IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

BARBARA A. DWYER, :

:

Plaintiff :

: Civil Action No. 02-CV-4353

v. :

:

ITEQ-INTEGRATED TECHNOLOGIES, INC. :

:

Defendant :

MEMORANDUM IN SUPPORT OF DEFENDANT’S LEAVE TO RENEW

MOTION TO DISMISS AMENDED COMPLAINT FOR IMPROPER VENUE

Defendant ITEQ-Integrated Technologies, Inc. (“ITEQ”) hereby renews its

Motion to Dismiss the Amended Complaint for Improper Venue.1 This

Memorandum supplements Defendant’s Memorandum of Law in Support of

Defendant’s Motion to Dismiss Amended Complaint for Improper Venue and

incorporates plaintiff Barbara Dwyer’s deposition transcript. 

I. The Venue Standard in Title VII Cases

Venue in Title VII actions may lie only in the district courts of the State in

which (1) the alleged unlawful discrimination is alleged to have been committed;

(2) the relevant employment records are maintained and administered; (3) the

plaintiff “would have worked but for the alleged unlawful employment practice”; or

 

1 By its November 12, 2002 Order, this Court gave Defendant leave to renew its motion after the

deposition of plaintiff had been completed and filed with the Court.

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(4) for purposes of section 1406 of title 28, the judicial district in which the

respondent had its principal office. 42 U.S.C. § 2000e-5(f)(3).

II. The Facts Applied To The Standard

Applying the above standard to the facts in this case, it is clear that this

judicial district is an improper forum.

1. State Where Alleged Unlawful Employment Practice Occurred 

The Amended Complaint states that the unlawful practice alleged is

-- “defendant’s action in withdrawing its reimbursement of travel expenses,

terminating plaintiff as a full-time employee and, subsequently, entirely

terminating her were unlawful discrimination based on her sex and pregnancy.”

Amended Complaint ¶19. Plaintiff’s deposition testimony establishes that the

conversations plaintiff claims she had with Scott Rollison, in which they

discussed the withdrawal of reimbursement expenses and her change from fulltime to part-time status, occurred in his office in Silver Spring, Maryland.

Deposition Transcript (hereinafter “Dep Tr.”), attached here as Exhibit “A”, p. 166,

ln 4-8; p. 171, ln 7 to p.172, ln 23; p.193, ln 2 to p. 194, ln 22.

Plaintiff complained of the following in her deposition:

Q. Would you please describe to me all your claims of discrimination

that you have against ITEQ?

A....In all of my complaints, the only one I had was the fact that I was

told that I would be working for the NIST contract, N-I-S-T, National

Institute of Standardized Testing...

Q. So that’s your only complaint of discrimination, as I understand it

from your complaint; is that correct?

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A. Right . Yes.

I had no complaints as far as travel expenses or whatever. I mean,

I was willing to make other arrangements.

My only complaint was I had a contract to work on, and when

they found out I was pregnant, they were not interested. So

therefore, I had no contract to work on.

See Id. at p. 40, ln 10 to p. 41, ln 48 (emphasis added).

Plaintiff testified that Mr. Rollison communicated the decision not to place her on

the NIST contract as the project manager during a meeting in his office in Silver

Spring, Maryland. Id. at p.43, ln 8 to p. 44 ln 4. 

2. State Where Employment Records Are Maintained And

Administered

Plaintiff admitted that ITEQ’s employment records are maintained in

Maryland. Id. at p. 244, ln 19-21. Further, all communications and decisions

regarding Plaintiff’s employment status and all work assignments, including the

decision to offer her part-time status, originated in ITEQ’s Silver Spring, Maryland

offices. See the Hill Affidavit, ¶11, attached here as Exhibit “B”.

3. State Where Aggrieved Person Would Have Worked But For The

Unlawful Practice Alleged

By her own testimony, Plaintiff’s complaint in this case is that she was not

assigned to the NIST project. Dep. Tr. at p. 40, ln 10 to p. 41, ln 48. She admits

that, had ITEQ been awarded the NIST contract, she would have been physically

working in Gaithersburg, Maryland. Id. at p.243, ln 15-22. She assumed she

would be working there five days a week. Id. at p. 243, ln 23 to p. 244, ln18.

She also testified that had the NIST contract come to fruition, she would have

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tried to relocate to Maryland as soon as possible and would have commuted to

Maryland daily until she relocated. Id. at 246, ln 7 to p. 247, ln 7.

Plaintiff cites a decision from the Ninth Circuit Court of Appeals,

Passantino v. Johnson & Johnson Consumer Products, Inc., 212 F.3d 493 (9th

Cir. 1999), for the proposition that venue should be found not only where the

plaintiff would have worked, but where the plaintiff works2 and the decision to

engage in that practice is implemented. ITEQ never implemented the decision to

deny plaintiff the project manager role on the NIST contract because the NIST

contract was never awarded, which fact plaintiff does not dispute.3

 

In this case, unlike Passantino, ITEQ did not request or encourage plaintiff

to maintain a home office in Pennsylvania. To the contrary, plaintiff admitted in

her deposition that ITEQ’s president, Ms. Patricia De Aloia, asked plaintiff to

relocate to the Maryland area, several times, well before Plaintiff even notified

ITEQ that she was pregnant. Dep. Tr. at 117, ln 6 and p. 57, ln 11.4

 

2 In Passantino, the Court quoted the following passage that supports ITEQ’s position, “Title VII

authorizes suit in any judicial district in the State in which the unlawful employment practice is

alleged to have been committed” as well as in the district where employment records are kept, in

the district where the plaintiff would have worked but for the unlawful practice, and, if those

provisions fail to provide a forum where the plaintiff would have worked but for the alleged

unlawful practice. Id. at 504 (emphasis added, citation omitted). 

3

 Plaintiff was asked, “You’re not disputing that they never got that contract right?” and she

replied, “I have no knowledge of anything.” Id. at p. 243, ln 10-12.

4

 When asked why it would have made sense to relocate, plaintiff explained,

Well, obviously, I’d be able to, you know, work on any contract, you know. I was

closer to the corporate office, things like that.

I mean, it would just make it easier so I wouldn’t be away from my family and,

you know, I could jump from contract to contract like other people do and stuff like that.

Id. at 114, ln 15-22; See also p. 119, ln 19 to p. 120, ln 10. Thus, had plaintiff relocated, there

may have been more work for her to perform, in the Maryland area, because she could “bounce

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When questioned about work Plaintiff was claiming she should have been

assigned, she could identify no projects in Pennsylvania or any other State. Id.

at p. 134, ln 12 to p.135, ln 10. The only work she identified other than the

Maryland NIST contract, was work she thought might be available after her

maternity leave in September or October 2001, which -- by plaintiff’s own

admission -- was expected to be in Virginia. Id. at 195, ln 17-23.5 Speculation by

plaintiff that she may have or should have been assigned to other job locations

thereafter unknown cannot serve as the basis for venue in the Eastern District of

Pennsylvania. Rojas v. Trans States Airlines, Inc., 204 F.R.D. 265, 268 (D.N.J.

2001).

4. State In Which Respondent Has Its Principal Office

Plaintiff admitted that ITEQ maintains its principal office in Maryland. Id. at

244, ln 22-23.

III. Conclusion

As demonstrated above, the facts show that for each prong of the venue

standard, venue in Pennsylvania is improper. Here, the alleged unlawful

practice, the failure to assign, was decided and communicated in Maryland as

was the decision to change her status from full-time to part-time; the project

Plaintiff was allegedly unlawfully denied was indisputably in Maryland; and the

 

from contract to contract”. Plaintiff also admitted that she had no problem with ITEQ asking her to

relocate and, in fact understood why it made sense. Id. at 115, ln 21- p 116 ln 1.

5 In fact that contract that was expected never materialized either. Construction on that project is

presently projected for 2005.

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employment records were maintained and administered in the principal, and sole,

office in Silver Spring, Maryland. 

When a court finds venue lacking, it can dismiss the case, or if it is in the

interest of justice, transfer such case to any district in which it could have been

brought. 28 U.S.C. § 1406(a). Because plaintiff had counsel at the time of her

decision to file suit against ITEQ in this district and because the deposition

testimony now shows that plaintiff’s claims are unsupported, this case should be

dismissed rather than transferred. In any event, venue is unwarranted in this

judicial district.

Respectfully submitted,

Dated: ____________ ____________________________

Daniel J. Brennan, Esquire

Attorney I.D. No. 68923

Mariellen Bello, Esquire 

Attorney I.D. No. 60375

McAleese, McGoldrick, Susanin

 & Widman, P.c.

 Suite 240 – Executive Terrace

 455 S. Gulph Road

 King of Prussia, PA 19406

 (610) 337-4510

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CERTIFICATE OF SERVICE

I, Mariellen Bello, hereby state that I served copies of the foregoing

Answers and Affirmative Defenses upon counsel of record on March 26, 2003, by

placing same in the U.S. mail, first class postage prepaid, addressed as follows:

William T. Wilson, Esquire

MacElree Harvey, Ltd.

17 West Miner Street

P.O. Box 660

West Chester, PA 19381-0660

Attorney for Plaintiff

_______________________

Mariellen Bello

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