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Ronnie Foote v. Dr. Stephen Chu

May 7, 2012


The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge


Plaintiff Ronnie Foote filed suit against Dr. Stephen Chu, in his official capacity as Secretary of the United States Department of Energy ("Defendant"), alleging race discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. ("Title VII"). After the initial scheduling conference, Defendant amended his Answer to the Complaint to include the affirmative defense of improper venue, and subsequently moved to dismiss the case, alleging venue is improper in this District under Title VII, and seeking in the alternative a transfer under 28 U.S.C. § 1404(a). Defendant's [13] Motion to Dismiss or to Transfer the Matter Pursuant to Title VII or, in the Alternative, Pursuant to 28 U.S.C. § 1404(a), and [15] Motion to Stay Discovery, are now fully briefed and ripe for determination.*fn1 Upon consideration of the parties' submissions and the record before the Court, Defendant's motions are DENIED.


According to the Complaint, in August 2007, Plaintiff received a conditional offer of employment as an Emergency Operations Specialist with the Transportation and Emergency Control Center ("TECC"), part of the National Nuclear Security Administration ("NNSA") within the Department of Energy, located in Albuquerque, New Mexico. Compl., ECF No. [1], at 1. The offer was conditioned on Plaintiff receiving a certification from the Human Reliability Program. Id. at 2. Dr. Daniel Seagrave, who administered Plaintiff's psychological interview, recommended denying Plaintiff the necessary certification. Id. Plaintiff alleges Dr. Seagrave gave "intentionally false information" in his report to Dr. Anthony Traweek, Dr. John Sloan, and Dennis Reese, who ultimately denied Plaintiff's request for certification, causing the offer of employment to be rescinded. Id. Plaintiff claims Dr. Seagrave lied about certain answers Plaintiff gave during the interview, improperly contacted Plaintiff's former supervisor, and concocted allegations that Plaintiff was reprimanded while serving in the United States Air Force. Id. at ¶¶ 6-8. Plaintiff believes Dr. Seagrave's purported actions were motivated by Plaintiff's race. Id. at p. 7-8. Plaintiff further claims there are no African Americans currently employed at TECC/NNSA in Albuquerque, and Department of Energy Employees have filed discrimination complaints against Dr. Seagrave. Id. Plaintiff filed a complaint of discrimination with the Equal Employment Opportunity Commission ("EEOC") on April 22, 2008. Id.; Def.'s Ex. 2 (EEOC Compl. of Discrimination). On April 28, 2011, the EEOC affirmed the EEOC Administrative Judge's decision finding the Defendant did not discriminate against Plaintiff as alleged in Plaintiff's EEOC complaint. Compl., Ex. 1.


A. Motion to Dismiss for Improper Venue Defendant initially moves to dismiss the Complaint for improper venue pursuant to Federal Rule of Civil Procedure 12(b)(3). When evaluating 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 (D.D.C. 2002). Plaintiffs generally bear the burden of demonstrating venue is proper. Walden v. Locke, 629 F. Supp. 2d 11, 13 (D.D.C. 2009).

B. Motion to Transfer Pursuant to Section 1404(a)

Pursuant to 28 U.S.C. § 1404(a) ("Section 1404(a)"), "[f]or the convenience of parties and witnesses, in the interest of justice," the Court may transfer a case to any other district where the case might have been brought. Although the Court is afforded broad discretion to decide whether to transfer is proper under Section 1404(a), SEC v. Savoy Indus. Inc., 587 F.2d 1149, 1154 (D.C. Cir. 1978), the defendant "must satisfy a very substantial burden of demonstrating where 'justice' and 'convenience' lie," Hoffman v. Blaski, 363 U.S. 335, 366 (1960). The decision to transfer is made by an "individualized, case-by-case consideration of convenience and fairness." Van Dusen v. Barrack, 376 U.S. 612, 622 (1964).


Defendant contends Plaintiff's Complaint should be dismissed, or in the alternative, transferred to the District of New Mexico because (1) venue is improper in the District of Columbia under Title VII; and (2) transfer is appropriate under Section 1404(a). The Court finds Defendant waived any objection to improper venue by failing to raise the argument in his initial responsive pleading or in an amendment as of right as required by Federal Rule of Civil Procedure 12. Furthermore, Defendant failed to show it is in the interest of justice, fairness, or convenience to transfer this matter to the District of New Mexico. Therefore Defendant's motion to dismiss or transfer is denied.

A. Defendant Waived His Venue Objection Under Rule 12(b).

Rule 12(b) provides that "[a] motion asserting any of these defenses," including the defense of improper venue, "must be made before pleading if a responsive pleading is allowed." The rule further indicates that a party waives an improper venue defense by failing to raise the defense by motion or by including it in a responsive pleading or amendment to that pleading as a matter of course under Rule 15(a)(1). In other words, the defense of improper venue is waived unless a party asserts the defense of improper venue (1) in a Rule 12(b) motion filed before the answer; (2) in the initial answer; or (3) in an amendment to the answer within 21 days of serving the answer.

On October 31, 2011, Defendant filed an Answer to the Complaint. Answer, ECF No. [5]. Defendant did not include improper venue as an affirmative defense in his Answer. Id. at 1-2. During the Initial Scheduling Conference on February 10, 2012, the Court instructed the parties to file amended pleadings by no later than February 17, 2012. 2/10/12 Sched. & P. Order, ECF No. [11], at 5. In its Amended Answer, filed February 17, 2012, Defendant for the first time alleged venue was improper under Title VII. Am. Answer, ECF No. [12], at 1. Two weeks later, Defendant filed the present motion to dismiss, and acknowledged that his improper venue argument "may be considered waived." Def.'s Reply at 2. The Court agrees. Defendant did not file a Rule 12(b)(3) motion prior to filing his answer, did not include improper venue as a defense in the answer, and did not amend the answer to include the defense within 21 days as a matter of right. Defendant waived its improper venue objection, therefore Defendant's motion to dismiss for improper venue is denied.

B. Transfer Pursuant to Section 1404(a) is Not in the Interest of Justice Before addressing whether a transfer under Section 1404(a) is appropriate, the Court must determine whether this suit "might have been brought" in the District of New Mexico as required by Section 1404(a).*fn2 The venue provision of Title VII, 42 U.S.C. ยง 2000e-5(f)(3) indicates that Each United States district court and each United States court of a place subject to the jurisdiction of the United States shall have jurisdiction of actions brought under this subchapter. Such 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 ...

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