Zughni v. Pena

MEMORANDUM OPINION AND ORDER ASPEN, District Judge: Plaintiff Yasmin A. Zughni brings this ac­tion seeking review of the Merit Systems Protection Board’s decision affirming her ter­mination as an air traffic controller, and for consideration of her claims of discrimination on the basis of gender and handicap. Pres­ently before the court is defendants’ motion to dismiss the Merit Systems Protections Board and transfer venue to the Northern District of Ohio, or to dismiss or transfer to the Federal Circuit Court of Appeals for lack of subject matter jurisdiction. For the rea­sons set forth below, we grant defendants’ motion to dismiss the Merit Systems Protec­tions Board, and transfer this case to the Northern District of Ohio. I. Background Plaintiff Yasmin A. Zughni was employed as an air traffic controller in Cleveland, Ohio. On January 12, 1993, she received a letter from Clifford A. Armstrong, Acting Air Traf­fic Manager in Cleveland, proposing that she be removed from her position. This decision became final, and Armstrong subsequently informed Zughni that she would be terminat­ed effective March 5, 1993. On March 15, 1993, Zughni appealed her dismissal to the Merit Systems Protections Board (“MSPB”), claiming that her termination was wrongful and challenging the quality of the training she had received. Two months later, she additionally alleged that she had been dis­criminated against on the basis of gender and handicap, specifically, carpal tunnel syn­drome. The administrative law judge (“ALJ”) instructed Zughni to provide further factual information regarding her discrimina­tion claims within six days. The day before this information was due, Zughni requested an extension of time to provide the informa­tion, which the ALJ denied. At the pre-­hearing conference the following day, the ALJ concluded that Zughni had abandoned her discrimination claims through her failure to comply with the court’s order. The ALJ gave Zughni until the date of the hearing, to file any objections to her ruling baring evi­dence on her discrimination claims. Zughni failed to do so. The ALJ subsequently con­cluded that Zughni’s challenge to her dis­missal was without merit, and affirmed the decision to dismiss her. Zughni then filed a petition in this court for review of the MSPB’s ruling. II. Discussion Defendants first contend that the MSPB is not a proper party to this action. They correctly point out that in Title VII actions involving administrative agencies, the proper defendant is the head of the agency. 42 U.S.C. § 2000e-16(c). Furthermore, in any action seeking review of a MSPB deci­sion regarding a non-discrimination claim, the respondent to be named is the agency itself. 5 U.S.C. § 7703(a)(2). Accordingly, it is clear that the MSPB is not properly *302 named in this suit, and is entitled to dismiss­al. 1 Defendants next maintain that ven­ue is not proper in this district. As a general rule, the Court of Appeals for the Federal Circuit has exclusive jurisdiction to review decisions of the MSPB. 5 U.S.C. § 7703(b)(1); Williams v. Dep’t of Army, 715 F.2d 1485, 1487 (Fed.Cir.1983). However, in “mixed” cases, e.g., those which involve alle­gations of discrimination under Title YII as well as non-discriminatory reasons for termi­nation, jurisdiction properly rests in the dis­trict courts. 5 U.S.C. § 7703(b)(2); Williams, 715 F.2d at 1491. Here Zughni has alleged both non-discriminatory and dis­criminatory reasons for her discharge, thus conferring jurisdiction upon the district courts. 2 Whether Zughni is entitled to be in this district court, however, is another mat­ter. 5 U.S.C. § 7703 sets forth the means by which decisions of the MSPB are reviewed. Subsection (b)(2) provides, in relevant part: Cases of discrimination ... shall be filed under section 717(c) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16(c)), section 15(c) of the Age Discrimination in Employ­ment Act of 1967 (29 U.S.C. 633a(c)), and section 16(b) of the Fair Labor Standards Act of 1938, as amended (29 U.S.C. 216(b)), as applicable. 5 U.S.C. § 7703(b)(2). We therefore turn to Section 717(c) of the Civil Rights Act of 1964, which governs the bringing of Title VII claims by government employees. This sec­tion states that an aggrieved employee may “file a civil action as provided in section 2000e-5 of this title....” 42 U.S.C. § 2000e-16(c). We thus proceed to section 2000e-5 and discover the information we seek: the venue provision of Title VII. This provision states: 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 in any such district, such an action may be brought in the judicial dis­trict in which the respondent has his prin­cipal office. 42 U.S.C. § 2000e—5(f)(3). It is well settled that the plaintiff has the burden of establishing proper venue. See Reed v. Brae Railcar Mgmt., Inc., 727 F.Supp. 376, 377 n. 1 (N.D.Ill.1989) (citations omitted). Normally, we take the allegations of the complaint as true unless controverted by the defendant’s affidavits; here, however, Zughni has utterly failed to plead facts in support of her chosen venue. However, in her response to defendant’s motion, Zughni sets forth numerous arguments which she claims satisfy the above venue provision. First, she notes that the MSPB and the ALJ who presided over her appeal are located in the Northern District of Illinois. She main­tains that, because the “quasi-judicial errors” of which she complains in the present action occurred in this district, venue here is prop­er. It is dear, however, that the actions of the MSPB in the present case cannot provide a basis for venue under Title VII; rather, *303 Title VII is concerned with the discrimina­tion which was allegedly the basis for Zugh-­ni’s termination, not with alleged errors in considering the appeal of that termination. Zughni also maintains that venue here is proper because the decision to fire her was made in Des Plaines, Illinois, “a central seat of these employment decisions,” rather than in Cleveland. If true, this fact might provide the basis for venue in this court, since Illinois might then be “the state in which the unlawful employment practice is alleged to have been committed” or “in which the employment records relevant to such practice are maintained and administered.” 42 U.S.C. § 2000e—5(f)(3). However, Zugh-­ni’s assertions in this regard are completely unsupported; she has provided no documen­tation or affidavits which suggest that the decision to fire her was made in Illinois. Defendants, on the other hand, attach a copy of the letter which Clifford A. Armstrong sent to Zughni informing her of her termi­nation. That letter reads, in relevant part: Although you did not respond to me per­sonally regarding this proposed removal, I have considered the written submission of your NATCA representative, dated Febru­ary 5, 1993. I find, however, that the reason fisted in my letter is fully supported by a preponderance of the evidence and warrants your removal to promote the effi­ciency of the service. Accordingly, it is my decision that you be removed effective March 5, 1993. [[Image here]] If you choose to use the negotiated griev­ance procedure you must submit the griev­ance in writing to me, Acting Air Traffic Manager, Cleveland ARTCC, 326 East Lo-­rain Street, Oberfin, Ohio 44074, no later than 20 calendar days after the effective date of removal. Def.’s Mem. Ex. A (emphasis added). This letter flatly contradicts Zughni’s unsupported assertion that the decision to fire her was made in Illinois rather than Ohio, and thus eliminates that putative basis for venue in this district. Because Zughni has utterly failed to satisfy her burden of establishing venue, we conclude that transfer is appropri­ate. Accordingly, defendants’ motion to transfer this action to the Northern District of Ohio is granted. It is so ordered. Footnotes [1] We also note that Zughni has failed to respond to defendants’ arguments, and therefore has ef­fectively conceded this point. See Valluzzi v. United States Postal Service, 775 F.Supp. 1124, 1125 (N.D.Ill.1991); Southern Nevada Shell Dealers Ass'n v. Shell Oil Co., 725 F.Supp. 1104, 1109 (D.Nev.1989). [2] Defendants have moved in the alternative for dismissal or transfer to the Federal Circuit. In essence they argue that, because Zughni "aban­doned” her allegations of discrimination before the MSPB, she failed to exhaust her administra­tive remedies with respect to those claims, and may not bring them here. Defendants then maintain that, because Zughni has only properly presented non-discrimination based claims, ex­clusive jurisdiction lies in the Federal Circuit. We note, however, that Zughni claims that she was prevented from complying with the ALJ's request for additional information because of un­duly limited time constraints, and that, in any event, the ALJ's request was improper. Accord­ingly, we are unwilling to find that Zughni volun­tarily waived her discrimination claim and there­by failed to exhaust administrative remedies. Rather, we conclude that this is properly consid­ered a "mixed” case, and we will proceed on that basis.