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Jones v. Hagel

United States District Court, District Circuit

July 30, 2013

CHARLES HAGEL, Secretary U.S. Department of Defense, [1]Defendant


KETANJI BROWN JACKSON United States District Judge

Plaintiff Richard Jones brings this suit to challenge actions taken by his former employers, the Department of the Army (“Army”) and the Department of Defense (“DOD”). Plaintiff filed a two-count complaint on July 26, 2012, alleging reprisal in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq. (Count I), and termination not promoting the efficiency of the federal service in violation of the Civil Service Reform Act, 5 U.S.C. § 7513 (Count II). (See Complaint (“Compl.”), ECF No. 1.) The DOD is the sole named defendant in this case. Before the Court is Defendant’s motion to dismiss on the grounds of improper venue, or, in the alternative, to transfer this action to the Eastern District of Virginia, pursuant to Fed.R.Civ.P. 12(b)(3). (See Def.’s Mot. to Dismiss, or in the Alternative to Transfer, for Improper Venue (“Def.’s Mot.”), ECF No. 14.) Upon consideration of the motion, the Plaintiff’s opposition (Pl.’s Mem. in Opp’n to Def.’s Mot. to Dismiss (“Pl.’s Opp’n”), ECF No. 15), the Defendant’s reply thereto (Def.’s Reply in Supp. of its Mot. to Dismiss (“Def.’s Reply”), ECF No. 16), and the relevant facts, Defendant’s motion is hereby DENIED.


Plaintiff began work as a security guard at Walter Reed Army Medical Center (“WRAMC”) in Washington, D.C., in 2005. (Compl. ¶ 21.) While employed at WRAMC, Plaintiff was an employee of the Army. (Aff. of Neville Carson in Supp. of Def.’s Mot. (“Carson Aff.”), ECF No. 14-1, ¶ 2.) In 2010, Plaintiff filed an Equal Employment Opportunity (“EEO”) complaint alleging race, color, and perceived disability discrimination and hostile work environment against his supervisors, Edwin Sepulveda and Andrew Holtz. (Compl. ¶¶ 22-23.) Shortly after Plaintiff filed that complaint, Sepulveda, acting on behalf of the Army, issued a Notice of Unacceptable Performance alleging problems with Plaintiff’s work performance and indicating that Plaintiff’s “failure to improve his performance may result in other administrative actions, such as removal.” (Id. ¶ 24.) The Army issued this notice from WRAMC in Washington, D.C. (See id.)

Plaintiff received the Notice of Unacceptable Performance on May 14, 2010. (Id. ¶ 24.) The following year, during the summer of 2011, Plaintiff twice took and failed a required Physical Agility Test (“PAT”) in Washington, D.C.[2] (Id. ¶ 25.) Thereafter, Sepulveda issued Plaintiff a Memorandum of Counseling citing Plaintiff for various problematic conduct, including failing the PAT. (Id. ¶ 26.) The Army issued this memo from WRAMC in Washington, D.C. (See id.) Several weeks later, Sepulveda issued Plaintiff a Notice of Proposed Removal on the basis that he had “[f]ail[ed] to meet a condition of Employment” by failing the PAT. (Id. ¶ 27.) The Army issued this notice from WRAMC in Washington, D.C., as well. (Ex. C to Def.’s Mot., ECF No. 14-2, at 1.) Sepulveda also issued, from WRAMC in Washington, D.C., a Special Evaluation Report that detailed grievances with Plaintiff’s work performance. (Compl. ¶ 35.)

In August 2011, pursuant to a process called Base Realignment and Closure (“BRAC”), WRAMC closed its doors and all WRAMC employees were transferred to one of two DOD facilities “at the same position, grade, and pay.” (Carson Aff. ¶ 5.) On August 17, 2011, Plaintiff was officially transferred from WRAMC, the Army hospital in Washington, D.C., to Fort Belvoir, a DOD facility in Virginia. (Pl.’s Opp’n at 2.) Despite that official transfer, Plaintiff remained at WRAMC, in Washington, D.C., until August 28, 2011. (Aff. of Richard Jones in Supp. of Pl.’s Opp’n (“Jones Aff.”), ECF No. 15-3, ¶ 3.)

Plaintiff began working at Fort Belvoir in Virginia on September 12, 2011. (Id. ¶ 5.) Three days later, on September 15, 2011, Plaintiff’s second-level supervisor, Holtz, who also had been transferred from WRAMC to Fort Belvoir as part of BRAC, issued a Notice of Decision of Proposed Removal in regard to Plaintiff on behalf of the DOD. (Ex. E to Def.’s Mot. at 2.) This notice was issued in Virginia. (Id. at 1.) The decision became effective—i.e., ended Plaintiff’s employment and required him to leave Fort Belvoir—the very next day, September 16, 2011. (Id.) Plaintiff worked in Virginia for a total of four days. (Jones Aff. ¶ 7; Pl.’s Opp’n at 6.)


Under Federal Rule of Civil Procedure 12(b)(3) the court shall dismiss or transfer a case if venue is improper. Fed.R.Civ.P. 12(b)(3). “In considering 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[, ]” Pendleton v. Mukasey, 552 F.Supp.2d 14, 17 (D.D.C. 2008) (quoting Darby v. U.S. Dep’t of Energy, 231 F.Supp.2d 274, 276-77 (D.D.C. 2002)), but need not accept the plaintiff’s legal conclusions as true. Darby, 231 F.Supp.2d at 277 (citing 2215 Fifth St. Assocs. v. U-Haul Int’l, Inc., 148 F.Supp.2d 50, 54 (D.D.C. 2001)). “The court may consider materials outside of the pleadings” without converting the motion to dismiss into a motion for summary judgment. Bullock v. Wash. Metro. Area Transit Auth., No. 12-0985(ABJ), 2013 WL 1859293, at *2 (D.D.C. May 6. 2013) (citing Artis v. Greenspan, 223 F.Supp.2d 149, 152 (D.D.C. 2002)). To prevail on a motion to dismiss for improper venue, the defendant must present facts that will defeat the plaintiff’s assertion of venue. Freeman v. Fallin, 254 F.Supp.2d 52, 56 (D.D.C. 2003). However, “[b]ecause it is the plaintiff’s obligation to institute the action in a permissible forum, the plaintiff . . . bears the burden of establishing that venue is proper.” Id. at 55 (citation omitted).


Defendant argues that venue is improper in the U.S. District Court for the District of Columbia and that, as a result, this case should be dismissed or transferred to the Eastern District of Virginia, where venue is proper. (Def.’s Mot. at 1.) Plaintiff appears to concede that venue is proper in the Eastern District of Virginia, but counters that venue is also proper in the District of Columbia. (See Pl.’s Opp’n at 1, 7.)

In Title VII cases, venue is governed by statute, and a plaintiff may bring suit in any one of three judicial districts: (1) where “the unlawful employment practice is alleged to have been committed”; (2) where “the employment records relevant to such practice are maintained and administered”; or (3) where “the aggrieved person would have worked but for the alleged unlawful employment practice[.]” 42 U.S.C. § 2000e-5(f)(3). If the defendant is not found in any of those districts, a plaintiff may also bring suit (4) “within the judicial district in which the respondent has his principal office.” Id. A plaintiff need only satisfy one of these four bases of jurisdiction for venue to be proper in his chosen forum. Pendleton, 552 F.Supp.2d at 18.

If the district in which the action is brought does not meet the requirements of Title VII’s venue provision, then the court may either dismiss the case “or[, ] if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.” 28 U.S.C. § 1406(a). Even if venue is proper, “[f]or 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.” 28 U.S.C. § 1404(a). “The decision whether dismissal or transfer is ‘in the interests of justice’ is committed to the sound discretion of the district court.” Pendleton, 552 F.Supp.2d at 17 (citing Naartex Consulting Corp. v. Watt, 772 F.2d 779, 789 (D.C. Cir. 1983)). “Generally, the ‘interest of justice’ requires courts to transfer cases to the appropriate judicial district, rather than dismiss them.” Darby, 231 F.Supp.2d at 277 (citing Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466-67 (1962)).

In this case, Plaintiff contends that venue is proper in the U.S. district court in Washington, D.C., under the first statutory basis for venue because “all of the unlawful retaliatory practices occurred within the District [of Columbia].” (Pl.’s Opp’n. at 4.) This statutory prong is the only one on which Plaintiff can rely. Based on facts that the Defendant alleges and Plaintiff concedes, venue is proper under the second statutory prong in Virginia and Illinois, where Plaintiff’s employment records are located. (Def.’s Mot. at 5.) Venue is proper under the third statutory prong only in the Eastern District of Virginia, because Plaintiff would have worked at Fort Belvoir but for his removal. (Id. at 4-5.) The fourth statutory prong is not applicable in this case because Defendant can “be found” in the Eastern District of Virginia. (Id. at 5.)[3] Therefore, the ...

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