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Milanes v. Holder

October 21, 2009


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


Plaintiff Juan E. Milanes brings this suit against Defendant Eric H. Holder, Attorney General of the United States, and Rosa Emilia Rodriguez-Velez, Acting United States Attorney for the District of Puerto Rico, alleging discrimination based on gender and disability, a hostile work environment, retaliation, and constructive discharge in violation of Title VII of the Civil Rights act of 1964, 42 U.S.C. § 2000e et seq., and the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. This matter is before the Court on Defendants' Motion to Transfer "[p]ursuant to 28 U.S.C. § 1404(a)," Mot. at 1 [Dkt. No. 7].*fn1 Upon consideration of the Motion, Opposition, Reply, and the entire record herein, and for the reasons stated below, Defendants' Motion is granted and this case shall be transferred to the United States District Court for the District of Puerto Rico.


Plaintiff Juan Milanes is a former Assistant United States Attorney (AUSA) in the District of Puerto Rico. He alleges numerous incidents which either contributed to creation of a hostile work environment or constituted retaliation. Plaintiff was assigned to the Narcotics Unit while in Puerto Rico, where his superior was the Unit's Deputy Chief, Jeanette Mercado. Plaintiff alleges that Mercado created a hostile work environment. When Plaintiff complained about his work environment, Rosa Emilia Rodriguez-Velez, Acting U.S. Attorney for the District of Puerto Rico, allegedly retaliated by denying Plaintiff's children the benefit of having the Department pay for them to attend an English-language school in Puerto Rico, while still giving that benefit to her friends in a "Girls Club" at the office. Plaintiff allegedly was further retaliated against when Mercado assigned him the oldest and weakest narcotics cases, threatened him with disciplinary action, and attempted to sabotage his trial work.

Additionally, Plaintiff applied for and was accepted to an overseas detail in Kosovo, but Rodriguez-Velez served him with a written reprimand on the day he was supposed to leave Puerto Rico, preventing his departure on that date. His overseas detail was subsequently retracted after Rodriguez-Velez accused the Plaintiff of threatening her. Plaintiff filed a Complaint with the Department of Justice and met with officials from the Executive Office for United States Attorneys (EOUSA) in Washington, DC. The EOUSA forwarded his complaint to its general counsel's office, but Plaintiff alleges it has not conducted an investigation nor given him evidence he requested. Plaintiff was placed on administrative leave pending an investigation and alleges that he was constructively discharged on June 27, 2008, when he was forced to resign his position as an AUSA.

On February 5, 2009, Plaintiff filed his first Complaint in the District Court for the District of Puerto Rico (09-cv-1108), which included the above allegations. On April 13, 2009 Plaintiff filed a Motion to Recuse all the judges in the District of Puerto Rico and petitioned the Chief Judge to appoint a judge from outside the jurisdiction (Dkt. No 22). This motion was denied on April 22, 2009 (Dkt. No. 23). On the same day, Plaintiff filed a Notice of Voluntary Dismissal pursuant to Fed. R. Civ. P. 41(a) (Dkt. No. 24). The court allowed the voluntary dismissal as a matter of right, but noted in its Order that if the Plaintiff re-filed in the District of Puerto Rico, "the new case will be consolidated with this original docket to avoid judge shopping."

The Plaintiff then filed the present Complaint in this Court on May 5, 2009 (09-cv-824). On August 8, 2009, Defendants filed the present Motion to Transfer.

II. Analysis

Venue for Title VII actions is controlled by the venue provision in 42 U.S.C. § 2000e-5(f)(3), which states:

[A]n action may be 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, but [4] 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.

This provision also governs venue for actions under the Rehabilitation Act. Dehaemers v. Wynne, 522 F. Supp. 2d 240, 247 (D.D.C. 2007).

Before deciding whether transfer is appropriate, the Court must first determine whether the action could have been brought in the transferee court sought by the moving party. Van Dusen v. Barrack, 376 U.S. 612, 617 (1964). Congress intended to limit venue in Title VII cases 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). To determine where an alleged unlawful employment practice was committed, a court "must look to the place where the decisions and actions concerning the employment practices occurred." Walden v. Locke, 629 F. Supp. 2d 11, 14 (D.D.C. 2009).

There is no question that venue would be proper in the District of Puerto Rico. The underlying events surrounding Plaintiff's claims of discrimination, hostile work environment, and retaliation occurred there. The Defendants concede, however, that venue is also proper in this Court based on the retraction of Plaintiff's overseas assignment, which occurred in this jurisdiction. Defs'. Mot. to Transfer 7.

When venue is proper in more than one district, a court can transfer a Title VII employment discrimination case pursuant to 28 U.S.C. § 1404(a). See Hunter v. Johanns, 517 F. Supp. 2d 340, 343 (D.D.C. 2007); Johnson v. Lumenos Inc., 471 F. Supp. 2d 74, 75-76 (D.D.C. 2007). Under ยง 1404(a), "for the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." The moving party bears the burden of establishing that transfer is proper. Johanns, 517 F. Supp. 2d at 343. Section 1404(a) grants discretion to adjudicate motions for transfer according to an "individualized, case-by-case consideration ...

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