Ebron v. Department of the Army

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SANDRA EBRON,

Plaintiff,

v. Civil Action No. 09-01961 (BAH) Judge Beryl A. Howell DEPARTMENT OF THE ARMY,

Defendant.

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

1 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.

2 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

3 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.

4 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. Dismiss, Ex. 2, Decl. of

John Robert Leonard, Sr. (hereafter “Leonard Decl.”), ¶ 3 .

Under the second and third subsections of Section 2000e-5(f)(3), venue is also proper in

the judicial district in which “employment records relevant to [the alleged unlawful] 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.” 42 U.S.C. § 2000e-5(f)(3). The

defendant asserts, and the plaintiff does not contest, that plaintiff’s employment records are

located either in St. Louis, Missouri or in Arlington, Virginia. Def. Mot. Dismiss, Ex. 2,

Leonard Decl., ¶ 5. Furthermore, the plaintiff does not allege that she would have worked in the

District of Columbia but for her employer’s alleged unlawful actions. See generally Compl. The

plaintiff therefore fails to establish proper venue through either the second or third subsections of

Section 2000e-5(f)(3).

If the defendant is not found in any of the three previous districts, the plaintiff may file a

claim in the judicial district where the defendant “has his principal office.” 42 U.S.C. § 2000e-

5(f)(3). The Court need not consider this basis for venue because the defendant can be found in

Arlington, Virginia, where the alleged unlawful employment practices occurred, plaintiff’s

employment records are located, and where she would have worked but for the discrimination.

Even if the Court did apply the fourth venue subsection of Section 2000e-5(f)(3), venue

would only be proper in the Eastern District of Virginia. The U.S. Army may have offices in the

District of Columbia, but its principal office is located in the Pentagon in Arlington, Virginia.

5 See e.g. Khalil, 656 F. Supp. 2d at 136 (refusing to consider the fourth subsection of Section

2000e-5(f)(3) because employment records and the defendant were located outside the judicial

district, but stating that “while [the defendant] does have offices in the District of Columbia, its

headquarters (and likely its “principal office”) are located in Reston, Virginia.” (internal citations

omitted)).

The plaintiff has failed to establish that any of the alleged unlawful acts occurred in the

District of Columbia, that any employment records relevant to her claim are maintained or

administered in this judicial district, or that she would have been employed in the district but for

the plaintiff’s actions. Title VII’s specific venue provision therefore does not allow the plaintiff

to file her claim in this Court.

When venue is improper, the Court must dismiss the claim or, “if it be in the interest of

justice, transfer [it] to any district or division in which it could have been brought.” 28 U.S.C. §

1406(a). Although the decision to transfer or dismiss is committed to the sound discretion of the

district court, the interest of justice generally requires transferring a case to the appropriate

judicial district in lieu of dismissal. See Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466-67 (1962);

see also James, 639 F. Supp. 2d at 16 (employment discrimination claim transferred to

jurisdiction with proper venue rather than dismissed in interest of justice); Haley, 667 F. Supp.

2d at 142 (same).

The defendant urges the Court to dismiss this action in the “interests of judicial

economy” because the plaintiff did not exhaust her administrative remedies. Def.’s Reply to

Pl.’s Opp. Mot. Dismiss, at 5. As the defendant acknowledges, the exhaustion requirement is not

a jurisdictional prerequisite to suit, but is more like a statute of limitations, which is subject to

waiver, estoppel and equitable tolling. Def.’s Mot. Dismiss, at 4 (citing Zipes v. Trans World

6 Airlines, Inc., 455 U.S. 385, 393 (1982); Jarrell v. United States Postal Serv., 753 F. 2d 1088,

1091 (D.C. Cir. 1985); Hewitt v. Rice, 560 F. Supp. 2d. 61, 64 n.2 (D.D.C. 2008)). While the

defendant argues that plaintiff failed to file both her formal EEO complaint and her appeal of the

decision dismissing that complaint in a timely manner, the plaintiff disputes these assertions and

contends, in any event, that the defendant waived any untimeliness of her claims. Pl.’s Opp.

Mot. Dismiss, at 2. The Court declines to resolve this factual dispute and consider the merits of

defendant’s Rule 12(b)(6) Motion to Dismiss because the case is not properly before this Court.

See Haley, 667 F.Supp.2d 138, 142 n.6.

Dismissal of this suit would require the plaintiff to re-file the action in the Eastern

District of Virginia, where venue is proper. Both parties agree, however, that the re-filed suit

would be barred by the applicable 90-day statute of limitations for filing a judicial complaint.

Pl.’s Opp. Mot. Dismiss, at 2; Def.’s Reply to Pl.’s Opp. Mot. Dismiss, at 5. The Title VII venue

provision expressly refers to transfer of matters, pursuant to 28 U.S.C. §1406(a), which is a

provision that was enacted to avoid “the injustice which had often resulted to plaintiffs from

dismissal of their actions” and “plaintiff’s losing a substantial part of its cause of action under the

statute of limitations.” Goldlawr, 369 U.S. at 466. In these circumstances, transfer of the case

for resolution in the court with proper venue is appropriate.

CONCLUSION

The Court TRANSFERS this case to the Eastern District of Virginia, which is the proper

venue to consider plaintiff’s Title VII claim, and DENIES as moot defendant’s Motion to

Dismiss. An Order consistent with this Memorandum Opinion will be entered.

February 23, 2011 /s/ Beryl A. Howell BERYL A. HOWELL United States District Judge