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Kim v. McHugh

United States District Court, D. Hawaii

April 18, 2014

GRACE Y. KIM, Plaintiff,
v.
JOHN McHUGH, in his capacity as the Secretary of the Army, Defendant.

ORDER (1) GRANTING DEFENDANT'S MOTION FOR DISMISSAL OR TRANSFER, DOC. NO. 5; AND (2) TRANSFERRING ACTION TO THE EASTERN DISTRICT OF VIRGINIA

MICHAEL SEABRIGHT, District Judge.

I. INTRODUCTION

On November 15, 2013, Plaintiff Grace Y. Kim ("Plaintiff"), who is employed at the Yongsan Garrison, Seoul, Korea, filed this action against John McHugh, in his capacity as the Secretary of the Army ("Defendant"), alleging claims for workplace discrimination on the basis of race, national origin, and gender, and retaliation in violation of Title VII of the Civil Rights Act of 1964.

Currently before the court is Defendant's Motion for Dismissal or Transfer, arguing that venue is improper in the District of Hawaii. Doc. No. 5. Based on the following, the court GRANTS Defendant's Motion and TRANSFERS this action to the Eastern District of Virginia.

II. BACKGROUND As alleged in the Complaint, since 2008, Plaintiff has been employed as the Community Relations Officer, Protocol Advisor, and interpreter for the Eighth Army Commanding General, Chief of Staff, at the Yongsan Garrison, Seoul, Korea. Doc. No. 1, Compl. ¶¶ 4, 8. Plaintiff asserts that from June 2012 to her race, national origin, and gender by her immediate supervisor, Monika Tanedo. Doc. No. 1, Compl. ¶ 9. Plaintiff sought redress by contacting the EEO Director, Linda Gilmore, who allegedly failed to advise Plaintiff of the appropriate office to process her EEO complaint and misrepresented her authority to process and resolve Plaintiff's EEO complaint. Id. ¶ 10. After filing her EEO complaint, Plaintiff was allegedly subjected to additional adverse employment actions. Id. ¶ 13.

Plaintiff filed suit in the District of Hawaii on November 15, 2013. Plaintiff filed an Opposition on April 4, 2014, Doc. No. 12, and Defendant filed a Reply on April 14, 2014. Doc. No. 13. Pursuant to Local Rule 7.2(d), the court determines Defendant's Motion without a hearing.

III. STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(3) allows a defendant to raise the defense of improper venue. Once venue is challenged, the plaintiff has the burden of proving that venue is proper. See Piedmont Label Co. v. Sun Garden Packing Co. , 598 F.2d 491, 496 (9th Cir. 1979). In deciding a Rule 12(b)(3) motion, the court "must draw all reasonable inferences in favor of the non-moving party and resolve all factual conflicts in favor of the nonmoving party." Petersen v. Boeing Co. , 715 F.3d 276, 279 (9th Cir. 2013) (quoting Murphy v. Schneider Nat'l, Inc., 362 F.3d 1133, 1137 (9th Cir. 2004) (as amended)). The court may consider facts outside the pleadings and need not accept the pleadings as true. Id .; see also Kukje Hwajae Ins. Co. v. M/V Hyundai Liberty , 408 F.3d 1250, 1254 (9th Cir. 2005).

IV. ANALYSIS

Defendant argues that venue is improper in this district and that Plaintiff's Complaint should therefore be dismissed or transferred to the Eastern District of Virginia, where venue is proper. The court agrees that venue does not lie in Hawaii and transfers this action to the Eastern District of Virginia.

Title VII includes its own mandatory venue statute, which "seeks to limit venue to the judicial district concerned with the alleged discrimination.'" Passantino v. Johnson & Johnson Consumer Prods., Inc. , 212 F.3d 493, 504 (9th Cir. 2000) (quoting Stebbins v. State Farm Mutual Auto Ins. Co. , 413 F.2d 1100, 1102 (D.C. Cir. 1969)); see also Johnson v. Payless Drug Stores Nw., Inc. , 950 F.2d 586, 587 (9th Cir. 1991) (describing 42 U.S.C. §2000e-5 as "mandatory"). In particular, 42 U.S.C. §2000e-5(f)(3) provides that a plaintiff may bring an action in any judicial district where (1) "the unlawful employment practice is alleged to have been committed, " (2) "the employment records relevant to such practice are maintained and administered, " or (3) "the aggrieved person would have worked but for the alleged unlawful employment practice." If the defendant is not found within any of these districts, a plaintiff is provided a fourth option, and may bring the action "within the judicial district in which the respondent has his principal office." Id.

Plaintiff bases her venue argument on the second prong - that her employment records are maintained and administered in Hawaii. See Doc. No. 12, Pl.'s Opp'n at 5 ("To fall within the ambit of 42 U.S.C. § 2000e-5(f)(3), she needs to show that her employment records are maintained and administered in the District of Hawaii.").[1] But as asserted by Charlene Myles, a Supervisory Human Resources Specialist at the Yongsan Garrison, and Anna Revere, EEO Director at the EEO office in Yongsan Garrison, Plaintiff's employment records are located at the EEO and Human Resources Offices at Yongsan Garrison, not Hawaii. See Doc. No. 5-2, Charlene Myles Decl. ¶ 9;[2] Doc. No. 5-3, Anna Revere Decl. ¶ 7. Plaintiff's arguments to the contrary fail to rebut this evidence.

For example, Plaintiff argues that Plaintiff's records appear to be located in the District of Hawaii given that the U.S. Army's website describing the U.S. Army, Pacific ("USAPAC"), provides that the Korea-based U.S. Army's personnel and administrative functions are integrated with the USAPAC, which is headquartered at Fort Shafter, Hawaii. Doc. No. 12-16, Pl.'s Ex. N. Contrary to Plaintiff's argument, the fact that the USAPAC headquarters are located in Hawaii does not establish that Plaintiff's employment records are located in Hawaii. Thus, the integration of the U.S. Army's South Korea operations into USAPAC does not suggest that Plaintiff's employment records are located in this district.

Plaintiff also argues that some of Plaintiff's records are present in Hawaii given that Ms. Mixon prepared her EEO Report in Hawaii. See Doc. No. 12, Pl.'s Opp'n at 5-6. Plaintiff's argument ignores that courts 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)." Ellis-Smith v. Sec'y of Army , 793 F.Supp.2d 173, 176-77 (D.D.C. 2011) (collecting cases). This reasoning is sound - any records in Hawaii are for the administrative processing of Plaintiff's claims and are not "employment records" as contemplated by § 2000e-5(f)(3). See also 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."); Lee v. England , 2004 WL 764441, at *1 (D.D.C. Mar. 9, 2004) ("Plaintiff's assertion that the administrative processing' of his case has been ...


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