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Sandra Ebron v. Department of the Army

February 23, 2011

SANDRA EBRON,
PLAINTIFF,
v.
DEPARTMENT OF THE ARMY,
DEFENDANT.



The opinion of the court was delivered by: Judge Beryl A. Howell

MEMORANDUM OPINION

The plaintiff, Sandra Ebron, is an African American female over the age of 55, who was previously employed as a Trends Analyst by the defendant, the United States Army Office of the Inspector General. Compl. ¶¶ 4-6; Def.'s Mot. Dismiss, Ex. 1. The plaintiff alleges that the U.S. Army discriminated against her in violation of Title VII of the Civil Rights Act of 1964, and she now seeks two million dollars in damages, attorney's fees, and punitive damages. Currently before the Court is the defendant's Motion to Dismiss for Failure to State a Claim and Improper Venue. The Court concludes that the District Court for the District of Columbia is the improper venue for the plaintiff's claim, and therefore TRANSFERS the case to the Eastern District of Virginia and DENIES as moot the defendant's Motion to Dismiss.

BACKGROUND

On October 15, 2009, the plaintiff filed a complaint in this Court against her former employer, the United States Army, alleging that the defendant discriminated against her because of her race and age in violation of Title VII of the Civil Rights Act of 1964. Specifically, the plaintiff alleges that her superiors berated her, declined to give her awards, and imposed unreasonable work requirements. Compl. ¶¶ 6-7. In response to this alleged discrimination, the plaintiff filed a grievance with the U.S. Army's Equal Employment Opportunity office (hereinafter "EEO") on April 2, 2008. Def. Mot. Dismiss, Ex. 1 (EEO Counselor's Report, Apr. 8, 2008). After reviewing her claim, the EEO notified her on April 30, 2008 that she had fifteen days to file a formal complaint with the office. Def. Mot. Dismiss, Ex. 3 (EEO Memorandum, Apr. 30, 2008), ¶ 2. On May 28, 2008, the plaintiff filed a formal complaint, which the EEO dismissed on February 11, 2009 for failure to comply with the specified fifteen day filing deadline. Def. Mot. Dismiss, Ex. 4 (EEO Formal Compl., May 28, 2008), Ex. 6 (EEO Notice of Dismissal, Feb. 11, 2009). In its decision, the EEO notified the plaintiff that she had thirty days to file an appeal with the U.S. Equal Employment Opportunity Commission ("EEOC") Office of Federal Operations. Def. Mot. Dismiss, Ex. 6 (EEO Notice of Dismissal, Feb. 11, 2009), at 3. The plaintiff filed an appeal with the EEOC on April 2, 2009, Def. Mot. Dismiss, Ex. 7 (EEOC Notice of Appeal, Apr. 2, 2009); and the EEOC denied her appeal on July 15, 2009 for failure to show that the alleged discriminatory actions were sufficiently severe. Compl. Ex. 1 (Ebron v. Geren, EEOC Decision No. 0120091925, (July 15, 2009)), at *1-2. The plaintiff subsequently filed a complaint in this Court.

In response to the plaintiff's complaint, the defendant filed a Motion to Dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), and improper venue under Rule 12(b)(3). The defendant argues that dismissal is warranted because the plaintiff failed to exhaust her administrative remedies in a timely fashion, and because the U.S. District Court for the District of Columbia is the improper venue. In the alternative, the defendant urges the Court to transfer the case to the Eastern District of Virginia, the proper venue for the plaintiff's claims.

The plaintiff filed an opposition to this motion, which does not refute that the District of Columbia is the improper venue for her claim, or supply additional information in an effort to maintain her action in this Court. Rather, the plaintiff argues that the Court should not dismiss the claim, and instead should transfer the case. Pl.'s Opp. Mot. Dismiss, at 1-2 ("The interests of justice would be served by transfer because dismissal would, in effect, end Plaintiff's case."); id. at 2 ("It is in the interests of justice to transfer this case because plaintiff did in fact exhaust all administrative remedies against defendants.").

FAILURE TO CONTEST IMPROPER VENUE "It is well understood in this Circuit that when a plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded." Laukus v. United States, 691 F. Supp. 2d 119, 127 (D.D.C. 2010); see also Day v. D.C. Dep't of Consumer & Regulatory Affairs, 191 F. Supp. 2d 154, 159 (D.D.C. 2002) ("If a party fails to counter an argument that the opposing party makes in a motion, the court may treat that argument as conceded.").

By failing to argue that the District of Columbia is the proper venue for her claim, the plaintiff concedes that it is not. The Court is not required to further analyze whether the case was properly filed in this Court. Nonetheless, the Court will discuss Title VII's venue provision and why the proper venue for the plaintiff's claim is not in the District of Columbia, but rather in the Eastern District of Virginia.

STANDARD OF REVIEW

When presented with a motion to dismiss for improper venue under Federal Rule of Civil Procedure 12(b)(3), 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." James v. Verizon Servs. Corp., 639 F. Supp. 2d 9, 11 (D.D.C. 2009). The Court, however, need not accept the plaintiff's legal conclusions as true, and may consider material outside the pleadings, including undisputed facts evidenced in the record, to determine whether it has jurisdiction in the case. See Jerome Stevens Pharm., Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253 (D.C. Cir. 2005); Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003); Herbert v. Nat'l Acad. of Sci., 974 F.2d 192, 197 (D.C. Cir. 1992); Harvey v. Astrue, 667 F.Supp.2d 138, 140 (D.D.C. 2009). "To prevail on a motion to dismiss for improper venue, the defendant must present facts that will defeat the plaintiff's assertion of venue." Khalil v. L-3 Commc'ns Titan Grp., 656 F. Supp. 2d 134, 135 (D.D.C. 2009).

DISCUSSION

Title VII of the Civil Rights Act contains a specific venue provision, which "controls any other venue provision governing actions in federal court." Donnell v. Nat'l Guard Bureau, 568 F. Supp. 93, 94 (D.D.C. 1983). Under 28 U.S.C. § 2000e-5(f)(3), all claims brought under Title VII must be filed in the judicial district where (1) the unlawful employment practice is alleged to have been committed, (2) the employment records relevant to such practice are maintained and administered, or (3) the aggrieved person would have worked but for the alleged unlawful employment practice. 28 U.S.C. § 2000e-5(f)(3) (2010). If the defendant is not found in those districts, then the plaintiff may bring an action in the judicial district where the respondent has its principal office. Id.

The plaintiff fails to establish that the District of Columbia is the proper venue under any basis set forth in the Title VII venue provision. Under the first subsection, the plaintiff may bring an action in the judicial district where the alleged acts of discrimination were committed.

The plaintiff alleges that her superiors discriminated against her in the workplace, and does not allege that any unlawful acts were committed outside her place of employment. See generally Compl. The defendant has supplied uncontested evidence that the plaintiff's workplace was located in Arlington, Virginia, not in the District of Columbia. Def. Mot. ...


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