of retaliation, hostile work environment and
disparate treatment, gender discrimination, and race discrimination.
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On February 28, 2011, arguing lack of venue, Defendant filed this Motion to Dismiss, Or
In the Alternative, Motion to Transfer under Federal Rule of Civil Procedure 12(b)(3), which the
Court now considers.1
I. Legal Standard
When presented with a motion to dismiss for improper venue under Fed. R. Civ. P.
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 resolves any
factual conflicts in the plaintiff’s favor.” Pendleton v. Mukasey, 552 F. Supp. 2d 14, 17 (D.D.C.
2008) (citing Darby v. U.S. Dep’t of Energy, 231 F. Supp. 2d 274, 276–77 (D.D.C. 2002)). The
Court need not, however, accept the plaintiff’s legal conclusions as true, Darby, 231 F. Supp. 2d
at 277, and may consider material outside of the pleadings. Artis v. Greenspan, 223 F. Supp. 2d
149, 152 (D.D.C. 2002) (citing Land v. Dollar, 330 U.S. 731, 735 n.4 (1947)). “Because it is the
plaintiff’s obligation to institute the action in a permissible forum, the plaintiff usually bears the
burden of establishing that venue is proper.” Freeman v. Fallin, 254 F. Supp. 2d 52, 56 (D.D.C.
2003); 15 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3826, at
258 (2d ed. 1986 & Supp. 2006) (“[W]hen an objection has been raised, the burden is on the
plaintiff to establish that the district he or she has chosen is a proper venue.”). To prevail on a
motion to dismiss for improper venue, however, “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). Unless there are “pertinent factual disputes to resolve, a challenge to
venue presents a pure question of law.” Williams v. GEICO Corp., No. 10-1420, 2011 WL
2441306, at *2 (D.D.C. June 20, 2011).
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The Court has reviewed Defendant’s Motion to Dismiss, Or In the Alternative, Motion to Transfer;
Plaintiff’s Opposition thereto; and Defendant’s Reply.
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II. Analysis
Venue in Title VII cases is governed by statute. A Title VII action may be properly
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 . . . .” 42 U.S.C. § 2000e-5(f)(3). “[I]f 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.” Id.
Plaintiff correctly does not claim that prongs 1 or 3 provides a basis for venue in this
district. Neither could. As to the first, Plaintiff states in her Amended Complaint, “At all times
herein mentioned, the Plaintiff . . . was employed by Defendant as a contracts specialist with the
Army Corps of Engineers in Germany or Afghanistan.” Id., ¶ 9. In her sworn declaration, she
further explains, “I filed an EEO complaint against my previous manager located at the Europe
District in Germany for the actions mentioned in my complaint.” Opp., Exh. 1 (Declaration of
Sheri Ellis-Smith), ¶ 1. It is thus undisputed that the alleged unlawful employment practices
occurred in Germany, not in the District of Columbia. The first prong cannot apply.
As to prong 3, neither party suggests a possibility that, but for any alleged unlawful
employment practices, Plaintiff would have worked in the District of Columbia. Rather, the
evidence suggests that Plaintiff applied for a promotion in, and sought to remain deployed in,
Germany. See Am. Compl., ¶ 15 (“Plaintiff was not selected for the position of supervisory
contract specialist, YC-1102-02.”); Motion, Exh. B (Department of the Army, Equal
Employment Opportunity Compliance and Complaints Review) at 6 (“Your client said that she
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applied and was referred for the position of Supervisory Contract Specialist, but was not
interviewed or selected. . . . Mr. Winne [Plaintiff’s second-level supervisor in Germany] said he
was the selecting official for the position at issue.”); Motion, Exh. A (Formal Complaint of
Discrimination) at 4 (alleging her supervisors in Germany “did not recommend approval of my
overseas extension request, which led to my request being denied”). Plaintiff has thus failed to
carry her burden to plead facts to support venue in this district under prong 3.
Having failed on two of the prongs, Plaintiff appears to rely wholly on prong 2, which
permits Title VII cases to be brought in the district where Plaintiff’s “employment records
relevant to such [unlawful employment] practice are maintained and administered.” § 2000e-
5(f)(3). Yet Plaintiff has not averred that the records are currently maintained and administered
in the District of Columbia. Defendant submits, by sworn declaration, that “[d]uring the period
of December 2008 – June 2010, Ms. Ellis-Smith’s master employment records (official
personnel files) were maintained and administered in the Civilian Personnel Advisory Center
(CPAC Unit), Europe District, APO EO 09096, P.O. Box 0029, Wiesbaden, Germany 29263.”
Motion, Exh. E (Declaration of Dawn M. Clappsy), ¶ 3. The most Plaintiff can offer in response
is her declaration that her “employment records were not maintained at the office w[h]ere I am
employed. They were maintained in the Washington, DC Office for the first two years after my
initial employment, and later maintained at the Civilian Personnel Office located in Europe.”
Opp., Exh. 1 (Declaration of Sheri Ellis-Smith), ¶ 7.
Yet the statute refers to where the records “are maintained and administered.” § 2000e-
5(f)(3) (emphasis added). Plaintiff herself admits that, at the time of the filing of this action, this
was in Europe, not the District of Columbia. Even if copies of those records might be
maintained here, that does not confer venue. See Washington v. General Elec. Corp., 686 F.
4Supp. 361, 363 (D.D.C. 1988) (“it is clear that Congress intended venue to lie on the basis of the
presence of records only in the one judicial district in which the complete, ‘master’ set of
employment records is ‘maintained and administered.’”).
That the parties present contradictory factual accounts of where Plaintiff’s EEO
complaints were processed is of no moment to the Court’s venue analysis.2 As Defendant
observes in its Reply, the other courts in this district that have considered the question have
firmly rejected the argument that the location where Plaintiff’s EEO complaints were initiated
and processed provides a basis for venue under prong 2 of § 2000e-5(f)(3). See Amirmokri v.
Abraham, 217 F. Supp. 2d 88, 90-91 (D.D.C. 2002) (“While it may be true that records relating
to plaintiff’s unlawful employment practice complaint and the investigation thereof are
maintained in the District of Columbia, such records are not ‘employment records’ within the
meaning of the statute.”) (emphasis added); Lee v. England, No. 02-2521, 2004 WL 764441, at
*1 (D.D.C. Mar. 9, 2004) (“Plaintiff’s assertion that the ‘administrative processing’ of his case
has been through the Human Resources Office at the Washington Navy Yard seeks to sidestep
the language of the statute, which deals not with administrative processing of the litigation but
with the maintenance and administration of employment records relevant to the challenged
employment practice.”); Saran v. Harvey, No. 04-1847, 2005 WL 1106347, at *3 (D.D.C. May
9, 2005) (“Although she may have filed her EEOC complaint in Washington, her employment
records are not considered ‘maintained and administered’ at the EEOC office for purposes of
determining proper venue under 42 U.S.C. § 2000e-5(f)(3).”); Ridgely v. Chao, No. 05-1033,
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Plaintiff asserts, by sworn declaration, that her four complaints were either initially processed at the Army
Corps of Engineers’ Humphreys Engineer Center in Washington, D.C., or transferred there from the Army’s Europe
District Office in Germany soon after she filed them. Ellis-Smith Decl., ¶ 4. Defendant, on the other hand, submits
by sworn declaration that after being initially processed in Germany, Plaintiff’s “complaint was processed by the
EEO office at the U.S. Army Corps of Engineers Humphreys Engineer Center Support Activity (“HECSA”) located
in Alexandria, Virginia.” Motion, Exh. C (Declaration of Frances E. Jones), ¶ 2.
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2006 WL 626919, at *2 (D.D.C. Mar. 13, 2006) (“The law is clearly established that the
maintenance and administration of such EEO records does not establish proper venue under 42
U.S.C. § 2000e-5(f)(3).”) (emphasis added). The Court sees no basis to find otherwise here.
The only cases Plaintiff cites to support venue in this district, Smith v. Dalton, 927 F.
Supp. 1 (D.D.C. 1996), and Bartman v. Cheney, 827 F. Supp. 1 (D.D.C. 1993), are cases
applying 28 U.S.C. § 1391(e), which is inapplicable in Title VII cases where venue is prescribed
by 42 U.S.C. § 2000e-5(f)(3). See Donnell v. Nat’l Guard Bureau, 568 F. Supp. 93, 94 (D.D.C.
1983).
Because Plaintiff has failed to establish venue in any judicial district in the United States
under the first three prongs of § 2000e-5(f)(3) – each of which points to Germany – the Court
turns to that section’s final provision. This provides that in such a case, a Title VII action “may
be brought within the judicial district in which the respondent has his principal office.” Id. The
Secretary of the Army’s principal office is located in the Pentagon, in Arlington, Virginia. See
Saran, 2005 WL 1106347, at *4; Ebron v. Dep’t of the Army, No. 09-1961, 2011 WL 635297, at
*3 (D.D.C. Feb. 23, 2011). Venue in the District of Columbia for this action is thus improper.
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).
This is what the Court will do here. In this case, the only jurisdiction in which Plaintiff’s claim
could have been brought is the Eastern District of Virginia, and that is where the case shall be
transferred.
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III. Conclusion
An Order accompanying this Memorandum Opinion will grant Defendant’s Motion and
transfer the case to the Eastern District of Virginia.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: June 22, 2011
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