# Hairston v. Wormuth

> District Court, M.D. Tennessee · April 25, 2024

URL: https://www.frixlaw.com/law-library/cases/10669721

## Case

- **Court:** District Court, M.D. Tennessee
- **Decided:** April 25, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10669721

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

NYCOCA C. HAIRSTON, )
)
Plaintiff, )
)
v. ) Case No. 3: 22-cv-00111
) Judge Aleta A. Trauger
CHRISTINE WORMUTH, Secretary of )
the Army, et al., )
)
Defendants. )

MEMORANDUM
Plaintiff Nycoca Hairston has filed suit in this court alleging employment discrimination
and retaliation in violation of Title VII of the Civil Rights Acct of 1964 (“Title VII”) and the Age
Discrimination in Employment Act (“ADEA”), arising from, among other events, the termination
of her employment with the U.S. Army in June 2021. (See generally Doc. No. 43, Second
Amended Complaint (“SAC”).) Now before the court is the Motion to Transfer Venue to More
Appropriate Forum and for Dismissal (Doc. No. 55), filed by defendants Christine Wormuth,
Secretary, United States Department of the Army; Lloyd Austin III, Secretary, United States
Department of Defense; Merrick Garland, U.S. Attorney General; and Mercedes Maynor-Faulcon,
Assistant U.S. Attorney.1
Initially, the defendants’ motion argues that, for purposes of the plaintiff’s claims under
both Title VII and the ADEA, Wormuth, as Secretary of the Army, is the only properly named
defendant in this action. In her Response to the Motion to Dismiss, the plaintiff expressly agrees

1 The court has already granted the separately filed and unopposed Motion to Dismiss by
Tennessee Attorney General Jonathan Skrmetti, who was also named as a defendant in the
plaintiff’s Second Amended Complaint.
that the defendants’ Motion to Dismiss should be granted as to all defendants named in this action
other than Wormuth. Accordingly, the court will dismiss the claims against defendants Austin,
Garland, and Maynor-Faulcon without further discussion and will refer herein to defendant
Wormuth, in the singular, as “the defendant.”

The court further finds, as set forth herein, that transfer under 28 U.S.C. § 1406(a) is
appropriate, rather than dismissal under either that statute or for failure to exhaust.
I. BACKGROUND
Nycoca Hairston is a resident of Clarksville, Tennessee. (SAC ¶ 2.) She is a former GS-13
Army civilian Logistics Management Specialist with the 401st Army Field Support Brigade in
Camp Arifjan, Kuwait. (SAC ¶ 4.) The SAC sets forth claims for race and gender discrimination
and retaliation in violation of Title VII, and age discrimination in violation of the ADEA, based
upon events that occurred during the spring and summer of 2021, culminating in her termination
on June 11, 2021. (SAC ¶ 32.)
The plaintiff alleges that she made an initial informal complaint with the Army’s Equal
Employment Office (“EEO”) and that the EEO then issued her a Notice of Right to File a Formal

Complaint on June 28, 2021. (SAC ¶ 36.) The plaintiff thereafter filed her Formal Complaint, and
the EEO dismissed it on July 29, 2021. (See generally SAC Ex. A, Doc. No. 43-1, at 3–6.) The
dismissal was based on the plaintiff’s failure to timely file her Formal Complaint with the EEO
within fifteen days of her receipt of her Notice of Right to File a Formal Complaint. According to
the EEO, the plaintiff filed her Formal Complaint one day after the fifteen-day limitations period
had elapsed. (Doc. No. 43-1, at 5.) The U.S. Equal Employment Opportunity Commission
(“EEOC”) affirmed the dismissal on that basis and issued the plaintiff notice of her right to file
suit in federal court on November 29, 2021. (SAC Ex. A, Doc. No. 43-1, at 7–13.)
The plaintiff initiated this lawsuit within the allotted ninety calendar days for doing so by
filing her original pro se Complaint in this court on February 18, 2022. (See Doc. No. 1.) She filed
the SAC in September 2023. After finally being served with process in October 2023 (after the
court extended the service deadline several times), the defendant filed the pending Motion to

Transfer Venue to More Appropriate Forum and for Dismissal in lieu of an answer on December
11, 2023. Counsel entered an appearance on behalf of the plaintiff on December 5, 2023. (Doc.
No. 54.)
II. MOTION AND RESPONSE
Wormuth moves to dismiss the claims against her under Rule 12(b)(3), based on improper
venue, or for transfer of the case to a district where venue is proper, under 28 U.S. C. § 1406(a).
Alternatively, she argues that the case should be dismissed for failure to timely exhaust
administrative remedies, based on the EEO’s dismissal of the plaintiff’s Formal Complaint of
discrimination as untimely.
In response, the plaintiff states that she “has no defense to Defendants’ venue argument”
but then argues that the defendant “waived venue by asking the court to make rulings on matters

that have nothing to do with venue.” (Doc. No. 59, at 5.) She also argues that the defendant failed
to challenge personal jurisdiction at the same time as venue, as a result of which, according to the
plaintiff, the defendant “subjected [herself] to the court’s jurisdiction over the matters and waived
[her] venue defense.” (Id. at 7 (citing Hamm v. Wyndham Resort Dev. Corp., No. 3:19-cv-00426,
2020 U.S. Dist. LEXIS 188027 at *18 (M.D. Tenn. October 9, 2020)).) The plaintiff also argues
that the defendant’s motion under Rule 12(b)(6) for failure to exhaust is premature,2 as exhaustion

2 The plaintiff also incorrectly states that the defendant seeks dismissal for failure to
exhaust as a matter of subject matter jurisdiction. In fact, the defendant does not characterize the
exhaustion requirement as jurisdictional.
is an affirmative defense with respect to which she should be permitted to present proof and
argument as to whether equitable tolling should be applied to excuse her failure to meet the filing
deadline.
In her Reply, the defendant points out that her argument that venue in this court is improper

is premised upon the specific venue provision in Title VII and, further, that she has properly raised
all her bases for dismissal under Rule 12 in one motion, thus waiving none of them. The defendant
also acknowledges that failure to exhaust is an affirmative defense as to which the defendant bears
the burden of proof, but she argues that it is clear from the face of the Complaint and exhibits
attached thereto that dismissal is appropriate.
III. ANALYSIS
A. Improper Venue
Under Rule 12, a defendant may move to dismiss the plaintiff’s complaint “for improper
venue.” Fed. R. Civ. P. 12(b)(3). When a defendant asserts that venue is improper in the court in
which a lawsuit is filed and seeks dismissal pursuant to Rule 12(b)(3), “the plaintiff bears the
burden of proving that venue is proper. The Court may examine facts outside the complaint but

must draw all reasonable inferences and resolve factual conflicts in favor of the plaintiff.” Gone
To The Beach, LLC v. Choicepoint Servs., Inc., 434 F. Supp. 2d 534, 536–37 (W.D. Tenn. 2006)
(quoting Audi AG & Volkswagen of Am., Inc. v. Izumi, 204 F. Supp. 2d 1014, 1017 (E.D. Mich.
2002)).
While Rule 12(b)(3) provides the “procedural vehicle” for challenging improper venue, the
actual requirements for venue and the remedies available for improper venue are set by statute.
Kerobo v. Sw. Clean Fuels, Corp., 285 F.3d 531, 538 (6th Cir. 2002). Section 1406(a), which the
defendant invokes, applies where venue is improper rather than merely inconvenient. This
provision states simply: “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).
And the determination of whether venue is proper, again, is governed by statute. Under the
so-called “general” venue statute, “except as otherwise provided by law,” a civil action in which a

defendant is an officer or employee of the United States acting in his official capacity may be
brought “in any judicial district in which (A) a defendant in the action resides, (B) 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 (C) the plaintiff resides if no real property is involved
in the action.” 28 U.S.C. § 1391(e)(1).
However, Title VII contains a specific statutory venue provision governing Title VII
claims: 42 U.S.C. § 2000e-5(f)(3). Because Congress has set out a specific venue provision within
Title VII for claims arising under that statute, the general venue provisions set out in 28 U.S.C. §
1391 do not control the issue of proper venue. See Downing v. Foley & Lardner LLP, No. 09-
14351, 2010 WL 1494767, at *3 (E.D. Mich. Apr. 9, 2010) (“Section 5(f)(3) is not simply a

supplement to 28 U.S.C. § 1391; it is the exclusive venue provision for all Title VII discrimination
actions.”).
Under Section 2000e-5(f)(3), a plaintiff may bring a Title VII action in any one of four
possible judicial districts: (1) any judicial district in the state in which the unlawful employment
practice is alleged to have been committed; (2) in the judicial district in which the employment
records relevant to such practice are maintained and administered; (3) in the judicial district in
which the aggrieved person would have worked but for the alleged unlawful employment practice;
or, (4) if the defendant is not found within any district under the first three possibilities, within the
judicial district in which the respondent has his principal office. 42 U.S.C. § 2000eB5(f)(3);3 Smith
v. Kyphon, Inc., 578 F. Supp. 2d 954, 959 (M.D. Tenn. 2008).
Nothing in the SAC or the plaintiff’s response to the defendant’s motion suggests that her
Title VII claims may be brought within the Middle District of Tennessee under any of the venue

rules set out in 42 U.S.C. § 2000e-5(f)(3). First, the claims are based entirely upon events that
occurred in Kuwait. Second, nothing in the pleading or Response to the Motion to Dismiss suggests
that employment records relevant to the plaintiff’s employment in Kuwait or the allegedly
unlawful employment practices engaged in by the Army in Kuwait would be maintained and
administered in this district. Kuwait appears to be where the plaintiff would have continued to
work but for the alleged unlawful employment practice. The only apparent connection between
Tennessee and the plaintiff’s claims is that the plaintiff now resides in this district. However, the
district of a plaintiff’s residence does not provide a basis for venue under Title VII’s venue
provision.
The fourth prong of the specific Title VII venue provision states: “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). The principal office of the
Secretary of the Army is at the Pentagon in Arlington, Virginia. Accord Ellis-Smith v. Sec'y of

3 42 U.S.C. § 2000e-5(f)(3) provides:
Each United States district court . . . shall have jurisdiction of actions brought under this
subchapter. Such an action may be brought 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. For purposes of sections 1404 and 1406 of Title 28, the judicial
district in which the respondent has his principal office shall in all cases be considered a
district in which the action might have been brought.
Army, 793 F. Supp. 2d 173, 177 (D.D.C. 2011). Arlington, Virginia is located in the Eastern
District of Virginia. 28 U.S.C. § 127(a). Accordingly, the Eastern District of Virginia is the only
appropriate venue for the plaintiff’s Title VII claims.
The plaintiff also brings a claim under the ADEA, and it is “generally true that venue, like

personal jurisdiction, must be proper as to each claim and as to each defendant.” Hamm v.
Wyndham Resort Dev. Corp., No. 3:19-cv-00426, 2020 WL 5995050, at *7 (M.D. Tenn. Oct. 9,
2020) (citing Reilly v. Meffe, 6 F. Supp. 3d 760, 765 (S.D. Ohio 2014)). And claims under the
ADEA, which does not have its own venue provision, are subject to the general venue statute, 28
U.S.C. § 1391. The question, then, is which of these statutes takes precedence.
Regarding that issue, the court notes, first, that the plaintiff affirmatively states that she
“has no defense” to the defendant’s venue argument and instead contends that, by failing to
challenge jurisdiction and instead challenging only venue, the defendant has waived its ability to
challenge jurisdiction and thus waived her venue defense. That argument appears to be premised
upon the incorrect presumption that the venue provision in § 1391(b) applies to her claims. Under

that subsection, venue may lie in “any judicial district in which any defendant is subject to the
court’s personal jurisdiction with respect to such action.” 28 U.S.C. § 1391(b)(3). This subsection,
however, has no application in this case, and the defendant’s failure to object to personal
jurisdiction does not amount to a waiver of her motion under § 1406(a).
The plaintiff also appears to be arguing that, because the defendant raised the objection to
the plaintiff’s suing the other improperly named defendants before raising the venue argument, she
somehow waived her objection to venue, even though these defenses were raised in the same
motion. (See Doc. No. 59, at 6–7 (“Instead of submitting [their] defense or objection to venue in
[their] “Motion to Transfer Venue” earlier in the Motion itself or by filing a separate Motion for
Transfer, the Defendants try to wiggle their Motion for Improper Venue in with the Motion to
Dismissal of ‘improperly listed defendants.’”).) This argument is utterly without merit. Rule 12(g)
requires that, with certain exceptions, a party that has made a motion under Rule 12 “must not
make another motion under this rule raising a defense or objection that was available to the party

but omitted from its earlier motion.” Fed. R. Civ. P. 12(g)(2). Rule 12(h)(1)(A) provides that a
party waives any defense, including a defense of improper venue, if it omits that defense “from a
motion in the circumstances described in Rule 12(g)(2).” Fed. R. Civ. P. 12(h)(1)(A). However,
Rule 12 also provides very specifically both that “[n]o defense or objection is waived by joining it
with one or more other defenses or objections in a responsive pleading or in a motion” and that
“[a] motion under this rule may be joined with any other motion allowed by this rule.” Fed. R. Civ.
P. 12(b) & (g)(1). Rule 12 says nothing about the order in which arguments within a single motion
must be presented in order to avoid waiver. This argument fails.
The question of the interplay between the two venue statutes at issue remains to be
resolved. Although the Sixth Circuit does not appear to have addressed the issue, district courts

around the country have “generally taken one of two approaches” to a situation in which different
venue provisions apply to different claims within one lawsuit. Lengacher v. Reno, 75 F. Supp. 2d
515, 519 (E.D. Va. 1999). As the court explained in Lengacher, “some courts have held that when
one claim is subject to a specific venue provision, and the other is not, the more specific venue
provision controls,” and others, “following the lead of the District Court for the District of
Columbia, determine which of the two or more claims in the complaint is the ‘primary’ claim, and
apply the venue statute applicable to that claim to all the claims.” Id. (collecting cases). Here, under
either approach, the venue statute in Title VII is controlling, both because it is more specific and
because it is clear from the face of the SAC that the plaintiff’s Title VII claims are primary to her
ADEA claim.
Moreover, while the specific venue provisions of Title VII provide that the only proper
venue for the plaintiff’s Title VII claims is the Eastern District of Virginia, the more general venue

statute applicable to her ADEA claim provides that venue is proper in both this district and the
Eastern District of Virginia, since the Secretary of the Army sued in her official capacity is deemed
to “reside” in the district in which she maintains her principal office. See Caremark Therapeutic
Servs. v. Leavitt, 405 F. Supp. 2d 454, 464 (S.D.N.Y. 2005) (“[V]enue with respect to a federal
officer or employee is proper in the place of his or her official residence, where his or her official
duties are performed.”). As a matter of efficiency, it makes sense to transfer the entire case to a
district where all of the plaintiff’s claims could have properly been brought.
B. Dismissal or Transfer
Which brings the court to the next question: whether to transfer or dismiss this action. As
set forth above, Section 1406(a) provides that a district court “shall dismiss, or if it be in the interest
of justice, transfer” a case brought in the wrong district “to any district or division in which it could

have been brought.” 28 U.S.C. § 1406(a). This case could have been brought in the Eastern District
of Virginia.
Generally, the decision whether to dismiss or transfer lies within the district court’s
discretion. Stanifer v. Brannan, 564 F.3d 455, 456 (6th Cir. 2009). However, “[d]oubts about
whether to transfer or dismiss are usually resolved in favor of transfer because the interest of justice
generally is better served by transfer.” Neely v. MRI Software, LLC, No. 1:23 CV 00311, 2023 WL
4826547, at *6 (N.D. Ohio July 27, 2023) (quoting Delta Media Grp., Inc. v. The Kee Grp., Inc.,
No. 5:07-CV-01597, 2007 WL 3232432, at *6 (N.D. Ohio Oct. 31, 2007)).
In this case, the defendant’s best argument for dismissal rather than transfer is that the
plaintiff’s claims are also subject to dismissal for failure to exhaust, such that transfer would simply
postpone the inevitable. The law is clear that the plaintiff, as a federal employee, must file her
Formal EEO Complaint within fifteen days of her receipt of the Notice of Right to File Formal

Complaint. 29 C.F.R. § 1614.106(b). Failure to properly and timely exhaust administrative
remedies subjects a judicial complaint to dismissal. See, e.g., Brown v. Gen. Servs. Admin., 425
U.S. 820, 832 (1976) (noting that an aggrieved federal employee must meet administrative
preconditions before filing a claim of employment discrimination); Hunter v. Sec’y of U.S. Army,
565 F.3d 986, 993 (6th Cir. 2009) (“‘The right to bring an action under Title VII regarding equal
employment [opportunity] in the federal government is predicated upon the timely exhaustion of
administrative remedies, as set forth in [the EEOC regulations].’” (quoting Benford v. Frank, 943
F.2d 609, 612 (6th Cir. 1991) (alterations in original)).
As the plaintiff argues, however, failure to exhaust is an affirmative defense, and equitable
tolling may, in rare cases, form the basis for extending a filing deadline. Irwin v. Dep’t of Veterans

Affairs, 498 U.S. 89, 96 (1990); Gordon v. England, 354 F. App’x 975, 980 (6th Cir. 2009); see
also Amini v. Oberlin Coll., 259 F.3d 493, 500 (6th Cir. 2001) (“This circuit has repeatedly
cautioned that equitable tolling relief should be granted only sparingly.”). Although the exhibits
filed with the plaintiff’s pleadings show that the EEO dismissed her claims based on the plaintiff’s
having filed an untimely Formal Complaint, and the plaintiff does not actually dispute that her
filing was one day late, it is not apparent from the record that the plaintiff has had a full opportunity
to argue that equitable tolling should apply to extend the filing deadline by one day. While it may
be that a “garden variety claim of excusable neglect” by the plaintiff’s attorney was the cause of
1]

the missed deadline, which would not establish a basis for tolling, Jrwin, 498 U.S. at 96, the
plaintiff's pleadings and exhibits attached thereto do not reveal the reason for the missed deadline.
Under these circumstances, the court will deny, at this stage, the defendant’s alternative
motion for dismissal for failure to exhaust, and will transfer the case rather than dismissing it under
28 ULS.C. § 1406(a).
IV. CONCLUSION
As set forth herein, the Motion to Transfer Venue and for Dismissal (Doc. No. 55) will be
granted, insofar as it seeks dismissal of inappropriately named defendants and transfer of the case
under 28 U.S.C. § 1406(a), but the alternative motion for dismissal either under § 1406(a) or for
failure to exhaust, under Rule 12(b)(6), will be denied. All defendants other than Christine
Wormuth, in her official capacity as Secretary of the Army, will be dismissed, and this case will
be transferred in the interests of justice to the United States District Court for the Eastern District
of Virginia, Alexandria Division.
An appropriate Order is filed herewith.

United States District Judge

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10669721. Public record. Not legal advice.