UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA

KYLE MILOWSKI,

Plaintiff,

v.

ALEJANDRO MAYORKAS, 

Secretary, U.S. Department of Homeland 

Security,

Defendant.

No. 20-cv-2698 (DLF)

MEMORANDUM OPINION

Kyle Milowski, proceeding pro se, brings this action against Alejandro Mayorkas in his 

official capacity as the Secretary of the United States Department of Homeland Security

(“Department”),

1

asserting claims under the Rehabilitation Act of 1973, 29 U.S.C. § 791, et seq., 

and the Americans with Disabilities Act of 1990, 42 U.S.C. § 12112, et seq.; see Compl. at 3, 

Dkt. 1. Before the Court is the Department’s Motion to Dismiss or, in the Alternative, to 

Transfer Venue, Dkt. 5. For the reasons that follow, the Court will deny the Department’s

motion to dismiss and grant its motion to transfer this case to the United States District Court for 

the District of South Carolina.

1 When this suit began, Chad Wolf was the Acting Secretary of the Department of Homeland 

Security. When Alejandro Mayorkas became the Secretary, he was automatically substituted as 

the proper defendant. See Fed. R. Civ. P. 25(d).
2

I. BACKGROUND

A. Factual Background

Milowski was employed by the Department of Homeland Security as a Deportation 

Officer and Course Developer Instructor at the U.S. Immigration and Customs Enforcement 

(ICE) Training Academy. See EEOC Decision at 3, Dkt. 1-1. Milowski alleges that from 

January 2016 through February 2017, he suffered discrimination on account of his disability, was 

denied reasonable accommodations, and faced retaliation for seeking those accommodations. 

See Compl. at 4–5; EEOC Compl. at 1, Dkt. 5-5. Among other things, Milowski’s supervisor 

“made an unauthorized disclosure regarding [his] medical information,” and Milowski was 

denied “training consistent with his colleagues,” was assigned “collateral duties” in addition to 

his “primary duties,” and was “yelled at” by his supervisor shortly after he requested an 

accommodation. See EEOC Decision at 1–3. 

The EEOC affirmed the Department’s decision denying Milowski’s EEO complaint on 

June 18, 2020, see EEOC Decision at 14, 16, and Milowski filed this action on September 17, 

2020, see Compl. Subsequently, the Department filed its motion to dismiss or transfer this case 

on the ground that venue was not proper in the District of Columbia. See Dkt. 5. That motion is 

now ripe for review.

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 
3

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 Servs. 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 are pertinent factual disputes to resolve, a challenge to venue presents a 

pure question of law.” Williams v. GEICO Corp., 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) (internal quotation marks omitted). The same is 

true for litigating a claim under the Americans with Disabilities Act of 1990. See 42 U.S.C. 

§ 12117(a); Johnson v. Deloitte Servs., LLP, 939 F. Supp. 2d 1, 3 (D.D.C. 2013). Title VII’s 
4

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 not proper in the District of Columbia. First, all of the allegedly unlawful 

employment practices occurred in Charleston, South Carolina, see Decl. of Lauren Marie Wilson 

¶ 3, Dkt. 5-4; EEOC Compl. at 1, and Milowski does not assert that he experienced any 

workplace injury in the District of Columbia, see Compl.; Pl.’s Opp’n, Dkt. 7; see also Walden v. 

Locke, 629 F. Supp. 2d 11, 14 (D.D.C. 2009). Second, the Department has represented that 

Milowski’s employment records are in South Carolina, see Mot. to Dismiss at 8; Decl. of Lauren 

Marie Wilson ¶ 5, and Milowski does not dispute this fact, see Compl.; Pl.’s Opp’n; see also 

Johnson, 939 F. Supp. 2d at 4 n.3 (treating the second factor as conceded when the plaintiff 

failed to dispute the defendant’s assertion as to the location of employment records). Third,

Milowski does not claim that he would have worked in a different district in the absence of such 

practices. See Compl; Pl.’s Opp’n; see also Haley v. Astrue, 667 F. Supp. 2d 138, 141 (D.D.C. 

2009). And finally, because the Court’s “analysis reveals, and the defendant[] admit[s]” that the 

District of South Carolina is a proper venue for this action, the Court may not “consider venue in 

the location of the defendant[‘s] principal office.” See Haley, 667 F. Supp. 2d at 141–42; Mot. to 

Dismiss at 10.
5

Milowski does not dispute that he has failed to establish that the District of Columbia is a 

proper venue under Title VII’s venue provisions but instead contends that the District of 

Columbia is a proper venue for equitable reasons, particularly as he was “permanently assigned 

to work in Washington DC on May 24, 2020,” and further, because the EEOC’s “Right to Sue 

letter” was delivered to his address in Washington. Pl.’s Opp’n at 1. Because, if transferred, he 

would need to commute to South Carolina in order to litigate the case, Milowski argues that a 

“change of venue would result in significant financial hardship” for himself and would “equate 

to a convenience for the Defendant.” Id. 

Any potential hardship Milowski faces cannot make venue in the District of Columbia 

proper. See McLaughlin v. Holder, 864 F. Supp. 2d 134, 139–40 (D.D.C. 2012). As other courts 

in this District have explained, in drafting Title VII’s venue provisions, “it was the ‘intent of 

Congress to limit venue to the judicial district[s] concerned with the alleged discrimination.’” Id. 

at 139 (quoting Stebbins v. State Farm Mut. Auto. Ins. Co., 413 F.2d 1100, 1102 (D.C. Cir. 

1969)). Thus, “the special requirements of Title VII compel the conclusion that venue is not 

proper in this district.” Id. at 140.

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 
6

the appropriate judicial district in lieu of dismissal.” Ellis-Smith v. Sec’y of the Army, 793 F. 

Supp. 2d 173, 177 (D.D.C. 2011).

The Court finds that it is in the interest of justice to transfer the case to the District of 

South Carolina because, as the government represents and Milowski does not dispute, see Mot. 

to Dismiss at 10, 12; Pl.’s Opp’n, a substantial part—if not all—of the relevant events occurred 

in that district and various key witnesses reside in that district. Venue in the District of South 

Carolina is proper, and that court has personal jurisdiction over the defendant. See Haley, 667 F. 

Supp. 2d at 142. Thus, the Court will transfer this case to the United States District Court for the 

District of South Carolina. 

CONCLUSION

For the foregoing reasons, the Court denies the Department’s motion to dismiss and 

grants its motion to transfer venue. A separate order consistent with this decision accompanies 

this memorandum opinion.

________________________

DABNEY L. FRIEDRICH

United States District Judge

July 21, 2021