United States District Court, D. Maine
EVELYN O. HOLLEY, Plaintiff
ROBERT WILKIE, Secretary of the Department of Veterans Affairs, Defendant
RECOMMENDED DECISION ON MOTION TO DISMISS OR
H. RICH III UNITED STATES MAGISTRATE JUDGE.
discrimination action under Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e et seq., the
plaintiff Evelyn O. Holley alleges that the defendant
Department of Veterans Affairs (“VA”) failed to
remedy her complaints of sex discrimination and other
misconduct over the long course of her employment at the VA
Medical Center in East Orange, New Jersey. See
generally Complaint (ECF No. 1). The defendant has
filed a motion to dismiss or transfer this action based on
improper venue. See generally Defendant United
States of America's Motion To Dismiss Pursuant to Federal
Rule of Civil Procedure 12(b)(3), or, in the Alternative, to
Transfer Pursuant to 28 U.S.C. § 1406(a)
(“Motion”) (ECF No. 7). I conclude that venue is
improper in this district and, accordingly, recommend that
the court transfer this case to the United States District
Court for the District of New Jersey, mooting the motion
insofar as it seeks to dismiss the complaint.
Applicable Legal Standard
ruling on a pretrial motion challenging venue, “[a]ll
well-pleaded allegations in the complaint bearing on the
venue question generally are taken as true, unless
contradicted by the defendant's affidavits.”
Turnley v. Banc of Am. Inv. Servs., Inc., 576
F.Supp.2d. 204, 211 (D. Mass. 2008) (quoting 5B Charles Alan
Wright & Arthur R. Miller, Federal Practice and
Procedure § 1352 (3d ed. 2004)). “A district
court may examine facts outside the complaint to determine
whether its venue is proper.” Id. The
plaintiff bears the burden of showing that “venue is
proper in the judicial district in which the action has been
brought.” Id. (quoting Transam. Corp. v.
Trans-Am. Leasing Corp., 670 F.Supp. 1089, 1090 (D.
Mass. 1987)) (footnote omitted). “The district court of
a district in which is filed a case laying venue in the wrong
division or district shall dismiss, or if it be in the
interest of justice, transfer such case to any district or
division in which it could have been brought.” 28
U.S.C. § 1406(a).
Title VII action, venue is governed by 42 U.S.C. §
2000e-5(f)(3), rather than the general venue statute, 28
U.S.C. § 1391. See Donnell v. Nat'l Guard
Bureau, 568 F.Supp. 93, 94 (D.D.C. 1983) (“[42
U.S.C. § 2000e-5(f)(3)] controls any other venue
provision governing actions in federal court.”);
see also Stebbins v. State Farm Mut. Auto. Ins. Co.,
413 F.2d 1100, 1102 (D.C. Cir. 1969) (noting the statute
defines the “four judicial districts in which
employment discrimination suits may be filed”).
Title VII action may be brought
 in any judicial district in the State in which the
unlawful employment practice is alleged to have been
committed,  in the judicial district in which the
employment records relevant to such practice are maintained
and administered, or  in the judicial district in which
the aggrieved person would have worked but for the alleged
unlawful employment practice, 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 deciding how Section
2000e-5(f)(3) should govern in a given action, courts should
apply “a commonsense appraisal of events having
operative significance” in determining where venue
lies. Darby v. U.S. Dep't of Energy, 231
F.Supp.2d 274, 277 (D.D.C. 2002) (citations and internal
quotation marks omitted).
August 15, 2018, the plaintiff received a “Final Agency
Decision” from the VA Office of Resolution Management
dismissing her complaint and notifying her of her right to
appeal the decision to the United States District Court via a
civil action within 90 days. Complaint at 3; Exh. 1 (ECF No.
1-6) thereto, at . The plaintiff filed this civil action
on September 5, 2018. See Complaint at 1.
plaintiff's complaint and attachments (comprising 327
pages) allege a long history of sex discrimination and
derivative misconduct, all of which occurred during her
employment at the VA Medical Center in East Orange, New
Jersey. See Complaint at 5-9; see generally
Exhs. 1-4 (ECF Nos. 1-6 to 1-9) thereto. The plaintiff
further alleges that the agency failed to adequately remedy
the discrimination against her, eventually resulting in her
constructive termination in 2002. See Complaint at
November 2, 2018, the defendant filed its motion to dismiss
or transfer, arguing that venue is improper under 42 U.S.C.
§ 2000e-5(f)(3). See Motion at 1.
the plaintiff brought this action under Title VII,
see Complaint at 2-3, she must comply with at least
one of the applicable venue provisions outlined in Section
2000e-5(f)(3). See Turnley, 576 F.Supp.2d at 212
(“Only one of Title VII's venue provisions need[s]
to be satisfied in order for venue to be proper.”)
(citation omitted). The defendant argues ...