Tamashiro v. Harvey

• Decision Date: 19 September 2006
• Docket Number: No. 06-00188 ACK/KSC.,06-00188 ACK/KSC.
• Citation: 487 F.Supp.2d 1162
• Parties: Katie S. TAMASHIRO, Plaintiff, v. Francis J. HARVEY, in his capacity as the Secretary of the Army, Defendant.
• Court: U.S. District Court — District of Hawaii

487 F.Supp.2d 1162

Katie S. TAMASHIRO, Plaintiff, v. Francis J. HARVEY, in his capacity as the Secretary of the Army, Defendant.

No. 06-00188 ACK/KSC.

United States District Court, D. Hawai`i.

September 19, 2006.

Clayton C. Ikei, Jerry P.S. Chang, Honolulu, HI, for Plaintiff.

Rachel S. Moriyama, Office of the United States Attorney, Honolulu, HI, for Defendant.

ORDER DENYING DEFENDANT'S MOTION TO DISMISS AND DENYING DEFENDANT'S MOTION TO TRANSFER VENUE

KAY, Senior District Judge.

PROCEDURAL BACKGROUND

On April 7, 2006, Katie S. Tamashiro ("Plaintiff') filed a Complaint seeking declaratory, injunctive, and monetary relief against Francis J. Harvey, in his official capacity as the Secretary of the Army ("Defendant"), for discrimination based on race (Asian), gender (female), and age (60) in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-1, et seq. ("Title VII"), and the Age Discrimination in Employment Act 29 U.S.C. § 633a, et seq. ("ADEA").

Before, Defendant responded to the Complaint, Plaintiff filed a First Amended Complaint on June 5, 2006. The Amended Complaint was identical in substance to the original Complaint. It was submitted for the sole purpose of correcting the citation to the general venue provision that applies to the ADEA. See Opposition at 4 n. 1. All references to the "Complaint" in this Order are to the June 5, 2006 First Amended Complaint.

Defendant filed a Motion to Dismiss Plaintiffs Complaint for Lack of Venue ("Motion") on June 9, 2006. In the alternative, Defendant requested that the Court transfer the case to the District of Alaska. On August 31, 2006, Plaintiff filed a Memorandum in Opposition to Defendant's Motion to Dismiss for Lack of Venue ("Opposition"). Defendant filed a Memorandum in Reply to Plaintiffs Opposition to Motion to Dismiss for Lack of Venue ("Reply") on September 7, 2006.

The parties appeared before the Court for a hearing on Defendant's Motion on September 18, 2006.

FACTUAL BACKGROUND¹

Plaintiff Katie S. Tamashiro, a Chinese-American female born on November 1, 1943, has been employed with the United States Army Corps of Engineers ("Corps") since 1978. Complaint ¶ 7. In March 2006, Plaintiff was promoted to the position of GS-13 Civil Watch Officer/Emergency Operations Specialist at the Corps' Headquarters in Washington D.C. Opposition (Tamashiro Declaration ¶ 14). In April 2006, Plaintiff relocated to Washington D.C. from Honolulu, Hawaii, but she maintains her home in Hawaii and plans to return after a three year term. Id. Prior to the promotion and at all times relevant to this case, Plaintiff worked as a GS-12 Emergency Operations Planner in the Corps' Emergency Management Division of the Honolulu Engineer District. Complaint ¶ 7.

The subject of the controversy at hand is Plaintiffs application for and the ultimate denial of a promotion to the position of GS-13 Emergency Manager in the Alaska District of the Corps in 2003. Plaintiff applied for the position in February 2003. Complaint ¶ 9. Plaintiff declares that she was the only female applicant for the position. Opposition (Tamashiro Declaration ¶ 6). The Corps assembled a selection panel ("Panel") for the purpose of making the hiring decision consisting of three Caucasian males, Lieutenant Colonel Timothy Griffith, Panel Chair, Steve Philben, and Allen Churchill. Complaint ¶ 9. The Panel, along with human resources personnel, reviewed the applicants for the Manager position and ranked the resumes of the candidates. Id. Based on the strength of her resume and application, Plaintiff was ratified second among all applicants. Id.

The Panel conducted eight telephone interviews of the top-ranked applicants on or about May 27, 2003. Complaint ¶ 10. At the time of the interviews, Panel members Griffith and Churchill were located in Alaska, and Panel member Philben was stationed in Hawaii. Opposition at 4. Plaintiff alleges that her number two ranking was downgraded after the telephone interview. Complaint ¶ 13. Upon the completion of the telephone interviews, the Panel offered the position to a Caucasian male, who declined the offer. Complaint ¶ 11. The Panel then offered the job to a second Caucasian male, but that candidate could not report to the Manager's position in sufficient time. Id. Consequently, the offer was withdrawn. Id. Finally, the Panel offered the Manager position to David Spence, another Caucasian male, whom Plaintiff alleges was substantially younger and less experienced than her. Complaint ¶ 12. Spence accepted the offer. Id.

Plaintiff also alleges that prior to Spence's offer, the Panel downgraded the ranking of another Caucasian male while Spence's ranking was upgraded. Complaint ¶¶ 13-14. The downgraded applicant is approximately the same age as Plaintiff. Complaint ¶ 14. This was the fourth time since 2000 that Plaintiff applied for a GS-13 level position and was denied. Opposition (Tamashiro Declaration ¶ 11).

As a result, Plaintiff contacted a counselor at the Equal Employment Opportunity Commission ("EEOC") for the purpose of filing a race, gender, and age discrimination complaint on September 8, 2003. Plaintiff then filed a formal complaint with the EEOC on December 9, 2003. Plaintiff accepted a GS-13 level position in March 2006, and moved to Washington D.C. on April 22, 2006. Plaintiff commenced the action currently before this Court on April 7, 2006, prior to her relocation.

STANDARD

I. Motion to Dismiss for Lack of Venue

A party may move to dismiss a case for lack of venue pursuant to Federal Rule of Civil Procedure 12(b)(3) ("Rule 12(b)(3)"). In a Rule 12(b)(3) motion, unlike a motion to dismiss pursuant to Rule 12(b)(6), the pleadings need not be accepted as true and the court may consider facts outside the pleadings. Murphy v. Schneider National, Inc., 362 F.3d 1133, 1137 (9th Cir.2003); Richards v. Lloyd's of London, 135 F.3d 1289, 1292 (9th Cir.1998); Argueta v. Banco Mexicano, S.A., 87 F.3d 320, 324 (9th Cir.1996);' Chateau des Charmes Wines Ltd. v. Sabate USA, Inc., 2002 WL 413463, *1 (N.D.Cal.2002); see generally 5C Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1364, at 126 n. 9 (3d ed.2004) (citing Transmirra Prods. Corp. v. Fourco Glass Co., 246 F.2d 538, 539 (2d Cir.1957) (holding that a court may consider affidavits, answers to interrogatories, and depositions in determining proper venues)). However, the court must view the facts in the light most favorable to the non-moving party and draw all reasonable inferences in the non-moving party's favor. Murphy, 362 F.3d at 1138-39; Chateau des Charmes, 2002 WL 413463, *1; Darby v. United States DOE, 231 F.Supp.2d 274, 276-77 (D.D.C.2002); Cole v. Appalachian Power Co. v. International Broth. of Elec. Workers, Local No. 978, 1995 WL 463711, *3 (S.D.W.Va.1995).

II. Motion to Transfer

28 U.S.C. § 1404(a) provides: "[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 purpose of this section is to prevent the waste of time, energy, and money and to protect litigants, Anesses and the public against unnecessary inconvenience and expense." Hi-Pac, Ltd. v. Avoset Corp., 980 F.Supp. 1134, 1139 (D.Haw.1997) (internal quotation marks and citations omitted). A motion to transfer venue pursuant to Section 1404(a) requires the Court to weigh multiple factors in its determination of whether transfer is appropriate in a particular case. Jones v. GNC Franchising, Inc., 211 F.3d 495, 498-99 (9th Cir.2000).

"The defendant must make a strong showing of inconvenience to warrant upsetting the plaintiffs choice of forum." Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir.1986) (citation omitted). Ultimately, the moving party has the burden of showing that an alternative forum is the more appropriate forum for the action. Jones, 211 F.3d at 499.

DISCUSSION

Defendant contends that the District of Hawaii is an improper venue for this case and moves the Court to dismiss Plaintiffs Complaint pursuant to Rule 12(b)(3) or transfer the matter to the District of Alaska pursuant to 28 U.S.C. § 1406(a). In the alternative, if the Court finds that the District of Hawaii is a proper venue, Defendant moves the Court to transfer the case to the District of Alaska pursuant to 28 U.S.C. § 1404(a).² The Court will first address whether venue is proper in the District of Hawaii.

I. Identifying Proper Venues

Cases that are not founded solely on diversity of citizenship may only be brought, except when the law provides otherwise, in a judicial district (1) where the defendant resides; (2) in which a substantial part of the events or omissions giving rise to the controversy occurred; or (3) where the defendant may be found, if no other appropriate district exists. 28 U.S.C. § 1391(b) ("Section 1391")³ However, this general venue statute "has its limitations." Johnson v. Payless Drug Stores Northwest, Inc., 950 F.2d 586, 587 (9th Cir.1991) (quoting Bolar v. Frank, 938 F.2d 377, 378 (2d Cir.1991) (per curiam)). In Title VII employment discrimination cases, the explicit venue provision of Title VII, 42 U.S.C. § 2000e-5(f)(3), applies rather than the general provision found in Section 1391. Johnson, 950 F.2d at 587-88.

A Title VII claim may be properly filed

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 warked 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); Johnson, 950 F.2d at...