Stout v. Napolitano

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

)
SAMANTHA L. STOUT, )
)
Plaintiff, )
)
v. )
) Civ. Action No. 12-1245 (EGS)
JANET NAPOLITANO, in her )
Official capacity as )
Secretary of the U.S. Dep’t. )
Of Homeland Security )
)
Defendant. )
)

MEMORANDUM OPINION

I. INTRODUCTION

Plaintiff Samantha Stout brings this action seeking

damages, reinstatement, and injunctive relief for alleged

violations of Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e et seq. (“Title VII”) based on her gender. She

raises claims of disparate treatment, hostile work environment,

and retaliation for protected activity. Defendant Janet

Napolitano, in her official capacity as Secretary of the

Department of Homeland Security, moves to dismiss pursuant to

Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), arguing

that Plaintiff failed to exhaust her administrative remedies and

fails to state a claim upon which relief can be granted.

Defendant also moves to dismiss, or in the alternative, transfer

pursuant to Federal Rule of Civil Procedure 12(b)(3) for

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Plaintiff’s failure to lay venue according to the special venue

provision for Title VII actions, 42 U.S. C. § 2000e-5(f)(3).

Upon consideration of the motion, the entire record, the

applicable law, for the reasons stated below, and in the

interest of justice, the Court will TRANSFER the case to the

United States District Court for the Eastern District of

Pennsylvania.

II. BACKGROUND

Ms. Stout is a white female who was employed by the Federal

Air Marshall Service (“FAMS”) of the U.S. Department of Homeland

Security, Transportation Security Administration (“TSA”)from

December 19, 2010 to June 3, 2011. Am. Compl. ¶¶ 5, 12. She is

4 feet 11 inches tall and weighs approximately 100 pounds.

Plaintiff’s employment with the Federal Air Marshall Service was

conditional – she was required to complete Phase I and Phase II

training programs in order to secure full time employment. Id.

¶ 13. Ms. Stout participated in and successfully completed

Phase I of the required training in Artesia, New Mexico from

January 5 to March 2, 2011. As part of the Phase I training,

she also completed firearms training and exceeded the minimum

standard for firearms qualification. Id. ¶¶ 15-16. Following

her successful completion of Phase I training, Planitiff entered

Phase II training at the William J. Hughes Technical Center in

Atlantic City, New Jersey. Id. ¶ 17. There, Plaintiff was

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trained by David K., a Federal Air Marshal Instructor, and Rolf

W., a Senior Federal Air Marshal Instructor. Id. ¶¶ 7-8. 1

Ms. Stout alleges that she was subject to discrimination

from the outset of the Phase II training. She alleges that her

instructors “engaged in [a] systematic, concerted, and repeated

effort to bring about [her] failure in Phase II training because

of her sex and diminutive stature.” Id. ¶ 18. According to Ms.

Stout, her instructors subjected her to a variety of demeaning

and abusive behavior, including: ridiculing her on the basis of

her sex and size; refusing to provide assistance in hanging her

target for shooting practice and refusing to allow others to

help her; directing the other students in the training to watch

her attempt to hang the target unsuccessfully; kneeling on their

knees to speak with her and bending down to shout in her face;

refusing to allow her to use a magazine loading device or

letting her demonstrate her proficiency during a night shoot;

reducing the quality of her training; creating and maintaining a

hostile training environment; and enforcing standards more

harshly against her. Id. ¶ 19. Ms. Stout alleges that this

purported treatment “reflected a belief by the defendant that

the plaintiff could not be an effective federal air marshal

because she was not a strong tall man” and was “more than

isolated, accidental or sporadic.” Id. ¶¶ 20-22.

1
These names have been redacted in the Amended Complaint.
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 Ms. Stout was removed from Phase II training on March 31,

2011 after she failed to pass the firearms certification. Id. ¶

23. She was sent to the Philadelphia Field Office of the

Federal Air Marshal Service and was eventually terminated on

June 3, 2011 for failure to meet a condition of her employment.

Id. ¶¶ 23-24. Plaintiff alleges that if she had not been

subjected to the purportedly discriminatory behavior by her

instructors, she “would have received a passing score on

firearms training and would not have been terminated.” Id. ¶

25.

Plaintiff initiated EEO contact on or about April 1, 2011.

Id. ¶ 45. She was notified of the conclusion of EEO counseling

on June 16, 2011 and filed a formal complaint on June 28, 2011.

Id., Ex. A, Final Agency Decision at 1-2. In her complaint,

Plaintiff alleged that she was discriminated against on the

basis of sex and physical or mental disability, and also on the

basis of retaliation and reprisal. Def.’s Mot. to Dismiss, Ex.

1, EEO Complaint, at 2. Plaintiff received a final decision

from the agency on May 2, 2012; she filed her Complaint this

action on July 27, 2012 and filed an Amended Complaint on May

16, 2013. Defendants have filed a motion to dismiss Plaintiff’s

Amended Complaint, which is now ripe for determination by this

Court.

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III. STANDARD OF REVIEW

Defendants seek to dismiss Plaintiff’s Amended Complaint

pursuant to Fed. R. Civ. P. 12(b)(3) on the grounds that venue

does not lie in the District of Columbia. While the Court must

accept plaintiff’s well-pled factual allegations as true,

Pendleton v. Mukasey, 552 F. Supp. 2d 14, 17 (D.D.C. 2008)

(citing Darby v. United States DOE, 231 F. Supp. 2d 274, 276-77

(D.D.C. 2002)), it is not required as a matter of law to accept

as true plaintiff’s legal conclusions regarding venue, Darby,

231 F. Supp. 2d at 277. To prevail on a motion to dismiss for

improper venue, a defendant must present facts to defeat

plaintiff’s venue assertions. Darby, 231 F. Supp. 2d at 276.

“If the district in which the action is brought does not meet

the requirements of Title VII’s venue provision, then that

district court may either dismiss, ‘or if it be in the interests

of justice, transfer such a case to any district or division in

which it could have been brought.’” Pendleton, 552 F. Supp. 2d

at 17. “Generally, the ‘interest of justice’ directive allows

courts to transfer cases to the appropriate judicial district

rather than dismiss them.” Ifill v. Potter, No. 05-2320, 2006

U.S. Dist. LEXIS 83833, at *3 (D.D.C. Nov. 17, 2006); see also

James v. Booz-Allen Hamilton, Inc., 227 F. Supp. 2d 16, 20

(D.D.C. 2002).

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IV. DISCUSSION

The general venue statute, 28 U.S.C. § 1391(b), does not

apply in Title VII actions. Instead, Title VII of the Civil

Rights Act contains a specific venue provision that “controls

any other venue provision governing actions in federal court.”

Donnell v. Nat’l Guard Bureau, 568 F. Supp. 93, 94 (D.D.C.

1983). In a Title VII action, venue is proper

(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

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). According to the Secretary, the

District of Columbia is an improper venue for this action under

any of Title VII’s four venue categories. Def.’s Mot. to

Dismiss at 16-17. Defendant argues that the matter should be

dismissed entirely for improper venue, or in the alternative, be

transferred to the District of New Jersey, which the Secretary

contends is the proper venue for this action. Id. In her

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Amended Complaint, Plaintiff argues that venue is proper in the

District of Columbia pursuant to Title VII’s venue provision “in

that the unlawful employment practice alleged to have been

committed occurred in the District of Columbia and/or the

employment records of the plaintiff relevant to such practice

are maintained or administered in the District of Columbia.”

Am. Compl. ¶ 3.

The District of Columbia is not the location of the alleged

discrimination, hostile work environment, or retaliation. See

Am. Compl. ¶¶ 5-11, 23-25; Def.’s Mot. to Dismiss at 16.

Plaintiff’s training occurred at the William J. Hughes Technical

Center in Atlantic City, New Jersey. Am. Compl. ¶ 17; Def.’s

Mot. to Dismiss at 16. After failing to receive a passing score

on the required firearms certification, Ms. Stout was terminated

at the Philadelphia Field Office. Am. Compl. ¶¶ 24-25. Ms.

Stout would have been assigned to the Philadelphia Field Office

if she had passed the Phase II training. Def.’s Mot. to

Dismiss, Decl. of Joseph J. D’Angelillio (“D’Angelillio Decl.”)

¶ 11. Plaintiff’s records are maintained at the Atlantic City

training center. Id. ¶ 10. The headquarters of the TSA are in

Pentagon City, Virginia and the headquarters of the FAMS are

located in Reston, Virginia. Id. ¶¶ 14-15.

Plaintiff does not directly refute the Secretary’s

contentions regarding venue. Instead, Ms. Stout argues that it

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was difficult to ascertain the proper venue for her action when

she filed suit because venue could properly lie in a number of

judicial districts. Pl.’s Opp. at 16. Because the Secretary

for Homeland Security is located in the District of Columbia,

she believed her records were located here. Id. She concedes

that the TSA and FAMS are located in Virginia, but argues that

because they are “within minutes of the District of Columbia,”

this Court should retain jurisdiction. Id. at 17. In the

alternative, Plaintiff argues that the Court should transfer

this case to the Eastern District of Pennsylvania instead of

dismissing it. Id.

Even though the Department of Homeland Security is

headquartered in this district, Title VII’s fourth basis for

venue is residual, and is considered “only when the defendant

cannot be found within any of the districts provided for in the

first three bases.” Kendrick v. Potter, No. 06-122, 2007 U.S.

Dist. LEXIS 50880, at *3 (D.D.C. July 16, 2007). Even if the

Court were to apply the fourth basis, venue would not be proper

in the District of Columbia because TSA and FAMS, the relevant

divisions of the Department of Homeland Security, are both

headquartered in Virginia. See, e.g. Khalil v. L-3 Commc’ns

Titan Grp., 656 F. Supp. 2d 134, 136 (D.D.C. 2009) (refusing to

consider the fourth prong because though defendant had offices

in the District of Columbia, its headquarters were in Virginia).

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 Under these undisputed facts, venue is not proper in the

District of Columbia, but is proper in the District of New

Jersey, where some of the alleged misconduct occurred, or the

Eastern District of Pennsylvania, where Plaintiff was terminated

and where she would have worked but for the allegedly

discriminatory conduct. See Pendleton, 552 F. Supp. 2d at 17-18

(holding that “[w]hen an alleged discriminatory employment

practice is committed in another jurisdiction, the employment

records are located in another jurisdiction, and the aggrieved

person would have worked in another jurisdiction but for the

unlawful employment practice, a plaintiff cannot properly lay

venue in the District of Columbia”).

When venue is improper, the Court may dismiss the claim or,

“if it be in the interest of justice, transfer [it] to any

district or division in which it could have been brought.” 28

U.S.C. § 1406(a). The decision whether to dismiss or transfer

is committed to the sound discretion of the court; however, the

interest of justice generally requires transferring a case to

the appropriate district in lieu of dismissal. See Goldlawr,

Inc. v. Heiman, 369 U.S. 463, 466-67 (1962); see also Ebron v.

Dep’t of the Army, 766 F. Supp. 2d 54, 58 (D.D.C. 2011)

(transferring an employment discrimination claim to the proper

venue rather than dismissing it); Walden v. Locke, 629 F. Supp.

2d 11, 14 (D.D.C. 2009) (same).

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 Defendant urges the Court to dismiss this action not only

for improper venue, but for Plaintiff’s purported failure to

state a claim. Def.’s Reply at 9. However, the Court declines

to resolve Defendant’s 12(b)(6) Motion to Dismiss because the

case is not properly before this Court. See Haley v. Astrue,

667 F. Supp. 2d 138, 142 n.6 (D.D.C. 2009) (deciding not to

reach the merits of defendants’ motion to dismiss because venue

was improper in the District of Columbia). In this action,

venue would be proper in two districts: the District of New

Jersey and the Eastern District of Pennsylvania. Because

Plaintiff would prefer the Eastern District of Pennsylvania, and

Defendant has not argued that that venue would prejudice them in

any way, the Court finds that this action should be transferred

to Plaintiff’s preferred choice.

V. CONCLUSION

For the reasons set forth above, the Court GRANTS

Defendant’s Motion to Dismiss, or in the Alternative, Transfer

for Improper Venue pursuant to Fed. R. Civ. P. 12(b)(3) and

TRANSFERS this case to the United States District Court for the

Eastern District of Pennsylvania. An appropriate order

accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan
United States District Judge
February 24, 2014

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