UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _______________________________ ) LORRAINE WALDEN, ) ) Plaintiff, ) ) v. ) Civil Action No. 08-1720 (RWR) ) GARY LOCKE, et al., ) ) Defendants. ) _______________________________)

MEMORANDUM OPINION AND ORDER

Plaintiff Lorraine Walden brings claims against the

Secretary of the United States Department of Commerce1 alleging

race, sex, and religious discrimination under Title VII of the

Civil Rights Act of 1964 and

. The Secretary

moves to dismiss for improper venue and for untimeliness, or in

the alternative for summary judgment, or for transfer of venue to

the Eastern District of Virginia. Because the District of

Columbia is not an appropriate venue for Walden’s Title VII

claims, but the Eastern District of Virginia is an appropriate

venue and a transfer is in the interest of justice, the

Secretary’s motion to dismiss for improper venue will be denied

and the motion to transfer will be granted.

1 Gary Locke is substituted as the defendant under Federal Rule of Civil Procedure 25(d). While multiple defendants are listed in the complaint’s caption, the complaint alleges claims against the Secretary of Commerce only. (See Compl. ¶ 3.) -2-

BACKGROUND

Walden, an African-American female and Seventh Day

Adventist, worked for the U.S. Patent and Trademark Office

(“PTO”) as a legal instruments examiner (Compl. ¶¶ 2, 7) in

Alexandria, Virginia. (Def.’s Mem. of P. & A. in Supp. of Mot.

to Dismiss, or in the Alternative for Summ. J., or to Transfer

(“Def.’s Mem.”), Decl. of Jennifer Culver (“Culver Decl.”) ¶¶ 5-

6.) Her employment records are maintained at the PTO’s

Alexandria, Virginia office. (Id. ¶ 3.) Walden alleges that her

supervisors discriminated and retaliated against her and harassed

her by “refus[ing] to make available to Plaintiff the rights and

privileges of her employment[] and . . . fail[ing] or refus[ing]

to take appropriate action to remedy the effects of the

discriminatory treatment of Plaintiff.” (Compl. ¶¶ 9-10.)

According to her, she was demoted after seeking a promotion.

(Id. ¶ 1.) One supervisor allegedly refused to consider Walden’s

medical conditions when assigning work, blamed Walden for another

person’s errors, and selectively enforced rules. (Id. ¶ 9.)

Walden brings Title VII and § 1981 claims alleging that the

Secretary discriminated against her on the basis of race, sex,

and religion. The Secretary moves to dismiss under Federal Rules

of Civil Procedure 12(b)(3) for improper venue and 12(b)(6) for

untimeliness, or in the alternative for summary judgment under

Rule 56, or for transfer of venue to the Eastern District of -3-

Virginia under

and § 1406(a). (Def.’s Mem. at

1-2.) Walden opposes dismissal, but asks to transfer her case to

the Eastern District of Virginia under § 1406(a). (Pl.’s Opp’n

to Mot. to Dismiss & Obj’n to Evid. Attached & Mot. to Transfer

at 10.)

DISCUSSION

Rule 12(b)(3) “allows a case to be dismissed for improper

venue.” Hunter v. Johanns,

(D.D.C.

2007); see Fed. R. Civ. P. 12(b)(3). “[T]he plaintiff . . .

bears the burden of establishing that venue is proper.” Varma v.

Gutierrez,

(D.D.C. 2006) (internal

quotations omitted). “In considering a Rule 12(b)(3) motion, the

court accepts the plaintiff’s well-pled factual allegations

regarding venue as true, draws all reasonable inferences from

those allegations in the plaintiff’s favor, and resolves any

factual conflicts in the plaintiff’s favor.” Darby v. U.S. Dep’t

of Energy,

(D.D.C. 2002). To prevail on

a motion to dismiss for improper venue, a defendant must present

facts sufficient to defeat a plaintiff’s assertion of venue.

. “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 case to any district or division in

which it could have been brought.’” Pendleton v. Mukasey, 552 F. -4-

Supp. 2d 14, 17 (D.D.C. 2008) (quoting

(a)).

“Generally, the interest of justice directive allows courts to

transfer cases to the appropriate judicial district rather than

dismiss them.” Ifill v. Potter, Civil Action No. 05-2320 (RWR),

, at *1 (D.D.C. Nov. 17, 2006) (internal quotation

marks omitted).

I. TITLE VII CLAIMS

Venue is not proper for Title VII claims if a plaintiff

brings suit in a jurisdiction that does not satisfy one of the

venue requirements in 42 U.S.C. § 2000e-5(f)(3). Hamilton v.

Paulson, Civil Action No. 07-1365 (RBW),

, at *2

(D.D.C. Oct. 10, 2008). Under § 2000e-5(f)(3), a Title VII

action may be brought in any judicial district in the State in which the unlawful employment practice is alleged to have been committed, in the judicial district in which the employment records relevant to such practice are maintained and administered, or 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 within the judicial district in which the respondent has his principal office. For purposes of sections 1404 and 1406 of Title 28, the judicial district in which the respondent has his principal office shall in all cases be considered a district in which the action might have been brought.

42 U.S.C. § 2000e-5(f)(3). The fourth basis for venue, the

location of a defendant’s principal office, is considered “only

when the defendant cannot be found within any of the districts

provided for by the first three bases.” Kendrick v. Potter,

Civil Action No. 06-122 (GK),

, at *3 (D.D.C. -5-

July 16, 2007); see also James v. Booz-Allen, Inc.,

(D.D.C. 2002) (stating that the fourth basis need not

be considered because “analysis of the first three prongs reveals

that the plaintiff could properly assert venue in several other

districts”).

The Eastern District of Virginia is the proper district

under the first two bases for venue. To determine where an

alleged unlawful employment practice was committed, a court

“‘must look to the place where the decisions and actions

concerning the employment practices occurred.’” Ifill,

at *2 (quoting Hayes v. RCA Serv. Co.,

(D.D.C. 1982)); Pendleton, 552 F. Supp. 2d at 18 (stating

that under § 2000e-5(f)(3), a court first “focuses on the locus

of the alleged discrimination”). Walden alleges that she was

discriminated against, demoted, harassed, and retaliated against

by her supervisors while she worked as a legal instruments

examiner at the PTO. (Compl. ¶¶ 1-2, 8-10.) Walden does not

contest the Secretary’s assertion that she worked at the PTO’s

Alexandria, Virginia office and that “[a]ll events relevant” to

her complaint also occurred in Virginia. (Culver Decl. ¶¶ 2, 4-

7.) The locus of disputed employment practices, then, is in

Virginia. As for the second basis for venue, Walden does not

dispute that the employment records relevant to her claims are

located in Virginia, rather than Washington, D.C. (Id. ¶ 4.)

The third basis in § 2000e-5(f)(3) does not support venue in this -6-

district because Walden makes no allegations that she would have

worked in this district but for the alleged unlawful employment

practices. Therefore, venue is not appropriate in the District

of Columbia for Walden’s Title VII claims. While Walden’s Title

VII claims could be dismissed for improper venue, it is in the

interest of justice to transfer Walden’s Title VII claims to the

Eastern District of Virginia. See Hamilton,

, at

*3 (stating that under § 1406(a), the interest of justice

generally “instructs courts to transfer cases to the appropriate

judicial district, rather than dismiss them” (internal quotation

marks omitted)).

II. SECTION 1981 CLAIMS

Walden also brings claims under

(Compl.

¶ 5.) “Where a case involves more than one cause of action,

venue must be proper as to each claim.” Relf v. Gasch,

, 807 n.12 (D.C. Cir. 1975). “Under one approach to a

multiple claim action, if one of the claims can be considered the

primary one, then the claims must be brought where venue is

proper for that principal cause of action particularly ‘if the

principal cause of action is governed by a narrower venue

provision than the secondary cause of action.’” Ifill,

, at *2 (quoting Hayes,

). “Hayes

viewed Title VII as the principal cause of action for venue

2 In their filings, the parties did not address the issue of venue regarding Walden’s § 1981 claims. -7-

purposes in employment discrimination cases both because Congress

specifically intended Title VII to govern employment

discrimination issues, unlike

which involves

broader contractual rights, and because it has a more limited

venue provision.”3

(noting that Hayes concluded that a

Title VII claim should be considered the principal cause of

action when it is joined with a § 1981 claim). Similarly,

Macklin v. Mirant Mid-Atlantic, L.L.C., Civil Action No. 04-1556

(PLF),

(D.D.C. Apr. 29, 2005), opined “that when

a plaintiff brings an action under both Title VII and Section

1981, the narrower venue provision of section 2000e-5(f)(3)

controls.”

at *2 n.4 (internal quotation marks omitted).4

Therefore, if Title VII’s venue provision controls the

determination of venue for both claims, Walden’s case should be

transferred to the Eastern District of Virginia. However, even

if Title VII’s venue provision does not govern venue for the

related § 1981 claims, both parties sought to have the entire

3 “The D.C. Circuit has not endorsed Hayes’ principle that there is a fundamental policy consideration which compels recognition of Title VII as the principal cause of action and

as only secondary.” Ifill,

, at *2 (internal quotation omitted) (citing Stebbins v. Nationwide Mut. Ins. Co.,

(D.C. Cir. 1985) (expressing no opinion on whether Hayes correctly decided the issue of venue in a case with multiple employment discrimination claims);

(Edwards, J., concurring) (noting that Hayes is not “the law of this circuit”)). 4 Accord, Sulton v. Peters,

(D.D.C. 2008) (holding that “plaintiff’s claims under

are also governed by the special venue provision of Title VII”). -8-

case transferred and did not raise any challenges to venue in the

transferee district for the § 1981 claims. See Ifill,

, at *2 (noting that challenges to venue are not

jurisdictional and can be waived). Accordingly, Walden’s § 1981

and Title VII claims will be transferred to the Eastern District

of Virginia.

CONCLUSION AND ORDER

Walden has not established that venue in the District of

Columbia is proper for her Title VII claims. Because venue in

the Eastern District of Virginia would be proper for her Title

VII claims, and the parties sought to transfer the entire case

without raising any challenges to venue there for the § 1981

claims, the case will be transferred under § 1406(a) to the

Eastern District of Virginia. Thus, it is hereby

ORDERED that defendant’s motion [6] to dismiss, or in the

alternative for summary judgment, or to transfer be, and hereby

is, GRANTED IN PART and DENIED IN PART. The motion to dismiss

for improper venue is denied, the motion to transfer venue is

granted, and the motion to dismiss for untimeliness or for

summary judgment is left for decision by the transferee court.

The Clerk is directed to transfer this case to the United States

District Court for the Eastern District of Virginia.

SIGNED this 26th day of June, 2009.

/s/ RICHARD W. ROBERTS United States District Judge