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.
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
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,
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.
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
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,
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
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 ...