Opinion
13 Civ. 0035 (CM)
12-05-2013
MICHELLE TILLERY, Plaintiff, v. NYS OFFICE OF ALCOHOLISM AND SUBSTANCE ABUSE SERVICES, MICHAEL A. LAWLER, LAURIE FELTER, STEVE MANTOR Defendants.
DECISION AND ORDER
:
Introduction
Michele Tillery ("Plaintiff") brings this pro se action against the New York State Office of Alcoholisms and Substance Abuse Services ("OASAS"), Michael A. Lawler, Laurie Felter ("Felter"), and Steven Mantor ("Mantor"). Plaintiff alleges she was discriminated against in the terms of her employment and retaliated against for filing a complaint of discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 ("Title VII"), and New York State Human Rights Law, N.Y. Exec. Law §§ 290-297 ("NYSHRL"). Defendants have moved to dismiss for failure to state a claim and for improper venue; in the alternative Defendants seek a transfer to the Northern District of New York.
For the reasons set forth below, the case is transferred to the Northern District of New York.
Background
I. Procedural History
Plaintiff filed her original complaint on January 2, 2013. On June 14, 2013, Defendants moved to dismiss the complaint for failure to state a claim and improper venue, or in the alternative, to transfer the case to the Northern District of New York. Plaintiff opposed the motion and filed an amended complaint on July 8, 2013. Defendants argue that their motion to dismiss, or to transfer, is not obviated by Plaintiff's Amended Complaint.
II. Facts Relevant to Venue
Plaintiff is a 49 year old African American female employed with OASAS since at least 2005. (Amend. Compl. ¶ 6-7). Plaintiff resides in Poughkeepsie, New York. (Id. ¶ 4). Poughkeepsie is located in Dutchess County, which is part of the Southern District of New York.
Plaintiff is employed as a "Facilities Planner 2" and she performs fire and safety inspections of OASAS certified treatment facilities in Dutchess, Orange, Putnam, Rockland, Sullivan, Ulster, and Weschester counties. (Id. ¶ 6). Aside from Ulster County, which is located in the Northern District of New York, the rest of Plaintiff's inspections occurred in counties which are part of the Southern District of New York.
Defendants Felter and Mantor are Plaintiff's supervisors. (Id. ¶ 3). Defendant Lawler is the OASAS Associate Comissioner and supervises Felter and Mantor. (Id. ¶ 4). The OASAS Administrative Office is in Albany. (Pl's Affirm. in Opp. ¶ 73). Plaintiff is supervised out of the OASAS Albany office. (Id. ¶ 63). Plaintiff was required to report to Albany when she was not doing field work, as well as for training and staff meetings. (Amend. Comp. ¶¶ 70-74, 97, 107).
III. Allegations in Plaintiff's Amended Complaint
Plaintiff complains of ongoing employment discrimination, disparate treatment, harassment, and retaliation based on her race by the Defendants since May 2005. (Amend. Compl. ¶ 8).
In particular Plaintiff alleges that OASAS is segregated in its structure, with all the African American employees, including Plaintiff, being given lesser responsibility. (Id. ¶ 12, 22. Plaintiff claims she was passed over for promotions based on her race in 2006 and 2010. (Id. ¶ 16).
Plaintiff further claims she was retaliated against based on her participation in an investigation that was conducted into a complaint of discrimination made by another OASAS employee, Mark Lyman. (Id. ¶ 30). During the investigation, which occurred between March and May, 2011, Plaintiff made a complaint of her own regarding the ongoing pattern of racial discrimination at OASAS. (Id. ¶ 34). Plaintiff alleges that following her participation in this investigation, she was retaliated against in several ways: Mantor accused her of being incompetent and of stealing time. (Id. ¶¶ 49-69). Plaintiff was "publicly taken into counseling sessions" by Mantor at the office and was questioned regarding the alleged misconduct. (Id.). Plaintiff's inspection workload was reduced, which required her to report to the office in Albany more frequently. (Id. ¶¶ 70-79). She received negative comments on her performance evaluations. (Id. ¶¶ 80-82). She was discriminated in Defendants enforcement of the collective bargaining agreement. (Id. ¶¶ 83-87). Plaintiff's medical travel accommodation was revoked by the Defendants. (Id. ¶ 88-108). In March 2012, Plaintiff filed an EEOC Complaint of discrimination based on her race, color and gender. (Id. ¶ 36). She was issued a right to sue letter on October 9, 2012. (Id. ¶ 46).
Additionally, Plaintiff alleges she was retaliated against for filing the EEOC complaint in March 2012. In August 2012, a position Facilities Planner 2 position had opened in New York City, and Plaintiff applied and interviewed for the position with Felter and Mantor. (Id. ¶¶ 42, 44). Plaintiff alleges this position paid more than her current position, offered growth opportunities, and would not require her to drive substantial differences. (Id. ¶ 42). On October 9, Plaintiff was informed by the Agency Administrative Office Administrator they had received a copy of her right to sue letter from the EEOC. (Id. ¶ 46). On October 10, 2012, Plaintiff was informed that the position that she had applied for was given to another applicant, allegedly a white male who lacked a certification that Plaintiff has. (Id. ¶¶ 41, 43, 45, 47).
Finally, Plaintiff alleges she was required to work longer hours because of her race, and as a result of retaliation. (Id. ¶¶ 109-119).
Discussion
I. Venue
As an initial matter, Defendants' motion to dismiss for improper venue is denied. Venue is proper in the Southern District of New York.
Venue in a Title VII action is governed by 42 U.S.C. § 2000e-5(f)(3). This section provides that a Title VII "action may be brought in any judicial district in the State in which the unlawful employment practice is alleged to have been committed." Id. "The Courts of this Circuit have construed [this] provision to mean that venue is not limited to the particular district in which the alleged unlawful acts occurred, but rather that venue is proper, as the plain language of the statute provides, in any judicial district in the State in which the alleged unlawful acts occurred." Langford v. International Union of Operating Engineers, Local 30, 765 F.Supp.2d 486, 495 (S.D.N.Y. 2011) (quoting Banfield v. UHS Home Attendants, Inc., No. 96-Civ-4850(JFK), 1997 WL 342422, at *1 (S.D.N.Y. June 23, 1997)) (emphasis in original); see also Lowe v. Housing Works, Inc., No. 11 Civ. 9233(DAB), 2013 WL 2248757, at *3-4 (S.D.N.Y. May 15, 2013).
Here, Plaintiff alleges unlawful employment practices occurred in the State of New York, Venue is thus proper in any judicial district in the State of New York, including this one, regardless of which district the alleged unlawful practices occurred, or where the defendants reside.
II. Motion to Transfer
A. Legal Standard for a Motion to Transfer
28 U.S.C. § 1404(a) states, "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 or to any district or division to which all parties have consented." The purpose of this provision is to "prevent waste 'of time, energy and money' and 'to protect litigants, witnesses and the public against unnecessary inconvenience and expense.'" Fuji Photo Film Co. v. Lexar Media, Inc., 415 F. Supp. 2d370,372 (S.D.N.Y. 2006) (quoting AEC One Stop Group, Inc. v. CD Listening Bar, Inc., 326 F. Supp. 2d 525, 528 (S.D.N.Y. 2004).
The statute gives the district court wide discretion to adjudicate motions for transfer according to an "individualized, case-by-case consideration of convenience and fairness." Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (quoting Van Dusen v. Barrack, 376 U.S. 612, 622 (1964)). In order to prevail on a motion to transfer, the moving party must establish by clear and convincing evidence that (1) the action is one that "might have been brought" in the district to which the movant seeks to have it transferred, and (2) transfer is appropriate based on the convenience of the parties, the convenience of witnesses, and the interests of justice. 28 U.S.C. § 1404(a); see e.g., Recurrent Capital Bridge Fund I, LLC v. ISR Sys.& Sensors Corp., 875 F. Supp. 2d 297, 304 (S.D.N.Y. 2012); see also New York Marine and General Ins. Co. v. Lafarge North America, Inc., 599 F.3d 102, 114 (2d Cir. 2010) (endorsing clear and convincing evidence standard).
Courts in this circuit consider a number of factors on a motion to transfer venue including:
(1) plaintiff's choice of forum, (2) the convenience to witnesses, (3) the location of relevant documents and ease of access to sources of proof, (4) the convenience of parties to the suit, (5) the locus of operative facts, (6) the availability of process to compel the attendance of unwilling witnesses, (7) the relative means of the parties, (8) the forum's familiarity with the governing law, (9) trial efficiency, and (10) the interest of justice, based on the totality of circumstances.Recurrent Capital Bridge Fund, 875 F. Supp. 2d at 304; see also New York Marine 599 F.3d at 127-28 (listing factors one through seven as "among" others).
B. Considering the Relevant Factors, Defendants' Motion to Transfer is Granted
Defendants move to transfer to the Northern District of New York. Plaintiff opposes the transfer.
As a threshold matter, venue would be proper in the Northern District of New York for the same reasons venue is proper in the Southern District of New York, so it is a venue that the action "might have been brought." 28 U.S.C § 1404(a).
Considering the relevant factors, the action should be litigated in the Northern District of New York.
Plaintiff's choice of forum weighs against transfer, but this factor is not dispositive. See Larew v. Larew, No. 11 Civ. 5771(BSJ) (GWG), 2012 WL 87616, at *8 (S.D.N.Y. Jan. 10, 2012); Berman v. Informix Corp., 30 F.Supp.2d 653, 659 (S.D.N.Y.1998).
The convenience of the witnesses weighs is in favor of transfer. This factor is "traditionally viewed as the most important." Randle v. Alexander, No. 10 Civ. 9235 (JPO), 2013 WL 2358601, at *22 (S.D.N.Y. May 30, 2013) (citing Filmline (Cross-Country) Prods., Inc. v. United Artists Corp., 865 F.2d 513, 520 (2d Cir.1989)). Most of the events Plaintiff describes in her complaint took place in Albany at the OASAS office; therefore many witnesses are located in Albany. Each side argues conclusorily about the location of witnesses: Defendants claim that "undoubtedly" all the witnesses are located in Albany. (Defs. MOL at 21). Plaintiff argues that "several" witnesses are in New York City. (Pl's Opp. ¶ 74). However, Defendants point to one witness, Mark Lyman, who is referred to in Plaintiff's complaint, and who works out of the Albany office and lives in that vicinity. (Def's MOL at 21; Pl's Affirm. in Opp., Ex. 1). Plaintiff does not identify any specific witnesses who reside in New York City; she herself lives halfway between Albany and New York City. This factor supports transfer.
The convenience of parties also favors transfer. Like the convenience of witnesses, this is one of the more important factors, as it is explicitly listed in the statute. 28 U.S.C. § 1404(a). Plaintiff lives in Poughkeepsie, which is in the Southern District of New York, but in the far northern reaches of the district. She lives more or less equidistant from this courthouse and the Northern District of New York court house in Albany; she is close to neither. Plaintiff was supervised out of the Albany OASAS office, which is in the Northern District of New York; her work required travel within the Southern District. One of the allegations in Plaintiff's Amended Complaint is that she was passed over for a job in New York City, although it appears that the act of selecting, or passing over, occurred in Albany. Another one of her complaints is about having to travel to Albany as part of her employment, because driving long distances aggravates her medical condition.
Plaintiff argues that it is more convenient for her to litigate in the Southern District of New York because it is cheaper and easier for her to travel to Manhattan than it is to Albany; however, as Defendants point out, this is not actually true. Both Albany and Manhattan are accessible via mass-transit, and the rates are comparable (no doubt because Poughkeepsie is roughly equidistant from Albany and Manhattan). Compare Tickets, Amtrak, http://tickets.amtrak.com/itd/amtrak (Poughkeepsie to Albany-Rensselaer), with Fares, Metro-North Railroad, http://as0.mta.info/mnr/fares/choosestation.cfm (Pougkeepsie to Grand Central Station). Defendants argue for transfer because of the inconvenience of having to appear in Manhattan, when they work in Albany, 160 miles away. Since there are multiple defendants, but a single plaintiff, and because Plaintiff would have an identical commute from Poughkeepsie to either Manhattan or Albany, the convenience of the parties supports transfer.
Although Plaintiff lives far from both Manhattan and Albany, she lives closer to the White Plains courthouse in the Southern District of New York than to either Manhattan or Albany. Plaintiff argues that Southern District of New York courthouse in White Plains is the most convenient place for this litigation. Plaintiff should have filed her case in White Plains pursuant to Rule 18 of the Local Rules for the Division of Business Among District Judges. However, Plaintiff did not file her case in White Plains. I decline to transfer it there, because the judges in that courthouse are massively overburdened with work. Since I will not send the case to White Plains, Plaintiff's arguments about the convenience of litigating in White Plains are unpersuasive. Even if Plaintiff had filed the action in White Plains, there would be strong considerations in favor of transferring to Albany.
The next factor, the locus of operative facts, also supports transfer, as all the events relating to the alleged discrimination occurred in Albany. "The location of a case's operative facts has been considered by some courts as a 'primary factor in determining a § 1404(a) motion to transfer.'" Larew, 2012 WL 87616, at *5 (quoting Mitsui Marine & Fire Ins. Co. v. Nankai Travel Int'l Co., 245 F.Supp.2d 523, 525-26 (S.D.N.Y.2003)). Plaintiff argues that the alleged discrimination and retaliation she suffered affected her in the Southern District of New York; however, because her supervisors were located in Albany, the discriminatory acts occurred in Albany. The conduct that Plaintiff specifically alleges was discriminatory or retaliatory occurred in Albany. Plaintiff does not allege she was discriminated against when she was conducting inspections in the Southern District of New York; she alleges she faced harassment and a hostile work environment when she was required to report to the Albany OASAS office.
The location of the relevant documents supports transfer. As Plaintiff worked out of and was supervised out of the OASAS office in Albany, any records concerning her employment would be located there. Although courts have noted that this factor is not particularly significant, "In an era of electronic documents, easy copying and overnight shipping." Larew, 2012 WL 87616, at *5 (quoting Seltzer v. Omni Hotels, No. 09 Civ. 9115(BSJ)(JCF), 2010 WL 3910597, at *4 (S.D.N.Y. Sept.30, 2010)).
As to the sixth factor, Plaintiff would not be able to compel non-party witnesses located outside of a hundred miles of Albany. See Fed. R. Civ. P. 45(c). However, the case is not likely to involve many non-party witnesses, and as discussed above many witnesses are likely to be in Albany.
The relative means of the parties is either neutral or weighs in favor of transfer. Defendants concede in their brief that Plaintiff has fewer means than the defendant state agency. However, "this factor has rarely been a dispositive reason to grant or deny a transfer motion and is not so here." Schoenefeld, 2009 WL 1069159, at *3 (quoting Thomas America Corp. v. Fitzgerald, No. 94 Civ. 0262(CBM), 1994 WL 440935, at *5 (S.D.N.Y. Aug. 11, 1994)) (internal quotation marks omitted). Here, taxpayers would have to bear the burden of transporting multiple state employees to New York City, and housing them here. Because Plaintiff must commute a roughly equal distance to appear in Albany or in Manhattan, as discussed above, it is unlikely that prosecuting the action in the Northern District of New York would cost her more.
The eighth factor is neutral as federal courts in New York are equally familiar with the federal and New York state laws at issue in this case.
As for the ninth and tenth factors there is no reason to believe that either court could try this case more efficiently than the other—although there is reason to believe that it would take a longer time to get to trial in White Plains than in Manhattan.
Finally, Plaintiff's argument regarding the ability to conduct depositions closer to her home is irrelevant. Depositions frequently occur outside the forum district. See, e.g., Schnabel v. Ramsey Quantitative Systems, Inc., 322 F.Supp.2d 505, 517 n.10 (S.D.N.Y. 2004). Although plaintiffs have the ability to choose the site of a deposition, courts in this circuit generally require depositions at the residence or principal place of business of a defendant, regardless of whether it is in the forum district. See generally Buzzeo v. Board of Educ., Hempstead, 178 F.R.D. 390, 392-93 (E.D.N.Y. 1998). This means Plaintiff will likely have to depose Defendants in the Northern District of New York.
Considering the factors, particularly the most important factors of the convenience to the parties, witnesses, and the location of the operative facts, Plaintiff's choice of forum is outweighed. The case is transferred to the Northern District of New York.
Conclusion
Defendants' motion to transfer venue to the Northern District of New York is granted. Defendants' motion to dismiss for improper venue is denied. Given this ruling, the Court does not reach Defendants' motion to dismiss for failure to state a claim. The Clerk of Court is respectfully directed to transfer the case to the Northern District of New York pursuant to 28 U.S.C. § 1404(a). Dated: December 5, 2013
/s/_________
U.S.D.J. [BY ECF TO ALL PARTIES]