The opinion of the court was delivered by: John D. Bates United States District Judge
Plaintiff Mark A. Pendleton, a Special Agent employed by the Department of Justice Office of the Inspector General brings this action against Defendant Michael Mukasey, in his official capacity as the Attorney General of the United States and head of the Department of Justice (the "Department"). Pendleton alleges that the Department discriminated and retaliated against him in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., when he was not promoted to either of two non-supervisory Special Agent Grade 14 positions. Currently before the Court is the Department's motion to dismiss for improper venue, or alternatively, to transfer to the Eastern District of Virginia. Upon careful consideration of the motion and the parties' memoranda, the applicable law, and the entire record, the Court will deny the Department's motion.
Pendleton, an African-American male, joined the Washington Field Office ("WFO") of the Department of Justice Office of the Inspector General ("OIG") as a Grade 13 Special Agent in 1989. Compl. ¶ 3. Prior to initiating the instant action, Pendleton filed a lawsuit against the Department in October 2004 alleging that he had been discriminated against when he was not promoted to a Grade 14 Senior Special Agent position. Id. ¶ 2 (citing Pendleton v. Gonzales, Civil Action No. 04-1838 (D.D.C.) ("Pendleton I"), appeal pending, No. 07-5296 (D.C. Cir.)).*fn1
While his first lawsuit was pending, Assistant Inspector General Thomas McLaughlin and his predecessor decided to assess Pendleton's performance in two priority investigations to be supervised by Special Agent Willie Haynes. Id. ¶ 28. Although there was never a formal agreement, the Department allegedly indicated that Pendleton's successful completion of these assignments could warrant a promotion to a Grade 14 position. Id. ¶ 29. Pendleton asserts that he satisfactorily completed the assignments in late January of 2005, and that his supervisor indicated he had in fact done "a great job in both" cases. Id. ¶ 30.
Around this same time, McLaughlin opened for competition two new non-supervisory Senior Special Agent positions at the Grade 14 level. Id. ¶ 31. Pendleton timely applied for both positions, and his application was reviewed by a three-member panel. After Pendleton and seven other candidates were interviewed at the Washington Field Office in Arlington, Virginia, the panel ranked the candidates by order of qualifications. Decl. of Thomas F. McLaughlin ¶¶ 7-8. The Special Agent in Charge of the Washington Field Office, Thomas Huggins, drafted a memorandum summarizing the consensus ranking of the panel and the reasons for their recommendations to be sent to McLaughlin at his District of Columbia office. Id. ¶ 8. Huggins also sent to McLaughlin the application packages for the candidates and the notes taken by the panel members during the interviews. Id. ¶ 9. Because "McLaughlin serves as the final selecting official for all special agents hired by the eight field offices within the Investigation Divisions," the final selections were made in the District of Columbia; McLaughlin selected two individuals, neither of whom was Pendleton. Def.'s Statement P. & A. Supp. Mot. to Dismiss ("Def.'s Statement") at 5.
On October 18, 2007, Pendleton initiated the current action challenging the Department's failure to promote him to either Grade 14 position. The Department now moves to dismiss the complaint for improper venue pursuant to Fed. R. Civ. P. 12(b)(3). In the alternative, the Department argues that any remaining claims should be transferred to the Eastern District of Virginia pursuant to 28 U.S.C. § 1404(a).
Under Title VII, a plaintiff may bring suit: (1) where "the unlawful employment practice is alleged to have been committed," (2) where "the employment records relevant to such practice are maintained and administered," or (3) where "the aggrieved person would have worked but for the alleged unlawful employment practice." 42 U.S.C. § 2000e-5(f)(3). Only if the defendant is not found within any of these districts can a plaintiff rely on a fourth possible location -- "the judicial district in which the respondent has his principal office." Id.
Fed. R. Civ. P. 12(b)(3) instructs the court to dismiss or transfer a case if venue is improper or inconvenient in the plaintiff's chosen forum. "In considering a Rule 12(b)(3) motion, 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." Darby v. U.S. Dep't of Energy, 231 F. Supp. 2d 274, 276-77 (D.D.C. 2002) (citing 2215 Fifth St. Assocs. v. U-Haul Int'l, Inc., 148 F. Supp. 2d 50, 54 (D.D.C. 2001)).
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." 28 U.S.C. § 1406(a). The decision whether dismissal or transfer is "in the interests of justice" is committed to the sound discretion of the district court. Naartex Consulting Corp. v. Watt, 722 F.2d 779, 789 (D.C. Cir. 1983). Generally, the interests of justice require transfer to the appropriate judicial district rather than dismissal. Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466- 67 (1962); James v. Booz-Allen, 227 F. Supp. 2d 16, 20 (D.D.C. 2002).
When an alleged discriminatory employment practice is committed in another jurisdiction, the employment records are located in another jurisdiction, and the aggrieved person would have worked in another jurisdiction but for the unlawful employment practice, a plaintiff cannot properly lay venue in the District of Columbia. See Choi v. Skinner, 1990 WL 605543, 2 (D.D.C. Sept. 26, 1990) (transferring case where "the alleged unlawful employment practice took place in Virginia," "the records and files pertaining to the removal action are in Virginia," and "plaintiff would have remained employed with the FHA in Virginia but for the alleged unlawful employment practice"); Archuleta v. Sullivan, 725 F. Supp. 602, 605 (D.D.C. 1989) (transferring case where "the unlawful employment practices alleged by the Plaintiff occurred in Maryland, and all of her employment records are in Maryland"); Washington v. Gen. Elec. Corp., 686 F. Supp. 361, 363 (D.D.C. 1988) (transferring case where the unlawful employment practices allegedly occurred in Virginia, plaintiff's records were in Virginia, and plaintiff would have worked in Virginia but for the alleged unlawful employment practice). Here, however, the wellpled factual allegations of Pendleton's complaint assert that discrimination and retaliation occurred in the District of Columbia when he was not selected for a promotion to a Grade 14 position.
Thus, "[u]nder section 2000e-5(f)(3), the court's first inquiry focuses on the locus of the alleged discrimination." James, 227 F. Supp. 2d at 22. In fact, this is the only provision upon which Pendleton can rely. There appears to be no question that Pendleton's relevant employment records are maintained and administered in Arlington, Virginia, and he would have worked in Arlington as a Grade 14 Special Agent but for the alleged discrimination and retaliation. The ...