United States District Court, District of Columbia
July 31, 2002
AARON C. JAMES, SR., PLAINTIFF,
BOOZ-ALLEN & HAMILTON, INC., DEFENDANT
The opinion of the court was delivered by: Urbina, District Judge.
TRANSFERRING THE CASE TO THE EASTERN
DISTRICT OF VIRGINIA
This case arises from a complaint filed by Mr. Aaron James, Sr. ("the
plaintiff") alleging that his employer, Booz-Allen & Hamilton, Inc.
("the defendant"), discriminated against him on the basis of his race.
The defendant moves the court to dismiss the action for improper venue,
asserting that the alleged discriminatory act did not occur in the
District of Columbia, that the employment records are not located in the
District of Columbia, and that the plaintiff would not have worked in the
District of Columbia "but for" the alleged discriminatory act. After
consideration of the parties' submissions and the relevant law, the court
determines that venue is improper in this district and thereby transfers
the case to the Eastern District of Virginia.
A. Factual Background
The plaintiff, a black male, began working for the defendant in 1988,
leaving in 1994 and returning in 1996 to work for the defendant as a
senior associate. Am. Compl. ("Compl.") ¶¶ 1, 4. In his new position
as a senior associate, the plaintiff served as the project manager for
the defendant's contract with the Washington Metropolitan Area Transit
Authority ("WMATA"). Id. at ¶ 5. In February 1999, as a result of
the WMATA's complaints about the plaintiff, the defendant discharged the
plaintiff from his position as project manager. Id. at ¶ 9. The
defendant then offered the project manager position to another
individual, a white male, who had prior experience working with the
defendant on the WMATA contract. Id. at ¶ 10. Although the plaintiff
was not demoted, he felt that his duties after his discharge as project
manager diminished in quality and his career stagnated. Id. at ¶
13; Prince George's County Human Relations Commission's ("PGCHRC") Letter
of Determination, dated May 15, 2000 ("PGCHRC Letter of Determination");
Def.'s Mot. to Dismiss for Improper Venue ("Def.'s Mot."), Ex. 1-B at 3.
Consequently, the plaintiff resigned from his position with the defendant
in July 1999. Compl. ¶ 13.
On March 26, 1999, the plaintiff filed a complaint with the U.S. Equal
Employment Opportunity Commission ("EEOC") and with the PGCHRC, alleging
unlawful employment discrimination by the defendant on account of the
plaintiff's race, in
violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), as
amended, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981 (a).
Id. ¶ 3. Pursuant to a workshare agreement, PGCHRC conducted an
initial investigation of the plaintiff's complaint and, on May 18, 2000,
found that there was insufficient evidence to support the plaintiff's
allegations of discrimination. PGCHRC Letter of Determination at 8. On
July 21, 2000, the EEOC adopted the findings of PGCHRC and provided the
plaintiff with a "right to sue" letter, informing him that he had 90 days
from receipt of the letter to file a suit in federal or state court
relating to his allegations of discrimination. EEOC Dismissal and Notice
of Rights, dated July 21, 2000.
B. Procedural Background
On October 19, 2000, the plaintiff filed his pro se complaint in this
court. The clerk's office informed the court that the plaintiff had
failed to serve the defendant with a copy of the complaint and that the
plaintiff had failed to provide a copy of a "right to sue" letter issued
by the subject county commission. In response to these defects, the court
issued an order on January 16, 2001 directing the plaintiff to satisfy
these requirements. Order, dated Jan. 16, 2001. On February 6, 2001, the
plaintiff responded with the appropriate filing and also indicated that he
had retained counsel to represent him in the matter. See Pl.'s Notice of
Filing, dated Feb. 6, 2001. On March 9, 2001, the clerk's office received
a return of service indicating that the plaintiff served the defendant
with a summons and the complaint on February 12, 2001. Noting that the
deadline for a timely response to the complaint had expired, the court
issued an order on May 21, 2001 directing the defendant to show cause
("show cause order") as to why no response had been filed and why the
court should not proceed to enter default judgment in the case. Show
Cause Order. The defendant filed a response to the court's show cause
order on June 7, 2001, challenging the plaintiff's service of process and
arguing that default judgment is not appropriate. Def.'s Resp. to Show
Cause Order at 4. The defendant filed a submission styled as a "Reply to
Plaintiff's Response to Booz Allen's Response to Order to Show Cause" on
July 3, 2001, in which the defendant moved the court to dismiss the
complaint for deficient service of process pursuant to Federal Rule of
Civil Procedure 12(b)(5) or, in the alternative, to quash service. See
Def.'s Resp. at 8. Concurrent with the dispute relating to service of
process, on June 1, 2001, the plaintiff issued a subpoena duces tecum to
PGCHRC (a non-party to this litigation) requesting production of copies
of the discrimination complaint file, including any and all documents
filed by the defendant. See PGCHRC's Mot. to Quash, Attach. A. PGCHRC
filed a motion to quash the subpoena on June 21, 2001. Resolving the
above named issues, the court denied entry of default judgment, granted
the defendant's motion to quash the plaintiff's service of process, and
granted PGCHRC's motion to quash the subpoena duces tecum. Mem. Op. and
Order, dated Feb. 12, 2002.
After retaining counsel, the plaintiff filed an amended complaint with
the court on March 6, 2002. Accordingly, the amended complaint is the
operative complaint. The defendant now moves the court to dismiss the
complaint for improper venue pursuant to Federal Rule of Civil Procedure
12(b)(3). The plaintiff has filed an opposition to this motion claiming
that venue is proper, but if the court finds that it is improper, then
the plaintiff asks the court to transfer the case to the Eastern District
of Virginia. Pl.'s Opp'n to Def.'s Mot. ("Pl.'s Opp'n") at 7. For the
reasons that follow, the court concludes that venue is
improper in this district and transfers the case to the Eastern District
A. Legal Standard for Venue
in Title VII Cases
Federal Rule of Civil Procedure 12(b)(3) states that the court will
dismiss or transfer a case if venue is improper or inconvenient in the
plaintiff's chosen forum. FED. R. Civ. PROC. 12(b)(3). In considering a
Rule 12(b)(3) motion, the court accepts the plaintiff's well-pled factual
allegations regarding venue as true, the court draws all reasonable
inferences from those allegations in the plaintiff's favor, and the court
resolves any factual conflicts in the plaintiff's favor. 2215 Fifth
Street Assocs. v. U-Haul Int'l Inc., 148 F. Supp.2d 50, 54 (D.D.C. 2001)
(Huvelle, J.). The court, however, need not accept the plaintiff's legal
conclusions as true. Id.
Under 42 U.S.C. § 2000e-5 (f)(3), a plaintiff may bring a Title VII
action in any one of four judicial districts. The statute provides that:
[s]uch 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.
42 U.S.C. § 2000e-5 (f)(3). In Title VII cases, Congress intended to
limit venue to those jurisdictions concerned with the alleged
discrimination. Stebbins v. State Farm Mut. Auto. Ins. Co., 413 F.2d 1100,
1102 (D.C.Cir. 1969) ("Stebbins I").
If the plaintiff brings suit in a jurisdiction that does not satisfy
one of the venue requirements listed in 42 U.S.C. § 2000e-5 (f)(3),
venue is improper. 42 U.S.C. § 2000e-5 (f)(3); Washington v. Gen.
Elec. Corp., 686 F. Supp. 361 (D.D.C. 1988) (Richey, J.). When a
plaintiff files an action in the wrong venue, 28 U.S.C. § 1406 (a)
directs courts to "dismiss, or if it be in the interest of justice,
transfer such case" to the proper venue. 28 U.S.C. § 1406 (a).
Generally, the "interest of justice" instructs courts to transfer cases
to the appropriate judicial district, rather than dismiss them.
Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466-67, 82 S.Ct. 913, 8 L.Ed.2d
Courts can determine venue by applying a "commonsense appraisal" of
events having operative significance. Lamont v. Haig, 590 F.2d 1124, 1134
(D.C.Cir. 1978); Donnell v. Nat'l Guard Bureau, 568 F. Supp. 93, 94
(D.D.C. 1983) (Green, J.). 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 in the District "may have had an impact on the
plaintiff's situation." Donnell, 568 F. Supp. at 94. The court now turns
to the defendant's motion to dismiss.
B. The Court Determines that Venue
is Not Proper in this Jurisdiction
As an initial matter, the court addresses the defendant's assertion
that the plaintiff's Title VII claim under 42 U.S.C. § 2000e-5 is the
principal claim named in the complaint because it is the only statute
cited in paragraph 14 of the complaint. Def.'s Mot. at 5 n. 2. The
cursory interpretation of the complaint fails to identify that paragraph
three indicates that claims under 42 U.S.C. § 1981 (a) and 2000e-5
are collectively referred to as "Title VII" throughout the remainder of
the complaint, including paragraph 14. Compl. ¶ 3. This court may
apply venue standards pursuant to 28 U.S.C. § 1391 if analyzing a
claim under 42 U.S.C. § 1981. Stebbins v. Nationwide Mut. Ins. Co.,
757 F.2d 364, 369 (D.C.Cir. 1985) ("Stebbins 11") (citing Stith v. Manor
Baking Co., 418 F. Supp. 150, 155 (W.D.Mo. 1976)). The section 2000e-5
claim, however, is subject to a narrower venue provision.
42 U.S.C. § 2000e-5 (f)(3); Stebbins I, 413 F.2d at 1102. The
plaintiff asserts that venue is proper under the narrower venue provision
codified in 42 U.S.C. § 2000e-5 (f)(3), and does not argue proper
venue under 28 U.S.C. § 1391.*fn1
Although the parties have not asked the court to exercise pendent venue
in the instant action, venue is determined by the analysis of the
stricter Title VII venue provisions set forth in 42 U.S.C. § 2000e-5
(f)(3). 42 U.S.C. § 2000e-5 (f)(3). Indeed, the greater weight of
authority suggests that when a plaintiff brings a Title VII action under
both 42 U.S.C. § 1981 and 2000e-5, the narrower venue provision of
section 2000e-5(f)(3) controls. Stebbins II, 757 F.2d at 367 (determining
that the general venue statute under 28 U.S.C. § 1391 does not
provide an additional place of venue where the terms of
42 U.S.C. § 2000e-5 (f)(3) are not met); Hayes v. RCA Serv. Co.,
546 F. Supp. 661, 664-65 (D.D.C. 1982) (Siica, J.); Trujillo v. Total
Bus. Sys., Inc., 704 F. Supp. 1031, 1032 (D.Colo. 1989) (holding that a
plaintiff must bring discrimination claims under 42 U.S.C. § 1981 and
2000e where venue lies under 42 U.S.C. § 2000e-5(f)(3)); Kravec v.
Chicago Pneumatic Tool Co., 579 F. Supp. 619, 622 (N.D.Ga. 1983)
(explaining that the more specific venue provisions of Title VII
supersede other claims). As mentioned earlier, in Stebbins I, the D.C.
Circuit examined the language of section 2000e-5(f)(3) and determined
that "the intent of Congress to limit venue to the judicial districts
concerned with the alleged discrimination seems clear" and that provision
should supercede broader venue provisions. Stebbins I, 413 F.2d at 1102;
Kravec, 579 F. Supp. at 622 (recognizing Stebbins I as the "leading case"
in determining the prevailing venue provision).
Some courts confronted with facts similar to those in the case at bar
have adopted another approach in determining venue by evaluating which of
the two federal claims is "primary," and applying the venue provision of
the primary claim. Turberville v. Casey, 525 F. Supp. 1070, 1071 (D.D.C.
1981) (Green, J.) (holding that the primary claim is Title VII and its
venue provisions control the secondary Equal Pay Act claim); Hsin Ten
Enters. USA, Inc. v. Clark Enters., 138 F. Supp.2d 449, 462-63 (S.D.N.Y.
2000); Solow Bldg. Co. v. ATC Assocs., Inc., 175 F. Supp.2d 465, 470
(E.D.N.Y. 2001). This court adopts the rule in Stebbins I and thereby
applies the venue provision outlined in 42 U.S.C. § 2000e-5 (f)(3) to
the instant motion. But even if the court in arguendo were to follow the
minority approach as outlined in Turbeville, the court would still
conclude that the plaintiff's 42 U.S.C. § 2000e claim is the primary
claim asserted in the complaint, thereby applying the Title VII venue
provision in determining
how to rule on the defendant's instant motion to dismiss. Turbeville, 525
F. Supp. at 1071; Hsin Ten Enters. USA, 138 F. Supp.2d at 462-63; Solow
Bldg. Co., 175 F. Supp.2d at 470.
1. The Alleged Discriminatory
Acts Did Not Take Place
in This District
Under section 2000e-5(f)(3), the court's first inquiry focuses on the
locus of the alleged discrimination. Washington, 686 F. Supp. at 363. The
plaintiff claims that the defendant wrongly removed the plaintiff from his
position as project manager for the defendant's contract with the WMATA.
Compl. ¶ 5, 9. The plaintiff asserts that the decision to remove him
from his position as project manager, coupled with the fact that his
replacement was a white male comprise intentional acts of race
discrimination. Id. ¶¶ 10, 14. Therefore, in the instant case, the
discriminatory act of "operative significance" is the plaintiff's removal
from the position of project manager and his replacement with a white
male. Washington, 686 F. Supp. at 363.
The defendant asserts that Mr. Shulman, the plaintiff's immediate
manager who works out of New Jersey, and Mr. Salameh, the defendant's
vice-president who works out of California, jointly made the decision to
remove the plaintiff from his position as the WMATA project manager.
Def.'s Mot. at 7; Schulman Aff. ¶¶ 2, 6. This decision was made in
February 1999 after several discussions taking place in New Jersey,
California, and/or the defendant's Virginia headquarters.*fn2 Def.'s
Mot. at 7; Schulman Aff. ¶ 6. The defendant claims that the
plaintiff was notified of this decision in Maryland and/or Virginia. Id.
Accordingly, the alleged discriminatory act did not occur in the District
of Columbia.*fn3 Therefore, venue is not proper in the District of
Columbia under the first prong of the Title VII venue statute.
42 U.S.C. § 2000e-5 (f)(3).
2. Relevant Documents to This Case
are Not Located in This District
The second prong of the Title VII venue statute requires that the
employer "maintained and administered" employment records in "the
judicial district" where venue
is sought. 28 U.S.C. § 2000e-5(f)(3) (emphasis added). The statute's
use of the singular (i.e., "the judicial district") makes clear that
Congress intended venue to lie on the basis of the presence of records
only in one judicial district in which the complete, "master" set of
employment records is "maintained and administered." Washington, 686 F.
Supp. at 363.
In the instant action, the defendant-employer maintains and administers
its master set of employment records in its corporate headquarters
located in McLean, Virginia. Def.'s Mot. at 8; Meyers Aff. ¶ 8. None
of the plaintiff's personnel records are maintained and administered in
the District of Columbia. Id. Although the plaintiff's complaint advances
no allegations to the contrary, the plaintiff counters the defendant's
argument by stating that his time sheets were submitted to his
supervisor, Mr. Schulman, in Newark, New Jersey. Pl.'s Opp'n at 6. This
is inconsistent with the sworn statement of the defendant's in-house
counsel, affirming that the defendant's employment records are maintained
and administered in Virginia. Def.'s Mot. Ex. 1 at ¶ 8. Even
accepting the plaintiff's factual allegations as true, the court notes
that the plaintiff's argument only signals the possibility that venue
lies in New Jersey, rather than demonstrating that venue is proper in
the District of Columbia. 2215 Fifth Street Assocs., 148 F. Supp.2d at
54. Thus, the plaintiff does not meet his burden for proper venue under
the second prong of the Title VII venue statute.
42 U.S.C. § 2000e-5(f)(3).
3. The Plaintiff Would Not Have
Worked in This District "But For"
the Alleged Discrimination
A plaintiff can satisfy the third prong under the Title VII venue
provision when he would have worked in the District of Columbia "but for"
the alleged discrimination. 28 U.S.C. § 2000e-5(f)(3). It is
important to note that the language of the statute requires that the
District of Columbia be "the judicial district" in which the plaintiff
"would have worked" had he not been removed from his position as the
WMATA project manager. Id. (emphasis added). As reasoned before, the use
of the article "the" rather than "a" strongly suggests that the statutory
requirement refers to the aggrieved individual's principal place of
work, and not any district in which the individual's work might take
him. Id.; EEOC v. Mayflower Transit, Inc., 1993 U.S. Dist. LEXIS 8181, at
*4-5 (D.D.C. 1993) (Oberdorfer, J.).*fn4
The defendant alleges that the plaintiff would not have worked in the
District of Columbia "but for" the alleged discrimination by reiterating
the plaintiff's geographical tenure with the defendant.*fn5 Def.'s Mot.
at 8-9; Def.'s Reply at 6-9. While this is an interesting proposition, it
does not educate the court as to whether the plaintiff would have worked
in the District of Columbia "but for" the alleged discrimination. The
defendant contends that "but for" the alleged discriminatory acts, the
plaintiff would have presumably continued to serve as the WMATA project
and continued working at the defendant's offices located in Seabrook,
Maryland. Def.'s Mot. at 9. The defendant notes that between June 1999
and April 2000, the defendant temporarily relocated its Seabrook offices
to the District, of Columbia. Id. at 9 n. 4; Schulman Aff. ¶ 3. The
parties do not dispute that the plaintiff did indeed work in the District
of Columbia for about six weeks before he resigned. Id.
In response, the plaintiff posits that because his successor was
appointed to work with the WMATA out of the District of Columbia, the
plaintiff would also have been relocated to the District of Columbia.*fn6
Pl.'s Opp'n at 4-5. The plaintiff's argument, however, neglects the fact
that the plaintiff's base of operation was at the defendant's offices in
Seabrook, Maryland. Def.'s Mot. at 9. As such, in any case the District
of Columbia would not have been "the judicial district" where the
plaintiff would have worked as an employee of the defendant, who had
merely agreed to perform work under the WMATA contract in the District of
Columbia for a finite term. Id. Therefore, venue does not lie in the
District of Columbia under the third prong of 42 U.S.C. § 2000e-5
(f)(3). 42 U.S.C. § 2000e-5 (f)(3); Mayflower Transit, 1993 U.S.
Dist. LEXIS 8181, at *4-5.
4. The Fourth Prong of 42 U.S.C. § 2000e-5(f)(3) Need Not Be
Turning to the last prong of the Title VII venue statute, the plaintiff
may bring his Title VII action in the district where the defendant has
its principal place of business only if the defendant cannot be found in
any other districts where venue is appropriate. 42 U.S.C. § 2000e-5
(f)(3); McManus v. Washington Gas Light Co., 1991 WL 222345, at *3
(D.D.C. 1991) (Lamberth, J.). Although venue does not lie in the District
of Columbia, the court's analysis of the first three prongs reveals that
the plaintiff could properly assert venue in several other districts. As
such, the court need not consider the fourth prong of the Title VII venue
statute in determining whether venue is proper in this district.
42 U.S.C. § 2000e-5 (f)(3). Even if the court were to analyze the
defendant's argument under the fourth prong, the court would nonetheless
conclude that venue is improper in the District of Columbia because the
defendant's principal place of business is located in the Eastern
District of Virginia. Id.; Compl. ¶ 2.
C. Transfer to the Eastern
District of Virginia
One final point merits attention. The court determines whether it
should transfer the case to the Eastern District of Virginia as per the
plaintiff's request. Pl.'s Reply at 7. Where the court determines that
venue is improper, the Title VII venue statute, 42 U.S.C. § 2000e-5
(f)(3), provides that transfer under 28 U.S.C. § 1406(a) is
appropriate to any judicial district where the plaintiff could
have originally brought his case. Washington, 686 F. Supp. at 364. E.g.,
Turbeville, 525 F. Supp. at 1072. Whether transferring this case is in
the interest of justice rests within the sound discretion of the court.
Hayes, 546 F. Supp. at 665. Moreover, in light of the restrictiveness of
the venue provisions for Title VII cases, courts have routinely
transferred such cases to neighboring jurisdictions when a plaintiff
fails to carry his burden to demonstrate proper venue. E.g., Mackey v.
Sullivan, 1991 WL 128510 (D.D.C. 1991) (Hogan, C.J.); McManus, 1991 WL
222345; Archuleta v. Sullivan, 725 F. Supp. 602 (D.D.C. 1989)
(Revercomb, J.); Hayes, 546 F. Supp. at 661.
Here, the defendant made its decision to remove the plaintiff from the
WMATA project outside of the District of Columbia. Indeed, the defendant
made this decision in either the Eastern District of Virginia, New
Jersey, California, or all of the above. Def.'s Mot. at 7; Schulman Aff.
¶ 6. In addition, the plaintiff's employment records and the
defendant's principal place of business are located in the Eastern
District of Virginia. Def.'s Mot. at 8; Meyers Aff. ¶ 8; Compl.
¶ 2. Furthermore, the time the plaintiff would have spent in the
District of Columbia had he retained his position as the WMATA project
manager would have been for a finite period of time since he would have
continued to maintain his base of operation in Seabrook, Maryland. Def.'s
Mot. at 9. In sum, the various factors considered by the court weigh in
favor of venue properly lying in the Eastern District of Virginia. In any
case, the defendant does not challenge such a transfer. Def.'s Reply at
9. As such, the court determines that transferring this case to the
Eastern District of Virginia serves the interest of justice. Hayes, 546
F. Supp. at 665.
For all of the foregoing reasons, the court transfers this case to the
Eastern District of Virginia. An order consistent with this Memorandum
Opinion is separately and contemporaneously issued this 31st day of July
TRANSFERRING THE CASE TO THE EASTERN
DISTRICT OF VIRGINIA
For the reasons stated in the court's Memorandum Opinion separately and
contemporaneously issued this ___ day of July 2002, it is hereby
ORDERED that this case be TRANSFERRED to the Eastern District of