Herbert v. Sebelius

• Citation: 925 F.Supp.2d 13
• Decision Date: 25 February 2013
• Docket Number: Civil Action No. 12–1057 (JDB).
• Parties: Christie Y. HERBERT, Plaintiff, v. Kathleen SEBELIUS, Secretary of the Department of Health and Human Services, Defendant.
• Court: U.S. District Court — District of Columbia

925 F.Supp.2d 13

Christie Y. HERBERT, Plaintiff,

v.Kathleen SEBELIUS, Secretary of the Department of Health and Human Services, Defendant.

Civil Action No. 12–1057 (JDB).

United States District Court,

District of Columbia.

Feb. 25, 2013.

Christie Y. Herbert, Winston Salem, NC, pro se.

William Mark Nebeker, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

JOHN D. BATES, District Judge.

Plaintiff Christie Herbert, proceeding pro se, brings this employment-related action pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., against defendant Kathleen Sebelius in her official capacity as the Secretary of the Department of Health and Human Services (“HHS”). Herbert alleges that, while working at HHS's Region IV office in Atlanta, Georgia, she was harassed based on her disability and accommodation requirements and in retaliation for bringing complaints against a private doctor and certain law enforcement officers. Presently before the Court is defendant's motion to dismiss or, in the alternative, to transfer. Because the Court concludes that venue is not proper in the District of Columbia, but that venue is proper in the Northern District of Georgia, the Court will transfer the case to the Northern District of Georgia.

BACKGROUND

The factual assertions in Herbert's complaint are sparse. She began working for HHS in April 2010 as a health insurance specialist for the Centers for Medicare and Medicaid Services' (“CMS”) Region IV office in Atlanta. See Compl. [ECF 1], Ex. 3. She filed complaints against a private doctor and law enforcement officers in a matter unrelated to her work, and alleges that individuals at her office retaliated against her for doing so. See Compl. at 2. This alleged retaliation consisted of “being targeted, stalked, [and] harassed,” and “attempts of harm,” such as someone entering her personal residence without her knowledge or permission. See id. at 1–3; Pl.'s Mot. for TRO and Order of Protection [ECF 2] (“TRO Mot.”) at 1. Herbert believes that defendant and related parties have sought information from businesses that she frequents, including restaurants, hotels, and salons, and that she has been the subject of audio and video surveillance. See TRO Mot. at 2; Pl.'s Am. Mot. for TRO and Cease & Desist Order [ECF 10] (“Am. TRO Mot.”), Exs. 1–2. Herbert also alleges that defendant interfered with and engaged in privacy breaches related to her personal medical care and disability. See Compl. at 3. She states that these actions occurred on behalf of and “in alliance with” the doctor against whom she filed the complaints, see id. at 2–3, but she asserts no direct connection between this doctor and defendant. The only concrete facts Herbert provides about her workplace troubles involve technical errors with her office voicemail, a malfunctioning orthopedic chair, and a workplace foot injury sustained when an “automatic disability access door was intentionally programmed not to function as [she] approached.” See Am. TRO Mot., Ex. 4. Herbert does not dispute that all of these alleged acts took place in Atlanta.

Herbert also alleges “significant compensation losses ... including but not limited to time, leave and wage deficiencies including errors and omissions.” See Compl. at 3. In April 2011 she filed a workers compensation claim in response to these errors. Her claim was dealt with by HHS officials in Bethesda, Maryland, and Herbert's home office in Atlanta. See Pl.'s Mem. in Support of Pet. for TRO and Order of Protection [ECF 8] (“TRO Mem.”), Exs. 1, 3. HHS officials in Atlanta resolved Herbert's wage concerns by correcting an administrative error in her time off entry. See TRO Mem., Ex. 3.

Beginning in December 2011, Herbert filed nearly fifty complaints with the Equal Employment Opportunity Commission (“EEO”) about defendant's alleged workplace harassment. See TRO Mem. at 2; Def.'s P & A Mem. in Opp'n to Pl.'s TRO Pet. [ECF 6] (“Def.'s TRO Opp'n”) at 10 n. 3. Herbert alleges that, in retaliation for her EEO activity, defendant “engaged in disingenuous and disparaging actions” including “intentional errors and omissions within the grievance process.” See Compl. at 4. She alleges, for example, that defendant forwarded her an investigation report with an incorrect case name and number. See id.; Am. TRO Mot. at 3. Herbert's EEO complaints were addressed by an EEO counselor in Baltimore, Maryland, and an EEO consultant in Houston, Texas. See Am. TRO Mot., Exs. 2–3.

Herbert filed an employment-related civil action in the Northern District of Georgia in early 2012, but that action was dismissed without prejudice when the court concluded that Herbert's filing did not constitute a complaint and thus did not state a claim upon which relief could be granted. See Order, Herbert v. Sebelius, No. 12–992 (N.D.Ga. Apr. 12, 2012). Herbert then filed a similar action in this Court on June 24, 2012, seeking an injunction and money damages against defendant. She also petitioned this Court for a temporary restraining order on June 26, 2012, and again on July 10, 2012. See TRO Mot.; Am. TRO Mot. The Court denied both of those requests. See Order Den. TRO [ECF 4]; Order Den. Am. TRO [ECF 12]. Defendant now moves to dismiss Herbert's complaint for lack of subject matter jurisdiction, improper venue, and failure to state a claim upon which relief can be granted. In the alternative, defendant moves to transfer this action to the Northern District of Georgia.

STANDARD OF REVIEW

I. Addressing Venue Before Jurisdiction

Federal courts have leeway to “choose among threshold grounds for denying audience to a case on the merits.” Sinochem Int'l Co. v. Malay. Int'l Shipping Corp., 549 U.S. 422, 431, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007) (quoting Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 585, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999)). “[C]ertain nonmerits, nonjurisdictional issues may be addressed preliminarily, because ‘[j]urisdiction is vital only if the court proposes to issue a judgment on the merits.’ ” Pub. Citizen v. U.S. Dist. Court for D.C., 486 F.3d 1342, 1348 (D.C.Cir.2007) (alterations in original) (quoting Sinochem, 549 U.S. at 431, 127 S.Ct. 1184) (internal quotation marks omitted). Thus, it is appropriate for this Court to decide defendant's challenge to venue prior to addressing the challenge to subject matter jurisdiction. See Shay v. Sight & Sound Sys., Inc., 668 F.Supp.2d 80, 82 (D.D.C.2009) (“[A] court may decide questions of venue before addressing issues of personal or subject matter jurisdiction.”); Aftab v. Gonzalez, 597 F.Supp.2d 76, 79 (D.D.C.2009) (“Adjudicative efficiency favors resolving the venue issue before addressing whether subject matter jurisdiction exists.”).

II. Legal Standard for Venue

In ruling on a motion to dismiss for improper venue, the Court must accept all well-pleaded factual allegations as true and draw all reasonable inferences in favor of the plaintiff. Darby v. U.S. Dep't of Energy, 231 F.Supp.2d 274, 277 (D.D.C.2002); 2215 Fifth St. Assocs. v. U Haul Int'l, Inc., 148 F.Supp.2d 50, 54 (D.D.C.2001). But the Court need not accept as true inferences that are unsupported by the facts set out in the complaint. Trudeau v. Fed. Trade Comm'n, 456 F.3d 178, 193 (D.C.Cir.2006) (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). It may, however, consider material outside of the pleadings. Cooper v. Farmers New Century Ins. Co., 593 F.Supp.2d 14, 18 (D.D.C.2008) (noting that “[w]hen deciding a Rule 12(b)(3) motion to dismiss for lack of venue, the court may consider extrinsic evidence”); Gianelli v. Chirkes, 377 F.Supp.2d 49, 51 (D.D.C.2005), aff'd,204 Fed.Appx. 24 (D.C.Cir.2006); Artis v. Greenspan, 223 F.Supp.2d 149, 152 (D.D.C.2002) (“A court may consider material outside of the pleadings in ruling on a motion to dismiss for lack of venue, personal jurisdiction or subject-matter jurisdiction.”) (citing Land v. Dollar, 330 U.S. 731, 735 n. 4, 67 S.Ct. 1009, 91 L.Ed. 1209 (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.” Williams v. GEICO Corp., 792 F.Supp.2d 58, 62 (D.D.C.2011) (internal quotation marks omitted); 15 Charles Alan Wright et al., 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 chose 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.” Thomas v. Potter, No. 05–1923, 2006 WL 314561, at *1 (D.D.C. Feb. 9, 2006).

DISCUSSION

Defendant argues that Herbert's complaint should be dismissed for lack of subject matter jurisdiction, improper venue, and failure to state a claim upon which relief can be granted, or, in the alternative, transferred to the Northern District of Georgia. Having determined that it is appropriate to assess venue before subject matter jurisdiction, the Court concludes that venue is not proper in the District of Columbia. Hence, it need not decide whether subject matter jurisdiction exists or whether Herbert's complaint states a claim upon which relief can be granted.

I. Venue Under Title VII

Herbert claims—in broad, conclusory statements—that she has been subject to a hostile work environment, harassment of both a sexual and non-sexual nature, and “ongoing intentional attempts at conflict” since she began working at HHS in April 2010. Although she uses general terms such as “hostile work environment” and “retaliation,” Herbert never specifically mentions Title VII of the Civil Rights Act of 1964. See, e.g., Compl. at 1–2. But pro se complaints are to be “liberally construed.” See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). Based on Herbert's...