KENNETH A. MARRA, District Judge.
THIS CAUSE is before the Court upon Defendant's Motion to Dismiss Plaintiff's First Amended Complaint and/or Transfer Plaintiff's Newly Stated Claim to Another District for Lack of Venue [DE 31]. The Court has reviewed all of the papers submitted by the parties in connection with this motion, the entire file in the case, and is otherwise duly advised in the premises. Familiarity with the Court's prior decision is assumed [DE 28].
With respect to the motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), the Court observes first that Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a pleading contain a "short and plain statement of the claim showing that the pleader is entitled to relief." The Supreme Court has held that "[w]hile a complaint attacked by a 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the `grounds' of his `entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above a speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted).
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quotations and citations omitted). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Thus, "only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 1950. When considering a motion to dismiss, the Court must accept all of the plaintiff's allegations as true in determining whether a plaintiff has stated a claim for which relief could be granted. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).
Under 28 U.S.C. § 1406, the district court shall dismiss an action filed in an improper venue "or, if it be in the interest of justice, transfer such case to any district in which it could have been brought." In considering a motion to dismiss for improper venue, "The court must accept all allegations of the complaint as true, unless contradicted by the defendants' affidavits, and when an allegation is so challenged the court may examine facts outside of the complaint to determine whether venue is proper." Wai v. Rainbow Holdings, 315 F.Supp.2d 1261, 1268 (S.D. Fla. 2004); see Walker v. Hallmark Bank & Trust, Ltd., 707 F.Supp.2d 1322, 1325 (S.D. Fla. 2010)(the court may consider "matters outside the pleadings, if presented in proper form by the parties."). The court must draw all reasonable references and resolve all factual conflicts in favor of the plaintiff. Wai, 315 F. Supp. 2d at 1268. Upon a motion to dismiss based on improper venue, "[p]laintiff has the burden of showing that venue in the forum is proper." Pinson v. Runsfeld, 192 Fed. Appx. 811, 817 (11
Defendant moves to dismiss Plaintiff's First Amended Complaint under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction; 12(b)(6) for failure to state a claim; and 12(b)(3) for improper venue. [DE 31]. This is the second time that this case is before the Court upon a motion to dismiss. After the last motion was granted, the Court gave Plaintiff an opportunity to amend her complaint "consistent with this opinion and order." [DE 28 at 8]. Having reviewed the First Amended Complaint and Plaintiff's papers in opposition to Defendant's motion, the Court concludes that Plaintiff has failed to comply with that directive. The Court stated:
[DE 28 at 5].
Plaintiff appears to believe that the deficiency in her complaint was a failure to link the FBI's decision not to hire her for the Chicago position to her involvement in reporting security violations and time and attendance violations in Florida on the part of her co-workers. See Plaintiff's Opposition to Defendant's Motion to Dismiss Plaintiff's Amended Complaint [DE 33 at 1]. That is not, however, the deficiency that caused the Court to dismiss her Complaint. The deficiency is that all of the allegations contained within the original Complaint, as well as the First Amended Complaint, relating to her involvement in reporting security violations and time and attendance violations in Florida, were not unlawful employment practices under Title VII. Any alleged retaliation relative thereto fails to meet the requirements set forth in 42 U.S.C. § 2000e-3(a), which establishes that the retaliation must relate to the opposition to "any practice made an unlawful employment practice by this subchapter".
Plaintiff's First Amended Complaint fails to recognize that not all actions an employee may consider adverse will suffice to state a claim under Title VII. The adverse employment action must relate to an unlawful employment practice under Title VII. "Unfair treatment, absent discrimination based on
The only allegation in the original proposed amended complaint that had the potential to state a claim was Plaintiff's allegation that she was not selected for a position in the Chicago field office due to discrimination based upon race and national origin [DE 23-1, ¶¶51-62]. For this reason, the Court allowed the amendment. Plaintiff's First Amended Complaint again asserts Plaintiff's contention "that the FBI's decision not to place her on the position's eligibility list causing her not to be selected constitutes racial discrimination. Both of the other applicants selected were white and of different national origins as compared to Ms. Dubovik-Sileo, who is Ukrainian." [DE 30 at ¶64].
At this stage of the proceeding, the Court cannot consider the likelihood of Plaintiff succeeding on her remaining narrow claim. Nor can the Court consider the background facts introduced in Defendant's motion papers for this inquiry. To do so would convert the motion to dismiss for failure to state a claim into a motion for summary judgment, Fed. R. Civ. P. Rule 12(d), which the Court determines to be premature at this stage.
Having narrowed the First Amended Complaint to the claim set forth in ¶¶54-65, the Court turns to Defendant's contention that venue is improper in this District. Title VII contains its own venue provisions. 42 U.S.C. § 2000e-5(f)(3). "The venue provisions of § 2000e-5(f)(3) were intended to be the exclusive venue provisions for Title VII employment discrimination actions and that the more general provisions of § 1391 are not controlling in such cases." Pinson v. Rumsfeld, 192 Fed. Appx 811, 817 (11
Defendant contends that venue of this action in the Southern District of Florida is not proper under any of these criteria. Defendant has produced an affidavit containing facts relevant to the venue inquiry from Beverley G. Reger, the FBI Human Resources Specialist who created the list of candidates to be considered for the job in Chicago. [DE 31-2]. As noted above, it is appropriate for the Court to consider these facts relative to the venue issue.
Ms. Reger explained that Plaintiff, along with all other applicants, used an online automated hiring management system to apply for the position. Id. at 1-2. Because Plaintiff was not an FBI employee, she applied as an external candidate
Id. at 2, ¶5.
Ms. Reger states that approximately ten veterans' preference applicants and thirty-two applicants who were not entitled to veterans' preferences all scored higher than Plaintiff, who did not claim a veterans' preference. Id. at ¶¶4,6. Because there were so many applicants whose scores were higher than Plaintiff's, her application was not reviewed for further consideration. Id. at ¶8. Ms. Reger states: "I was not aware of Ms. Dubovik-Sileo's race, national origin, age or prior protected EEO activity because I never reviewed her application for the position." Id.
Ms. Reger states that the "decision to not refer Ms. Dubovik-Sileo for further consideration for the Chicago SFLP was made solely by me, with no input from anyone in the Chicago or Miami Field Offices." Id. at 3, ¶11. Ms. Reger's office is in Clarksburg, West Virginia. Id. at 1, ¶2. The folder for the position to which Plaintiff applied is currently in her office. Id. at 3, ¶12.
Plaintiff has not submitted anything to refute the facts contained in Ms. Reger's affidavit. Plaintiff responds to Defendant's motion by alleging that "substantial evidence, witnesses and documents . . . are located in the Southern District as it relates to the totality of the Plaintiff's retaliation claim." [DE 33 at 5]. Plaintiff states that "there are several unlawful employment practices alleged, most of them are alleged to have occurred in Miami and West Palm Beach Florida." Id. Plaintiff then outlines these "unlawful employment practices". Id. at 6. All but one of the practices listed, however, relate to the portions of Plaintiff's claim that the Court has found fail to state a claim. The only portion of Plaintiff's claim that the Court is permitting to proceed relates to her application for the position in Chicago. That is the only claim as to which venue has to be determined.
Plaintiff has failed to sustain her burden to establish that venue in this district is appropriate as to the only viable portion of her claim. Plaintiff argues that her performance in the Miami and West Palm Beach offices will be an important factor in considering whether she should have been chosen for the position that she applied for in Chicago. [DE 33 at 6]. This is not, however, a consideration under 42 U.S.C. § 2000e-5(f)(3). It is "the judicial district in which the employment records relevant to such practice are maintained and administered" that is a permissible venue, not the jurisdiction in which evidence that Plaintiff may seek to introduce at trial is located. Plaintiff has neither alleged nor produced any evidence suggesting that the practice of denying her the job position in Chicago took place in the Southern District of Florida.
For purposes of 42 U.S.C. §2000e-5(f)(3), if there was an unlawful employment practice, it took place in the Northern District of West Virginia; the employment records relevant to such practice are maintained and administered in the Northern District of West Virginia; and the Northern District of Illinois is the judicial district in which Plaintiff would have worked but for the alleged unlawful employment practice. There is no basis for Plaintiff's assertion of venue in the Southern District of Florida.
Accordingly, it is hereby
Defendant's Motion to Dismiss Plaintiff's First Amended Complaint and/or Transfer Plaintiff's Newly Stated Claim to Another District for Lack of Venue
