The opinion of the court was delivered by: Richard W. Roberts United States District Judge
Plaintiff Andre Noisette brought this action against the Treasury Secretary alleging racial discrimination and retaliation in employment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. The Secretary has moved to dismiss, challenging venue and claiming that Noisette failed to exhaust his administrative remedies before filing this action. Because venue is proper in this district for Counts I and II and pendent venue applies to Counts III and IV, the defendant's motion to dismiss Counts III and IV based on improper venue will be denied. Because Noisette has raised a genuine issue of material fact as to when he had a reasonable suspicion that he had been the victim of the alleged discrimination, the defendant's motion to dismiss Counts I and II, treated as a motion for summary judgment, will be denied. However, because Noisette did not wait the requisite 180 days after filing his appeal of the Department of Treasury's Final Agency Decision ("FAD"), the defendant's motion will be granted in part and this action will be dismissed without prejudice.
Noisette is a management official in the Criminal Investigation Division ("CID") of the Treasury Department's Internal Revenue Service ("IRS"). (Am. Compl. ("Compl.") ¶ 12.) He participated in an internal investigation of a discrimination pre-complaint filed against the IRS by a junior CID special agent, Sarah Peebles. (Id. ¶¶ 19, 22.) He made findings favorable to Peebles and then arranged a pre-complaint settlement on behalf of the IRS. (Id. ¶¶ 24-25.) Shortly after participating in that matter, Noisette applied for a vacant Supervisory Special Agent ("SSA") position in Florida. (Id. ¶¶ 28-29.) Initially, in mid-September of 2006, Noisette was chosen to fill the vacancy without having to compete for the position. (Id. ¶¶ 30-32.) However, on October 10, 2006, officials at the IRS headquarters in Washington, D.C. revoked Noisette's selection. (Id. ¶ 35.) He received no official notice of the revocation, though, and his supervisor told him merely that if he wanted the position, he had to either interview competitively for it to be eligible for a pay increase or forego the increase and accept the position as a non-competitive reassignment. (Id. ¶ 36; Pl.'s Opp'n, Noisette Decl. ¶ 7 and Att. F at 119.) He believed he was the selectee and the interview was an administrative formality. (Pl.'s Opp'n, Noisette Decl. ¶ 9 and Att. F at 119.) Noisette interviewed in Atlanta for the position, but the IRS ultimately selected another candidate on October 23, 2006. (Compl. ¶ 38; Def.'s Mem of P. & A. in Supp. of Mot. to Dis. ("Def.'s Mem.") at 4-5 ¶¶ 8-10.) On December 5, 2007, Noisette contacted the agency's equal employment opportunity office, and later filed a formal complaint of discrimination, alleging that these personnel decisions were the product of discriminatory and retaliatory actions against him based on his participation in Peebles' pre-complaint proceedings. (Compl. ¶ 40; Pl.'s Opp'n at 5.) On September 30, 2008, the Department issued a FAD on Noisette's formal administrative complaint. (Compl. ¶ 41.) On October 29, 2008, Noisette appealed the FAD to the Equal Employment Opportunity Commission's ("EEOC's") Office of Federal Operations ("OFO") and, before the OFO ruled on his appeal, Noisette filed a request to withdraw it. (Id. ¶¶ 42-43.) On January 15, 2009, OFO granted Noisette's request, but not before Noisette filed this action on December 29, 2008. (Id. ¶¶ 43-44.) The Secretary has moved to dismiss, arguing venue is improper in this district for two of the four counts in the complaint and that Noisette failed to exhaust his administrative remedies.
Noisette's complaint includes four separate counts and the defendant has moved to dismiss Counts III and IV asserting improper venue. Title VII's venue provision states that 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). Under Title VII's venue provision, a court first must "look to the place where the decisions and actions concerning the employment practices occurred." Milanes v. Holder, Civil Action No. 09-824 (GK), 2009 WL 3367497, at *2 (D.D.C. Oct. 21, 2009) (internal quotation marks omitted). Courts also must focus on "the locus of the alleged discrimination[,]" Washington v. Gen. Elec. Corp., 686 F. Supp. 361, 363 (D.D.C. 1988), and employ a "'commonsense appraisal' of events having operative significance in the case." Donnell v. Nat'l Guard Bureau, 568 F. Supp. 93, 94 (D.D.C. 1983) (quoting Lamont v. Haig, 590 F.2d 1124, 1134 (D.C. Cir. 1978)).
Moreover, while venue generally must be appropriate on each cause of action, Lamont, 590 F.2d at 1135, "this Circuit has adopted the principle of pendent venue which provides that proper venue as to one claim will support adjudication of any other claim as long the claims amount to a single cause of action." Archuleta v. Sullivan, 725 F. Supp. 602, 605-06 (D.D.C. 1989) (citing Beattie v. United States, 756 F.2d 91, 100-01 (D.C. Cir. 1984) (overruled on other grounds)). This approach, "which [gives priority to] joinder over venue in cases where the claims are tied together in the same action, illustrates the importance of joinder for factually interrelated claims." Spender v. Sytsma, 67 P.3d 1, 5 (Colo. 2003). Also, "to apply the principle of pendent venue in any given case is a discretionary decision, based on applicable policy considerations." Beattie, 756 F.2d at 103. These considerations include judicial economy, convenience, fairness and avoidance of piecemeal litigation. Id. Ultimately, "the purpose of venue rules is generally considered to be 'primarily a matter of convenience of litigants and witnesses.'" Id. (quoting Denver & R.G.W.R. Co. v. Bhd. of R.R. Trainmen, 387 U.S. 556, 560 (1967)).
Venue is proper in the District of Columbia based on Counts I and II because the alleged acts involve senior management officials in the District of Columbia revoking Noisette's selection for the SSA position. (Compl. ¶¶ 35, 49, 57.) Counts III and IV allege that, after having his offer revoked by officials in the District of Columbia, Noisette was not selected to fill the SSA position available in the Florida office. (Id. ¶¶ 66-68, 78-80.) This non-selection decision occurred in Atlanta, where Noisette interviewed for and was denied the position. (Pl.'s Opp'n at 4-5, 15.) Thus, under the first prong of Title VII's venue provision, venue is proper in the District of Columbia on Counts I and II only.
Nonetheless, if the complaint alleges essentially one cause of action, pendent venue may extend to Counts III and IV. In determining whether a case can be described as a single cause of action, courts examine whether the plaintiff has asserted essentially one wrong, whether the grounds for relief are the same as to the parties and proof, and whether there will be "great commonality as to witnesses and evidence." Beattie, 756 F.2d at 101 (describing the litigation "as a single cause of action with separate grounds for relief" because the plaintiffs seek damages for "'an essentially single wrong,' i.e., wrongful death" (footnote omitted)); see, e.g., Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 402 F. Supp. 262, 328 n.38 (E.D. Pa. 1975) (applying pendent venue in a case involving both the Anti-Dumping Act of 1916 and federal antitrust law because it would be "senseless . . . to bifurcate these two exceedingly complex antitrust cases by dismissing or transferring the antidumping counts while retaining the antitrust counts since the facts underlying both sets of issues are essentially the same"); Laffey v. Northwest Airlines, 321 F. Supp. 1041, 1042 (D.D.C. 1971) (extending pendent venue to the plaintiff's Civil Rights Act claim because venue was proper under the Equal Pay Act claim and the two separate causes of action arose out of common allegations of employment discrimination against female flight attendants). Cf. Archuleta, 725 F. Supp. at 606 (refusing to extend pendent venue because, although plaintiff's discrimination claims were based on the conduct of a single supervisor, each claim alleged discriminatory conduct against a different protected class, the evidence to support each discrimination claim would of necessity be different, and the suit included nondiscrimination claims based on administrative law issues).
Although Noisette has separated his claim into four separate counts, all counts reflect essentially one wrong --discriminatorily denying Noisette the SSA position. The non-selection alleged in Counts III and IV stemmed precisely from the revocation alleged in Counts I and II and followed closely on the heels of it. Noisette would not have interviewed in Atlanta for the position and been denied it had the alleged revocation in Washington D.C. never occurred. The grounds for relief in Counts III and IV overlap with those in Counts I and II, and all involve the same plaintiff and defendant. The facts common to all counts would be subject to proof by evidence common to all counts. Because venue is proper in the District of Columbia on Counts I and II, pendent venue therefore will be extended to Counts III and IV.*fn1
The Secretary has moved to dismiss all claims under Federal Rules of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and 12(b)(6) for failure to state a claim for which relief can be granted, alleging that Noisette failed to exhaust his administrative remedies. Generally, "[b]ecause the exhaustion requirement [under Title VII], though mandatory, is not jurisdictional," Douglas v. Donovan, 559 F.3d 549, 556 n.4 (D.C. Cir. 2009), motions to dismiss for failure to exhaust administrative remedies are more appropriately analyzed under Rule 12(b)(6). Citizens For Responsibility and Ethics in Wash. v. Bd. of Governors of the Fed. Reserve Sys., Civil Action No. 09-633 (RWR), 2009 WL 3859700, at *2 (D.D.C. Nov. 19, 2009) (citing Marshall v. Honeywell Tech. Solutions, Inc., 536 F. Supp. 2d 59, 64 n.6 (D.D.C. 2008) (quoting Hazel v. Wash. Metro. Transit Auth., Civil Action No. 02-1375 (RWR), 2006 WL 3623693, at *3 (D.D.C. Dec. 4, 2006))). "In order to survive a motion to dismiss under Rule 12(b)(6), the allegations stated in the . . . complaint 'must be enough to raise a right to relief above the speculative level[.]'" Demery v. Montgomery County, Md., 602 F. Supp. 2d 206, 212 (D.D.C. 2009) (alteration in original) (quoting Bell ...