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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

DONOVAN TANNER,

 Plaintiff,

v.

MEGAN J. BRENNAN, et al.,

 Defendants.

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Civil Action No. 4:20-cv-449-RWS-KPJ

REPORT AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Pending before the Court is Plaintiff Donovan Tanner’s (“Plaintiff”) Motion to Transfer 

(the “Motion”) (Dkt. 23), wherein Plaintiff requests the Court transfer this case to the Northern 

District of Texas. Id. at 1. Upon consideration, the Court recommends granting the Motion (Dkt. 

23) and transferring this case to the Northern District of Texas.

I. BACKGROUND

On June 2, 2020, Plaintiff, proceeding pro se, filed this lawsuit against Defendants Megan 

J. Brennan, Postmaster General, and Bobby Clark, Officer in Charge, United States Postal Service 

(collectively, “Defendants”) alleging employment discrimination in violation of Title VII of the 

Civil Rights Act of 1964 (“Title VII”).1 See Dkt. 1. In his Complaint, Plaintiff identified himself 

as a resident of Plano, Texas, and alleged that he was employed by the United States Postal Service 

(“USPS”) in Tarrant County, and more specifically, at a USPS branch located at 1251 William D. 

Tate Avenue, Grapevine, Texas, 76051. Id. at 2; see also Dkt. 22 at 1.

Defendants were not served until July and August 2021, respectively. See Dkts. 12, 14, 17.

On October 4, 2021, Defendants moved to dismiss Plaintiff’s claims for lack of subject matter 

1 This case was referred to the undersigned for pretrial proceedings pursuant to 28 U.S.C. § 636. See Dkt. 2.

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jurisdiction and improper venue. See Dkt. 18; FED. R. CIV. P. 12(b)(1), (3). On April 20, 2022, 

Defendants filed a notice alerting the Court of Plaintiff’s failure to respond to their motion to 

dismiss. See Dkt. 19. The Court therefore entered an order directing Plaintiff to file a response, if 

any, to the motion to dismiss within fourteen days. See Dkt. 21. On April 29, 2022, Plaintiff filed 

a response to Defendants’ motion to dismiss. See Dkt. 22. That same day, Plaintiff separately filed 

the Motion to Transfer (Dkt. 23) that is presently before the Court. Defendants have not filed a 

response to the Motion to Transfer.

The parties’ arguments can be summarized as follows: In their motion to dismiss, 

Defendants primarily argue this Court lacks subject matter jurisdiction because Plaintiff failed to 

exhaust his administrative remedies. See Dkt. 18 at 5–9. If there is subject matter jurisdiction,

Defendants argue the case should be transferred because the proper venue for Plaintiff’s Title VII 

claims is the Northern District of Texas. Id. at 9–11. In response, Plaintiff asserts he exhausted his 

administrative remedies and also requests transfer of the case to the Northern District of Texas 

under 28 U.S.C. § 1406(a). See Dkt. 22 at 2–6. Plaintiff repeats his transfer request in his Motion

to Transfer, but instead cites to 28 U.S.C. § 1404(a) as the basis for his request. See Dkt. 23 at 1.

II. ANALYSIS

Because Plaintiff alleges claims under Title VII, venue is governed by Title VII’s specific 

venue provision, 42 U.S.C. § 2000e-5(f)(3), which “displaces the general venue provision set out 

in 28 U.S.C. § 1391.” See Allen v. U.S. Dep’t of Homeland Sec., 514 F. App’x 421, 422 (5th Cir. 

2013); see also id. at 422 n.3 (citing Pinson v. Rumsfeld, 192 F. App’x. 811, 817 (11th Cir. 2006) 

(“The venue provisions of § 2000e–5(f)(3) were intended to be the exclusive venue provisions for 

Title VII employment discrimination actions and . . . the more general provisions of § 1391 are 

not controlling in such cases.”)). Section 2000e-5(f)(3) provides:

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Each United States district court and each United States court of a place subject to 

the jurisdiction of the United States 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.

Id. 

The Court may transfer a case to any proper judicial district or division “for the 

convenience of parties and witnesses, in the interest of justice,” 28 U.S.C. § 1404(a), and it may 

transfer a case filed in the wrong district or division “to any district or division in which it could 

have been brought,” 28 U.S.C. § 1406(a); see also In re Horseshoe Ent., 337 F.3d 429, 433 (5th 

Cir. 2003) (“[T]he last sentence of [Title VII’s] special venue provision makes express crossreference to §§ 1404 and 1406 of Title 28 indicating clearly Congress’ intention that the provisions 

of §§ 1404 and 1406 would also be applicable in [such a] case.”).

Under Section 2000e-5(f)(3), it is clear that the Eastern District of Texas is not the proper 

venue for Plaintiff’s case. As Defendants point out, none of the events underlying this case 

occurred in the Eastern District of Texas, and there appears to be no nexus to this Court other than 

Plaintiff’s residence in Plano, Texas. See Dkt. 18 at 10. The alleged conduct that forms the basis 

of Plaintiff’s lawsuit occurred at USPS’s branch in Grapevine, a municipality in Tarrant County, 

which is within the Fort Worth Division of the Northern District of Texas. See id. Defendants 

maintain that the relevant employment records are located at USPS’s Grapevine branch. See id.

Additionally, Plaintiff would have worked at USPS’s Grapevine location “but for the alleged 

unlawful employment practice.” See § 2000e-5(f)(3); Dkt. 18 at 10. The Court also notes that both 

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parties are in agreement that venue under Section 2000e-5(f)(3) is proper in the Fort Worth 

Division of the Northern District of Texas. See 28 U.S.C. § 124(a)(2) (stating that Tarrant County 

falls within the Fort Worth division of the Northern District of Texas). Accordingly, this case 

should be transferred.

Defendants, however, argue the Court should dismiss rather than transfer this case to the 

Northern District of Texas. See Dkt. 18 at 10. Defendants specifically contend dismissal is “more 

appropriate than transfer because neither court [Eastern District of Texas or Northern District of 

Texas] has subject-matter jurisdiction” due to Plaintiff’s alleged failure to exhaust his 

administrative remedies. Id. at 10–11. The Court disagrees.

Defendants’ characterization of Title VII’s administrative exhaustion requirement as a 

jurisdictional issue is incorrect. In Davis v. Fort Bend Cnty., 893 F.3d 300 (5th Cir. 2018), the 

Fifth Circuit recently addressed intra-circuit “disagreement on whether Title VII’s administrative 

exhaustion requirement is a jurisdictional requirement that implicates subject matter jurisdiction 

or merely a prerequisite to suit (and thus subject to waiver or estoppel).” Id. at 303. After surveying 

the cases within the Fifth Circuit on this issue, the Fifth Circuit held in Davis that “a Title VII 

plaintiff’s failure to exhaust [his] administrative remedies is not a jurisdictional bar but rather a 

prudential prerequisite to suit.” Id. at 305; see also id. at 306 (stating that courts “must treat [Title 

VII’s administrative exhaustion requirement] as nonjurisdictional in nature” because “Title VII’s 

administrative exhaustion requirement is not expressed in jurisdictional terms in the statute, see 42 

U.S.C. § 2000e-5, and . . . there is nothing in the statute to suggest that Congress intended for this 

requirement to be jurisdictional”). In light of Davis, “Title VII’s administrative exhaustion 

requirement is not a jurisdictional bar to [Plaintiff’s] lawsuit.” Id. at 306. Thus, venue transfer is 

appropriate; once the case is transferred, the Northern District of Texas—as the proper forum for 

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this lawsuit—can address the specific administrative exhaustion arguments Defendants have raised

in their motion to dismiss. 

III. RECOMMENDATION

Based on the foregoing, the Court recommends granting Plaintiff’s Motion to Transfer 

(Dkt. 23) and transferring this case to the Fort Worth Division of the Northern District of Texas. 

Within fourteen (14) days after service of the magistrate judge’s report, any party may 

serve and file written objections to the findings and recommendations of the magistrate judge. 28 

U.S.C.A. § 636(b)(1)(C).

A party is entitled to de novo review by the district court of the findings and conclusions 

contained in this report only if specific objections are made, and failure to timely file written 

objections to any proposed findings, conclusions, and recommendations contained in this report 

shall bar an aggrieved party from appellate review of those factual findings and legal conclusions 

accepted by the district court, except on grounds of plain error, provided that the party has been 

served with notice that such consequences will result from a failure to object. Id.; Thomas v. Arn, 

474 U.S. 140, 148 (1985); Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1417 (5th Cir. 

1996) (en banc), superseded by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending the 

time to file objections from ten to fourteen days).

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