This order and judgment is not binding precedent except under the *

doctrines of law of the case, res judicata and collateral estoppel. It may be cited,

however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th

Cir. R. 32.1.

F I LED

United States Court of Appeals

Tenth Circuit

March 28, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ANTHONY C. KENNEY,

Plaintiff - Appellant, No. 06-5169 

v. (N.D. Oklahoma)

MILLENNIUM RAIL, INC., and

KEITH EGAN,

Defendants - Appellees.

 (D.C. No. 06-CV-159-JHP-FHM)

ORDER AND JUDGMENT

*

Before HENRY, BRISCOE, and O’BRIEN, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See FED. R. APP. P. 34(a)(2); 10TH CIR. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Anthony C. Kenney appeals from the district court’s dismissal without

prejudice of his pro se complaint against Millennium Rail, Inc. and Keith Egan

(collectively “Millennium”) as frivolous. We exercise jurisdiction under 28
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U.S.C. § 1291, and, because Mr. Kenney brought his action in the wrong venue,

we affirm.

I. BACKGROUND

Mr. Kenney proceeds pro se and in forma pauperis on appeal, as he did in

the district court. We review Mr. Kenney’s pro se pleadings and papers liberally

and hold them to a less exacting standard than those drafted by attorneys. Hall v.

Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). 

Mr. Kenney was apparently employed at Millennium’s Junction City,

Kansas worksite as a combination welder and pipe fitter from January 18, 2006

until he was fired on February 20, 2006. After his termination, Mr. Kenney filed

a complaint with the Equal Employment Opportunity Commission (“EEOC”),

alleging that Millennium had discriminated against him because he is AfricanAmerican. In the EEOC complaint, he listed Junction City, Kansas as

Millennium’s address. 

On March 10, 2006, the EEOC informed Mr. Kenney that it had not filed a

charge on his behalf and requested additional information so it could determine

whether Mr. Kenney had probable cause to file a charge. The EEOC’s response

included a list of the information the EEOC needed and listed a number he could

call for assistance. The record contains no right-to-sue notice or other

information from the EEOC indicating the status of its investigation. 

On March 15, 2006, Mr. Kenney brought suit against Millennium in the
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United States District Court for the Northern District of Oklahoma, alleging that

he was racially discriminated against in violation of Title VII of the Civil Rights

Act of 1964. The district court dismissed Mr. Kenney’s complaint as frivolous

pursuant to 28 U.S.C. § 1215(e)(2)(B)(i) and (ii), but noted that it probably lacked

jurisdiction because the events giving rise to his claim occurred in Kansas. This

appeal followed. 

II. DISCUSSION

We may sua sponte dismiss an action for improper venue “when the defense

is obvious from the face of the complaint and no further factual record is required

to be developed.” Trujillo v. Williams, 465 F.3d 1210, 1217 (10th Cir. 2006)

(internal quotation marks omitted). 

The applicable venue provision provides that Title VII actions 

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.

42 U.S.C. § 2000e-5(f)(3). See Pierce v. Shorty Small’s of Branson, Inc., 137

F.3d 1190, 1191 (10th Cir. 1998) (stating that 42 U.S.C. 2000e-5(f)(3) is the

proper venue provision for Title VII claims). 

Here, Mr. Kenney’s complaint indicates that Kansas is the only proper
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venue because it is the state where the alleged adverse employment action

occurred and where Millennium is located. Moreover, neither the complaint nor

the record support venue in Oklahoma. For example, nothing indicates that Mr.

Kenney’s employment records are maintained or administered in Oklahoma, nor

does Mr. Kenney claim that he would have worked there, but for an unlawful

employment practice. Furthermore, Mr. Kenney does not even suggest on appeal

that he could establish proper venue in Oklahoma. 

Accordingly, we AFFIRM the district court’s dismissal without prejudice.

Entered for the Court,

Robert H. Henry

Circuit Judge