SEBUNYA v. MAYORKAS
2:20-cv-00270
D. Me.Mar 18, 2021Background
- Plaintiff Moses Sebunya, a Maine resident and FEMA reservist, sued under Title VII alleging discrimination and retaliation related to FEMA deployment decisions.
- Key incidents include his removal from a Missouri deployment in June 2017 and disputed decisions about deployments to California, Florida, Puerto Rico, and South Carolina.
- Plaintiff alleges his duty station was Maine and relies on residence/duty-station to invoke venue in the District of Maine under 42 U.S.C. § 2000e-5(f)(3).
- Defendant (DHS/FEMA) submitted affidavits showing activation and deployment decisions were made by supervisors at FEMA headquarters in the District of Columbia.
- The court concluded the challenged employment decisions occurred outside Maine (decisionmakers in D.C.); Sebunya would have worked in other locations but for the alleged acts; he was an intermittent deployable employee, not a remotely hired Maine-based employee.
- Defendant moved to dismiss or, alternatively, to transfer venue; the court denied dismissal and ordered transfer to the District of Columbia under 28 U.S.C. § 1406(a), which both parties agreed was proper.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether venue is proper under § 2000e-5(f)(3) first prong (where unlawful practice occurred) | Sebunya argues the unlawful practices occurred in Maine because his duty station was set to Maine and he spent time there awaiting deployments | Unlawful acts (removal, deployment decisions, retaliatory email) originated from FEMA HQ and decisionmakers in D.C., not Maine | Court held first-prong venue fails — operative decisions occurred outside Maine (D.C.) |
| Whether venue is proper under § 2000e-5(f)(3) third prong (where plaintiff would have worked but for the acts) | Sebunya contends he would have worked in Maine but for discrimination because Maine was his duty station/residence | Defendant shows Sebunya would have continued to work in Missouri or been deployed elsewhere; not hired to work remotely in Maine | Court held third-prong venue fails — Sebunya would have worked outside Maine absent the alleged acts |
| Effect of intermittent/virtual deployment status and residence on venue (including South Carolina virtual deployment) | Plaintiff relies on residence and some virtual work to argue Maine is the operative venue | Defendant notes employees are intermittently activated and deployed; decisions about assignments made in D.C.; virtual deployment allegations do not show discriminatory acts occurred in Maine | Court rejected Maine-venue theory based on residence/virtual presence; applied commonsense appraisal and found D.C. controls |
| Proper remedy: dismissal under Rule 12(b)(3) vs transfer under § 1406(a) | Implicitly opposes dismissal; requests transfer to D.C. | Defendant sought dismissal or transfer; agreed D.C. is proper | Court granted transfer to District of Columbia under § 1406(a) rather than dismissing the action |
Key Cases Cited
- Darby v. U.S. Dep’t of Energy, 231 F. Supp. 2d 274 (D.D.C. 2002) (endorsing a commonsense appraisal of where events of operative significance occurred for venue purposes)
- Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493 (9th Cir. 2000) (Ninth Circuit analysis of venue where plaintiff worked remotely; court here found Passantino distinguishable and unlikely to be adopted by the First Circuit)