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Gerald Henneghan v. Frederick W. Smith

February 17, 2011


The opinion of the court was delivered by: Richard J. Holwell, District Judge:


Plaintiff pro se Gerald Henneghan ("Henneghan") worked at the FedEx Office and Print Services, Inc. ("FedEx Office") store in Manassas, Virginia from 2006 through 2008. Henneghan alleges that his immediate supervisor at that store, Jonathan Roach ("Roach") subjected him to ongoing and severe sexual harassment; that he brought this harassment to the attention of executives at FedEx Office and its parent company FedEx Corporation ("FedEx"); and that he was terminated by FedEx Office for complaining. Henneghan alleges this conduct violates Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000 et seq. ("Title VII"), the civil rights statutes 42 U.S.C. §§ 1981 and 1985, and various provisions of New York State law; and sues Roach, Roach's wife Joy Roach ("Joy"), FedEx, FedEx Office, and possibly also Frederick W. Smith ("Smith") and Brian D. Phillips ("Phillips"), the CEOs of FedEx and FedEx Office respectively. Because the alleged harassment occurred by a vast majority in Manassas, and at most a single event occurred in New York, the Court transfers the federal claims in this case to the Eastern District of Virginia. Because the Court transfers all federal claims, the Court dismisses the state law claims without prejudice.*fn1


The following facts are relevant to this opinion. *fn2 Henneghan, an Afircan American man, resides in Washington D.C. (Compl. ¶¶ 1-2.) Roach and Joy allegedly once lived in New York and/or held New York State driver's licenses, but have resided, been employed, and paid taxes in Manassas, Virginia since April 2006. (Id. ¶¶ 6-7; Pl.'s Sept. 24, 2010 Opp'n ¶¶ 6-7; Jonathan Roach Supplemental Aff. ¶¶ 1-4; Joy Roach Supplemental Aff.¶¶ 1-4; Roach Def.'s Mem. at 4, 10.) FedEx is a global company that provides various transportation, e-commerce, and business services, incorporated in Delaware and headquartered in Tennessee. (Compl. ¶¶ 3, 8; Brunson Aff. ¶ 2.) FedEx Office, a subsidiary of FedEx, is a global company that provides document solutions and business services, incorporated in Delaware and headquartered in Texas. (Compl. ¶¶ 4, 9; Brunson Aff. ¶ 2.) Smith is the CEO of FedEx; Phillips is the CEO of FedEx Office. (FedEx Def.'s Mem. at 1.)

From approximately June 2006 through April 2008, Henneghan was employed at FedEx Office's store at 10756 Sudley Manor Drive, Manassas, Virginia. (Compl. ¶¶ 11, 13; EEOC Compl., dated Aug. 25, 2008, at 1-2.) Roach was Henneghan's supervisor. (Compl. ¶ 16.) During that period, Roach allegedly subjected Henneghan to ongoing sexually harassing conduct at the Manassas store including, but not limited to: (1) discussing his and Henneghan's penis sizes; (2) displaying pornographic pictures of himself and his wife, Joy, including close up photographs of their genitalia; (3) displaying pornographic pictures of underaged girls; (4) requesting that Henneghan allow Roach to perform various sexual acts on him; (5) soliciting Henneghan to perform various sexual acts on Joy while he watched and masturbated; (6) parading Joy around the store to taunt Henneghan; and (7) withholding funds from Henneghan's paycheck when Henneghan refused to comply with Roach's requests. (Id. ¶¶ 32-96.) Additionally, in November 2007 while in New York City for Thanksgiving, Henneghan received a pornographic email from Roach. (Id. ¶ 53.) Henneghan allegedly requested on several occasions that Roach cease his harassment and wrote dozens of letters to various executives at FedEx and FedEx Office, but the conduct continued unabated. (Id. ¶¶ 39, 41, 100-117, 127.) Eventually FedEx Office put Henneghan on administrative leave and then fired him, allegedly in retaliation for his complaints of harassment. (Id. ¶ 136.)

Henneghan filed a complaint with the Virginia Council On Human Rights and the Equal Employment Opportunity Commission ("EEOC") on August 25, 2008. (EEOC Compl. at 1.) On May 8, 2009, the EEOC issued Henneghan a "Right to Sue" letter, which he received on May 15, 2009. (EEOC Notice of Right to Sue, dated May 8, 2009; Henneghan Decl. dated Aug. 8, 2009 ¶ 2.) Then on August 8, 2009, Henneghan filed the present suit bringing eight causes of action including federal claims under 42 U.S.C. §§ 1981 and 1985, and Title VII, and various New York State law claims. The Roach Defendants and the FedEx Defendants have each filed motions to dismiss. Henneghan has cross-moved for sanctions.


A. Venue

Venue (as well as jurisdiction) is a threshold procedural issue to be decided before the substantive grounds on a motion to dismiss. See Saferstein v. Paul, Mardinly, Durham, James, Flandreau & Rodger, P.C., 927 F. Supp. 731, 735 (S.D.N.Y. 1996). When a defendant challenges venue, plaintiff has the burden of proving that venue is proper. Id. at 736. The Court must address whether plaintiff has demonstrated proper venue with respect to each count in the Complaint. Cartier, 2007 WL 1181788, at *2. In doing so, the Court may consider evidence beyond the allegations in the complaint. Id.

Venue for purposes of Henneghan's 42 U.S.C. §§ 1981 and 1985 claims "is governed by the general venue statute, 28 U.S.C. § 1391." Cook v. UBS Financial Servs., Inc., No. 05 Civ. 8842, 2006 WL 760284, at *3 (S.D.N.Y. Mar. 21, 2006). That statute places proper venue in:

(1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought.

28 U.S.C. § 1391(b). Venue for Title VII claims, however, "is not determined by the general venue statute, but rather is strictly governed by 42 U.S.C. § 2000e-5(f)(3)." Cook, 2006 WL 760284, at *3 (internal quotation marks omitted). That statute provides for venue 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 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). Moreover, if the "unlawful employment practice" is alleged to have occurred mostly in one district and only minimally in another, then transfer from the latter to the former is generally proper. See Cook, 2006 WL 760284, at *5 (transferring Title VII claim from this District to District of Maryland because "most of the alleged unlawful employment practices concerning [plaintiff] occurred in Maryland."); Oparaji v. New York City Dep't of Educ., 172 F. App'x 352, 354 (2d Cir. 2006) (affirming transfer of Title VII claim from this District to Eastern District of New York because "most of the events at issue in this litigation took place in the Eastern District."). Under 28 U.S.C. § 1406(a), invoked here by defendants, "[t]he district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought." 28 U.S.C. § 1406(a).

Pro se plaintiffs are held to less stringent pleading standards than are licensed attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007). The court must "construe complaints filed by pro se litigants liberally and interpret them to raise the strongest arguments that they suggest." Magdalena v. Cuomo, No. 10-CV-4584 (SLT), 2010 WL 4222048, at *1 (E.D.N.Y. Oct. 20, 2010). Henneghan's complaint avers that venue is proper in this District because the unlawful acts alleged were committed here. (Compl. ΒΆ 20.) But the Court here ...

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