Rivera v. U.S. Department of Defense

• Court: District Court, District of Columbia
• Decided: August 21, 2024
• Docket: Civil Action No. 2023-2150
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

GUSTAVO RIVERA,

Plaintiff, Civil Action No. 23-2150 (LLA) v.

LLOYD J. AUSTIN, III,

Defendant.

MEMORANDUM OPINION

Gustavo Rivera filed this suit against Secretary of Defense Lloyd J. Austin, III, alleging

violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Age

Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., in connection with his

employment at the Naval Surface Warfare Center in Dahlgren, Virginia. ECF No. 1.

Secretary Austin moves to dismiss for improper venue under Federal Rule of Civil

Procedure 12(b)(3) and 28 U.S.C. § 1406(a). ECF No. 11, at 6-11, 25. In the alternative, he seeks

to have the matter transferred to the Eastern District of Virginia. Id. at 10-11, 25. Secretary Austin

also moves to dismiss certain counts under Rule 12(b)(6) or, alternatively, for summary judgment

in his favor pursuant to Rule 56. ECF No. 11, at 11-25. For the reasons explained, the court will

grant Secretary Austin’s motion in part and transfer the case to the Eastern District of Virginia.

I. Background

The court takes the allegations in Mr. Rivera’s complaint as true for the purposes of

deciding the pending motion. James v. Verizon Servs. Corp., 639 F. Supp. 2d 9, 11 (D.D.C. 2009).

Mr. Rivera, a Hispanic man over forty years old, worked at the Naval Surface Warfare Center’s

Dahlgren Division as a Senior Scientist and Technical Manager. ECF No. 1 ¶¶ 3, 7-9. Two of his supervisors, John Fiore and John M. Seel, discriminated against him. Id. ¶ 107. Mr. Rivera

confronted his managers about their discrimination and further informed management about his

supervisors’ actions. Id. ¶¶ 19-21, 32, 38, 40.

In February 2021, Mr. Rivera filed a formal complaint alleging race and age discrimination

with his agency’s equal employment opportunity (“EEO”) office. Id. ¶ 130. In retaliation, he was

excluded from panels, assignments, and crucial meetings, told to find his own work and funding,

and removed from a lead position. Id. ¶¶ 130-46. He also faced unwelcome actions, comments,

and behavior from his supervisors. Id. ¶¶ 148-49. All of the actions complained of occurred at

the Naval Surface Warfare Center’s Dahlgren Division. Id. ¶ 3.

After exhausting his administrative remedies, Mr. Rivera brought this action, alleging race

and age discrimination, retaliation, and hostile work environment under Title VII and the ADEA.

ECF No. 1.

II. Legal Standards

Under Federal Rule of Civil Procedure 12(b)(3) and 28 U.S.C. § 1406(a), the court may

dismiss a case for improper venue. “‘To prevail on a motion to dismiss for improper venue . . . the

defendant must present facts that will defeat the plaintiff’s assertion of venue,’” but “[t]he

burden . . . remains on the plaintiff to prove that venue is proper when an objection is raised, ‘since

it is the plaintiff’s obligation to institute the action in a permissible forum.’” Roland v. Branch

Banking & Tr. Corp., 149 F. Supp. 3d 61, 67 (D.D.C. 2015) (first quoting Ananiev v. Wells Fargo

Bank, N.A., 968 F. Supp. 2d 123, 129 (D.D.C. 2013); and then quoting McCain v. Bank of Am., 13

F. Supp. 3d 45, 51 (D.D.C. 2014)). In considering a motion to dismiss for lack of venue, the court

may consider materials outside of the pleadings without converting the motion into a motion for

2 summary judgment under Rule 56. Winston & Strawn LLP v. L. Firm of John Arthur Eaves, 47 F.

Supp. 3d 68, 71-72 (D.D.C. 2014).

Section 1406(a) also authorizes the court to transfer a case from an improper venue to an

appropriate venue “if it be in the interest of justice.” Even where venue is proper, the court may

transfer the case to another venue if it is “in the interest of justice” or “[f]or the convenience of

parties and witnesses.” 28 U.S.C. § 1404(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).

III. Discussion

The court will transfer the case to the Eastern District of Virginia because venue for

Mr. Rivera’s Title VII claims is not proper in the District of Columbia and transfer of the entire

case, rather than transfer or dismissal of only the Title VII claims, is in the interest of justice and

more convenient for the parties and witnesses. 28 U.S.C. §§ 1404(a), 1406(a).

A. The District of Columbia is not a Proper Venue for Mr. Rivera’s Title VII Claims

Venue in cases brought under Title VII is governed by 42 U.S.C § 2000e-5. Under that

statute, the plaintiff may bring his action (1) “in any judicial district in the State in which the

unlawful employment practice is alleged to have been committed”; (2) “in the judicial district in

which the employment 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.” 42 U.S.C. § 2000e-5(f)(3). Additionally, if the defendant cannot

be found in any of the above districts, the statute allows the action to be brought in “the judicial

district in which the respondent has his principal office.” Id.

Mr. Rivera raises several arguments in support of venue for his Title VII claims in the

District of Columbia, but each fails. First, he argues that venue is proper in this district because 3 he travels to “offices in the District of Columbia region on average 2-3 times per week.” ECF

No. 13, at 12. But as Secretary Austin points out, Mr. Rivera alleges in his complaint that “all of

the actions complained of herein took place at the Naval Surface Warfare Center, Dahlgren[,

Virginia] Division.” ECF No. 11, at 9 (quoting ECF No. 1 ¶ 3). Given that allegation, it is of no

moment that Mr. Rivera may come into the District of Columbia for work. 42 U.S.C.

§ 2000e-5(f)(3); see James v. Booz-Allen & Hamilton, Inc., 227 F. Supp. 2d 16, 20 (D.D.C. 2002)

(explaining that “[v]enue cannot lie in the District of Columbia when ‘a substantial part, if not all,

of the employment practices challenged in this action’ took place outside the District even when

actions taken in the District ‘may have had an impact on the plaintiff’s situation’” (quoting Donnell

v. Nat’l Guard Bureau, 568 F. Supp. 93, 94 (D.D.C. 1983))). Mr. Rivera cannot rely on the first

prong of Section 2000e-5(f)(3) to establish venue in this district.

Second, Mr. Rivera contends that his “employment records are maintained and

administered at the U.S. Office of Personnel Management located . . . in Washington[,] D.C.”

ECF No. 13, at 13. To counter this, Secretary Austin submitted a declaration from Margaret A.

Regan, the Staffing and Classification Branch Head at the Naval Surface Warfare Center in

Dahlgren, Virginia, in which she states that Mr. Rivera’s electronic official personnel file is

maintained in the state of Washington. ECF No. 11-1, at 2. Secretary Austin also submitted a

declaration from Jennifer E. Clift, Mr. Rivera’s immediate supervisor, in which she asserts that

Mr. Rivera’s performance records, including his performance ratings, yearly objectives, and salary

information, are created and maintained by the Naval Surface Warfare Center in Dahlgren,

Virginia. ECF No. 18, at 23.1 Mr. Rivera’s only rebuttal to these declarations is his own

1 While Secretary Austin submitted this declaration with his reply brief, Mr. Rivera did not seek to file a surreply to rebut it. 4 conclusory statement that his personnel records are maintained in the District of Columbia, but the

court need not credit such an assertion. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining

that the court is “not bound to accept as true a legal conclusion couched as a factual allegation”

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007))). It is Mr. Rivera’s burden to

establish venue, see Roland, 149 F. Supp. 3d at 67, and he has not done so under

Section 2000e-5(f)(3)’s second prong.

Third, Mr. Rivera argues that due to “the nature of his position, absent alleged

discrimination, [he] could be promoted and transferred to the District of Columbia even though

[his] duty station is in Dahlgren, Virginia.” ECF No. 13, at 13. In his complaint, however,

Mr. Rivera does not allege that he was denied transfers or promotions for positions in the District

of Columbia, nor is there any evidence that he exhausted such claims during administrative

proceedings. Mr. Rivera’s statement is thus a conclusory assertion that the court will not credit.

See Iqbal, 556 U.S. at 678. In the absence of any non-conclusory statements about transfers to or

promotions in the District of Columbia, Mr. Rivera has not carried his burden of proving venue in

this district under Section 2000e-5(f)(3)’s third prong.

Finally, Mr. Rivera contends that venue in the District of Columbia is proper because

Secretary Austin’s “principal office” is located in this district. ECF No. 13, at 13-14. But this

basis for venue only arises if the defendant cannot be found in any other district where venue is

appropriate. 42 U.S.C. § 2000e-5(f)(3). That is not the case here, where the rest of the

Section 2000e-5(f)(3) analysis indicates that venue is proper in the Eastern District of Virginia. In

any event, Secretary Austin’s “principal office” is the Pentagon, which is located in the Eastern

District of Virginia. McGrone v. Austin, No. 21-CV-472, 2022 WL 888194 at *2

(D.D.C. Mar. 25, 2022) (“Courts have consistently held that the Secretary of Defense’s ‘principal

5 office’ is not in the District of Columbia, but rather at the Pentagon—which is located in the

Eastern District of Virginia.”).

Accordingly, venue for Mr. Rivera’s Title VII claims is not proper in the District of

Columbia.

B. The District of Columbia is a Proper Venue for Mr. Rivera’s ADEA Claims

Venue for ADEA claims is not governed by a specific provision, but instead falls under the

general venue statute for claims against officers of agencies acting in their official capacities,

28 U.S.C. § 1391(e). Under that statute, venue is proper where (1) the defendant resides; (2) a

substantial part of the events giving rise to the action occurred; or (3) the plaintiff resides. Id.

As noted, Secretary Austin’s “principal office” is in the Eastern District of Virginia.

McGrone, 2022 WL 888194 at *2. Mr. Rivera argues—correctly—that federal officers can have

more than one residence and that venue is proper in the District of Columbia because

Secretary Austin does official work here. ECF No. 13, at 15-16; see Chin-Young v. Esper, No. 18-

CV-2072, 2019 WL 4247260, at *5 (finding venue proper in both the Eastern District of Virginia

and the District of Columbia in an ADEA suit against the Secretary of Defense). Accordingly,

this district is a proper venue for Mr. Rivera’s ADEA claims.

C. Transfer to the Eastern District of Virginia is Appropriate

When venue in this district is proper for one set of claims but improper for another, “[i]t is

in the interest of justice to transfer the entire complaint rather than have it heard in two different

venues.” In re O’Leska, No. 00-5339, 2000 WL 1946653, at *1 (D.C. Cir. Dec. 7, 2000) (per

6 curiam) (citing 28 U.S.C. § 1404(a)). The court is of the view that transferring the entire case,

rather than transferring or dismissing only the Title VII claims, is in the interest of justice.2

Mr. Rivera argues that the entire case should remain in this district under the doctrine of

“pendent venue.” ECF No. 13, at 14. That doctrine “permits a court to hear causes of action not

properly venued in its district when they are joined in a suit with a cause of action that is properly

there.” Gardner v. Marbus, 49 F. Supp. 3d 44, 48 (D.D.C. 2014). It is doubtful that the court

could assume pendent venue over Mr. Rivera’s Title VII claims, “because the authority in this

Circuit indicates that when a plaintiff brings a Title VII action, which is covered by Title VII’s

restrictive venue provision, as well as an action governed by the general venue provision, the

narrower venue provision of § 2000e-5(f)(3) controls.” Dehaemers v. Wynne, 522 F. Supp. 2d

240, 249 (D.D.C. 2007). But even if the doctrine of pendent venue applied, “convenience of the

witnesses and judicial efficiency counsel hearing the case in Virginia, where all the evidence and

witnesses . . . are found.” Gardner, 49 F. Supp. 3d at 48.

IV. Conclusion

For the foregoing reasons, the court will transfer the case to the Eastern District of Virginia

but otherwise deny Secretary Austin’s motion without prejudice to his renewing his arguments in

that district. Additionally, the court will direct Secretary Austin to respond to the complaint no

later than twenty-one days after the case is docketed in the Eastern District of Virginia. An Order

consistent with this Memorandum Opinion will issue contemporaneously.

2 While the court concludes that dismissal under Rule 12(b)(3) is not warranted, it takes no position on Secretary Austin’s arguments for dismissal under Rule 12(b)(6) or summary judgment under Rule 56. The court will direct Secretary Austin to respond to the complaint no later than twenty-one days after the case is docketed in the Eastern District of Virginia. 7 SO ORDERED.

/s/ Loren L. AliKhan LOREN L. ALIKHAN United States District Judge

Date: August 21, 2024