MEMORANDUM OPINION
Transferring the Case to the Eastern District of Virginia
I. INTRODUCTION
This case arises from a complaint filed by Mr. Aaron James, Sr. (“the plaintiff’) alleging that his employer, Booz-Alen & Hamilton, Inc. (“the defendant”), discriminated against him on the basis of his race. The defendant moves the court to dismiss the action for improper venue, asserting that the alleged discriminatory act did not occur in the District of Columbia, that the employment records are not located in the District of Columbia, and that the plaintiff would not have worked in the District of Columbia “but for” the alleged discriminatory act. After consideration of the parties’ submissions and the relevant law, the court determines that venue is improper in this district and thereby transfers the case to the Eastern District of Virginia.
II. BACKGROUND
A. Factual Background
The plaintiff, a black male, began working for the defendant in 1988, leaving in 1994 and returning in 1996 to work for the defendant as a senior associate. Am. Compl. (“Compl.”) ¶¶ 1, 4. In his new position as a senior associate, the plaintiff served as the project manager for the defendant’s contract with the Washington Metropolitan Area Transit Authority (“WMATA”). Id. at ¶ 5. In February 1999, as a result of the WMATA’s complaints about the plaintiff, the defendant discharged the plaintiff from his position as project manager. Id. at ¶ 9. The defendant then offered the project manager position to another individual, a white male, who had prior experience working with the defendant on the WMATA contract. Id. at ¶ 10. Mthough the plaintiff was not demoted, he felt that his duties after his discharge as project manager diminished in quality and his career stagnated. Id. at ¶ 13; Prince George’s County Human Relations Commission’s (“PGCHRC”) Letter of Determination, dated May 15, 2000 (“PGCHRC Letter of Determination”); Def.’s Mot. to Dismiss for Improper Venue (“Def.’s Mot.”), Ex. 1-B at 3. Consequently, the plaintiff resigned from his position with the defendant in July 1999. Compl. ¶ 13.
On March 26, 1999, the plaintiff filed a complaint with the U.S. Equal Employment Opportunity Commission (“EEOC”) and with the PGCHRC, alleging unlawful employment discrimination by the defendant on account of the plaintiffs race, in
B. Procedural Background
On October 19, 2000, the plaintiff filed his pro se complaint in this court. The clerk’s office informed the court that the plaintiff had failed to serve the defendant with a copy of the complaint and that the plaintiff had failed to provide a copy of a “right to sue” letter issued by the subject county commission. In response to these defects, the court issued an order on January 16, 2001 directing the plaintiff to satisfy these requirements. Order, dated Jan. 16, 2001. On February 6, 2001, the plaintiff responded with the appropriate filing and also indicated that he had retained counsel to represent him in the matter. See PL's Notice of Filing, dated Feb. 6, 2001. On March 9, 2001, the clerk’s office received a return of service indicating that the plaintiff served the defendant with a summons and the complaint on February 12, 2001. Noting that the deadline for a timely response to the complaint had expired, the court issued an order on May 21, 2001 directing the defendant to show cause (“show cause order”) as to why no response had been filed and why the court should not proceed to enter default judgment in the case. Show Cause Order. The defendant filed a response to the court’s show cause order on June 7, 2001, challenging the plaintiffs service of process and arguing that default judgment is not appropriate. Def.’s Resp. to Show Cause Order at 4. The defendant filed a submission styled as a “Reply to Plaintiffs Response to Booz Allen’s Response to Order to Show Cause” on July 3, 2001, in which the defendant moved the court to dismiss the complaint for deficient service of process pursuant to Federal Rule of Civil Procedure 12(b)(5) or, in the alternative, to quash service. See Def.’s Resp. at 8. Concurrent with the dispute relating to service of process, on June 1, 2001, the plaintiff issued a subpoena duces tecum to PGCHRC (a non-party to this litigation) requesting production of copies of the discrimination complaint file, including any and all documents filed by the defendant. See PGCHRC’s Mot. to Quash, Attach. A. PGCHRC filed a motion to quash the subpoena on June 21, 2001. Resolving the above named issues, the court denied entry of default judgment, granted the defendant’s motion to quash the plaintiffs service of process, and granted PGCHRC’s motion to quash the subpoena duces te-cum. Mem. Op. and Order, dated Feb. 12, 2002.
After retaining counsel, the plaintiff filed an amended complaint with the court on March 6, 2002. Accordingly, the amended complaint is the operative complaint. The defendant now moves the court to dismiss the complaint for improper venue pursuant to Federal Rule of Civil Procedure 12(b)(3). The plaintiff has filed an opposition to this motion claiming that venue is proper, but if the court finds that it is improper, then the plaintiff asks the court to transfer the case to the Eastern District of Virginia. PL’s Opp’n to Def.’s Mot. (“Pl.’s Opp’n”) at 7. For the reasons that follow, the court concludes that venue is
III. ANALYSIS
A. Legal Standard for Venue in Title VII Cases
Federal Rule of Civil Procedure 12(b)(3) states that the court will dismiss or transfer a case if venue is improper or inconvenient in the plaintiff's chosen forum. Fun. R. Civ. PROC. 12(b)(3). In considering a Rule 12(b)(3) motion, the court accepts the plaintiffs well-pled factual allegations regarding venue as true, the court draws all reasonable inferences from those allegations in the plaintiffs favor, and the court resolves any factual conflicts in the plaintiffs favor. 2215 Fifth Street Assocs. v. U-Haul Int'l, Inc.,
Under 42 U.S.C. § 2000e-5(f)(3), a plaintiff may bring a Title VII action in any one of four judicial districts. The statute provides that:
[s]uch an action may be brought in [1] 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, [4] but if the respondent is not found within any such district, such an action may be brought within the judicial district in which the respondent has his principal office.
42 U.S.C. § 2000e-5(f)(3), In Title VII cases, Congress intended to limit venue to those jurisdictions concerned with the alleged discrimination. Stebbins v. State Farm Mut. Auto. Ins. Co.,
If the plaintiff brings suit in a jurisdiction that does not satisfy one of the venue requirements listed in 42 U.S.C. § 2000e-5(±)(3), venue is improper. 42 U.S.C. § 2000e-5(f)(3); Washington v. Gen. Elec. Corp.,
Courts can determine venue by applying a "commonsense appraisal" of events having operative significance. Lamont v. Haig,
B. The Court Determines that Venue is Not Proper in this Jurisdiction
As an initial matter, the court addresses the defendant's assertion that the plaintiff's Title VII claim under 42 U.S.C. § 2000e-5 is the principal claim named in the complaint because it is the only statute cited in paragraph 14 of the complaint. Def.'s Mot. at 5 n. 2. The defendant's
Although the parties have not asked the court to exercise pendent venue in the instant action, venue is determined by the analysis of the stricter Title VII venue provisions set forth in 42 U.S.C. § 2000e-5(f)(3). 42 U.S.C. § 2000e-5(f)(3). Indeed, the greater weight of authority suggests that when a plaintiff brings a Title VII action under both 42 U.S.C. §§ 1981 and 2000e-5, the narrower venue provision of section 2000e—5(f)(3) controls.
Stebbins II,
Some courts confronted with facts similar to those in the case at bar have adopted another approach in determining venue by evaluating which of the two federal claims is “primary,” and applying the venue provision of the primary claim.
Turbeville v. Casey,
1. The Alleged Discriminatory Acts Did Not Take Place in This District
Under section 2000e—5(f)(3), the court’s first inquiry focuses on the locus of the alleged discrimination.
Washington,
The defendant asserts that Mr. Shul-man, the plaintiffs immediate manager who works out of New Jersey, and Mr. Salameh, the defendant’s vice-president who works out of California, jointly made the decision to remove the plaintiff from his position as the WMATA project manager. Def.’s Mot. at 7; Schulman Aff. ¶¶ 2, 6. This decision was made in February 1999 after several discussions taking place in New Jersey, California, and/or the defendant’s Virginia headquarters. 2 Def.’s Mot. at 7; Schulman Aff. ¶ 6. The defendant claims that the plaintiff was notified of this decision in Maryland and/or Virginia. Id. Accordingly, the alleged discriminatory act did not occur in the District of Columbia. 3 Therefore, venue is not proper in the District of Columbia under the first prong of the Title VII venue statute. 42 U.S.C. § 2000e-5(f)(3).
2. Relevant Documents to This Case are Not Located in This District
The second prong of the Title VII venue statute requires that the employer “maintained and administered” employment records in
“the
judicial district” where venue
In the instant action, the defendant-employer maintains and administers its master set of employment records in its corporate headquarters located in McLean, Virginia. Def.’s Mot. at 8; Meyers Aff. ¶ 8. None of the plaintiffs personnel records are maintained and administered in the District of Columbia.
Id.
Although the plaintiffs complaint advances no allegations to the contrary, the plaintiff counters the defendant’s argument by stating that his time sheets were submitted to his supervisor, Mr. Schulman, in Newark, New Jersey. Pl.’s Opp’n at 6. This is inconsistent with the sworn statement of the defendant’s in-house counsel, affirming that the defendant’s employment records are maintained and administered in Virginia. Def.’s Mot. Ex. 1 at ¶ 8. Even accepting the plaintiffs factual allegations as true, the court notes that the plaintiffs argument only signals the possibility that venue lies in New Jersey, rather than demonstrating that venue is proper in the District of Columbia.
2215 Fifth Street Assocs.,
3. The Plaintiff Would Not Have Worked in This District “But For” the Alleged Discrimination
A plaintiff, can satisfy the third prong under the Title VII venue provision when he would have worked in the District of Columbia “but for” the alleged discrimination. 28 U.S.C. § 2000e — 5(f)(3). It is important to note that the language of the statute requires that the District of Columbia be
“the
judicial district” in which the plaintiff “would have worked” had he not been removed from his position as the WMATA project manager.
Id.
(emphasis added). As reasoned before, the use of the article “the” rather than “a” strongly suggests that the statutory requirement refers to the aggrieved individual’s principal place of work, and not any district in which the individual’s work might take him.
Id.; EEOC v. Mayflower Transit, Inc.,
The defendant alleges that the plaintiff would not have worked in the District of Columbia “but for” the alleged discrimination by reiterating the plaintiffs geographical tenure with the defendant.
5
Def.’s Mot. at 8-9; Def.’s Reply at 6-9. While this is an interesting proposition, it does not educate the court as to whether the plaintiff
would
have worked in the District of Columbia “but for” the alleged discrimination. The defendant contends that “but for” the alleged discriminatory acts, the plaintiff would have presumably continued to serve as the WMATA project manager
In response, the plaintiff posits that because his successor was appointed to work with the WMATA out of the District of Columbia, the plaintiff would also have been relocated to the District of Columbia.
6
Pl.’s Opp’n at 4-5. The plaintiffs argument, however, neglects the fact that the plaintiffs base of operation was at the defendant’s offices in Seabrook, Maryland. Def.’s Mot. at 9. As such, in any case the District of Columbia would not have been “the judicial district” where the plaintiff would have worked as an employee of the defendant, who had merely agreed to perform work under the WMATA contract in the District of Columbia for a finite term.
Id.
Therefore, venue does not lie in the District of Columbia under the third prong of 42 U.S.C. § 2000e-5(f)(3). 42 U.S.C. § 2000e — 5(f)(3);
Mayflower Transit,
4. The Fourth Prong of 42 U.S.C. § 2000e-5(f)(3) Need Not Be Established
Turning to the last prong of the Title VII venue statute, the plaintiff may bring his Title VII action in the district where the defendant has its principal place of business only if the defendant cannot be found in any other districts where venue is appropriate. 42 U.S.C. § 2000e — 5(f)(3);
McManus v. Washington Gas Light Co.,
C. Transfer to the Eastern District of Virginia
One final point merits attention. The court determines whether it should transfer the case to the Eastern District of Virginia as per the plaintiffs request. Pl.’s Reply at 7. Where the court determines that venue is improper, the Title VII venue statute, 42 U.S.C. § 2000e-5(f)(3), provides that transfer under 28 U.S.C. § 1406(a) is appropriate to any judicial district where the plaintiff could
Here, the defendant made its decision to remove the plaintiff from the WMATA project outside of the District of Columbia. Indeed, the defendant made this decision in either the Eastern District of Virginia, New Jersey, California, or all of the above. Def.’s Mot. at 7; Sehulman Aff. ¶ 6. In addition, the plaintiffs employment records and the defendant’s principal place of business are located in the Eastern District of Virginia. Def.’s Mot. at 8; Meyers Aff. ¶ 8; Compl. ¶ 2. Furthermore, the time the plaintiff would have spent in the District of Columbia had he retained his position as the WMATA project manager would have been for a finite period of time since he would have continued to maintain his base of operation in Seabrook, Maryland. Def.’s Mot. at 9. In sum, the various factors considered by the court weigh in favor of venue properly lying in the Eastern District of Virginia. In any case, the defendant does not challenge such a transfer. Def.’s Reply at 9. As such, the court determines that transferring this case to the Eastern District of Virginia serves the interest of justice.
Hayes,
IV. CONCLUSION
For all of the foregoing reasons, the court transfers this case to the Eastern District of Virginia. An order consistent with this Memorandum Opinion is separately and contemporaneously issued this 31st day of July 2002.
ORDER
TRANSFERRING THE CASE TO THE EASTERN District of Virginia
For the reasons stated in the court’s Memorandum Opinion separately and contemporaneously issued this_day of July 2002, it is hereby
ORDERED that this case be TRANSFERRED to the Eastern District of Virginia.
SO ORDERED.
Notes
. Title 28 U.S.C. § 1391(a) provides: "A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in the judicial district where all plaintiffs or all defendants reside, or in which the claim arose.” 28 U.S.C. § 1391(a).
.
Although the plaintiff agrees that Mssrs. Schulman and Salameh made the decision to replace him, the plaintiff asserts that the defendant has provided no evidence that the decision was made outside of the District of Columbia. Pl.’s Opp’n at 5. As noted, the defendant cites the sworn affidavit of Mr. Schulman in reaching this conclusion. Def.'s Mot. at 7; Schulman Affidavit at ¶ 6. The plaintiff argues that the defendant has produced no evidence indicating that the decision was made outside of the District of Columbia, but does not assert any alternative location for the decision. PL's Opp'n at 5. Moreover, the plaintiff's complaint is silent on this point. Therefore, since neither Mssrs. Schulman or Salameh have worked in the District of Columbia, coupled with Mr. Schul-man's affidavit, and no allegations in the plaintiffs complaint to the contrary, the court infers that the defendant did not make its decision to replace the plaintiff in this district.
2215 Fifth Street Assocs.,
. The plaintiff asserts that the acts which led to his dismissal occurred in the District of Columbia. PL's Opp'n at 5 n. 1. The plaintiff adds footnote 1 in the plaintiff's opposition brief to demonstrate venue by referencing paragraph 10 of the operative complaint.
Id.
But paragraph 10 states: "[t]he defendant replaced the plaintiff with Richard Trabucco, a white male.” Compl. ¶ 10. This statement does not indicate that the acts leading to the plaintiff’s dismissal occurred in the District of Columbia.
Id.
In fact, nowhere in the complaint does the plaintiff state the location where the alleged discriminatory acts took place. Compl. As such, the defendant correctly asserts that although the WMATA managers voiced their request for removal of the plaintiff from the District of Columbia, those requests do not form the nucleus of the alleged discriminatory acts.
Donnell,
. Judge Oberdorfer's decision in
Mayflower Transit
has an illustrative hypothetical to demonstrate this point. If the statute is not interpreted as set forth, where a sales representative works out of an office in one state, but made calls in 25 other states, then they could sue in any one of those states on the ground that they "worked” in each.
Mayflower Transit,
. The court notes that the defendant-movant does not cite to any authority to support its proposition that the plaintiff fails to establish proper venue in the District of Columbia under the third prong, "but for” analysis.
. The plaintiff's operative complaint does not reveal the location of his work while in the defendant's employ, the location of where his successor was assigned, nor any other basis for venue. Compl. The plaintiff does point, however, to the defendant's motion at exhibits 2 and 3 to demonstrate that the plaintiff's successor was stationed in the District of Columbia. PL's Opp'n at 5 (citing Def.’s Mot., Ex. 2-3). Further, the plaintiff cites
Johnson v. Washington Gas Light Co.,