Sivertson v. Clinton

• Decision Date: 14 September 2011
• Docket Number: Civil Action No. 3:11-CV-0836-D
• Parties: KRISTEN L. SIVERTSON, Plaintiff, v. HILLARY RODHAM CLINTON, in her Official Capacity as Secretary of State, Defendant.
• Court: U.S. District Court — Northern District of Texas

KRISTEN L. SIVERTSON, Plaintiff,

v.HILLARY RODHAM CLINTON, in her Official Capacity as Secretary of State, Defendant.

Civil Action No. 3:11-CV-0836-D

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

September 14, 2011.

MEMORANDUM OPINIONAND ORDER

Defendant moves to dismiss this action under Fed. R. Civ. P. 12(b)(6) for failure to state a claim on which relief can be granted or, alternatively, to transfer the case to the Southern District of Texas under 28 U.S.C. § 1404(a). For the reasons that follow, the court denies the motion.

I

This is an action by plaintiff Kristen L. Sivertson ("Sivertson") alleging sex and pregnancy discrimination under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., against defendant Hillary Rodham Clinton ("the Secretary"), in her official capacity as Secretary of the U.S. Department of State ("State Department"). Sivertson asserts that she was subjected to an ongoing hostile environment and treated less favorablydue to pregnancy.¹ In particular, she alleges that was not selected for a GS-14 Supervisor position in the Foreign Service. Sivertson is currently employed by the State Department in the Foreign Service Bureau. She lives in Cypress, Texas and works in the Houston Field Office; both of which are located in the Southern District of Texas. Paul Vallee ("Vallee") and Marion Cotter ("Cotter"), the alleged principal actors, were supervisors in the Houston Field Office.²

Sivertson filed a charge with the Equal Employment Opportunity Commission ("EEOC") alleging discrimination based on sex and pregnancy. The EEOC administrative judge issued an order of dismissal on December 3, 2010, and the State Department implemented the administrative judge's decision by issuing a final order on January 11, 2011. On January 14, 2011 a notice of final action letter that contained the final order, a notice of appeal rights, and a copy of the EEOC appeal form was sent to Sivertson's counsel, Cary Schulman, Esquire. Cynthia Metcalf ("Metcalf"), a paralegal whom Schulman employed, signed for the letter on January 17, 2011.³ According to Schulman, Metcalf never deliveredthe letter to him; the Secretary's motion to dismiss was the first indication of this mailing. Schulman maintains that he is still unable to find this letter, that he believes Metcalf destroyed, took away, or discarded the letter without notifying anyone, and that Metcalf was terminated for other alleged acts of serious misconduct while employed at his firm.

A copy of the right-to-sue letter was also sent to Sivertson on January 20, 2011. Sivertson filed her complaint on April 21, 2011. Assuming that Sivertson received her copy of the letter on or sometime after January 21, Sivertson filed her complaint 94 days after Schulman's office signed for the letter and 90 days after Sivertson received her copy.

II

The court considers first the Secretary's motion to dismiss.

A

The Secretary contends that Sivertson's complaint fails to state a claim on which relief can be granted because it was filed after the 90-day limitations period and is therefore untimely. The Secretary asserts that the 90-day period began on January 17, the date Schulman's office received the right-to-sue letter. Sivertson filed the complaint 94 days later.

Sivertson responds that the 90-day period did not begin until or sometime after January 21, the date Sivertson received her copy of the right-to-sue letter. Sivertson maintains that the delivery to Schulman on January 17 was ineffective because, through no fault of either Schulman or Sivertson, Schulman did not receive it. Alternatively, Sivertson contends that the doctrine of equitable tolling applies.

B

"Although dismissal under Rule 12(b)(6) is ordinarily determined by whether the facts alleged in the complaint, if true, give rise to a cause of action, a claim may also be dismissed if a successful affirmative defense appears clearly on the face of the pleadings." Clark v. Amoco Prod. Co., 794 F.2d 967, 970 (5th Cir. 1986). "In the usual case, this court is unable to grant dismissal under Rule 12(b)(6) based on an affirmative defense because it rarely appears on the face of the complaint." Simon v. Telsco Indus. Emp. Benefit Plan, 2002 WL 628656, at *1 (N.D. Tex. Apr. 17, 2002) (Fitzwater, J.). Furthermore, "[i]t is well settled . . . that in order for a defendant to prevail on the basis of limitations at the pleadings stage, the plaintiff must normally plead [herself] out of court." W. Fork Partners, L.P. v. Chesapeake Exploration, L.L.C., 2009 WL 2252505, at *5 (N.D. Tex. July 29, 2009) (Fitzwater, C.J.) (quoting Funches v. City of Dallas, 1999 WL 261842, at *2 (N.D. Tex. Apr. 28, 1999) (Fitzwater, J.)); accord Covington v. Mitsubishi Motor Mfg. of Am., Inc., 154 Fed. Appx. 523, 524-25 (7th Cir. 2005) ("[D]ismissal under Rule 12(b)(6) on the basis of an affirmative defense is appropriate only where the plaintiff pleads himself out of court by 'admit[ting] all the ingredients of an impenetrable defense.'") (citing Xechem, Inc. v. Bristol-Myers Squibb Co., 372 F.3d 899, 901 (7th Cir. 2004)); Barasich v. Shell Pipeline Co., 2006 WL 3913403, at *2 (E.D. La. Nov. 20, 2006).

Title VII claimants have 90 days to file a civil action after receipt of a right-to-sue letter from the EEOC. See 42 U.S.C. § 2000e-5(f); Taylor v. Books a Million, Inc., 296 F.3d 376, 379 (5th Cir. 2002) (citing Nilsen v. City of Moss Point, Miss., 674 F.2d 379, 381 (5thCir. 1982)). This requirement is strictly construed. Taylor, 296 F.3d at 379; Stokes v. Dolgencorp, Inc., 367 Fed. Appx. 545, 547 (5th Cir. 2010) (per curiam) (citing 42 U.S.C. § 2000e-5(f)). The 90-day limitations period "is not a jurisdictional prerequisite, but more akin to a statute of limitations." Espinoza v. Mo. Pac. R.R. Co., 754 F.2d 1247, 1248 n.1, 1250 (5th Cir. 1985). The court therefore treats the timeliness vel non of Sivertson's Title VII claim as an affirmative defense. See, e.g., Martin v. Alamo Cmty. Coll. Dist., 353 F.3d 409, 412-13 (5th Cir. 2003) (characterizing as affirmative defense assertion that Americans with Disabilities claim was untimely); Goubert v. Terrebonne Parish Consol. Gov't, 2006 WL 2425345, at *2 (E.D. La. Aug. 21, 2006) (holding that "[a] statute of limitations defense is an affirmative defense" and applying this standard to defense that Title VII claim was untimely).

C

Because the Secretary is moving to dismiss Sivertson's complaint based on the 90-day period of limitations—an affirmative defense—she is not entitled to dismissal under Rule 12(b)(6) unless Sivertson has pleaded herself out of court by admitting to all of the elements of the defense. See, e.g., W. Fork Partners, 2009 WL 2252505, at *5 (quoting Funches, 1999 WL 261842, at *2); Covington, 154 Fed. Appx. at 524-25. Sivertson's complaint doesnot address when she or her counsel received the right-to-sue letter.⁴ Because all of the elements of the 90-day limitations defense have not been met on the face of the pleadings, the Secretary is not entitled to dismissal under Rule 12(b)(6) on the basis that the action is untimely.

III

The court turns next to the Secretary's alternative motion to transfer the case to the Southern District of Texas under § 1404(a).

A

Section 1404(a) provides that, "[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." "The decision to transfer is made to prevent waste of time, energy, and money and to protect litigants, witnesses, and the public against unnecessary inconvenience and expense." Bank One, N.A. v. Euro-Alamo Invs., Inc., 211 F.Supp.2d 808, 811 (N.D. Tex. 2002) (Fitzwater, J.). The court cannot transfer a case where the result is merely to shift the inconvenience of the venue from one party to the other.Fowler v. Broussard, 2001 WL 184237, at *6 (N.D. Tex. Jan. 22, 2001) (Fitzwater, J.) (citing Enserch Int'l Exploration, Inc. v. Attock Oil Co., 656 F. Supp. 1162, 1167 n.15 (N.D. Tex. 1987) (Fitzwater, J.)). Moreover,

[t]he plaintiff's choice of venue is . . . entitled to deference, and therefore the party seeking transfer has the burden to show good cause for the transfer. The burden on the movant is "significant," and for a transfer to be granted, the transferee venue must be "clearly more convenient than the venue chosen by the plaintiff."

AT & T Intellectual Prop. I, L.P. v. Airbiquity Inc., 2009 WL 774350, at *1 (N.D. Tex. Mar. 24, 2009) (Lynn, J.) (footnotes omitted) (quoting In re Volkswagen of Am., Inc., 545 F.3d 304, 315 (5th Cir. 2008) (en banc) ("Volkswagen II")). The weight to be accorded the plaintiff's choice of forum is diminished, however, where she brings suit outside her home forum. Santellano v. City of Goldthwaite, 2011 WL 1429080, at *2 (N.D. Tex. Apr. 14, 2011) (Fitzwater, C.J.) (citing Alexander & Alexander, Inc. v. Donald F. Muldoon & Co., 685 F. Supp. 346, 349 (S.D.N.Y. 1988)).

The court must decide as a preliminary question "whether the judicial district to which transfer is sought would have been a district in which the claim could have been filed." In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004) (per curiam) ("Volkswagen I"); Volkswagen II, 545 F.3d at 312 ("The preliminary question under § 1404(a) is whether a civil action 'might have been brought' in the destination venue."). Once the court resolves this issue, the court must in deciding whether to transfer the case evaluate "a number of private and public interest factors, none of which are given dispositive weight." Volkswagen I, 371F.3d at 203 (citing Action Indus., Inc. v. U.S. Fid. & Guar. Co., 358 F.3d 337, 340 (5th Cir. 2004)).

The private concerns include: (1) the relative ease of access to sources of proof; (2) the availability of compulsory process to secure the attendance of witnesses; (3) the cost of attendance for willing witnesses; and (4) all other

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