                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
______________________________
                               )
LORI MCLAUGHLIN,               )
                               )
          Plaintiff,           )
                               )
          v.                   ) Civil Action No. 11-1868 (RWR)
                               )
ERIC HOLDER, JR.,              )
                               )
          Defendant.           )
______________________________)

                   MEMORANDUM OPINION AND ORDER

     Plaintiff Lori McLaughlin, who served as a special agent at

the Department of Justice’s Bureau of Alcohol, Tobacco, and

Firearms (“ATF”), brings claims against defendant Attorney

General Eric Holder, Jr., in his official capacity, under Title

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.,

alleging that ATF discriminated against her on the basis of race

and sex and subjected her to reprisals for filing previous

complaints of discrimination.   The Attorney General moves to

dismiss for improper venue or in the alternative for transfer of

venue to the Middle District of Florida.   Because the District

of Columbia is not an appropriate venue for McLaughlin’s claims,

but the Middle District of Florida is an appropriate venue and a

transfer is in the interest of justice, the motion to dismiss

for improper venue will be denied and the motion to transfer

will be granted.
                               - 2 -




                            BACKGROUND

     McLaughlin, an African-American woman, worked for ATF as a

special agent in the Orlando Field Office.    (Compl. ¶¶ 9, 12.)

McLaughlin alleges that she was discriminated against by being

“deliberately excluded from the Special Agent of the Third

Quarter Award” in 2006.   (Id. ¶ 36.)    She also alleges that her

second-line supervisor gave her a less than outstanding

performance evaluation in 2009 without consulting with her

direct supervisor and despite the fact he had no contact with

her regarding job elements, assignments, or investigations.

(Id. ¶¶ 30-32.)   At the time of her evaluation, the supervisor

was aware of prior Equal Employment Opportunity (“EEO”) activity

by McLaughlin where he had been named as the responsible

management official.   (Id. ¶ 34.)   McLaughlin alleges that she

was excluded from the performance award, received the negative

performance evaluation, and was discriminated against in career

advancement on the basis of race (Counts I, IV, and VII,

respectively), on the basis of sex (Counts II, V, and VIII,

respectively), and in reprisal for her having filed prior EEO

complaints (Counts III, VI, and IX, respectively).    McLaughlin

alleges that “[v]enue is appropriate in this district” because

“[t]he unlawful employment practice occurred in a branch of
                                  - 3 -


Defendant, which is centrally located in the District of

Columbia.”   (Compl. ¶ 3.)

     The Attorney General moves to dismiss under Federal Rule of

Civil Procedure 12(b)(3) for improper venue, or, in the

alternative, moves to transfer to the Middle District of Florida

under 28 U.S.C. § 1406(a).     (Def.’s Mot. to Dismiss, or in the

Alternative to Transfer (“Def.’s Mot.”) at 1.)     He argues that

the Middle District of Florida is the proper venue because all

relevant events occurred in Florida.      (Def.’s Mem. of P. & A. in

Supp. of Def.’ Mot. (“Def.’s Mem.”) at 5.)     He further contends

that the Tampa Field Division maintains the employment records

for the Orlando Field Office where McLaughlin worked and that

McLaughlin never sought employment with ATF in the District of

Columbia.    (Id. at 6-7.)

     McLaughlin opposes dismissal and transfer, arguing that

venue is proper in this district because the Attorney General

heads the Department of Justice, which has its principal office

in the District of Columbia and which has “ultimate custody” of

her employment records.      (Pl.’s Opp’n to Def.’s Mot. to Dismiss,

or in the Alternative to Transfer (“Pl.’s Opp’n”) at 3 n.1, 4.)

McLaughlin further argues that the defendant has previously

“accepted venue” in this district in an earlier EEO action and

in a related Title VII case that she brought.     (Id. at 1.)
                                - 4 -


                             DISCUSSION

     Rule 12(b)(3) permits a district court to dismiss a case

for improper venue.   Fed. R. Civ. P. 12(b)(3); see also Walden

v. Locke, 629 F. Supp. 2d 11, 13 (D.D.C. 2009).   “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, 231 F. Supp. 2d 274, 276

(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.”   Walden, 629 F. Supp. 2d at 13.

Ultimately, it is the plaintiff’s burden to establish that venue

is proper, id., and materials outside the pleadings may be

considered, Haley v. Astrue, 667 F. Supp. 2d 138, 140 (D.D.C.

2009).    Under 28 U.S.C. § 1406(a), if a court finds that venue

is improper, the court may “dismiss, or if it be in the interest

of justice, transfer” the case to a proper venue.   28 U.S.C.

§ 1406(a).   “Generally, the ‘interest of justice’ instructs

courts to transfer cases to the appropriate judicial district,

rather than dismiss them.”   James v. Booz-Allen & Hamilton,

Inc., 227 F. Supp. 2d 16, 20 (D.D.C. 2002).

     A plaintiff bringing claims under Title VII must sue in a

jurisdiction that meets the special venue requirements of 42
                                - 5 -


U.S.C. § 2000e-5(f)(3).    The special venue provision allows

actions to be brought in

     [1] 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, [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.

42 U.S.C. § 2000e-5(f)(3).   In determining the district

implicated by the first three bases, courts engage in a

“‘commonsense appraisal’ of events having operative

significance.”   Darby, 231 F. Supp. 2d at 277 (quoting Lamont v.

Haig, 590 F.2d 1124, 1134 (D.C. Cir. 1978)).    As the statutory

language indicates, the fourth basis for venue -– the location

of the defendant’s principal office -– is an option when the

plaintiff is unable to sue the defendant in any of the districts

provided for by the first three bases.     Walden, 629 F. Supp. 2d

at 14.

     With regard to the first potential basis for venue -- the

location where the unlawful employment practice is alleged to

have been committed –– McLaughlin asserts in her complaint that

she served “in the Orlando Field Office of ATF at all relevant

times in this action.”    (Compl. ¶ 12.)   The specific allegations

in the complaint describe actions taken by McLaughlin’s
                                - 6 -


supervisors at the field office in Florida and do not describe

actions taken in the District of Columbia.   (Compl. ¶¶ 16-33;

see also Def.’s Mot., Declaration of John F. Ryan (“Ryan Decl.”)

¶ 6 (stating that all events relevant to the present action

occurred in Florida).)    Actions that the complaint alleges

occurred in this district were McLaughlin filing complaints of

discrimination with the EEOC, an agency located in this

district, of which her supervisors in Florida were aware.

(Compl. ¶¶ 13, 24, 34.)   However, her filings were her own

actions, not unlawful employment practices committed by the ATF.

Moreover, venue is not proper in the District of Columbia where,

as here, “‘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.’”    Darby, 231 F. Supp.

2d at 277 (quoting Donnell v. Nat’l Guard Bureau, 568 F. Supp.

93, 94 (D.D.C. 1983)).

     With regard to the second potential basis for venue -- the

location where employment records relevant to the alleged

unlawful employment practice are maintained and administered ––

McLaughlin’s complaint does not allege that relevant records are

found in this district.   The Attorney General has submitted a

declaration from John Ryan, Special Agent in Charge at the

Internal Affairs Division of ATF’s Office of Professional
                                - 7 -


Responsibility and Security Operations, stating that all records

relating to McLaughlin’s 2009 performance appraisal and the

records pertaining to Tampa Field Division Special Agent of the

Quarter awards are maintained at ATF’s Tampa Field Division in

Tampa, Florida and are accessible to Tampa Field Division

management.    (Ryan Decl. ¶¶ 4-5.)   McLaughlin argues that venue

is proper in this district because the defendant “appears to

have ultimate custody of the records in this case in Defendant’s

main office, in Washington, D.C.”     (Pl.’s Opp’n at 2.)   In

support of this contention, McLaughlin cites evidence that an

ATF employee in Washington, D.C. admitted that her office

possessed an investigative file relating to McLaughlin’s EEO

complaint.    (Pl.’s Opp’n, Ex. 3, Letter from Stacie D. Brockman

to Administrative Judge William Rodriguez.)    However, “[w]hile

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 [special venue

provision].”   Amirmokri v. Abraham, 217 F. Supp. 2d 88, 90-91

(D.D.C. 2002); see also Washington v. General Electric Corp.,

686 F. Supp. 361, 363 (D.D.C. 1988) (concluding that the

presence of employment records at the EEOC did not make venue

proper in the District of Columbia because “it is clear that

Congress intended venue to lie on the basis of the presence of
                                - 8 -


records only in the one judicial district in which the complete,

master set of employment records is maintained and

administered”) (internal quotations omitted).

      With regard to the third potential basis for venue -- the

location where the aggrieved person would have worked but for

the alleged unlawful employment practice -- McLaughlin does not

allege or argue that she sought a position in the District of

Columbia or was denied such a position as a result of the

alleged discrimination and retaliation.   Venue, then, is

improper in this district, and the fourth basis under the

special venue statute is unavailable to McLaughlin since the

Department of Justice is found within the district where the

unlawful acts allegedly were committed and the relevant records

are maintained.

      McLaughlin’s additional arguments that venue is proper in

this district are unavailing.   McLaughlin contends that “none of

the relevant witnesses is located in Florida.”    (Pl.’s Opp’n at

3.)   The Attorney General disputes that point.   Even assuming

that McLaughlin is correct, though, that factor is of no moment.

The convenience of witnesses certainly is a factor that courts

consider under 28 U.S.C. § 1404(a), which grants courts

discretion to transfer a case to another district where it

properly may have been brought or to which all parties have

consented.   28 U.S.C. § 1404(a); see also Wyandotte Nation v.
                               - 9 -


Salazar, 825 F. Supp. 2d 261, 265 (D.D.C. 2011) (citing Bederson

v. United States, 756 F. Supp. 2d 38, 46 (D.D.C. 2010)).

However, the convenience of witnesses is not a factor that makes

proper an otherwise improper venue.    In the context of Title VII

suits, it was the “intent of Congress to limit venue to the

judicial districts concerned with the alleged discrimination.”

Stebbins v. State Farm Mutual Auto. Ins. Co., 413 F.2d 1100,

1102 (D.C. Cir. 1969).   McLaughlin may sue only in a district

that satisfies the restrictive requirements of Title VII’s

special venue provision, despite her assertions of

inconvenience.

     McLaughlin also argues that venue is proper because the

defendant “accepted venue” in this district in McLaughlin’s EEOC

case which was “assigned to the Miami Field Office of the EEOC”

but which “[d]efendant proceeded to litigate from its

headquarters in Washington, D.C.”   (Pl.’s Opp’n at 1.)   The

special venue provision, however, does not identify as a proper

district any district in which a plaintiff has previously

pursued administrative remedies.    The fact that the agency

litigated the EEO action out of Washington, D.C. is of no

moment.   See Haley, 667 F. Supp. 2d at 142 (finding the fact

that the District of Columbia was the location of plaintiff’s

EEO appeal irrelevant to Title VII’s venue inquiry).
                               - 10 -


     Similarly, McLaughlin argues that the defendant “accepted

venue” in this court in a separate case, McLaughlin v. Holder,

Civil Action No. 08-1256 (RMC) (D.D.C. filed July 22, 2008),

that she brought against the Attorney General and that she

contends is related to the instant one.   (Id. at 2.)1    McLaughlin

maintains that it would be a financial and emotional hardship

for her to litigate the separate case and the present one in two

different federal districts.   (Pl.’s Opp’n, McLaughlin Aff.

¶ 11.)   There is no indication in the record that the Attorney

General contested venue in the separate case.   Under Rule 12(h),

a defendant waives the defense of improper venue if he does not

assert it in an initial responsive pleading.    Fed. R. Civ. P.

12(h).   However, McLaughlin cites no authority for the

proposition that the scope of any waiver extends beyond the case

in which the waiver occurs to other cases involving the same

parties.   Moreover, the presence of a related case in this

district does not factor into the Title VII venue inquiry.     See

Hamilton v. Paulson, Civil Action No. 07-1365 (RBW), 2008 WL

4531781, at *3 (D.D.C. Oct. 10, 2008) (finding “[t]he

plaintiff’s contention that the Court should deny the

     1
       McLaughlin did not file the present case as related to the
earlier one (see Local Rule 40.5(b)(2) (requiring plaintiff to
file notice of related case at time of filing civil action);
Def.’s Reply, Ex. 1, Civil cover sheet for the complaint),
although the earlier complaint brings Title VII claims alleging
instances of discrimination similar to those alleged here.
                                - 11 -


defendant’s [12(b)(3)] motion because he has a related case

pending in this Court” unsound since the “argument amounts to a

claim that pendent venue rests in this district, a concept that

members of this Court have rejected repeatedly in the Title VII

context”).2

     In sum, notwithstanding McLaughlin’s asserted inconvenience

and hardship, the special requirements of Title VII compel the

conclusion that venue is not proper in this district.    Although

McLaughlin’s complaint could be dismissed for improper venue, it

is in the interest of justice to transfer her case to the Middle

District of Florida, where venue is proper under the first two

prongs of the special venue provision.    McLaughlin alleges that

the unlawful employment practices were committed by ATF

personnel in Orlando and Tampa, Florida, both located in that

district.     In addition, McLaughlin’s “employment records” are

also maintained and administered in that district.3


     2
       McLaughlin’s reliance on Fund for Animals v. Norton, 352
F. Supp. 2d 1 (D.D.C. 2005), in support of her argument that the
presence of a related case militates in favor of venue, is
misplaced. There was no dispute there that venue was proper,
and the court, citing its own involvement with prior litigation
between the parties, simply exercised its discretion under
§ 1404 to deny the defendant’s motion to transfer the case to a
different district. The case does not stand for the proposition
that a motion to transfer from a district where venue is not
proper may be denied simply because a court has prior experience
with the issues or parties.
     3
       Because McLaughlin may pursue her claims in the Middle
District of Florida, the fact that ATF is “centrally located” in
                              - 12 -


                       CONCLUSION AND ORDER

     McLaughlin has not established that venue in the District

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

in the Middle District of Florida would be proper for her Title

VII claims, the case will be transferred there under § 1406(a).

Accordingly, it is hereby

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

the alternative to transfer be, and hereby is, GRANTED IN PART

and DENIED IN PART.   The motion to dismiss for improper venue is

denied and the motion to transfer venue is granted.   The Clerk

is directed to transfer this case to the United States District

Court for the Middle District of Florida.

     SIGNED this 25th day of May, 2012.


                               __________/s/_______________
                               RICHARD W. ROBERTS
                               United States District Judge




this district need not be considered. The location of the
defendant’s principal office provides a basis for venue only if
the defendant “is not found within any . . . district”
implicated by the first three bases of the special venue
provision. Walden, 629 F. Supp. 2d at 14 (quoting 42 U.S.C.
§ 2000e-5(f)(3)).
