                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA



SHERI ELLIS-SMITH,

       Plaintiff,
               v.                                        Civil Action No. 10-1594 (JEB)
SECRETARY OF THE ARMY,

       Defendant.


                                 MEMORANDUM OPINION

       Plaintiff Sheri Ellis-Smith is a black female who is employed as a contract specialist with

the U.S. Army Corps of Engineers and has served in Germany and Afghanistan. Am. Compl., ¶

9. Since 2008, Plaintiff has filed four administrative complaints against her supervisor in

Germany alleging myriad acts of discrimination based on her race and gender, including, e.g.,

unequal workload, discriminatory work assignments, and non-selection for promotion. Id., ¶ 3.

Plaintiff received a final agency decision that rejected one of her complaints on June 18, 2010.

Id., ¶ 4; Motion, Exh. B (Department of the Army, Equal Employment Opportunity Compliance

and Complaints Review) at 11.

       On September 20, 2010, Plaintiff filed this action under Title VII of the Civil Rights Act

of 1964, 42 U.S.C. § 2000e et seq., against Defendant, the Secretary of the Army. Her amended

Complaint, filed November 29, 2010, alleges claims of retaliation, hostile work environment and

disparate treatment, gender discrimination, and race discrimination.




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        On February 28, 2011, arguing lack of venue, Defendant filed this Motion to Dismiss, Or

In the Alternative, Motion to Transfer under Federal Rule of Civil Procedure 12(b)(3), which the

Court now considers.1

I.      Legal Standard

        When presented with a motion to dismiss for improper venue under Fed. R. Civ. P.

12(b)(3), 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.” Pendleton v. Mukasey, 552 F. Supp. 2d 14, 17 (D.D.C.

2008) (citing Darby v. U.S. Dep’t of Energy, 231 F. Supp. 2d 274, 276–77 (D.D.C. 2002)). The

Court need not, however, accept the plaintiff’s legal conclusions as true, Darby, 231 F. Supp. 2d

at 277, and may consider material outside of the pleadings. Artis v. Greenspan, 223 F. Supp. 2d

149, 152 (D.D.C. 2002) (citing Land v. Dollar, 330 U.S. 731, 735 n.4 (1947)). “Because it is the

plaintiff’s obligation to institute the action in a permissible forum, the plaintiff usually bears the

burden of establishing that venue is proper.” Freeman v. Fallin, 254 F. Supp. 2d 52, 56 (D.D.C.

2003); 15 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3826, at

258 (2d ed. 1986 & Supp. 2006) (“[W]hen an objection has been raised, the burden is on the

plaintiff to establish that the district he or she has chosen is a proper venue.”). To prevail on a

motion to dismiss for improper venue, however, “the defendant must present facts that will

defeat the plaintiff’s assertion of venue.” Khalil v. L-3 Commc'ns Titan Grp., 656 F. Supp. 2d

134, 135 (D.D.C. 2009). Unless there are “pertinent factual disputes to resolve, a challenge to

venue presents a pure question of law.” Williams v. GEICO Corp., No. 10-1420, 2011 WL

2441306, at *2 (D.D.C. June 20, 2011).


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            The Court has reviewed Defendant’s Motion to Dismiss, Or In the Alternative, Motion to Transfer;
Plaintiff’s Opposition thereto; and Defendant’s Reply.

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II.    Analysis

       Venue in Title VII cases is governed by statute. A Title VII action may be properly

brought (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 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 . . . .” 42 U.S.C. § 2000e-5(f)(3). “[I]f 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.” Id.

       Plaintiff correctly does not claim that prongs 1 or 3 provides a basis for venue in this

district. Neither could. As to the first, Plaintiff states in her Amended Complaint, “At all times

herein mentioned, the Plaintiff . . . was employed by Defendant as a contracts specialist with the

Army Corps of Engineers in Germany or Afghanistan.” Id., ¶ 9. In her sworn declaration, she

further explains, “I filed an EEO complaint against my previous manager located at the Europe

District in Germany for the actions mentioned in my complaint.” Opp., Exh. 1 (Declaration of

Sheri Ellis-Smith), ¶ 1. It is thus undisputed that the alleged unlawful employment practices

occurred in Germany, not in the District of Columbia. The first prong cannot apply.

       As to prong 3, neither party suggests a possibility that, but for any alleged unlawful

employment practices, Plaintiff would have worked in the District of Columbia. Rather, the

evidence suggests that Plaintiff applied for a promotion in, and sought to remain deployed in,

Germany. See Am. Compl., ¶ 15 (“Plaintiff was not selected for the position of supervisory

contract specialist, YC-1102-02.”); Motion, Exh. B (Department of the Army, Equal

Employment Opportunity Compliance and Complaints Review) at 6 (“Your client said that she



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applied and was referred for the position of Supervisory Contract Specialist, but was not

interviewed or selected. . . . Mr. Winne [Plaintiff’s second-level supervisor in Germany] said he

was the selecting official for the position at issue.”); Motion, Exh. A (Formal Complaint of

Discrimination) at 4 (alleging her supervisors in Germany “did not recommend approval of my

overseas extension request, which led to my request being denied”). Plaintiff has thus failed to

carry her burden to plead facts to support venue in this district under prong 3.

       Having failed on two of the prongs, Plaintiff appears to rely wholly on prong 2, which

permits Title VII cases to be brought in the district where Plaintiff’s “employment records

relevant to such [unlawful employment] practice are maintained and administered.” § 2000e-

5(f)(3). Yet Plaintiff has not averred that the records are currently maintained and administered

in the District of Columbia. Defendant submits, by sworn declaration, that “[d]uring the period

of December 2008 – June 2010, Ms. Ellis-Smith’s master employment records (official

personnel files) were maintained and administered in the Civilian Personnel Advisory Center

(CPAC Unit), Europe District, APO EO 09096, P.O. Box 0029, Wiesbaden, Germany 29263.”

Motion, Exh. E (Declaration of Dawn M. Clappsy), ¶ 3. The most Plaintiff can offer in response

is her declaration that her “employment records were not maintained at the office w[h]ere I am

employed. They were maintained in the Washington, DC Office for the first two years after my

initial employment, and later maintained at the Civilian Personnel Office located in Europe.”

Opp., Exh. 1 (Declaration of Sheri Ellis-Smith), ¶ 7.

       Yet the statute refers to where the records “are maintained and administered.” § 2000e-

5(f)(3) (emphasis added). Plaintiff herself admits that, at the time of the filing of this action, this

was in Europe, not the District of Columbia. Even if copies of those records might be

maintained here, that does not confer venue. See Washington v. General Elec. Corp., 686 F.



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Supp. 361, 363 (D.D.C. 1988) (“it is clear that Congress intended venue to lie on the basis of the

presence of records only in the one judicial district in which the complete, ‘master’ set of

employment records is ‘maintained and administered.’”).

         That the parties present contradictory factual accounts of where Plaintiff’s EEO

complaints were processed is of no moment to the Court’s venue analysis.2 As Defendant

observes in its Reply, the other courts in this district that have considered the question have

firmly rejected the argument that the location where Plaintiff’s EEO complaints were initiated

and processed provides a basis for venue under prong 2 of § 2000e-5(f)(3). See Amirmokri v.

Abraham, 217 F. Supp. 2d 88, 90-91 (D.D.C. 2002) (“While it may be true that records relating

to plaintiff’s unlawful employment practice complaint and the investigation thereof are

maintained in the District of Columbia, such records are not ‘employment records’ within the

meaning of the statute.”) (emphasis added); Lee v. England, No. 02-2521, 2004 WL 764441, at

*1 (D.D.C. Mar. 9, 2004) (“Plaintiff’s assertion that the ‘administrative processing’ of his case

has been through the Human Resources Office at the Washington Navy Yard seeks to sidestep

the language of the statute, which deals not with administrative processing of the litigation but

with the maintenance and administration of employment records relevant to the challenged

employment practice.”); Saran v. Harvey, No. 04-1847, 2005 WL 1106347, at *3 (D.D.C. May

9, 2005) (“Although she may have filed her EEOC complaint in Washington, her employment

records are not considered ‘maintained and administered’ at the EEOC office for purposes of

determining proper venue under 42 U.S.C. § 2000e-5(f)(3).”); Ridgely v. Chao, No. 05-1033,



         2
           Plaintiff asserts, by sworn declaration, that her four complaints were either initially processed at the Army
Corps of Engineers’ Humphreys Engineer Center in Washington, D.C., or transferred there from the Army’s Europe
District Office in Germany soon after she filed them. Ellis-Smith Decl., ¶ 4. Defendant, on the other hand, submits
by sworn declaration that after being initially processed in Germany, Plaintiff’s “complaint was processed by the
EEO office at the U.S. Army Corps of Engineers Humphreys Engineer Center Support Activity (“HECSA”) located
in Alexandria, Virginia.” Motion, Exh. C (Declaration of Frances E. Jones), ¶ 2.

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2006 WL 626919, at *2 (D.D.C. Mar. 13, 2006) (“The law is clearly established that the

maintenance and administration of such EEO records does not establish proper venue under 42

U.S.C. § 2000e-5(f)(3).”) (emphasis added). The Court sees no basis to find otherwise here.

         The only cases Plaintiff cites to support venue in this district, Smith v. Dalton, 927 F.

Supp. 1 (D.D.C. 1996), and Bartman v. Cheney, 827 F. Supp. 1 (D.D.C. 1993), are cases

applying 28 U.S.C. § 1391(e), which is inapplicable in Title VII cases where venue is prescribed

by 42 U.S.C. § 2000e-5(f)(3). See Donnell v. Nat’l Guard Bureau, 568 F. Supp. 93, 94 (D.D.C.

1983).

         Because Plaintiff has failed to establish venue in any judicial district in the United States

under the first three prongs of § 2000e-5(f)(3) – each of which points to Germany – the Court

turns to that section’s final provision. This provides that in such a case, a Title VII action “may

be brought within the judicial district in which the respondent has his principal office.” Id. The

Secretary of the Army’s principal office is located in the Pentagon, in Arlington, Virginia. See

Saran, 2005 WL 1106347, at *4; Ebron v. Dep’t of the Army, No. 09-1961, 2011 WL 635297, at

*3 (D.D.C. Feb. 23, 2011). Venue in the District of Columbia for this action is thus improper.

         When venue is improper, the Court must 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). Although the decision to transfer or dismiss is committed to the sound discretion of the

district court, the interest of justice generally requires transferring a case to the appropriate

judicial district in lieu of dismissal. See Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466-67 (1962).

This is what the Court will do here. In this case, the only jurisdiction in which Plaintiff’s claim

could have been brought is the Eastern District of Virginia, and that is where the case shall be

transferred.



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III.   Conclusion

       An Order accompanying this Memorandum Opinion will grant Defendant’s Motion and

transfer the case to the Eastern District of Virginia.


                                                         /s/ James E. Boasberg
                                                         JAMES E. BOASBERG
                                                         United States District Judge
Date: June 22, 2011




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