Ellis v. Gruenberg

• Court: District Court, District of Columbia
• Decided: December 18, 2015
• Docket: Civil Action No. 2015-0025
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) RICHARD K. ELLIS, ) ) Plaintiff, ) ) Civil Action No. 15-0025 (EGS) v. ) ) MARTIN J. GRUENBERG, ) ) Defendant. ) )

MEMORANDUM OPINION

Pending before the Court is Defendant Martin J. Gruenberg’s

(“Defendant”) Motion to Dismiss or Transfer for improper venue.

Mot. Dismiss or Transfer, Docket No. 6. Upon consideration of

the motion, the response and reply thereto, the applicable law,

and the entire record, the Defendant’s Motion to Dismiss is

DENIED and Defendant’s Motion to Transfer is GRANTED.

I. Background

Plaintiff Richard K. Ellis (“Plaintiff”) alleges that he was

sexually harassed and retaliated against by supervisors in

violation of Title VII of the Civil Rights Act of 1964 during

his employment at the Federal Deposit Insurance Corporation

(“FDIC”). See Compl., Docket No. 1; See also 42 U.S.C. §§ 2000e-

2 et seq. Defendant moves to dismiss or transfer this case to

the Eastern District of Virginia because the majority of events

1 giving rise to Plaintiff’s allegations took place at FDIC’s

Office of Minority and Women Inclusion (OMWI), located in

Arlington, Virginia. Def.’s Mem. Supp., Docket No. 6 at 3.

II. Legal Standard

A case may be dismissed or transferred if the venue chosen

by Plaintiff is improper or inconvenient. Fed. R. Civ. P.

12(b)(3). When considering a 12(b)(3) motion, the court must

accept plaintiff’s well-pled factual allegations regarding venue

as true, but need not accept as true plaintiff’s legal

conclusions regarding venue. See Darby v. Dept. of Energy, 231

F. Supp.2d 274, 276 (D.D.C. 2002) (citation omitted). Courts may

dismiss or, “in the interests of justice,” transfer the case to

any district in which the action could have been filed. See 28

U.S.C. § 1406; see also Parker v. Sebelius, Case No. 14-440, 14-

508, 2014 WL 2921026 (D.D.C. June 27, 2014) (citing Pendleton v.

Mukasey, 552 F. Supp.2d 14, 17 (D.D.C. 2008)). “Generally, the

‘interest of justice’ directive allows courts to transfer cases

to the appropriate judicial district rather than dismiss them.”

Id. (citing Ifill v. Potter, No. 05-2320, 2006 WL 3349549, at *1

(D.D.C. Nov. 17, 2006)).

III. Discussion

Title VII contains a specific venue provision which

establishes proper venue under four circumstances:

[1] in any judicial district in the State in which the

2 unlawful employment practice is alleged to have been committed; [2] in the judicial district in which the records relevant to such practice are maintained and administered; or [3] 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 [4] within the judicial district in which the respondent has his principal office.

42 U.S.C. § 2000e-5(f)(3). In his Complaint, Plaintiff alleges

that the District of Columbia is the proper venue because

Defendant’s main office is in the District. Compl. ¶ 3. However,

Defendant is correct that Title VII’s fourth basis for venue is

residual and considered only when venue is not possible under

the first three Title VII venue provisions. Kendrick v. Potter,

CIV.A.06 122 GK, 2007 WL 2071670, at *3 (D.D.C. July 16, 2007)

(“[C]ourts consider the fourth basis for venue, i.e. the

location of the defendant's principal office, only when the

defendant cannot be found within any of the districts provided

for by the first three bases.”) (internal citations and

quotations omitted).

In his response brief, Plaintiff does not advocate for

finding proper jurisdiction under the fourth basis of Title

VII’s venue statute, but rather under the first Title VII venue

provision. Specifically, Plaintiff argues that a “substantial

portion” of the alleged unlawful employment practice occurred in

the District and that the hostile work environment created by

3 his supervisors “extended” everywhere Plaintiff worked,

including the FDIC Headquarters in the District. Pl.’s Mem.

Opp., Docket No. 7 at 3-4. Plaintiff notes that in 2013 he was

assigned burdensome tasks outside the scope of his normal duties

in retaliation for rebuffing unwanted sexual advances, and that

many of those tasks had to be completed in the FDIC DC

headquarters. Id. at 3, citing Compl. ¶ 24-25. However,

Plaintiff’s Complaint includes no allegations of harassment that

occurred in the District. Indeed, the majority of alleged

harassment incidents occurred at the FDIC OMWI offices in

Arlington, see e.g. Compl. ¶¶ 10, 11, 12, 13, 14, 17, 32 and 35,

and others allegedly took place in Winchester, Virginia and Los

Angeles, California. Id. at ¶¶ 21, 26.

“Venue determinations of where a claim arose are based on 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) (citation omitted). In this case, the vast

majority of alleged unlawful interactions occurred at the FDIC

OMWI office in Arlington, Virginia. The proper venue under the

first Title VII basis is therefore the Eastern District of

Virginia.

Moreover, Plaintiff cannot establish venue in the District

based on the second or third Title VII venue provisions: he does

not dispute that his employment records are maintained at the

4 FDIC Division of Administration (“DOA”) office in Arlington,

Virginia, See Pagano Decl., Docket 6-1 at ¶ 8, and but for the

harassment and retaliation alleged by Plaintiff, he would still

work at the FDIC OMWI in Arlington. For all of these reasons,

the interest of justice weigh in favor of transferring this

matter to the Eastern District of Virginia.

IV. Conclusion

For the foregoing reasons, Defendant’s Motion to Dismiss is

DENIED and Defendant’s Motion to Transfer is GRANTED. An

appropriate Order accompanies this Memorandum Opinion.

Signed: Emmet G. Sullivan United States District Judge December 18, 2015