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United States District Court, S.D. New York

September 30, 2004.

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


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. 3.)*fn2

  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 § 1404(a).

  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. ¶¶ 6-8.)

  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 District.

  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.

  VI. Conclusion

  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.


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