Parker v. US Department of Health and Human Services , 51 F. Supp. 3d 173 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
LETA N. PARKER, )
)
Plaintiff, )
)
v. ) Civ. Action No. 14-440 (EGS)
) Civ. Action No. 14-508 (EGS)
KATHLEEN SEBELIUS, Sec’y, )
Dep’t of Health & Human )
Services )
)
Defendant. )
)
MEMORANDUM OPINION
I. INTRODUCTION
Pro se Plaintiff Dr. Leta Parker brings these actions
alleging discriminatory and retaliatory conduct and hostile work
environment by her former employer, the Federal Occupational
Health Service (“FOH”). Dr. Parker originally filed both cases
in the Superior Court of the District of Columbia, but her cases
were removed to this Court pursuant to 35 U.S.C. §§ 1346(a)(2),
1441(a), 1442(a)(1), and 1446 on March 18, 2014 (Case No. 14-
0440) and March 26, 2014 (Case No. 14-0508). Dr. Parker raises
claims of discrimination, disparate treatment, hostile work
environment, and retaliation for protected activity based on her
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race, color, gender, and physical disability.1 Compl. ¶ 3, ECF #
1-1 at 6.2
On April 15, 2014, defendant Kathleen Sebelius, in her
official capacity as Secretary of the Department of Health &
Human Services, moved to dismiss the complaints pursuant to FED.
R. CIV. P. 12(b)(3) for plaintiff’s failure to lay venue
according to the special venue provision for Title VII actions,
42 U.S.C. § 2000e-5(f)(3).3 Mot. to Dismiss at 1.
Alternatively, defendant moves to transfer these cases to the
United States District Court for the District of Maryland.
Having considered the motion, the applicable law, and the
interest of justice, the Court will TRANSFER these cases to the
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Plaintiff purports to bring her claims under the District of
Columbia Human Rights Act, D.C. CODE § 2-1401 et seq. Case No.
14-440, Compl. ¶ 3. Defendant has construed plaintiff’s
complaints as claims for relief under Title VII of the Civil
Rights Act, 42 U.S.C. § 2000e-5 et seq., and the Sections 501
and 505 of the Rehabilitation Act, 29 U.S.C. §701 et seq., in
its motion to dismiss. Def.’s Mot. to Dismiss, ECF # 3, at 4.
2
Unless otherwise noted, references to the record are to Case
No. 14-440.
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On April 17, 2014, the Court issued an Order in each pending
action which directed plaintiff to file her opposition or other
response to defendant’s motion no later than June 2, 2014.
Plaintiff was advised that the Court would grant defendant’s
motion as conceded if she did not file a timely opposition. To
date, plaintiff neither has filed an opposition nor has
requested additional time to do so. Though permitted under the
Local Rules to treat the motion as conceded, see LCvR 7(b), this
Court considers the merits of defendant’s Motion to Dismiss.
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United States District Court for the District of Maryland for
the reasons stated below.
II. STANDARD OF REVIEW
Defendant seeks to dismiss plaintiff’s complaints 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-pleaded factual allegations as true, 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)), 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
case to any district or division in which it could have been
brought.’” Pendleton, 552 F. Supp. 2d at 17 (quoting 28 U.S.C.
§ 1406(a)). “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 WL 3349549, at *1 (D.D.C. Nov. 17, 2006) (citing
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James v. Booz-Allen Hamilton, Inc., 227 F. Supp. 2d 16, 20
(D.D.C. 2002)).
III. 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)
(citing Stebbins v. State Farm Mut. Auto. Ins. Co., 413 F.2d
1100 (D.C. Cir. 1969), cert. denied, 396 U.S. 895 (1969)). 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
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any of Title VII’s four venue categories. Mot. to Dismiss at 4–
5. Defendant argues these cases should be dismissed entirely
for improper venue, or in the alternative, be transferred to the
District of Maryland, which the Secretary contends is the only
proper venue for this action. Id. at 5.
In her complaint, plaintiff asserts “all prerequisites for
suit are satisfied” and alleges she was employed in the District
of Columbia. Compl. ¶ 3. But as defendant has pointed out,
plaintiff’s former employer, the FOH, is headquartered in
Bethesda, Maryland. Mot. to Dismiss at 4. Plaintiff listed
Bethesda, Maryland as the address of the FOH in her Equal
Employment Opportunity Formal Individual Complaint Form, ECF #
3-1 at 1, and included the FOH’s Bethesda address in her former
FOH email signature. See Case No. 14-508, Jan. 11, 2011 Email
Ex., ECF # 1-1 at 35.
The District of Columbia is not the location of the alleged
discrimination, disparate treatment, hostile work environment,
or retaliation. Plaintiff has not alleged any activity
occurring in the District of Columbia. See Compl. ¶¶ 6–22; Mot.
to Dismiss at 4–5. Plaintiff worked in Maryland while at the
FOH. Mot. to Dismiss at 4. Dr. Parker’s employment records are
maintained and administered in Bethesda, Maryland, the principal
office of the FOH. Id. Dr. Parker would have worked in
Rockville, Maryland had she remained with the FOH. Id.
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Plaintiff’s address of record indicates she currently resides in
Hawaii, not the District of Columbia. See Compl. Consequently,
venue is not proper in the District of Columbia under any of the
Title VII venue provisions.4
When venue is improper, the Court may dismiss the claim or,
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). This Court will exercise its
discretion to transfer these cases to the District of Maryland.
IV. CONCLUSION
For the reasons set forth above, the Court GRANTS IN PART
and DENIES IN PART defendant’s Motion to Dismiss, or in the
Alternative, Transfer for Improper Venue pursuant to FED. R. CIV.
P. 12(b)(3). The motion to dismiss for improper venue is
4
To the extent Dr. Parker has alleged failure to make
reasonable workplace accommodations for her disability, Title
VII’s venue statute still applies. See 29 U.S.C. § 794(a).
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DENIED, and the motion to transfer is GRANTED. Accordingly,
these cases shall be TRANSFERRED to the United States District
Court for the District of Maryland. An appropriate order
accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
June 27, 2014
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