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January 5, 2004.

MARGUERITE FOLEY, Plaintiff, -against- SAMMONS PRESTON, INC. Defendants

The opinion of the court was delivered by: GEORGE DANIELS, District Judge


Plaintiff Marguerite Foley, a resident of North Carolina, brings claims for employment discrimination under Title VII of the Civil Rights Act of 1964, the Pregnancy Discrimination Act, the Family and Medical Leave Act of 1993, the New York State Human Rights Law and the New York City Administrative Code. Defendants move to dismiss pursuant to Fed.R.Civ.P. 12(b)(3) or, in the alternative, to transfer the instant action to the Northern District of Illinois pursuant to 28 U.S.C. § 1404 and 1406. For the reasons stated below, defendant's motion to dismiss is denied. Defendant's motion to transfer the case to the Northern District of Illinois is also denied.

I. Background

  Plaintiff, a former sales representative, sold medical supplies to hospitals and health care providers in the New York metropolitan area for the defendant until her termination on March 28, 2002. Plaintiff alleges that on June 22, 2001, she took a six week leave of absence and one week vacation, with authorization from her employer to give birth to her child. Plaintiff claims that when she returned to work on August 10, 2001, she was informed that her sales territory, which included Manhattan, was being reduced and would no longer include the borough. Plaintiff alleges that upon protesting the reduction of her sales territory, she was informed by her Page 2 supervisor that it would be easier for the plaintiff to work the smaller area as she had a newborn child and a four year-old. Plaintiff alleges that the decision to reduce her sales territory was based solely upon a discriminatory reason as "men who had families did not have their territories reduced in size." Complaint at 5, ¶ 31. Plaintiff argues that defendant's action "constitutes an impermissible discriminatory act, based upon sex, in violation of [plaintiff s] rights under the provisions of Title VII of the Civil Rights Act of 1964. . . ." Id. at 5, ¶ 33.

  Plaintiff also alleges that prior to her pregnancy leave, on or about January 15, 2001, she suffered sexual harassment in violation of her rights under Title VII Plaintiff claims that during two separate regional sales meetings held in Philadelphia, Pennsylvania, a particular co-worker made a series of offensive and sexually hostile remarks. After complaining of these remarks to the supervisor, plaintiff alleges that her employer retaliated against her. Specifically, plaintiff maintains that "one of her original accounts has been reclassified as a house account, causing [her] to suffer a loss of pay and commissions." Id. at 9, ¶ 58. Plaintiff further asserts that her termination on March 28, 2002 "was in retaliation for [her] registering complaints about offensive sexual behavior by [her supervisor]." Id. at 10, ¶ 66.

  II. Discussion

  Defendant argues that plaintiffs complaint should be dismissed because venue is improper in the Southern District of New York. Title VII has a specific venue provision, 42 U.S.C. § 2000e-5(f)(3). See Bolar v. Frank, 938 F.2d 377, 379 (2d Cir. 1991). Section 2000e-5(f)(3) provides that a Title VII action may be brought:

  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 Page 3 which the aggrieved person would have worked 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).

  Title VII provides its own definition of what constitutes an unlawful employment practice. Specifically, it is an unlawful employment practice for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex or national origin. . . ." 42 U.S.C. § 2000e-2(a)(1). See Wrenn v. Bd. of Dir., Whitney M. Young, Jr. Health Center, 1989 WL 23135, * 6 (N.D.N.Y.). In the present case, plaintiff alleges that defendant unlawfully discharged her in retaliation for her claims of sexual harassment. As plaintiff was terminated from her position in New York, venue is properly established. It is without dispute that plaintiff was hired in New York, worked in New York and lost her job in New York.

  Defendants contend, however, that "no allegedly discriminatory employment-related decisions were made in the Southern District of New York; all were made . . . in telephone consultations with corporate representatives in Bolingbrook, Illinois" and that "what matters is that the decisions about which she complains were not made in this judicial district. . . ." Defendant's Brief at 2-3. However, notwithstanding defendant's argument, the alleged discriminatory effect of those decisions were clearly in New York. In determining where an alleged discriminatory practice occurred, courts look not only to where the decisions were made, but also to where the discriminatory actions took place. See Cox v. National Football League, Page 4 1997 WL 619839, *3 (N.D.Ill. 1997). To hold otherwise allows employers everywhere "to make their decisions to terminate and discipline in far away offices in order to protect themselves from litigation." Id. Plaintiff therefore satisfies the first basis for establishing venue and venue is proper in this district. Defendant's motion to dismiss is therefore denied.

  Defendant argues, in the alternative, that this case should nevertheless be transferred to the Northern District of Illinois pursuant to 28 U.S.C. § 1404(a).

The inquiry on a motion to transfer is twofold. The court must first determine whether the action sought to be transferred is one that `might have been brought' in the transferee court. Second, the court must determine whether, considering the `convenience of parties and witnesses' and the interes of justice, a transfer is appropriate.
Wilshire Credit Corp. v. Barrett Capital Management Corp., 976 F. Supp. 174 (W.D.N.Y. 1997). Defendant argues and plaintiff concedes that the present action could have been brought in the Northern District of Illinois, as plaintiffs employment records are maintained and administered in Bolingbrook, Illinois. The Court must next decide whether a transfer is in fact called for, given the competing interests of the parties.

  Section 1404(a) is concerned with both "`private interest factors' affecting the convenience of the litigants" and "public interest factors' affecting the convenience of the forum." Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241, 102 S.Ct. 252, 258, 70 L.Ed.2d ...

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