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Case 1:07-cv-01881-RWS-JFK Document 13 Filed 08/07/2007 Page 1 of 27
)
ROWLAND HARLEY, )
)
Plaintiff, )
)
v. ) 1:06CV00768
)
ELAINE CHAO, Secretary of )
Labor, United States )
Department of Labor, )
)
Defendant. )
Dockets.Justia.com
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I. FACTUAL BACKGROUND
1
In considering a motion to dismiss, the court must
construe the facts in the light most favorable to Plaintiff. See
Jenkins v. McKeithen, 395 U.S. 411, 421-22, 89 S. Ct. 1843, 1849
(1969); Randall v. United States, 30 F.3d 518, 522 (4th Cir.
1994).
2
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earnings and back pay, costs and expenses, and attorney’s fees in
the amount of $17,185.00 (Mem. Supp. Def.’s Mot. Dismiss Ex. A-1
the FAD, approved the ALJ’s finding that Plaintiff had been
The OFO did not find that Plaintiff had been the victim of sex
3
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II. ANALYSIS
order to proceed further in the case, the court will address that
issue first.
VII of the Civil Rights Act of 1964. Title VII provides a cause
then, after the agency investigates the claim and issues a FAD,
4
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F.3d 404 (4th Cir. 2006), and Chris v. Tenet, 221 F.3d 648 (4th
the plaintiff’s claim for fees and costs for lack of subject
5
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against him on the basis of religion and was awarded some relief
at 412-13. The district court found that because Laber had not
2
Laber also alleged age discrimination and retaliation
based on a separate event. Laber, 438 F.3d at 412-13. However,
for the purposes of this case, it is important that for the
religious discrimination claim, Laber did not put before the
court the issue of whether religious discrimination occurred but
instead sought only additional relief based on the OFO’s original
determination.
6
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Fourth Circuit case had come close to holding that Title VII does
relief,3 but two other Fourth Circuit cases had held that Title
(citing Pecker v. Heckler, 801 F.2d 709 (4th Cir. 1986); Morris
other circuits that have addressed the issue, the Fourth Circuit
to bring a civil action alleging only that the OFO’s remedy was
3
See Laber, 438 F.3d at 424-25 (discussing Chris, which had
a slightly different factual situation and in which the court
held that Title VII does not grant jurisdiction to claims solely
for fees and costs).
7
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Fourth Circuit held that the trial court had had subject matter
The court reasoned that since Chris was decided, the Fourth
Circuit and the majority of the other circuits have held that 28
the United States are given one construction and will be defeated
4
The Laber court noted that Chris involved a claim for fees
and costs, while Laber’s claim was for additional relief. See
Laber, 438 F.3d at 424-25. In addition, the court noted that the
court in Chris had narrowly considered subject matter
jurisdiction under § 2000e-5(f) because the parties had not
raised the issue of an alternate basis for jurisdiction. Id. at
425. As such, Chris did not hold that subject matter
jurisdiction is lacking over claims for fees and costs under any
basis for jurisdiction other than § 2000e-5(f). Id.
5
The court noted that “if the district court believed that
it lacked subject-matter jurisdiction over Laber’s claim for
additional relief, the proper course would have been to dismiss
the claim instead of granting summary judgment on it.” Laber,
438 F.3d at 414. However, because the court held that the
district court’s finding of lack of subject matter jurisdiction
was erroneous and the district court thus had had the authority
to enter judgment for the Army, the court did not reverse the
grant of summary judgment on this ground. Id. The court,
however, did vacate the grant of summary judgment on other
grounds. See id. at 432.
8
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if they are given another.” Id. (quoting Bell v. Hood, 327 U.S.
plaintiff who prevails before the OFO may seek only additional
the Laber court definitively held that Title VII does not
425 (emphasis added) (citing Hagans v. Lavine, 415 U.S. 528, 536-
6
The reason the court held that the Army was entitled to
judgment as a matter of law rather than dismissal for failure to
state a claim was because the case had proceeded to summary
judgment. See Laber, 438 F.3d at 424. The court indicated but
did not expressly state, that dismissal for failure to state a
claim is the proper course for a claim solely for additional
relief under Title VII if the court has subject matter
jurisdiction under § 1331 and the defendant moves to dismiss.
See id.
9
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examining Chris and Laber together makes it clear that Title VII
Plaintiff’s claim.
10
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over Title VII claims. Laber, 438 F.3d at 425. Not wishing to
If the court were to find that it does not have subject matter
because the Laber court held only that courts in future cases may
whether the court has subject matter jurisdiction over the claim
dismissal.
B. Motion to Amend
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court will allow Plaintiff to amend the complaint, the court will
adverse party” when the opposing party has already filed the
before Plaintiff filed the motion to amend and Plaintiff did not
discretion, Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230
985 F.2d 164, 167-68 (4th Cir. 1993). In fact, Rule 15(a)
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been bad faith on the part of the moving party, or the amendment
13
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7
Defendant cites Laber in support of the proposition that
because Plaintiff seeks to amend his complaint by adding claims
well after the expiration of the limitations period found in §
2000e-16(c), those claims are untimely and leave to amend should
be denied. However, in Laber, the court concluded that the trial
court should have granted the plaintiff’s motion to amend despite
an untimely filing. See Laber, 438 F.3d at 428-29. Defendant
notes that the court reversed denial of the motion to amend only
because the defendant did not raise the untimeliness issue in
response to the motion to amend. While the court did state that
it did not address the issue of timeliness because the issue was
not raised in the motion to amend, the court did not say that the
sole reason the amendment was allowed was because the defendant
failed to raise the timeliness issue below. See id. Instead,
because the issue was not raised, the court did not reach the
issue and made no determination of what the result would have
been had the untimeliness argument been made. See id.
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merits.” Conley v. Gibson, 355 U.S. 41, 48, 78 S. Ct. 99, 103
Grattan v. Burnett, 710 F.2d 160, 163 (4th Cir. 1983) (citations
omitted).
id. at 163 (holding that there was a factual nexus between the
15
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Thus, Defendant had notice of the claims and should have realized
16
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race and sex discrimination claims that were the subject of the
17
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allowed to amend his complaint to state claims for race and sex
discrimination and that those claims will relate back to the date
C. Venue
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alleged to have been committed,” the court does not find that a
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Plaintiff, the court thus finds that the alleged unlawful acts
asserts that the relevant records had been kept in Atlanta but
Plaintiff does not contest this assertion, and the court thus
8
The language of § 2000e-5(f)(3) can be easily
misinterpreted. The way in which the first prong is phrased may
lead to the conclusion that it is sufficient for Plaintiff to
merely allege that the acts averred in the complaint occurred in
a particular state. However, the cases, including the ones
Plaintiff cites, rephrase the language of § 2000e-5(f)(3) and
make it clearer that the acts alleged must have occurred in the
state for venue to be proper in any one of its districts. See,
e.g., Perkins, 340 F. Supp. 2d at 627 (Venue “is appropriate in
any judicial district in the state in which the alleged unlawful
acts occurred.”). In addition, Defendant has challenged venue,
putting the burden on Plaintiff to show that venue is proper.
21
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records are kept, the court concludes that venue is not proper in
would have worked rather than any district in the state. See §
22
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522 (D. Md. 2003) (quoting Porter v. Groat, 840 F.2d 255, 258
9
Section 2000e-5(f)(3) mentions the applicability of 28
U.S.C. § 1406, indicating that the section governs improper venue
in Title VII actions. See § 2000e-5(f)(3). Courts employing §
2000e-5(f)(3) in Title VII cases have also applied § 1406 when
appropriate. See, e.g., Perkins, 340 F. Supp. 2d at 626-27
(noting that § 1406 applies to cases of improper venue but
declining to dismiss or transfer venue under § 1406 because venue
was proper under § 2000e-5(f)(3)); Benton v. Eng, 222 F. Supp. 2d
728, 731-32 (D. Md. 2002) (noting that the district the plaintiff
filed in was not a proper venue under § 2000e-5(f)(3) and using §
1406 to transfer the plaintiff’s claims to another district).
23
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Goldlawr, Inc. v. Heiman, 369 U.S. 463, 467, 82 S. Ct. 913, 916
filed suit within the ninety days but dismissal for improper
the running of that period, the United States District Court for
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10
Defendant also relied on the proposition that venue is
not proper in this district to support the argument that
Plaintiff’s motion to amend should be denied as futile. However,
because the court will transfer the case for improper venue
rather than dismissing it, Defendant’s argument is moot.
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Therefore, the case also could have been brought properly in the
Atlanta, would be the most convenient and fair for the parties
and the witnesses. The only tie the parties have to the Western
III. CONCLUSION
complaint.
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_____________________________________
United States District Judge
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