                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

                                              )
LIBBY A. DEMERY,                              )
                                              )
               Plaintiff,                     )
                                              )
       v.                                     )       Civil Action No. 13-216 (RMC)
                                              )
JOHN M. MCHUGH,                               )
Secretary of the Army,                        )
                                              )
               Defendant.                     )
                                              )

                                 MEMORANDUM OPINION

               Pro se plaintiff Libby Demery alleges that she was twice not selected for a

position as a Management Analyst with the National Guard in Arlington, Virginia. Ms. Demery

contends that her non-selection constituted employment discrimination and violated the Army’s

hiring procedures. Defendant moves to dismiss or to transfer due to improper venue. The

motion will be granted and the case will be transferred to the District of Maryland.

                                            I. FACTS

               Ms. Demery is a 62-year-old African-American female who resides in Maryland.

Compl. [Dkt. 1] ¶¶ 1, 16. Until retirement from active duty in the Army on September 3, 2009,

she worked as a warrant officer for the U.S. Army Reserve. Id. ¶ 16. She is eligible for a ten-

point hiring preference among applicants for federal jobs due to a service-related disability. Id.

               Ms. Demery asserts that, in the fall of 2010, she applied for a position—

“identical” to her pre-retirement position—as a Management Analyst, GS-343-11, “at the

National Guard Bureau, Arlington, VA.” Id. ¶ 1. According to Ms. Demery, she was selected

for the position on November 3, 2010, but was not placed in it; instead, John Wood, a forty-year-

old Caucasian male, also eligible for a ten-point preference, was hired and started work on
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January 3, 2011. Id. ¶¶ 1, 16–17, 35. However, Mr. Wood vacated the position just a few

months later. Id. ¶ 35. Ms. Demery alleges that she should have been automatically been

selected for the Management Analyst position in April or May 2011 when Mr. Wood left based

on her hiring preference, but instead the job was awarded to Barbara Stoucker, a 60-year-old

Caucasian woman with no veteran’s preference. Id. ¶¶ 1, 35, 38. Ms. Demery avers that “the

discriminating facility/organization” is the Army’s “Northeast Regional Region, Civilian

Personnel Advisory Service (CPAS), Aberdeen Proving Ground, Maryland.” Id. ¶ 17.

                Ms. Demery alleges that she has exhausted her administrative remedies. See id.

¶¶ 2–13. On February 20, 2013, she filed suit against Secretary of the Army John M. McHugh,

raising various claims of employment discrimination under Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e et seq.; the Age Discrimination in Employment Act (ADEA), 29 U.S.C.

§§ 621–34; 42 U.S.C. § 1981; and “5 U.S.C. § 3318” and the “Veterans Preference Act of 1944.”

See generally id. Although Ms. Demery’s complaint refers to “RETALIATION IN

VIOLATION OF THE DISTRICT OF COLUMBIA HUMAN RIGHTS ACT,” id. at 22, she has

clarified that she does not advance such a claim, Pl. Am. Opp. MTD, Dkt. 8, at 4.

               Defendant moved to dismiss, see Def. MTD, Dkt. 5, and Ms. Demery filed an

opposition, Dkt. 6, and an amended opposition, Dkt. 8. The Court issued an order advising Ms.

Demery of the consequences of failing to respond pursuant to Fox v. Strickland, 837 F.2d 507

(D.C. Cir. 1988) and permitted her to file a supplemental memorandum, see Fox Order, Dkt. 9,

which she did, see Pl. Supp. Opp, Dkt. 11. The motion is fully briefed and ready for resolution.

                                    II. LEGAL STANDARD

               Under Federal Rule of Civil Procedure 12(b)(3), a defendant may, at the lawsuit’s

outset, test whether the plaintiff “has brought the case in a venue that the law deems

appropriate.” Modaressi v. Vedadi, 441 F. Supp. 2d 51, 53 (D.D.C. 2006). “If the plaintiff’s
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chosen forum is an improper venue under applicable statutes, or is otherwise inconvenient, the

Court may dismiss the action or transfer the case to a district where venue would be proper or

more convenient.” Id. (citing 28 U.S.C. § 1406 (providing for dismissal or transfer when venue

is defective) and 28 U.S.C. § 1404 (allowing venue transfer “for the convenience of the parties

and witnesses”)). “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). On a motion to dismiss based on improper venue

under Rule 12(b)(3), the Court accepts as true a plaintiff’s well-pled factual allegations regarding

venue but “may consider material outside of the pleadings.” See Williams v. GEICO Corp., 792

F. Supp. 2d 58, 62 (D.D.C. 2011) (citing Artis v. Greenspan, 223 F. Supp. 2d 149, 152 (D.D.C.

2002)).

                                          III. ANALYSIS

               Defendant argues that the Court should either dismiss the case for improper venue

or transfer it to the Eastern District of Virginia or the District of Maryland, where venue would

have been proper under Title VII’s special venue provisions, 42 U.S.C. § 2000e-5(f)(3). 1 Def.

MTD at 5–8. Under 42 U.S.C. § 2000e-5(f)(3), venue for a Title VII claim is proper in four

possible districts: “in [1] any judicial district in the State in which the unlawful employment


1
  As Defendant acknowledges, Def. MTD at 6 n.3, Ms. Demery also cites § 1981, the ADEA,
and certain provisions of the U.S. Code governing preference-eligible hiring. Other courts of
this Circuit—although not the D.C. Circuit itself—have applied two different approaches in
determining whether the stricter Title VII venue provision controls when Title VII claims are
joined with other claims. See James v. Booz-Allen, 227 F. Supp. 2d 16, 21 (D.D.C. 2002)
(surveying split of authority between “greater weight of authority” (per se application of Title
VII provision) and “minority approach” (determination of whether Title VII claim is “primary”
claim)). Under either approach, the Court finds that the Title VII venue provision controls.
Even if it did not, the Court would transfer the case to the District of Maryland, where venue
would be proper as to all of Ms. Demery’s claims, in the interest of justice under 28 U.S.C.
§ 1404(a).

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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, [4] 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.” James v.

Booz-Allen, 227 F. Supp. 2d 16, 20 (D.D.C. 2002); see also Stebbins v. State Farm Mut. Auto.

Ins. Co., 413 F.2d 1100, 1102 (D.C. Cir. 1969) (noting that it is “clear” that Congress intended to

restrict Title VII venue “to the judicial district concerned with the alleged discrimination”).

               Venue is proper in the Eastern District of Virginia under prongs 1 and 3 of

§ 2000e-5(f)(3) or in the District of Maryland under prongs 1 and 2. The Court will review each

of the potential statutory venues by prong. As to prong 1, Plaintiff’s allegations implicate

allegedly discriminatory acts that took place either where she wished to work in Arlington,

Virginia, Compl. ¶ 1, or at the Army’s “Northeast Regional Region, Civilian Personnel Advisory

Service (CPAS), Aberdeen Proving Ground, Maryland,” id. ¶ 7. Prong 2 makes venue proper

where “the employment records relevant to such practice are maintained and administered;”

Defendant has offered the Declaration of Sandiann Devaney, Department of the Army Human

Resources Specialist, who confirms that the records relevant to the Management Analysis

position (including Ms. Demery’s application) are kept at Aberdeen Proving Grounds in

Maryland. See Def. MTD, Ex. 1 [Dkt. 5-2]. As to prong 3, Defendant correctly notes that

“Plaintiff’s claim is centered on her non-selection for two positions located at [the National

Guard’s] offices in Arlington, Virginia, and, accordingly, that is where she would have been

working but for the alleged discrimination.” Def. MTD at 7; see also Compl. ¶ 1 (referring to

Management Analyst position based in Arlington, VA). Thus, venue would be proper in either



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the Eastern District of Virginia or the District of Maryland, but not the District of Columbia.

See, e.g., Quarles v. Gen. Inv. & Dev. Co., 260 F. Supp. 2d 1, 9 (D.D.C. 2003) (finding venue

proper in District of Columbia where plaintiff would have worked in D.C. if she had been

offered the position for which she applied); see also Darby v. U.S. Dep’t of Energy, 231 F. Supp.

2d 274, 277 (D.D.C. 2002) (“[V]enue cannot lie in the District of Columbia when ‘a substantial

part, if not all, of the employment practices challenged in this action’ took place outside the

District even when actions taken in the District ‘may have had an impact on the plaintiff’s

situation.” (quoting Donnell v. Nat’l Guard Bureau, 568 F. Supp. 93, 94 (D.D.C. 1983)).

               Importantly, Plaintiffs’ allegations do not lay venue in Washington, D.C. under

any of the relevant provisions. Ms. Demery relies on the contention that “the critical approval

records are stored at OPM [the Office of Personnel Management]’s Washington, DC Office.”

See Pl. Supp. Opp. at 3, 6 (“The Plaintiff has brought her claims to this court based on the

location of [OPM] and its administration documents . . . .”). She also asserts that “the

Defendant, John McHugh, has an official address, office, and conducts substantial business

through his facilities and agents with [OPM] within the Washington DC area to establish

jurisdiction.” Id. at 7. These arguments fail for several reasons. First, as stated above, the

records for Ms. Demery’s application remain at Aberdeen, Maryland. Second, Ms. Demery’s

arguments—which confuse venue with personal jurisdiction—are nonresponsive to the venue

inquiry under 42 U.S.C. § 2000e-5(f)(3), which only permits the Court to consider the principal

office location when venue is not proper under any of the first three prongs of Title VII’s venue

provisions. Finally, Defendant’s principal office actually is located at the Pentagon in Arlington,

Virginia, notwithstanding the use of a Washington, D.C. mailing address. See Def. MTD at 7–8

(citing, inter alia, Donnell, 568 F. Supp. at 94–95).



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                                       IV. CONCLUSION

               For the foregoing reasons, the Court finds that venue is not proper in the District

of Columbia under 42 U.S.C. § 2000e-5(f)(3) but would be proper in the Eastern District of

Virginia or the District of Maryland. Because Ms. Demery resides in Maryland, the relevant

records are located there, and the alleged discriminatory practice took place there, the Court will

order that the case be transferred to the United States District Court for the District of Maryland

in the interest of justice, pursuant to 28 U.S.C. § 1406(a).



DATE: August 7, 2013

                                                                     /s/
                                                      ROSEMARY M. COLLYER
                                                      United States District Judge




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