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SIMPSON v. NEW YORK STATE DEPARTMENT OF CIVIL SERVICE

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,
v.
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. 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 ...


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