MEMORANDUM OPINION

Janet O’Meara brings this action against Ryan D. McCarthy in his official capacity as the Secretary of the United States Department of the Army (“the Army”),1 asserting various claims, including several under the Rehabilitation Act of 1973, 29 U.S.C. § 791, et seq.; see Am. Compl.

¶¶ 74–127, Dkt. 7. Before the Court is the Army’s Renewed Motion to Dismiss or to Transfer

Venue under 28 U.S.C. § 1406(a). Dkt. 13. For the reasons that follow, the Court will grant the motion and transfer this case to the Eastern District of Virginia.

I. BACKGROUND2

A. Factual Background

In May 2014, Janet O’Meara, a thirty-year federal employee, began working as a senior procurement analyst for the United States Army Corps of Engineers and was stationed in B. Procedural History

O’Meara filed this action on July 18, 2019. Dkt. ^[1]. On October 23, 2019, the Army filed

its first motion to dismiss or transfer this case on the ground that venue was not proper in the District of Columbia. See Dkt. 5. On March 9, 2020, the Court ordered the Army to clarify

whether its motion was being made pursuant to 28 U.S.C. § 1404(a), 28 U.S.C. § 1406(a), or both. See Min. Order of March 9, 2020. After the Army clarified that the motion was being made pursuant to 28 U.S.C. § 1406(a), see Dkt. 12, the Court denied the Army’s motion without prejudice and granted the Army leave to renew its motion. See Minute Order of March 11, 2020.

The Army filed this renewed motion on March 25, 2020. See Dkt. 13.

II. LEGAL STANDARDS

Under Rule 12(b)(3) of the Federal Rules of Civil Procedure, a party may move to

dismiss an action or claim when venue is improper. Fed. R. Civ. P. 12(b)(3). Similarly, the federal venue statute, 28 U.S.C. § 1406(a), requires a court to “dismiss, or if it be in the interest of justice, transfer” a case that has been filed “in the wrong division or district.” 28 U.S.C.

§ 1406(a). On a Rule 12(b)(3) motion, the moving party “must provide sufficient specificity to put the plaintiff on notice” of the potential defect, but “the burden remains on the plaintiff to establish that venue is proper.” McCain v. Bank of Am., 13 F. Supp. 3d 45, 50–51 (D.D.C. 2014)

(internal quotation marks omitted), aff’d sub nom. McCain v. Bank of Am. N.A., 602 F. App’x

836 (D.C. Cir. 2015). Venue determinations are driven by “commonsense appraisal[s]” of the “events having operative significance in the case.” Lamont v. Haig, 590 F.2d 1124, 1134 (D.C.

Cir. 1978).

“To prevail on a motion to dismiss for improper venue, the defendant must present facts that will defeat the plaintiff’s assertion of venue.” James v. Verizon Services Corp., 639 F. Supp.

2d 9, 11 (D.D.C. 2009). When ruling on a Rule 12(b)(3) motion, “the [C]ourt accepts the plaintiff’s well-pled factual allegations regarding venue as true, draw[ing] all reasonable inferences from those allegations in the plaintiff’s favor.” Pendleton v. Mukasey, 552 F. Supp.

2d 14, 17 (D.D.C. 2008) (internal quotation marks omitted). “The Court need not, however, accept the plaintiff’s legal conclusions as true, and may consider material outside of the pleadings.” Abraham v. Burwell, 110 F. Supp. 3d 25, 28 (D.D.C. 2015) (internal citation omitted). Unless there is a pertinent factual dispute to resolve, a challenge to venue presents a pure question of law. Williams v. GEICO, 792 F. Supp. 2d 58, 62 (D.D.C. 2011).

III. ANALYSIS

A. Venue Provisions

“[T]he proper venue for litigating a Rehabilitation Act claim is determined by the special

venue provisions of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e–5(f)(3).” Slaby v. Holder, 901 F. Supp. 2d 129, 132 (D.D.C. 2012). Title VII’s special venue provisions provide that “a plaintiff may bring suit: (1) where ‘the unlawful employment practice is alleged to have been committed,’ (2) where ‘the employment records relevant to such practice are maintained and administered,’ or (3) where ‘the aggrieved person would have worked but for the alleged unlawful employment practice.’” Pendleton, 552 F. Supp. 2d at 17 (quoting 42 U.S.C. § 2000e-

5(f)(3)). If the defendant “is not found within any such district” then the “action may be brought within the judicial district in which the [defendant] has his principal office,” 42 U.S.C. § 2000e-

5(f)(3).

Here, venue is appropriate in the Eastern District of Virginia under Title VII’s first provision because the allegedly unlawful employment practices occurred there, and the third venue provision is inapplicable because O’Meara does not claim that she would have worked in a different district in the absence of such practices. See Am. Compl. ¶¶ 1, 7; Pl.’s Opp’n at 14, Dkt. 14; Def.’s Reply at 3, Dkt. 15. The parties disagree, however, over whether venue is appropriate in the District of Columbia under Title VII’s second venue provision.^[3] Compare

Pl.’s Opp’n at 3–4, 9, with Def.’s Reply at 2.

This Court has made clear that “[u]sing employment records to process an administrative

complaint is not ‘maintaining and administering’ the employment records for purposes of establishing venue under 42 U.S.C. § 2000e-5(f)(3).” Saran v. Harvey, 2005 WL 1106347, at *3

(D.D.C. May 9, 2005). Holding otherwise would “sidestep the language of the statute, which

deals not with administrative processing of the litigation but with the maintenance and administration of employment records relevant to the challenged employment practice,” Lee v. England, 2004 WL 764441, at *1 (D.D.C. Mar. 9, 2004), and would allow venue to lie “merely where any records happen to be located,” Kendrick v. Potter, 2007 WL 2071670, at *3 (D.D.C.

July 16, 2007).

The Army has produced declarations attesting that O’Meara’s official employment records are “maintained and administered” at the National Personnel Records Center, which is headquartered in Saint Louis, Missouri, Haugh Decl. ¶¶ 3–7, Dkt. 13-4, and that the employment records located in the Army Corps of Engineers’ EEO office in Washington, D.C. are maintained

for the purpose of processing O’Meara’s EEO claims, see Poole Decl. ¶ 3, Dkt. 13-3. Ordinarily, such evidence would likely satisfy the Army’s burden to “present facts that will defeat the plaintiff’s assertion of venue.” See Khalil v. L–3 Commc’ns Titan Grp., 656 F. Supp. 2d 134, 135 (D.D.C. 2009) (internal quotation marks omitted); see also Kendrick, 2007 WL 2071670, at

*3 (noting such declarations “are sufficient to establish where the employment records are maintained and administered”).

But O’Meara also has produced declarations which attest that O’Meara’s official personnel file was “purged” of various records upon her separation, see Bolls Decl. ¶¶ 7–8, Dkt.

14-3, that the vast majority of the employment records relevant to her claims of discrimination— including her accommodation requests, leave requests, and medical folder—are no longer contained within her official personnel file, Second O’Meara Decl. ¶¶ 1, 4–5, Dkt. 14-2, and that

O’Meara’s EEO records are the only extant version of these records, see Bolls Decl. ¶¶ 8, 10.

Accordingly, O’Meara contends that her EEO records are the only relevant “master set” of employment records under Title VII’s second venue provision. Pl.’s Opp’n. at 11; see also

Taylor v. Shinseki, 13 F. Supp. 3d 81, 87 (D.D.C. 2014) (“Courts in this district have interpreted

this provision to mean that venue is proper in only one district: where the ‘master set’ of employment records is located.”).

This Court has “firmly rejected the argument that the location where Plaintiff’s EEO complaints were initiated and processed provides a basis for venue under prong 2 of § 2000e-

5(f)(3).” Ellis-Smith v. Sec’y of Army, 793 F. Supp. 2d 173, 176–77 (D.D.C. 2011). Thus

“[w]hile it may be true that records relating to plaintiff’s unlawful employment practice complaint and the investigation thereof are maintained in the District of Columbia, such records are not ‘employment records’ within the meaning of the statute.” Amirmokri v. Abraham, 217 F.

Supp. 2d 88, 90–91 (D.D.C. 2002). “Although Congress could easily have written the statute to make venue proper in any judicial district in which employment records may be found, it did not choose to do so.” Washington v. Gen. Elec. Corp., 686 F. Supp. 361, 363 (D.D.C. 1988).

Rather, it made venue proper “in the judicial district in which the employment records relevant to such practice are maintained and administered.” 42 U.S.C. § 2000e-5(f)(3) (emphasis added). A

“version” of the employment records were provided to the Army Corps of Engineers’ EEO office in Washington, D.C. to assist with the processing of O’Meara’s EEO complaint. See Poole Decl.

¶ 3. But duplicate records are “insufficient to satisfy Title VII’s second venue provision.”

Jyachosky v. Winter, 2006 WL 1805607, at *3 (D.D.C. June 29, 2006); see also Taylor, 13 F.

Supp. 3d at 87 (“[T]he mere electronic accessibility of the ‘master set’ of records from other districts does not provide an adequate basis for venue.”).

Any purging of records in O’Meara’s official employment file, see Bolls Decl. ¶ 8, does

not transform the duplicate EEO file into a “master set” of employment records such that the EEO office has been tasked with “manag[ing] the affairs of” or “direct[ing] or superintend[ing] the execution” or “use” of O’Meara’s employment records. See Webster’s Third New

International Dictionary 27 (1961) (defining the term “administer”). Nor does the imposition of a “litigation hold” on O’Meara’s EEO file, see Pl.’s Opp’n at 2; Bolls Decl. ¶ 6, change this

straightforward conclusion. After all, the EEO file is not a set of “employment records” to begin with. Amirmokri, 217 F. Supp. 2d at 90–91 (stressing that EEO records are not “employment records” within the meaning of Title VII’s venue provision). Even if it were an employment

record, it is not being maintained or administered by the EEO office, which merely oversees the “administrative processing of th[is] litigation,” Lee, 2004 WL 764441, at *1; see Saran, 2005

WL 1106347, at *3 (observing that “using employment records to process an administrative complaint” does not constitute “maintaining and administering” a plaintiff’s employment records).

While O’Meara was employed at the Army, the Army Corps of Engineers’ Civilian

Personnel Advisor Center maintained and administered O’Meara’s official employment file at her office in Alexandria, Virginia. See Haugh Decl. ¶ 3; Bolls Decl. ¶ 8; Pl.’s Opp’n at 9–10.

After she left the Army, O’Meara’s employment file was transferred from the Alexandria, Virginia office to the Army Corps of Engineers’ headquarters in Washington, D.C., and later to the National Personnel Records Center headquarters in Saint Louis, Missouri, pursuant to Army

Corps of Engineers’ policy.^[4] See Haugh Decl. ¶¶ 3–5. Thus, to the extent that any office of the Army continues to “maintain and administer” O’Meara’s official employment records, it is the National Personnel Records Center. Accordingly, venue is not proper in the District of Columbia.

B. Transfer

Having found venue in the District of Columbia to be improper, the Court must determine whether to dismiss the case. “The 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). “The decision whether a transfer or a dismissal is in the interest of justice . . . rests within the sound discretion of the district court.” Naartex Consulting Corp. v. Watt, 722 F.2d

779, 789 (D.C. Cir. 1983). Yet “the interest of justice generally requires transferring a case to the appropriate judicial district in lieu of dismissal,” Ellis-Smith, 793 F. Supp. 2d at 177, which is what the Court will do here.

Beyond asserting that venue is proper in the District of Columbia, O’Meara has expressed

no preference as to where her claims should be heard. Nonetheless, the Court finds that it is in the interest of justice to transfer the case to the Eastern District of Virginia because, as O’Meara represents, see Pl.’s Opp’n at 15, various key witnesses reside in or near that district.

CONCLUSION

For the foregoing reasons, the Court grants the Army’s renewed motion to dismiss or transfer venue, and will transfer this case to the Eastern District of Virginia. A separate order consistent with this decision accompanies this memorandum opinion.

________________________ DABNEY L. FRIEDRICH United States District Judge September 17, 2020