UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
KYLE MILOWSKI,
Plaintiff,
v. No. 20-cv-2698 (DLF) ALEJANDRO MAYORKAS, Secretary, U.S. Department of Homeland Security,
Defendant.
MEMORANDUM OPINION
Kyle Milowski, proceeding pro se, brings this action against Alejandro Mayorkas in his
official capacity as the Secretary of the United States Department of Homeland Security
(“Department”),1 asserting claims under the Rehabilitation Act of 1973, 29 U.S.C. § 791, et seq.,
and the Americans with Disabilities Act of 1990, 42 U.S.C. § 12112, et seq.; see Compl. at 3,
Dkt. 1. Before the Court is the Department’s Motion to Dismiss or, in the Alternative, to
Transfer Venue, Dkt. 5. For the reasons that follow, the Court will deny the Department’s
motion to dismiss and grant its motion to transfer this case to the United States District Court for
the District of South Carolina.
1 When this suit began, Chad Wolf was the Acting Secretary of the Department of Homeland Security. When Alejandro Mayorkas became the Secretary, he was automatically substituted as the proper defendant. See Fed. R. Civ. P. 25(d). I. BACKGROUND
A. Factual Background
Milowski was employed by the Department of Homeland Security as a Deportation
Officer and Course Developer Instructor at the U.S. Immigration and Customs Enforcement
(ICE) Training Academy. See EEOC Decision at 3, Dkt. 1-1. Milowski alleges that from
January 2016 through February 2017, he suffered discrimination on account of his disability, was
denied reasonable accommodations, and faced retaliation for seeking those accommodations.
See Compl. at 4–5; EEOC Compl. at 1, Dkt. 5-5. Among other things, Milowski’s supervisor
“made an unauthorized disclosure regarding [his] medical information,” and Milowski was
denied “training consistent with his colleagues,” was assigned “collateral duties” in addition to
his “primary duties,” and was “yelled at” by his supervisor shortly after he requested an
accommodation. See EEOC Decision at 1–3.
The EEOC affirmed the Department’s decision denying Milowski’s EEO complaint on
June 18, 2020, see EEOC Decision at 14, 16, and Milowski filed this action on September 17,
2020, see Compl. Subsequently, the Department filed its motion to dismiss or transfer this case
on the ground that venue was not proper in the District of Columbia. See Dkt. 5. That motion is
now ripe for review.
II. LEGAL STANDARDS
Under Rule 12(b)(3) of the Federal Rules of Civil Procedure, a party may move to
dismiss an action or claim when venue is improper. Fed. R. Civ. P. 12(b)(3). Similarly, the
federal venue statute, 28 U.S.C. § 1406(a), requires a court to “dismiss, or if it be in the interest
of justice, transfer” a case that has been filed “in the wrong division or district.” 28 U.S.C.
§ 1406(a). On a Rule 12(b)(3) motion, the moving party “must provide sufficient specificity to
2 put the plaintiff on notice of the [potential] defect,” but “the burden remains on the plaintiff to
establish that venue is proper.” McCain v. Bank of Am., 13 F. Supp. 3d 45, 50–51 (D.D.C. 2014)
(internal quotation marks omitted), aff’d sub nom. McCain v. Bank of Am. N.A., 602 F. App’x
836 (D.C. Cir. 2015). Venue determinations are driven by “commonsense appraisal[s]” of the
“events having operative significance in the case.” Lamont v. Haig, 590 F.2d 1124, 1134 (D.C.
Cir. 1978).
“To prevail on a motion to dismiss for improper venue, the defendant must present facts
that will defeat the plaintiff’s assertion of venue.” James v. Verizon Servs. Corp., 639 F. Supp.
2d 9, 11 (D.D.C. 2009). When ruling on a Rule 12(b)(3) motion, “the [C]ourt accepts the
plaintiff’s well-pled factual allegations regarding venue as true, draw[ing] all reasonable
inferences from those allegations in the plaintiff’s favor.” Pendleton v. Mukasey, 552 F. Supp.
2d 14, 17 (D.D.C. 2008) (internal quotation marks omitted). “The Court need not, however,
accept the plaintiff’s legal conclusions as true, and may consider material outside of the
pleadings.” Abraham v. Burwell, 110 F. Supp. 3d 25, 28 (D.D.C. 2015) (internal citation
omitted). “Unless there are pertinent factual disputes to resolve, a challenge to venue presents a
pure question of law.” Williams v. GEICO Corp., 792 F. Supp. 2d 58, 62 (D.D.C. 2011).
III. ANALYSIS
A. Venue Provisions
“[T]he proper venue for litigating a Rehabilitation Act claim is determined by the special
venue provisions of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e–5(f)(3).” Slaby v.
Holder, 901 F. Supp. 2d 129, 132 (D.D.C. 2012) (internal quotation marks omitted). The same is
true for litigating a claim under the Americans with Disabilities Act of 1990. See 42 U.S.C.
§ 12117(a); Johnson v. Deloitte Servs., LLP, 939 F. Supp. 2d 1, 3 (D.D.C. 2013). Title VII’s
3 special venue provisions provide that “a plaintiff may bring suit: (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.’” Pendleton, 552 F.
Supp. 2d at 17 (quoting 42 U.S.C. § 2000e–5(f)(3)). If the defendant “is not found within any
such district” then the “action may be brought within the judicial district in which the
[defendant] has his principal office.” 42 U.S.C. § 2000e–5(f)(3).
Here, venue is not proper in the District of Columbia. First, all of the allegedly unlawful
employment practices occurred in Charleston, South Carolina, see Decl. of Lauren Marie Wilson
¶ 3, Dkt. 5-4; EEOC Compl. at 1, and Milowski does not assert that he experienced any
workplace injury in the District of Columbia, see Compl.; Pl.’s Opp’n, Dkt. 7; see also Walden v.
Locke, 629 F. Supp. 2d 11, 14 (D.D.C. 2009). Second, the Department has represented that
Milowski’s employment records are in South Carolina, see Mot. to Dismiss at 8; Decl. of Lauren
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
KYLE MILOWSKI,
Plaintiff,
v. No. 20-cv-2698 (DLF) ALEJANDRO MAYORKAS, Secretary, U.S. Department of Homeland Security,
Defendant.
MEMORANDUM OPINION
Kyle Milowski, proceeding pro se, brings this action against Alejandro Mayorkas in his
official capacity as the Secretary of the United States Department of Homeland Security
(“Department”),1 asserting claims under the Rehabilitation Act of 1973, 29 U.S.C. § 791, et seq.,
and the Americans with Disabilities Act of 1990, 42 U.S.C. § 12112, et seq.; see Compl. at 3,
Dkt. 1. Before the Court is the Department’s Motion to Dismiss or, in the Alternative, to
Transfer Venue, Dkt. 5. For the reasons that follow, the Court will deny the Department’s
motion to dismiss and grant its motion to transfer this case to the United States District Court for
the District of South Carolina.
1 When this suit began, Chad Wolf was the Acting Secretary of the Department of Homeland Security. When Alejandro Mayorkas became the Secretary, he was automatically substituted as the proper defendant. See Fed. R. Civ. P. 25(d). I. BACKGROUND
A. Factual Background
Milowski was employed by the Department of Homeland Security as a Deportation
Officer and Course Developer Instructor at the U.S. Immigration and Customs Enforcement
(ICE) Training Academy. See EEOC Decision at 3, Dkt. 1-1. Milowski alleges that from
January 2016 through February 2017, he suffered discrimination on account of his disability, was
denied reasonable accommodations, and faced retaliation for seeking those accommodations.
See Compl. at 4–5; EEOC Compl. at 1, Dkt. 5-5. Among other things, Milowski’s supervisor
“made an unauthorized disclosure regarding [his] medical information,” and Milowski was
denied “training consistent with his colleagues,” was assigned “collateral duties” in addition to
his “primary duties,” and was “yelled at” by his supervisor shortly after he requested an
accommodation. See EEOC Decision at 1–3.
The EEOC affirmed the Department’s decision denying Milowski’s EEO complaint on
June 18, 2020, see EEOC Decision at 14, 16, and Milowski filed this action on September 17,
2020, see Compl. Subsequently, the Department filed its motion to dismiss or transfer this case
on the ground that venue was not proper in the District of Columbia. See Dkt. 5. That motion is
now ripe for review.
II. LEGAL STANDARDS
Under Rule 12(b)(3) of the Federal Rules of Civil Procedure, a party may move to
dismiss an action or claim when venue is improper. Fed. R. Civ. P. 12(b)(3). Similarly, the
federal venue statute, 28 U.S.C. § 1406(a), requires a court to “dismiss, or if it be in the interest
of justice, transfer” a case that has been filed “in the wrong division or district.” 28 U.S.C.
§ 1406(a). On a Rule 12(b)(3) motion, the moving party “must provide sufficient specificity to
2 put the plaintiff on notice of the [potential] defect,” but “the burden remains on the plaintiff to
establish that venue is proper.” McCain v. Bank of Am., 13 F. Supp. 3d 45, 50–51 (D.D.C. 2014)
(internal quotation marks omitted), aff’d sub nom. McCain v. Bank of Am. N.A., 602 F. App’x
836 (D.C. Cir. 2015). Venue determinations are driven by “commonsense appraisal[s]” of the
“events having operative significance in the case.” Lamont v. Haig, 590 F.2d 1124, 1134 (D.C.
Cir. 1978).
“To prevail on a motion to dismiss for improper venue, the defendant must present facts
that will defeat the plaintiff’s assertion of venue.” James v. Verizon Servs. Corp., 639 F. Supp.
2d 9, 11 (D.D.C. 2009). When ruling on a Rule 12(b)(3) motion, “the [C]ourt accepts the
plaintiff’s well-pled factual allegations regarding venue as true, draw[ing] all reasonable
inferences from those allegations in the plaintiff’s favor.” Pendleton v. Mukasey, 552 F. Supp.
2d 14, 17 (D.D.C. 2008) (internal quotation marks omitted). “The Court need not, however,
accept the plaintiff’s legal conclusions as true, and may consider material outside of the
pleadings.” Abraham v. Burwell, 110 F. Supp. 3d 25, 28 (D.D.C. 2015) (internal citation
omitted). “Unless there are pertinent factual disputes to resolve, a challenge to venue presents a
pure question of law.” Williams v. GEICO Corp., 792 F. Supp. 2d 58, 62 (D.D.C. 2011).
III. ANALYSIS
A. Venue Provisions
“[T]he proper venue for litigating a Rehabilitation Act claim is determined by the special
venue provisions of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e–5(f)(3).” Slaby v.
Holder, 901 F. Supp. 2d 129, 132 (D.D.C. 2012) (internal quotation marks omitted). The same is
true for litigating a claim under the Americans with Disabilities Act of 1990. See 42 U.S.C.
§ 12117(a); Johnson v. Deloitte Servs., LLP, 939 F. Supp. 2d 1, 3 (D.D.C. 2013). Title VII’s
3 special venue provisions provide that “a plaintiff may bring suit: (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.’” Pendleton, 552 F.
Supp. 2d at 17 (quoting 42 U.S.C. § 2000e–5(f)(3)). If the defendant “is not found within any
such district” then the “action may be brought within the judicial district in which the
[defendant] has his principal office.” 42 U.S.C. § 2000e–5(f)(3).
Here, venue is not proper in the District of Columbia. First, all of the allegedly unlawful
employment practices occurred in Charleston, South Carolina, see Decl. of Lauren Marie Wilson
¶ 3, Dkt. 5-4; EEOC Compl. at 1, and Milowski does not assert that he experienced any
workplace injury in the District of Columbia, see Compl.; Pl.’s Opp’n, Dkt. 7; see also Walden v.
Locke, 629 F. Supp. 2d 11, 14 (D.D.C. 2009). Second, the Department has represented that
Milowski’s employment records are in South Carolina, see Mot. to Dismiss at 8; Decl. of Lauren
Marie Wilson ¶ 5, and Milowski does not dispute this fact, see Compl.; Pl.’s Opp’n; see also
Johnson, 939 F. Supp. 2d at 4 n.3 (treating the second factor as conceded when the plaintiff
failed to dispute the defendant’s assertion as to the location of employment records). Third,
Milowski does not claim that he would have worked in a different district in the absence of such
practices. See Compl; Pl.’s Opp’n; see also Haley v. Astrue, 667 F. Supp. 2d 138, 141 (D.D.C.
2009). And finally, because the Court’s “analysis reveals, and the defendant[] admit[s]” that the
District of South Carolina is a proper venue for this action, the Court may not “consider venue in
the location of the defendant[‘s] principal office.” See Haley, 667 F. Supp. 2d at 141–42; Mot. to
Dismiss at 10.
4 Milowski does not dispute that he has failed to establish that the District of Columbia is a
proper venue under Title VII’s venue provisions but instead contends that the District of
Columbia is a proper venue for equitable reasons, particularly as he was “permanently assigned
to work in Washington DC on May 24, 2020,” and further, because the EEOC’s “Right to Sue
letter” was delivered to his address in Washington. Pl.’s Opp’n at 1. Because, if transferred, he
would need to commute to South Carolina in order to litigate the case, Milowski argues that a
“change of venue would result in significant financial hardship” for himself and would “equate
to a convenience for the Defendant.” Id.
Any potential hardship Milowski faces cannot make venue in the District of Columbia
proper. See McLaughlin v. Holder, 864 F. Supp. 2d 134, 139–40 (D.D.C. 2012). As other courts
in this District have explained, in drafting Title VII’s venue provisions, “it was the ‘intent of
Congress to limit venue to the judicial district[s] concerned with the alleged discrimination.’” Id.
at 139 (quoting Stebbins v. State Farm Mut. Auto. Ins. Co., 413 F.2d 1100, 1102 (D.C. Cir.
1969)). Thus, “the special requirements of Title VII compel the conclusion that venue is not
proper in this district.” Id. at 140.
B. Transfer
Having found venue in the District of Columbia to be improper, the Court must
determine whether to dismiss the case. “The district court of a district in which is filed a case
laying venue in the wrong division or district shall dismiss, 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). “The decision whether a transfer or a dismissal is in the interest of justice . . . rests
within the sound discretion of the district court.” Naartex Consulting Corp. v. Watt, 722 F.2d
779, 789 (D.C. Cir. 1983). Yet “the interest of justice generally requires transferring a case to
5 the appropriate judicial district in lieu of dismissal.” Ellis-Smith v. Sec’y of the Army, 793 F.
Supp. 2d 173, 177 (D.D.C. 2011).
The Court finds that it is in the interest of justice to transfer the case to the District of
South Carolina because, as the government represents and Milowski does not dispute, see Mot.
to Dismiss at 10, 12; Pl.’s Opp’n, a substantial part—if not all—of the relevant events occurred
in that district and various key witnesses reside in that district. Venue in the District of South
Carolina is proper, and that court has personal jurisdiction over the defendant. See Haley, 667 F.
Supp. 2d at 142. Thus, the Court will transfer this case to the United States District Court for the
District of South Carolina.
CONCLUSION
For the foregoing reasons, the Court denies the Department’s motion to dismiss and
grants its motion to transfer venue. A separate order consistent with this decision accompanies
this memorandum opinion.
________________________ DABNEY L. FRIEDRICH United States District Judge July 21, 2021