De Leon v. KBR, Inc.
| Decision Date | 08 May 2012 |
| Docket Number | Civ. No. 11-00685 ACK-BMK |
| Parties | PAULANDREA DE LEON, Plaintiff, v. KBR, INC. AND SERVICES EMPLOYEES INTERNATIONAL, INC., Defendants. |
| Court | U.S. District Court — District of Hawaii |
ORDER DENYING DEFENDANTS' MOTION TO DISMISS AND
TRANSFERRING THE CASE TO THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS, HOUSTON DIVISION
For the following reasons, the Court: (1) DENIES Defendants' Motion to Dismiss on the basis of lack of personal jurisdiction; (2) DENIES Defendants' alternative Motion to Dismiss on the basis of improper venue; and (3) TRANSFERS this matter to the United States District Court for the Southern District of Texas, Houston Division.
This case arises out of Plaintiff's allegation that she was subjected to disparate treatment during her employment with Defendants. Plaintiff filed a complaint on November 9, 2011 (Doc. No. 1, the "Complaint") against defendants KBR, Inc. ("KBR") and Services Employees International, Inc. ("SEII") (together, the "Defendants"). In her Complaint, Plaintiff asserts the following causes of action: (I) violation of federal discrimination laws; (II) hostile work environment; (III) infliction of emotional distress; (IV) retaliation; (V) defamation; (VI) invasion of privacy; (VII) whistleblower's protection act; and (VIII) unlawful imprisonment. (Compl. ¶¶ 21-38.) Plaintiff seeks the following recovery: reinstatement to her employment with Defendants; all damages, including general damages for discrimination, wrongful termination, personal injury, and defamation; special damages, including back pay, front pay, and other expenses; and costs of litigation, reasonable attorney fees, and other costs and interests, including prejudgment interest. (Compl. at 16.)
On February 7, 2012, Plaintiff filed a Notice of Mailing to Defendant KBR at its last known address, which is listed as 601 Jefferson Street, Houston, Texas, 77002. (See Doc. No. 5.)
On February 17, 2012, Defendants filed a Motion ToDismiss For Lack Of Personal Jurisdiction, Or, Alternatively, For Improper Venue, Or Alternatively To Transfer Venue. (Doc. No. 6, hereinafter the "Motion to Dismiss.") In support of their Motion to Dismiss, Defendants submitted three declarations from Justin Mueller (Doc. No. 6-4), Mary Lamance (Doc. No. 6-5), and Paul Watson (Doc. No. 6-6).
Plaintiff filed a memorandum in opposition to the Motion to Dismiss on April 18, 2012. (Doc. No. 18, hereinafter "P's Opp. Mem.")1 Plaintiff also submitted a declaration by Paulandrea De Leon in support of the opposition memorandum. (Doc. No. 18-1.) Plaintiff subsequently filed a First Errata to her opposition memorandum. (Doc. No. 21, hereinafter "P's Errata.") Defendants responded with a Reply Brief in support of their Motion to Dismiss on April 23, 2012. (Doc. No. 20, hereinafter "D's Reply.")
The Court held a hearing on Defendants' Motion to Dismiss on Monday, May 7, 2012, and addresses the motion herein.
This action arises out of Plaintiff's employment with Defendants as a Mechanical Assembler in Iraq, where Plaintiff contends that she was subjected to disparate treatment and ultimately terminated. (Compl. ¶¶ 8, 20(a), 20(m).) Plaintiff is a Filipino female. Id. ¶ 7. Plaintiff is and was at all relevant times a resident of Honolulu, Hawaii. Id. ¶ 1.
Defendant KBR is a foreign corporation incorporated in Delaware with its principal place of business in Houston, Texas. Id. ¶ 2; see also Mueller Decl. ¶ 3. Defendant SEII is a Cayman Island corporation headquartered in Dubai, U.A.E. that operates exclusively outside the United States. (Mueller Decl. ¶ 5.) From October 12, 2008, through the present time, Defendants have employed no person and conducted no business in Hawaii. Id. ¶ 6. Defendants do not own, lease, possess, or maintain any personal or real property in Hawaii, including bank accounts. Id. ¶ 7.
In order to secure employment with Defendants, job applicants must apply through a website called www.kbrjobs.com. (See Watson Decl. ¶ 3.) This website allows applicants to electronically submit their resumes to a database that is reviewed and searched by company recruiters located in Houston,Texas. Id. ¶ 4. This website advertises jobs located all over the world. Id. ¶ 3. The site "does not specifically encourage Hawaiian residents to apply, does not suggest that Hawaiian residents will be given special consideration for employment, and does not make any other special effort to recruit Hawaiian residents." Id. After applicants submit an application, they "may be screened by recruiting personnel." (See Lamance Decl. ¶ 3.)
Qualified applicants are invited to travel to Houston, Texas for pre-employment screening and orientation. Id. Recruiters may contact qualified candidates by telephone or e-mail to provide important job information, including the location of the position which "could be anywhere across the globe." (Watson Decl. ¶ 4.) Candidates who agree to certain employment conditions are mailed additional information about overseas employment and are given a plane ticket to Houston if they are not within reasonable driving distance. Id. ¶ 5. Candidates do not receive any money and are informed that they will not receive any wages unless they are hired at the conclusion of testing and orientation in Houston. Id.
While she was living in Hawaii, Plaintiff applied for a job with Defendants through www.kbrjobs.com on three dates: June 25, June 28, and July 2, 2008. Id. ¶ 6; see also De Leon Decl. ¶ 5. Plaintiff received an email response from a KBR recruiter onJuly 28, 2008, and was invited to participate in a conference call to discuss mandatory information. (De Leon Decl. ¶ 6.) The following day, Plaintiff received an email from KBR attaching a Recruiting Packet, which she subsequently completed and faxed back to KBR as requested. Id. ¶ 7. Between August and September of 2008, Plaintiff corresponded via email with KBR representatives regarding subjects such as completion of an online background check, a "Workplace Attitude and Behavior Inventory Test," supplemental data requests, health benefits, Plaintiff's "processing date," and travel arrangements to Houston. Id. ¶¶ 8-14.
Plaintiff boarded a flight at the Honolulu airport on September 27, 2008, and arrived in Houston, Texas on September 28, 2008. Id. ¶ 15. Upon arrival, Plaintiff participated in KBR's orientation program, which lasted for approximately two weeks and took place in Houston, Texas. Id. ¶ 16. Subsequently, Plaintiff departed Houston to begin work in Iraq on October 12, 2008. (Watson Decl. ¶ 6.) Plaintiff worked exclusively in Iraq during her employment with Defendants. (Lamance Decl. ¶ 6.)
Beginning on October 12, 2008, Plaintiff was employed by Defendants as a Mechanical Assembler on the Logistics Civil Augmentation Program ("LOGCAP") III project, which supports the United States military in Iraq. Compl. ¶¶ 6, 20(a). Plaintiff alleges that during the course of her employment, supervisorsemployed by Defendants subjected her to "disparate treatment as compared to similarly situated non-Filipino male employees." Id. ¶ 8. Specifically, Plaintiff contends that she was sexually harassed by several of her male coworkers during her employment with Defendants in Iraq, where she was one of very few females on-site. Id. ¶ 9.
Plaintiff alleges that she made complaints of sexual harassment, hostile work environment and/or retaliation based upon inappropriate comments and/or advances made by male coworkers on three separate occasions while employed by Defendants in Iraq. Id. ¶¶ 20(c), 20(f), 20(j). However, Plaintiff alleges that these complaints resulted in no corrective action taken against the male coworkers. Id. ¶¶ 10, 14, 20(k). Instead, Plaintiff contends that shortly after filing these complaints she was either transferred to another work camp or written up for work violations just days or weeks after filing her complaints. Id. ¶¶ 11, 13, 15, 20(d), 20(e), 20(g), 20(k).3
Shortly after Plaintiff was involuntarily transferred on or about August 16, 2010, just five days after reporting that a male coworker had harassed her, Plaintiff alleges that she was falsely accused of work violations by her new foreman andterminated on November 14, 2010. Id. ¶¶ 20(l), 20(m).
Following her termination, Plaintiff discussed her discrimination claims with officials at the U.S. Equal Employment Opportunity Commission (the "EEOC"), and signed the Charge of Discrimination and retaliation (the "Charge") against Defendants on March 12, 2011. Id. ¶ 17. In the Charge, Plaintiff alleged discrimination in the terms and conditions of her employment due to her race (Filipino), sex (female), and in retaliation for complaining about discrimination and sexual harassment to her employer. Id. ¶ 19. The EEOC issued a Dismissal and Notice of Rights to Plaintiff on August 11, 2011. Id. ¶ 18.
Motion to Dismiss for Lack of Personal Jurisdiction
A motion to dismiss for lack of personal jurisdiction is governed by Federal Rule of Civil Procedure 12(b)(2). "Where a defendant moves to dismiss a complaint for lack of personal jurisdiction, the plaintiff bears the burden of demonstrating that jurisdiction is appropriate." Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004). It is within the Court's discretion to allow the plaintiff to submit affidavits, allow affidavits plus discovery, or to conduct an evidentiary hearing. Data Disc., Inc. v. Systems Tech. Assoc., Inc., 557 F.2d 1280, 1285 (9th Cir. 1977). When the Court rules withoutconducting an evidentiary hearing, "the plaintiff need only make a prima facie showing of jurisdictional facts" through the submitted materials in order to avoid dismissal.4 Schwarzenegger, 374 F.3d at 800; Data Disc., 557 F.2d at 1285. In such cases, the Court only inquires into whether the plaintiff's "pleadings and affidavits make a prima facie showing of personal...
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