Summary
In Almeida v. Powell, No. 01-CV-11630, 2002 WL 31834457 (S.D.N.Y. Dec. 16, 2002) the court recognized that venue was proper in the District of Columbia even though the Plaintiff resided in the Southern District of New York. The Court stated that "[b]ecause Title VII's specific venue provisions limit venue to judicial districts that have a connection with the alleged discrimination, plaintiff cannot simply prevail by pointing to the fact that she is a New York resident."
Summary of this case from Dixon v. BrownleeOpinion
01 CV 11630
December 16, 2002
OPINION ORDER
Adelia Ramos de Almeida ("plaintiff"), pro se, brings this action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e ("Title VII"), against Cohn Powell ("Powell") in his official capacity as Secretary of the United States Department of State (the "department" or "defendant"). Specifically, plaintiff claims that the department's Office of Language Services ("office") discriminated against her because of her national origin and gender — a Brazilian female — while she was applying to work there as a Portuguese language interpreter and translator. Defendant moved to transfer this action from the Southern District of New York to the District of Columbia under 28 U.S.C. § 1406(a) ("§ 1406(a)") and to dismiss plaintiffs defamation claim under Rule 12(b)(1) for lack of subject matter jurisdiction. However, by order dated October 30, 2002, I directed the parties to brief the issue as to whether venue might also be transferred to the District of Columbia in the interests of justice under 28 U.S.C. § 1404(a) ("§ 1404(a)"). For the reasons set forth in detail below, defendant's motion to transfer this action to the District of Columbia is granted, and his motion to dismiss plaintiffs defamation claim is also granted.
I. BACKGROUND
Unless otherwise noted, the following facts are drawn from plaintiffs complaint. On June 14, 1999, plaintiff, a resident of New York City, traveled from New York to the District of Columbia in order to take an interpretation and translation test for a position as a translator of Portuguese for the Office of Language Services. (Compl. at ¶ 6). Plaintiff claims that the exam was exceedingly difficult and that the examiners acted in a manner that was inappropriate and unprofessional. Specifically, the female evaluator criticized plaintiff for not taking notes during the test and, in plaintiffs estimation, proceeded in a manner that was not described in the booklet describing the evaluation process. (Id. at ¶¶ 8-10). In June 1999, the office informed plaintiff that her test results did not meet the department's requirements. (Id. at ¶ 14). Upon her request, plaintiff received the results of her examination with commentary from a senior instructor in the office. She maintains that the department's evaluation of her examination contained errors and that the department refused to amend these errors upon her request. (Id. at ¶¶ 18 25).
In or about November 1999, plaintiff began to pursue her administrative remedies which led to a Title VII complaint, should she choose to file one, claiming that the office did not want to hire women or individuals with a Brazilian accent as Portuguese language interpreters and translators. (Id. at ¶ 37). On February 19, 2000, plaintiff filed a claim with the Equal Employment Opportunity Commission, alleging gender and national origin discrimination in violation of Title VII. On June 5, 2001, the department moved for summary judgment dismissing plaintiffs claim. (Compl. EEOC decision No. 100-Al-7029x). Although plaintiff requested a hearing on her claim, Administrative Law Judge Zeldin issued a decision on September 5, 2001 granting the department's motion without first providing plaintiff a hearing. (Id. ¶ 45). Consequently, on December 19, 2001, plaintiff filed this action in the Southern District of New York, alleging that defendant violated Title VII by discriminating against her because of her gender and national origin, as well as that defendant's actions have damaged her career and credibility, and that the department made defamatory statements against her.
II. ANALYSIS
1. Motion to Transfer Under § 1406(a) or, in the Alternative, Under § 1404(a)
Defendant has moved to transfer venue to the District of Columbia on the ground that venue is improper in the Southern District of New York under § 1406(a), which states, in pertinent part, that
[t]he district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought. 28 U.S.C. § 1406(a).
Defendant maintains that plaintiff cannot satisfy any of the four applicable venue options provided for under Title VII. As already noted, plaintiff has brought this action under Title VII and must therefore comply with at least one of the applicable venue provisions under that statute, which provides, in pertinent part, that
[s]uch an 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. 42 U.S.C. § 2000e-5(f)(3).
Because Title VII's specific venue provisions limit venue to judicial districts that have a connection with the alleged discrimination, plaintiff cannot simply prevail by pointing to the fact that she is a New York resident. Rather, defendant contends that plaintiff has failed to satisfy any of the four venue provisions available under Title VII for the following reasons: first, the allegedly unlawful employment practice took place in the District of Columbia; second, the relevant employment records are located in the District of Columbia; third, if plaintiff had been hired, her employment would have been administered in the District of Columbia; and fourth, the department or respondent is located in the District of Columbia. (Def.'s memorandum of law at 4; Sprague Declaration ¶¶ 2-10). For all of these reasons, defendant contends that venue is improper under 28 U.S.C. § 1406(a) and that the case should therefore be transferred to the District of Columbia.
Plaintiff disagrees with defendant's interpretation of the third venue provision as it would apply here. More precisely, plaintiff asserts that, but for the alleged discrimination, she would indeed have worked in New York City because she could have provided interpretation services "anywhere in the United States" from her base in New York. (Pl.'s memorandum at 4). She continues: "All jobs would have been delivered to me by E-mail, mail, fax, or messenger to the above address, and delivered to the Department of State, upon completion, in the same manner. The Department of State besides not having the facilities to provide to its translators, has never expressed the expectation nor has ever requested that I moved [sic] to Washington, D.C. to provide the services." (Pl.'s memorandum at 4). Accordingly, plaintiff maintains that she has satisfied the third venue provision under Title VII and venue in New York is therefore not defective under § 1406(a).
I disagree. As defendants have asserted, almost all aspects of the case are directly related to events, documents, and persons located in the District of Columbia. First, the allegedly unlawful employment practice took place in the District of Columbia. Second, all of the relevant employment records are located in the District of Columbia. Third and perhaps most obvious, the department itself is located in the District of Columbia. Indeed, the only venue provision that even remotely presents an issue is the third provision, namely, where plaintiff would have worked but for the alleged discrimination. Admittedly, there is some case law in this Circuit that suggests that an understanding between an employer and an employee that the latter would have worked in another state through alternative means — e.g., e-mail, regular mail, fax machine etc. — satisfies the third venue provision under Title VII. However, I do not find that such is the situation here. For instance, in Roland v. Margi Systems, Inc., the plaintiff, a New York resident, was already employed by the defendant employer, a California corporation, when the allegedly discriminatory conduct at issue occurred. Specifically, the defendant had provided plaintiff with a number of items to use while she worked out of her home in a different state, including computer equipment, a fax machine, and a telephone. 2001 WL 241792, at * 1 (W.D.N.Y. Feb. 28, 2001). In addition, the defendant in fact represented to clients that the plaintiff worked out of New York. See id. Here, by contrast, plaintiff was not employed by the department at the time the allegedly unlawful employment practice occurred. Although plaintiff maintains that the department suggested that she might conduct her employment duties from another state — namely, New York — she has pointed to no evidence that this is true but rather simply assumes that "[a]ll jobs would have been delivered to me by E-mail, mail, fax or messenger." (PL.'s memorandum at 4). In addition, the fact that the department's employment application includes an inquiry with respect to the kind of hardware and software used by the applicant is far from conclusive that plaintiff would have for certain worked in New York in the absence of the allegedly discriminatory conduct. To wit, I am simply not convinced that plaintiffs residence in New York is sufficient on its own to satisfy the third venue provision under Title VII, and therefore agree with defendant that venue is improper and should be transferred to the District of Columbia.
However, even if I were to find that the third venue provision applied in this case, which I do not, I would still find that a transfer would be appropriate under § 1404(a), which states that "[for the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." In Title VII cases specifically, courts have found that a case might be transferred in the interest of justice under § 1404(a) even if a plaintiff satisfies a venue provision under the statute. See. e.g., Richman v. Merrill Lynch, Pierce, Fenner Smith, Inc. 441 F. Supp. 517, 519-20 (S.D.N.Y. 1977) (although "choice of forum in a Title VII action is strictly governed by the venue provisions in 42 U.S.C. § 2000e-5(f)(3) . . . transfer in the interests of justice and for the convenience of all the parties is not foreclosed by 42 U.S.C. § 2000e-5(f)(3)"). Although defendant moved to transfer under only § 1404(6), I could still decide to transfer the case sua sponte under § 1404(a) because I have already provided the parties with notice and an opportunity to be heard on October 30, 2002 with respect to transfer under this specific provision. See Mobil Corp. v. Sec. Exch. Comm'n, 550 F. Supp. 67, 69 (S.D.N.Y. 1982) (stating that before transferring sua sponte under § 1404(a), a court must provide the parties with notice and an opportunity to be heard).
Courts are guided by several factors when considering whether to transfer an action under § 1404(a): (1) the convenience to witnesses; (2) the convenience of parties; (3) the location and ease of access to relevant documents; (4) the locus of the operative events at issue; (5) the availability of process to compel the attendance of unwilling witnesses; (6) the relative means of the parties; (7) the comparative familiarity of each district with the governing law; (8) the weight accorded to plaintiffs choice of forum; and (9) judicial economy and the interests of justice. See Avala-Branch v. Tad Telecom. Inc., 197 F. Supp.2d 13 (S.D.N.Y. 2002); Berman v. Informix Corp., 30 F. Supp.2d 653, 657 (S.D.N.Y. 1998). Although a plaintiffs choice of forum is usually accorded greater importance than the other factors, this element diminishes when the facts of the case reveal few meaningful connections to the plaintiffs chosen forum. See Berman, 30 F. Supp.2d at 659 (stating that "the emphasis placed by a court on this choice diminishes where the operative facts upon which the litigation is brought bear little material connection to the chosen forum") (quotation and citation omitted). Under such circumstances, a plaintiffs choice of forum may be disturbed. See id.
Here, the majority of factors militate in favor of transfer from New York to the District of Columbia under § 1404(a). For instance, all of the operative facts, events and transactions, virtually all of the parties and potential witnesses, and most — if not all — of the relevant records are all situated in the District of Columbia. Notwithstanding plaintiffs choice of New York as the forum in which to litigate her Title VII claim, I find that the facts of this case reveal few, if any, meaningful connections to New York. Thus, even if I did not find that venue in New York was improper under § 1406(a), which I do, I would still find a transfer to the District of Columbia was appropriate under § 1404(a).
2. Motion to Dismiss Under Rule 12(b)(1)
Defendant also moves to dismiss plaintiffs defamation claim against the department under Rule 12(b)(1) for lack of subject matter jurisdiction on the ground that a defamation claim against the head of the department — Powell — is tantamount to a tort claim against the United States, and that such claims are prohibited under the Federal Tort Claims Act ("FTCA"). Claims asserted against United States agencies, or officers of the United States acting in their official capacities, are considered to be claims against the United States. See Dugan v. Rank, 372 U.S. 609, 620 (1963). It is well-settled that the United States can only be sued when it waives its sovereign immunity. See United States v. Mitchell, 445 U.S. 535, 538 (1980). Under the FTCA, a tort claim, such as defamation, cannot be brought against a federal officer, such as defendant Powell, in his official capacity. See 28 U.S.C. § 1346(b)(1) ("any civil action or proceeding commenced upon such claim in a United States district court shall be deemed an action against the United States . . . and the United States shall be substituted as the party defendant"). Although a limited waiver exists under the FTCA for certain specified common law torts against the United States see Leone v. United States, 910 F.2d 46, 48 (2d Cir. 1990), the FTCA's waiver of sovereign immunity does not apply to defamation claims specifically, which are explicitly excluded under the statute. 28 U.S.C. §, 2680(h); see also BA Marine Co. v. Am. Foreign Shipping Co., 23 F.3d 709, 715-16 (2d Cir. 1994) (holding that the exclusion of libel actions under 28 U.S.C. § 2680 is mandated even where plaintiff is left without remedy). Accordingly, because this Court lacks jurisdiction over a defamation claim against the United States, plaintiffs defamation claim against defendant Powell in his official capacity is dismissed.
III. CONCLUSION
For the foregoing reasons, defendant's motion to transfer this case to the District of Columbia under 28 U.S.C. § 1406(a) is granted, and defendant's motion to dismiss plaintiffs defamation claim for lack of subject matter jurisdiction under Rule 12(b)(1) is also granted. The clerk of the court is instructed to transfer this case to the federal district court for the District of Columbia, and to remove this case and any open motions from my docket.