United States District Court, S.D. New York
September 30, 2004.
MERTON D. SIMPSON, SUSIE TUCKER-ROSS, MICHAEL M. RIDDICK, ALVIN MORGAN, RENEE BRADLEY, GERALDINE BELL, JANICE BIBB-JONES, LARRY MAUDLIN, GUSTAVO SANTOS, CHERYL GLENN and CONRAD REID, on their own behalf and on behalf of all similarly situated Black and Hispanic persons, Plaintiffs,
NEW YORK STATE DEPARTMENT OF CIVIL SERVICE and GEORGE SINNOT, sued in his individual and personal capacity, Defendants.
The opinion of the court was delivered by: LORETTA PRESKA, District Judge
MEMORANDUM OPINION AND ORDER
The Plaintiffs, Black and Hispanic state employees, have sued
the New York State Department of Civil Services (hereinafter the
"Department") and its Commissioner, George Sinnott, for the
intentional use of discriminatory testing instruments. Defendants
move to dismiss for improper venue pursuant to Fed.R. Civ. P.
12(b)(3) and 28 U.S.C. § 1406(a), or, in the alternative, to
transfer venue to the Northern District of New York pursuant to
28 U.S.C. § 1404(a). For the reasons set out below, the motion to
dismiss is denied, and the motion to transfer is granted. I. Facts
Plaintiffs are current and former State employees who took a
"promotional test battery" (hereinafter the "battery") in 1996
and 1997 (and, as to some Plaintiffs, in subsequent years). The
battery is a comprehensive test of supervisory and managerial
skills. It is given annually and is used for the supervisory and
managerial component of some individual promotion examinations.
(Hite Aff. ¶¶ 2 & 3.)*fn1 Each Plaintiff is Black or
Hispanic. Plaintiffs have sued the Department, which developed,
tested, implements and administers the battery, as well as the
Commissioner of Civil Service. Plaintiffs allege that the battery
is used (1) to determine eligibility in order for a civil servant
to take more specific promotional examinations and (2) as
promotions examinations. (Compl. ¶ 93.) Specifically, the
Plaintiffs contend that the Defendants discriminated against them
by developing, implementing and administering the battery that
has blocked the advancement of numerous Black and Hispanic
testtakers across New York State. The United States Equal
Employment Opportunity Commission (hereinafter "EEOC") issued
each plaintiff a right to sue letter. (Sussman Aff. ¶ 3 & Ex.
The Plaintiffs have asserted claims under Title VII and under the Equal Protection clause, as made actionable by
42 U.S.C. § 1983. Plaintiffs argue that venue pertaining to their
Title VII claims is proper in the Southern District and ask the
Court to invoke "pendant venue" over their other claims against
Commissioner Sinnott and the Department that would otherwise fail
for improper venue in the Southern District.
The Defendants move to dismiss the action on the ground of
improper venue or, alternatively, to transfer it to the Northern
District of New York pursuant to 28 U.S.C. § 1406(a) or §
II. Venue Under 42 U.S.C. § 2000e-5(f)(3)
Title VII provides, "it shall be an unlawful employment
practice for an employer to . . . discriminate against any
individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual's race,
color . . . or national origin." 42 U.S.C. § 2000e-2(a). Venue in
a Title VII claim is proper in "any judicial district in the
State in which the unlawful employment practice is alleged to
have been committed." 42 U.S.C. § 2000e-5(f)(3) (emphasis added).
Courts have interpreted this statutory language to mean that
"venue is not limited to the judicial district in which the
alleged unlawful acts occurred, but is appropriate in any
judicial district in the state in which the alleged unlawful acts
occurred." Aitkin v. Harcourt Brace Jovanovich, Inc., 543 F. Supp. 987, 988 (W.D.N.Y. 1982) (citing Gilbert v. General
Electrics, 347 F. Supp. 1058 (E.D. Va. 1972)).
In the instant case, Plaintiffs allege that the discriminatory
acts occurred in the State of New York and argue that, pursuant
to the statute, venue is proper in any district within New York
State. The Defendants argue that the statute is directed to
unlawful employment practices and note the Court of Appeals'
holding that "Title VII is an employment law, available only to
employees (or prospective employees) seeking redress for the
unlawful employment practices of the employers." Kern v. City of
Rochester, 93 F.3d 38, 45 (2d Cir. 1996) (quoting Tadros v.
Coleman, 717 F. Supp. 996, 1003 (S.D.N.Y. 1989) (emphasis in
original), aff'd, 898 F.2d 10 (2d Cir.)). Because Plaintiffs do
not sue Defendants as their employer complaining about unlawful
employment practices, Defendants argue that Title VII and its
venue provisions are inapplicable. Assuming, without deciding,
that Title VII and its venue provisions are applicable, I note
that the fact that venue might not be improper in this District
does not end the inquiry.
III. Transfer Under 28 U.S.C. § 1404(a)
The language of Title VII has led courts to conclude that
Congress did not intend "to place the venue provisions of Title
VII outside the purview of the transfer clauses of
28 U.S.C. § 1404 and § 1406." Richman v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 441 F. Supp. 517, 520 (S.D.N.Y. 1977) (quoting
EEOC v. Parish Water Work's Co., Inc., 415 F. Supp. 124 (E.D.
La. 1976)). Section 1404(a) provides that "for 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." 28 U.S.C. § 1404(a).
The decision whether to transfer venue is within the sound
discretion of the trial court and is only reviewed for an abuse
of discretion. See McFarlane v. Esquire Magazine,
74 F.3d 1296, 1301 (2d Cir. 1996).
In determining whether a case should be transferred pursuant to
§ 1404(a), the court considers several factors, including the
place where the operative facts occurred, the convenience to
parties, the convenience of witnesses, the relative ease of
access to sources of proof, and the plaintiff's choice of forum.
See Bordiga v. Directors Guild of America, 159 F.R.D. 457
(S.D.N.Y. 1995) (citing Viacom Int'l, Inc. v. Melvin Simon
Prods., Inc., 774 F. Supp. 858, 867-868 (S.D.N.Y. 1991)).
"`Ordinarily, plaintiff's choice of forum is accorded relatively
greater importance than the other factors . . . [except] when the
operative facts have few meaningful connections to plaintiff's
chosen forum.'" Ayala-Branch v. Tad Telecom,
197 F. Supp. 2d 13, 15 (S.D.N.Y. 2002) (quoting Berman v. Informix
Corporation, 30 F. Supp. 2d 653, 659 (S.D.N.Y. 1998)). "In short, the court
should consider those factors relevant to the task of making the
resolution of a case easy, expeditious and inexpensive."
Eichenholtz v. Brennan, 677 F. Supp. 198, 199-200 (S.D.N.Y.
1988) (internal quotations omitted).
Application of these considerations to the facts of the instant
case compels transfer to the Northern District of New York.
First, the operative facts alleged in the complaint occurred in
the Northern District. The battery was developed, implemented and
administered there, and all employees involved in development of
the battery are or were employed in the Department's Albany
Office. (Hite Aff. ¶¶ 4-6.) Plaintiffs took the tests there, and
the named Plaintiffs all are or were employed there. (Hite Affl.
¶ 10.) Indeed, all determinations of the Department relating to
the development, administration and use of the battery occurred
in the Northern District of New York. (Hite Aff. ¶ 8.) Thus,
because none of the operative facts occurred in the Southern
District of New York, Plaintiffs' choice of forum is not accorded
any greater weight than any other factor.
Second, the convenience of the parties warrants transfer. All
of the named Plaintiffs reside in the Northern District, except
for one, Michael Riddick, who resides in Virginia. (Compl. ¶¶ 1,
8, 16, 30, 39, 48, 58, 65, 72, and 79.) As noted, all of the
named Plaintiffs were or are employed in the Northern District and took the battery tests there. (Hite Aff. ¶ 10.) The
Department's headquarters is in Albany, New York, in the Northern
District. (Hite Aff. ¶ 5.) Commissioner Sinnott resides in the
Northern District. (Hite Aff. ¶ 14.) All Department employees
with knowledge of the design, implementation and administration
of the battery reside in the Northern District. (Hite Aff. ¶¶
5-8.) Finally, witnesses, such as co-workers and former employees
who will be called to testify and whose depositions are needed,
are or were employed in the Northern District. (Hite Aff. ¶¶
The only connection the Department has with the Southern
District is one office in New York City, which is a recruitment
outreach center, staffed by one professional and one secretary.
(Hite Aff. ¶¶ 12 & 13.) The recruitment center has no connection
with the design, implementation or administration of the battery,
and thus this connection is of no relevance. (Hite Aff. ¶ 12.)
The only connection the case has to the Southern District of New
York is that the office of Plaintiffs' attorney is located there
a connection of no relevance to this decision. Thus, in light
of the overwhelming weight of evidence connecting Plaintiffs'
claims to the Northern District, transfer of this case to the
Northern District is appropriate. See Ayala-Branch,
197 F. Supp. 2d at 14 (transferring Title VII action from Southern
District of New York to Middle District of Florida where
convenience factors supported the move); De Almeida v. Powell, 2002 U.S. Dist.
LEXIS 24200 (S.D.N.Y. 2002) (transfer of Title VII claim brought
in the Southern District of New York to the District of Columbia
was supported by concerns for convenience).
IV. Venue as to Claims Against Commissioner Sinnott
Transfer of this case to the Northern District is further
supported by the fact that venue for the claims asserted against
Commissioner Sinnott is improper in the Southern District.
"Individual defendants with supervisory control over a plaintiff
may not be held personally liable under Title VII." Tomka v.
Seiler, 66 F.3d 1295, 1313 (2d Cir. 1995); see also Cameron
v. Cmty. Aid for Retarded Children, Inc., 335 F.3d 60, 61 (2d
Cir. 2003) (determining employer's agent may not be held
individually liable under Title VII); Wrighten v. Glowski,
232 F.3d 119, 120 (2d Cir. 2000) (finding individuals are not liable
under Title VII). Commissioner Sinnott, as the head of the
Department, cannot be held personally liable under Title VII.
Therefore, proper venue as to the claims against Commissioner
Sinnott is governed by 28 U.S.C. § 1391, which reads in relevant
part, "a civil action wherein jurisdiction is not founded solely
on diversity of citizenship may, except as otherwise provided by
law, be brought in (1) a judicial district where any defendant
resides . . ." 28 U.S.C. § 1391(b).
For venue purposes, the "residence of [a] public official" being sued for employment discrimination is the district in which
he performed his duties, and the "residence" of a public officer
is his "official" and not his "actual" residence. See Berry v.
New York State Dep't of Corr. Serv., 808 F. Supp. 1106, 1108
(S.D.N.Y. 1995). Commissioner Sinnott is a state officer, and his
office is located in Albany, New York, in the Northern District.
(Hite Aff. ¶ 14.) Therefore, proper venue over the claims against
Commissioner Sinnott is in Northen District of New York.
Furthermore, the Plaintiffs have not pointed to any evidence in
the record to support their allegation that Commissioner Sinnott
has sufficient ties with the Southern District to exercise
jurisdiction over him here. The Plaintiffs' assertion that venue
is proper in the Southern District for the claims against
Commissioner Sinnott because they are related to the Title VII
claims is without legal or factual support. The doctrine of
"pendant venue," upon which the Plaintiffs rely to assert this
claim, is discretionary. See Rodriguez v. Chandler,
641 F. Supp. 1292, 1302 (S.D.N.Y. 1986), aff'd, 841 F.2d 1117 (2d Cir.
1988). The factors that drive the exercise of pendant venue are
similar to those behind 28 U.S.C § 1404, namely, "judicial
economy, convenience to the parties and the court system, and the
avoidance of piecemeal litigation." Rodriguez at 1302.
Application of these factors to the instant case, as referenced above, require that the case be transferred to the Northern
V. Related Cases Pending in the Northern District
Transfer of this case to the Northern District is further
supported by the fact that the lead named plaintiff, Mr. Simpson,
has instituted two actions there that arise from the same set of
facts as those alleged in the instant case. In Kerotest Mfg. Co.
v. C-O-Two Fire Equip. Co., 342 U.S. 180, 183-84 (1952), the
Court noted that where two competing lawsuits are brought in
different fora an "ample degree of discretion" is given to the
lower courts to consider "such factors as conservation of
judicial resources and comprehensive disposition of litigation"
when deciding whether transfer is wise judicial administration.
In the instant case, two related lawsuits have been filed in the
Northern District of New York. In the first case, Bolden and
Simpson v. Driggs, No. 98 Civ. 2008 (N.D.N.Y.), Commissioner
Sinnott was a named defendant, and the trial of the action
concluded with a jury verdict for Defendants. (Connell Reply Aff.
¶ 3.)*fn3 The second case, Simpson v. NY State Dep't of
Civil Services, No. 02 Civ. 1216 (N.D.N.Y.), is ongoing.
(Connell Reply Aff. ¶ 3.) Defendants assert, and Plaintiffs do
not dispute, that these two cases arose from some of the same
core set of facts as the claims in the instant case, and that the
attorneys, witnesses and evidence relating to that case are all
located in the Northern District. (Def.'s Reply Br. at
5;*fn4 Connell Reply Aff. ¶ 3.) Therefore, transferring this
case to the Northern District will serve the convenience of
parties and witnesses and will conserve of judicial resources.
Defendants' motion to dismiss is denied, and their motion to
transfer the case to the Northern District of New York pursuant
to 28 U.S.C. § 1404(a) is granted.