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McQueen v. Harvey

July 28, 2008


The opinion of the court was delivered by: Gladys Kessler United States District Judge


Plaintiff Julius McQueen, formerly proceeding pro se,*fn1 brings this action against Francis Harvey, Secretary of the Army, alleging race discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§2000e, et seq. This matter is before the Court on Defendant's Motion to Dismiss for Lack of Jurisdiction and Improper Venue [Dkt. No. 5]. Upon consideration of the Motion, Opposition, and the entire record herein, and for the reasons stated below, Defendant's Motion to Dismiss is denied and the matter is transferred to the United States District Court for the Eastern District of Virginia.


Plaintiff Julius McQueen, a black male civilian employee, began his employment with the United States Army in 1994 as a Mail and File Clerk for the 43rd Signal Battalion, Network Service Center, in Heidelberg, Germany. In May of 2001, the Department of the Army ["the Agency"] promoted Plaintiff's white co-worker to Lead Mail Clerk, a position for which Plaintiff had also applied. On or about August 17, 2001, Plaintiff filed a complaint alleging discrimination in violation of Title VII of the 1964 Civil Rights Act with the Agency's Equal Employment Opportunity Office. Resp. at 2. The Final Agency Decision in that matter was filed on August 2, 2004. Resp. at 2. The Agency rejected Plaintiff's claims, finding that although McQueen met his prima facie burden of showing race discrimination, he failed to refute the Agency's legitimate, non-discriminatory reason for his non-selection. Compl., Ex. A.

Thereafter, Plaintiff filed an appeal with the Equal Employment Opportunity Commission's ["EEOC"] Office of Federal Operations in Washington, D.C. The EEOC's December 22, 2004 decision affirmed the Agency's final decision and provided Plaintiff with a right to file a civil action in a district court within ninety days of receipt of the decision. Compl., Ex. A. Plaintiff received notice of the decision on or about December 30, 2004.*fn3 Resp. at 7. On or about March 15, 2005,*fn4 Plaintiff filed with the Court an application to proceed in forma pauperis. Resp. at 6. Plaintiff has represented that he included a copy of the Complaint with the application, and therefore believed the Complaint was officially filed upon the Court's receipt of the IFP application. Resp. at 6. In fact, the Court issued a March 30, 2005 Order rejecting and returning to Plaintiff his IFP application, citing procedural deficiencies: failing to complete and sign the application. Mot. for Extension of Time, Ex. D. The instant Complaint ultimately was filed on August 16, 2005, alleging one count of discrimination based on race in violation of Title VII of the Civil Rights Act of 1964.


A. Venue

On a motion to dismiss for improper venue under Federal Rule of Civil Procedure 12(b)(3), the court must accept as true a plaintiff's well-pled allegations and draw all reasonable inferences from those allegations in the plaintiff's favor, although the court need not accept a plaintiff's alleged legal conclusions as true. Darby v. Dep't of Energy, 231 F. Supp. 2d 274, 276-77 (D.D.C. 2002). A defendant must present specific facts that defeat a plaintiff's assertion of venue to prevail on a motion to dismiss for improper venue. Id. at 277.

B. Subject Matter Jurisdiction

Defendant contends that the Court should apply the standard of review for assessing a motion to dismiss for lack of subject matter jurisdiction. Mot. to Dismiss at 1. See Fed. R. Civ. Pro. 12(b)(1). However, that standard is inapplicable here, as Plaintiff's failure to file a claim within ninety days of the EEOC's final decision does not raise a jurisdictional issue.

It is true that a federal employee asserting claims against his or her employer under Title VII must file suit within ninety days of receiving notice of the agency's final administrative action. 42 U.S.C. § 2000e-16(c). Plaintiff missed this deadline by five months, and it is uncontested that his claim was untimely. However, the Supreme Court has held that the time limitations set forth in Title VII are not jurisdictional in nature; rather, they are subject to equitable considerations. Irwin v. Dep't of Veteran Affairs, 498 U.S. 89, 95-96 (1990) (determining that the time limitation for filing a Title VII claim in district court is not an absolute jurisdictional limit, but is subject to equitable tolling under appropriate circumstances); Zipes v. Trans. World Airlines, Inc., 455 U.S. 385, 393 (1982) (holding that "filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling"). Therefore, application of a Rule 12(b)(1) standard of review to the present Motion is not justified.


Both parties agree that venue is not proper in the District of Columbia. The parties disagree over whether the case should therefore be dismissed, or be transferred to the Eastern District of Virginia.

When faced with improper venue, a court may, "in the interest of justice" and as an alternative to dismissal, transfer the case to "any district or division in which it could have been brought." 28 U.S.C. 1406(a). Section 2000e-5(f)(3) of Title 42 sets forth that venue lies for a Title VII action: (1) in any judicial district in the state where the unlawful employment practice is alleged to have taken place; (2) in the district where the relevant employment records are maintained and administered; or (3) in the district where the complainant would have worked, but for the unlawful practice. If the ...

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