(PS) Cianchetta v. Driscoll

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 KYLE ANTHONY CIANCHETTA, No. 2:25-cv-00958-DAD-SCR 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 DANIEL P. DRISCOLL, Secretary of the Army, [15] Defendant. [17] 18 Plaintiff is proceeding pro se in this Title VII employment-related lawsuit, which is 19 referred to the undersigned pursuant to Local Rule 302(c)(21) and 28 U.S.C. § 636 (b)(1). Before 20 the Court is Defendant’s motion to dismiss for improper venue (ECF No. 9). At issue is a special 21 venue provision permitting a Title VII action to “be brought in any judicial district in the State in 22 which the unlawful employment practice is alleged to have been committed[.]” 42 U.S.C. § 23 2000e-5(f)(3). Here the alleged employment-related retaliation occurred in the Southern District 24 of California but Plaintiff filed in this District. Defendant argues Ninth Circuit precedent 25 concerning the special venue provision requires the action to be transferred to the Southern 26 District. Plaintiff argues that venue is proper in this District because it is within the state in which 27 the unlawful employment practice is alleged to have been committed. Finding that there is no [28] 1 Ninth Circuit precedent on the question presented here, and agreeing with Plaintiff’s suggested 2 interpretation, the Court now recommends that the motion to dismiss or transfer venue be denied. 3 I. Procedural History and Background 4 Plaintiff filed this action on March 27, 2025. ECF No. 1. Plaintiff brings his claim 5 pursuant to Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq. Plaintiff alleges 6 retaliation “after sexual harassment by a supervisor and subsequent reporting of behavior.” ECF 7 No. 1 at 5. Plaintiff alleges that his supervisor at the U.S. Army Corp of Engineers “expressed a 8 negative sentiment about employees identifying their sexuality in the workplace” and when 9 Plaintiff responded “that doesn’t matter maybe even I’m gay,” his supervisor suggested “maybe 10 you could do something for me then” accompanied by a physical gesture. Id. at 9. Plaintiff 11 alleges he reported this to his supervisor’s superior and also another employee. Id. The co12 worker then filed an EEO complaint on Plaintiff’s behalf.1 Id. Thereafter, Plaintiff alleges that 13 he had accepted an offer for a position in Japan with the same agency, but his supervisor gave 14 him a “negative character reference” and the final job offer was rescinded. Id. Plaintiff alleges 15 that his supervisor specifically referenced the EEO complaint in the negative reference when his 16 supervisor wrote: “Impulsive, rude and gossiper, even after being fired and kept away from office 17 he would communicate with another employee and urged him to file an EEO complaint that 18 turned to be baseless.” Id. at 11. 19 On April 16, 2025, Plaintiff filed a First Amended Complaint (“FAC”). ECF No. 5. The 20 FAC concerns the same events, but includes greater factual detail. Both the original complaint 21 and the FAC allege that venue is proper in this District pursuant to 28 U.S.C. § 1391 . ECF No. 5 22 at 2. On June 20, 2025, Defendant filed a motion to dismiss or transfer, arguing that venue is 23 improper under Title VII’s special venue provision at 42 U.S.C. § 2000e-5(f)(3). Opposition and 24 reply briefs were filed. ECF Nos. 11 & 12. The Court held oral argument on July 31, 2025. 25 II. Analysis 26 Venue in Title VII actions is governed by 42 U.S.C. § 2000e-5(f)(3). That paragraph [27] 1 Plaintiff does not explain what “EEO” means here. The undersigned assumes it is the equal 28 employment opportunity division at the U.S. Army Corps of Engineers. 1 provides, in relevant part, that a Title VII action: 2 [M]ay 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 [3] 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 [4] unlawful employment practice, but if the respondent is not found within any such district, 5 such an action may be brought within the judicial district in which the respondent has his principal office. [6] 7 As Defendant points out, this provision creates four options for proper venue. The action may be 8 brought: 9 1. In any judicial district in the State in which the unlawful employment practice is alleged 10 to have been committed; 11 2. In the judicial district in which the employment records relevant to such practice are 12 maintained and administered; or 13 3. In the judicial district in which the aggrieved person would have worked but for the 14 alleged unlawful employment practice, but if the respondent is not found within any such 15 district such an action may be brought; 16 4. Within the judicial district in which the respondent has his principal office. 17 ECF No. 9-1 at 3 (emphasis added). 18 Defendant argues that venue is improper because Plaintiff worked for the U.S. Army 19 Corps of Engineers Los Angeles District, but was stationed in San Diego, and the alleged 20 discrimination occurred in San Diego. ECF No. 9-1 at 4. Defendant argues that no employment 21 records are maintained in this District, and that Defendant has its principal office in Washington, 22 D.C. Id. As to the location where Plaintiff would have worked but for the alleged unlawful 23 employment practice, Defendant argues based on the allegations in the FAC that such location is 24 Japan. Defendant argues the action should be dismissed or transferred to the Southern District of [25] California. ECF No. 9-1 at 4.2 26 //// [27] 2 At oral argument, Defendant argued that venue would be proper in either the Southern or 28 Central Districts. 1 In opposition, Plaintiff concedes he incorrectly cited the general venue provision in 28 2 U.S.C. § 1391 , rather than Title VII’s special venue provision. ECF No. 11 at 2. However, 3 Plaintiff argues that venue is proper in this District because Title VII’s special venue provision 4 provides an action “may be brought in any judicial district in the State in which the unlawful 5 employment practice is alleged to have been committed.” 42 U.S.C. § 2000e-5(f)(3) (emphasis 6 added). 7 The parties’ disagreement involves interpreting the phrase: “Such an action may be 8 brought in any judicial district in the State in which the unlawful employment practice is alleged 9 to have been committed.” Plaintiff contends that this means that in a state with multiple judicial 10 districts, the action may be brought in any of those districts. Defendant contends that this means 11 that in a state with multiple judicial districts, the action may only be brought in a district in which 12 the challenged practice occurred. 13 Defendant argues that the Ninth Circuit has already spoken on this question in Passantino 14 v. Johnson & Johnson, 212 F.3d 493 (9th Cir. 2000). As explained in more detail below, 15 Passantino did not involve the issue in this case—a dispute about intrastate venue—and thus had 16 no occasion to determine what it means to be able to file “in any judicial district in the State” 17 where the challenged practice occurred. Absent such binding precedent, the Court will engage in 18 fresh interpretation of the statute. 19 In interpreting a statute “we begin where all such inquiries must begin: with the language 20 of the statute itself.” See Republic of Sudan v. Harrison, 587 U.S. 1, 8 (2019). As noted above, 21 Defendant reads “in any judicial district in the State” to mean that the action may be brought only 22 in the district or districts where the alleged discrimination occurred. That is not the best reading 23 of this provision. First, Defendant’s interpretation would render the phrase “in the State” 24 surplusage. “It is a fundamental principle of statutory interpretation that we must give effect, if 25 possible, to every clause and word of a statute, so that no part will be inoperative or superfluous, 26 void or insignificant.” See Stevens v. Corelogic, Inc., 899 F.3d 666, 673 (2018) (cleaned up). 27 Congress did not broaden any of the other provisions of the special venue statute through 28 inclusion of similar “any judicial district in the State” language. See 42 U.S.C. § 2000e-5(f)(3) 1 (using “in the judicial district” language as to the three adjacent venue-related circumstances). 2 The inclusion of that language must mean something. 3 Similarly, if Congress had intended the statute to apply in the manner Defendant suggests, 4 it could have simply written: “Such an action may be brought in the judicial district or districts in 5 which the unlawful employment practice is alleged to have been committed.” Congress did not 6 choose that language—and instead included “any” district “in the State”—despite using the 7 phrase “the judicial district” when discussing the other three venue options. “Where Congress 8 includes particular language in one section of a statute but omits it in another, it is generally 9 presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” 10 Keene Corp. v. United States, 508 U.S. 200, 208 (1993) (internal quotation marks and alterations 11 omitted). Read against the adjacent statutory language, being able to file in “any” district “in the 12 State” can only mean that a plaintiff who experiences Title VII discrimination or retaliation 13 within California can sue in any of California’s district courts. 14 Other courts have reached the same conclusion. Ellis v. Costco Wholesale Corporation 15 engaged in statutory analysis of this provision and noted: “Congress did not include the state16 wide access language for any other basis of venue outlined in the statute.” 372 F.Supp.2d 530 , 17 538 (N.D. Cal. 2005), overruled in part on other grounds by Ellis v. Costco Wholesale Corp., 657 18 F.3d 970 (9th Cir. 2011). The court found this distinction in drafting “would logically be 19 explained by an intent to allow plaintiffs to assert venue outside the district where they 20 experienced discrimination, perhaps on the assumption that Title VII plaintiffs were most likely 21 to face hostile courts or juries in that location.” Id. The court noted that a contrary reading would 22 deprive the “in the State” language of any practical effect. Id. 23 Defendant does not offer controlling authority that is directly on point. Defendant 24 primarily relies on Passantino. ECF No. 9-1 at 3. In Passantino, the Ninth Circuit stated that 25 “venue is proper in both the forum where the employment decision is made and the forum in 26 which that decision is implemented or its effects are felt.” 212 F.3d at 506. However, Passantino 27 did not concern the issue presented in this case. In Passantino, Plaintiff filed suit in the state of 28 Washington, which was where she worked and maintained a home office. Her employer 1 contended the alleged unlawful employment decision not to promote her occurred in New Jersey, 2 and thus New Jersey was the proper venue. The Ninth Circuit rejected the venue challenge and 3 observed that “[s]ome courts have noted that this broad provision for alternative forums was 4 necessary to support the desire of Congress to afford citizens full and easy redress of civil rights 5 grievances.” Id. at 504, citing Richardson v. Alabama State Bd. of Educ., 935 F.2d 1240 , 1248 6 (11th Cir. 1991). The Ninth Circuit did make the statement that “[i]n general, the effect of Title 7 VII’s venue provisions is to allow suit in the judicial district in which the plaintiff worked or 8 would have worked.” Id. at 504-505. But this is a general statement and is not determinative of 9 the issue presented here. 10 The Passantino court was not dealing with the issue here of a request for intrastate 11 transfer, and did not engage in any interpretation of the phrase “any judicial district in the State.” 12 Additionally, Passantino favorably cites to Richardson, which firmly rejected the argument that 13 Defendant makes here. In Richardson, the defendants argued for transfer from the Middle 14 District of Alabama to the Northern District of Alabama. Looking to the “in any judicial district 15 in the State” language of the statute, the Eleventh Circuit said, “This means anywhere in the 16 relevant state.” 935 F.2d at 1248; see also Ross v. Buckeye Cellulose Corp., 980 F.2d 648 , 654 17 n.11 (11th Cir. 1993) (construing Title VII’s venue provision and stating: “Since the alleged 18 discrimination took place in Georgia, appellants were free to bring suit in any of the state’s three 19 federal judicial districts.”). 20 At oral argument, Defendant noted that the Passantino court adopted the analysis of 21 Stebbins v. State Farm Mutual Auto Insurance Company, 413 F.2d 1100, 1102 (D.C. Cir. 1969). 22 Specifically, Defendant points to this from Stebbins, “[T]he intent of Congress to limit venue to 23 the judicial district concerned with the alleged discrimination seems clear.” Id. While the Ninth 24 Circuit did rely on Stebbins in Passantino, because the Ninth Circuit was not addressing the 25 precise issue here and because Stebbins is not itself persuasive on the precise issue here, the 26 undersigned does not follow Stebbins. Stebbins is a brief per curiam opinion. The court’s venue 27 analysis is two paragraphs and finds that the District of Columbia was not a proper venue. But 28 the plaintiff had already conceded the District of Columbia was not a proper venue under Title 1 VII’s special venue provision, and instead argued for application of 28 U.S.C. § 1391 . Id. at 2 1102. Moreover, because the District of Columbia is not a state with multiple district courts, 3 Stebbins did not engage in any analysis of the intrastate venue issue or of the statutory language at 4 issue here. As if to highlight that point, when Stebbins quoted the statute, it omitted the “any 5 judicial district in the State” language. 413 F.2d at 1102 n.7. Stebbins is not persuasive authority 6 on an issue that it did not analyze or on statutory language that it omitted. 7 The parties in their arguments and briefing referred decisions such as Curd v. W.T. Capital 8 Lending, 4:05-cv-00616-CW (N.D. Cal. June 22, 2005) and Davidson v. Korman, 2010 WL 9 3515760 (N.D. Cal. Sept. 8, 2010). In Curd, the court denied defendant’s motion to dismiss or 10 transfer venue to this District and stated “[b]ecause the alleged discrimination occurred in 11 California, venue in the Northern District of California is proper.” Id. at 3 . The court found 12 Passantino was not applicable because it did not deal with two districts in the same state. Id. In 13 Davidson, the defendant sought transfer from the Northern District of California to this District, 14 arguing that the alleged unlawful employment practices occurred in Sacramento. 2010 WL 15 3515760, *2. The plaintiff contended that venue was proper and relied on Passantino to argue 16 the “effects” of the decision were felt in the Northern District. Id. at *3 . The court found that 17 plaintiff’s reliance on Passantino was misplaced and that she had failed to establish venue was 18 proper where she lived. Id. The Davidson court did not engage in statutory analysis of the “any 19 judicial district in the State” language. At most, these cases show that lower courts have not been 20 completely consistent in their application of that special venue statute. 21 The Court acknowledges that when interpreting 42 U.S.C. § 2000e-5(f)(3), some courts, 22 including in this District, have transferred the matter intrastate, or appear to have interpreted 23 Passantino in the manner Defendant urges here. See, e.g., Silveria v. Wilkie, 2018 WL 6250856 24 (E.D. Cal. Nov. 29, 2018) (transferring to the Northern District of California); Bennett v. Tetra 25 Tech EC, Inc., 2011 WL 1628032 , *2 (E.D. Cal. Apr. 28, 2011) (citing Passantino and observing 26 venue may be improper because alleged harassment and retaliation occurred in the Northern 27 District of California). However, other cases in this District are to the contrary. In Franken v. 28 Esper, 2018 WL 4787021 , *2 (E.D. Cal. Oct. 3, 2018), Judge Mendez stated that because the 1 alleged unlawful employment practice took place in California “under Title VII, venue is proper 2 in any of California’s four federal districts.” In Caviness v. England, 2007 WL 1302522 (E.D. 3 Cal. May 3, 2007), Judge Drozd denied defendants’ motion to transfer venue to the Northern 4 District of California. In that case, plaintiff argued that he had filed the suit in the wrong venue 5 while proceeding pro se because the alleged discrimination had occurred in the Northern District. 6 Defendant argued that venue was proper “‘in any judicial district in the State in which the 7 unlawful employment practice is alleged to have been committed,’ which includes all four 8 judicial districts in California …” Id. at *2 . The court denied the venue motion “because the 9 Eastern District is one of the four judicial districts in the State in which the unlawful employment 10 practice is alleged to have been committed.” Id. at 3 . 11 A plain reading of the statute supports the decisions reached in Franken and Caviness. As 12 discussed above, the Eleventh Circuit has also reached that conclusion, as has the Seventh Circuit. 13 See Ellenbecker v. Jimmy John’s, LLC, 2021 WL 5206211 , *1 (7th Cir. 2021) (construing Title 14 VII venue provision and stating “because all the events [plaintiff] complained about occurred in 15 Wisconsin, it does not matter which district in the state he chose”). The allegations here are that 16 the alleged unlawful employment practice occurred while Plaintiff was working for the Army 17 Corps of Engineers Los Angeles District and stationed in San Diego. ECF No. 5 at ¶ 16. Thus, 18 the alleged acts occurred in California and the action “may be brought in any judicial district in 19 the State in which the unlawful employment practice is alleged to have been committed.” 42 20 U.S.C. § 2000e-5(f)(3). California is the state in which the unlawful employment practice is 21 alleged to have occurred, and Plaintiff may bring suit in any district in that state. Accordingly, 22 Defendant’s motion should be denied. 23 III. Conclusion 24 For the foregoing reasons, IT IS HEREBY RECOMMENDED that Defendant’s motion 25 to dismiss or transfer for improper venue (ECF No. 9) be DENIED. The Court will set a Rule 16 26 scheduling conference via separate order. 27 These findings and recommendations will be submitted to the United States District Judge 28 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(l). Within fourteen days 1 | after being served with these findings and recommendations, either party may file written 2 || objections with the court. The document should be captioned “Objections to Magistrate Judge's 3 || Findings and Recommendations.” The parties are advised that failure to file objections within the 4 | specified time may result in waiver of the right to appeal the district court’s order. Martinez v. 5 || Yist, 951 F.2d 1153 (9th Cir. 1991). 6 || DATED: August 25, 2025 8 SEAN C. RIORDAN 9 UNITED STATES MAGISTRATE JUDGE [10] 1]