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Okello v. Dominguez

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA


August 5, 2005

LWANDA OKELLO, PLAINTIFF,
v.
CARI M. DOMINGUEZ, CHAIR, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, DEFENDANT.

The opinion of the court was delivered by: Marilyn Hall Patel District Judge United States District Court Northern District of California

MEMORANDUM & ORDER

Re: Defendant's Motion to Dismiss; Defendant's Motion to Transfer

On June 24, 2004, plaintiff Lwanda Okello filed this action against defendant pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Americans with Disabilities Act, ("ADA"), 42 U.S.C. § 12101 et seq., and the Rehabilitation Act, 29 U.S.C. § 794(a). Specifically, plaintiff alleges that he was discriminated against based on race, sex, age, disability, and reprisal when defendant failed to transfer him from the Oakland, California office of the Equal Employment Opportunity Commission ("EEOC") to the EEOC's Seattle, Washington office. Defendant now moves to dismiss plaintiff's complaint under the doctrine of res judicata or, in the alternative, moves to transfer this action to the United States District Court for the Western District of Washington pursuant to 28 U.S.C. § 1404(a). Having considered the parties' arguments and submissions and for the reasons set forth below, the court enters the following memorandum and order.

BACKGROUND

Plaintiff resides in Oakland, California. Pl.'s Compl. at 1. He began working at the EEOC's Oakland office in 1988 and is currently employed at that office as a GS-1810-12 Investigator. Def.'s Req. for Judicial Notice ("RJN"), Exh. 1 at 3 (Recommended Decision, EEO Complaint No. 0-9800056-OA). Between 1989 and 1998, plaintiff periodically applied for a hardship transfer to the Seattle office. All of plaintiff's requests were denied. RJN, Exh. 1 at 3-4; RJN, Exh. 3 ¶¶ 4-6 (Employment Discrimination Complaint Case No. 00-CV-597). Consequently, plaintiff filed an action in this court in February 2000 alleging that he had been denied a hardship transfer on account of his race, sex, and disability (high blood pressure and dyslexia). Id., Exh. 3 ¶¶ 4-6.

Subsequent to the filing of plaintiff's February 2000 complaint, the government moved to transfer the proceedings to the Western District of Washington, asserting that the site of the alleged discrimination and various related records were located in Seattle. RJN, Exh. 5 at 3 (Order Denying Defendant's Motion to Dismiss and Granting Defendant's Motion to Transfer for Convenience). This court granted that motion on August 16, 2000, and the action proceeded to summary judgment in the transferee court. Id. On August 14, 2001, the court in the Western District of Washington granted defendant's motion for summary judgment, holding that although plaintiff had established a prima facie case of race and sex discrimination, he had failed to submit substantial evidence showing that defendant's motivation for rejecting his request for reassignment was discriminatory. RJN, Exh. 7 at 4 (Order Granting Defendant's Motion for Summary Judgment).

On January 14, 2002, plaintiff asked Joyce A. Hendy, Director of the EEOC's Oakland office, for a transfer to Seattle for the purpose of accommodating his alleged disability. Okello v. Dominguez, EEOC Complaint Nos. 200200051 and 200300104 at 4 (March 17, 2004) (hereinafter "Final Decision"). Two days later, Hendy sent plaintiff's request by fax and regular mail to Barbara Lawrence, EEOC Disability Program Manager ("DPM"),*fn1 and to Jacqueline Bradley, EEOC Director of Field Management Programs in Washington, D.C. Id., Tab F, Exh. F-6. After four months had passed without a response, plaintiff inquired about the status of his request, and Lawrence told him that she had never received Hendy's January 2002 transmission. Id., Tab F, Exh. F-14.

On August 5, 2002, plaintiff filed a formal administrative complaint with the EEOC's Office of Equal Opportunity. In that complaint, plaintiff alleged that he was discriminated against based on his race, sex, age, and disability when his January 16, 2002 request to be transferred to Seattle was not processed in a timely manner. Final Decision, Tab A, Exh. A-1. In addition, plaintiff alleged discrimination based on the fact that he had engaged in activity protected under Title VII: namely, he had previously filed a civil action and several EEO complaints alleging discrimination based on his race, sex, age, and disability. Id. at 7.

During the months that followed, the EEOC continued to process plaintiff's transfer request, which had by this time been assigned to several EEOC employees in Washington, D.C., including a new Disability Program Manager, Todd Denicoff, and the investigator for his case, Patricia St. Clair. Final Decision at 9 & Tab C, Exh. C1. On April 14, 2003, Denicoff denied plaintiff's request to be transferred to the Seattle office, citing the lack of a present or anticipated vacancy at plaintiff's GS-12 work level. Id. at 9.

On March 17, 2004, the Office of Equal Opportunity issued a final decision on the merits of plaintiff's administrative complaint. In that decision, which addressed both the allegedly unreasonable delay in processing his transfer request that was the subject of his January 2002 complaint and the EEOC's final decision denying that request in April 2003, the Office of Equal Opportunity denied plaintiff's claims, citing: (1) his failure to establish a prima facie case of disparate treatment based on race, sex, or age; (2) the absence of any evidence to support his assertion that the delay in processing his transfer request resulted in a failure to provide reasonable accommodation for his disability; and (3) the lack of a causal connection between plaintiff's protected activity and the actions taken by the EEOC in response to his request. Final Decision at 10.

On June 24, 2004, plaintiff filed the instant action in this court alleging discrimination on the basis of race and sex under Title VII of the Civil Rights Act of 1964. See 42 U.S.C. § 2000e et seq. Plaintiff also asserts that he has been discriminated against based on his disability in violation of the ADA, 42 U.S.C. § 12101 et seq., and the Rehabilitation Act, 29 U.S.C. § 794(a). Pl.'s Compl. at 2. In addition, plaintiff pleads a cause of action under 42 U.S.C. § 2000e-3(a), which prohibits an employer from taking retaliatory action against an employee on account of the employee's participation in a Title VII proceeding. 42 U.S.C. § 2000e-3(a). Defendant now moves to dismiss plaintiff's action under the doctrine of res judicata or, in the alternative, moves to transfer this action to the Western District of Washington pursuant to 28 U.S.C. § 1404(a). The following memorandum and order addresses the issues raised in defendant's motion.

LEGAL STANDARD

I. Rule 12(b)(6)

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) should be granted if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). Allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). The court need not, however, accept as true allegations that are conclusory, legal conclusions, unwarranted deductions of fact, or unreasonable inferences. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001); Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994).

II. Res Judicata

The doctrine of res judicata, or claim preclusion, prohibits litigation in a subsequent action of any claims that were raised or could have been raised in a prior action. Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001) (citations omitted). When federal courts decide a federal question, federal res judicata rules govern. Heck v. Humphrey, 512 U.S. 477, 488 (1994) (citations omitted). Under Ninth Circuit law, a prior action serves as a bar to relitigation of a claim if the prior adjudication (1) involved the same "claim" as the later suit; (2) reached a final judgment on the merits; and (3) involved the same parties or their privies. Id.; see also Blonder-Tongue Labs. v. University of Ill. Found., 402 U.S. 313, 323-24 (1971). In determining whether two "claims" are identical, the Ninth Circuit employs four criteria: namely, (1) whether the rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (2) whether substantially the same evidence is presented in the two actions; (3) whether the two suits involve infringement of the same right; and (4) whether the two suits arise out of the same "transaction." Nordhorn v. Ladish Co., 9 F.3d 1402, 1405 (9th Cir. 1993); Costantini v. Trans World Airline, 681 F.2d 1199, 1201-02 (9th Cir.) (quoting Harris v. Jacobs, 621 F.2d 341, 343 (9th Cir. 1980)), cert. denied, 459 U.S. 1087 (1982). Res judicata may be the basis of a motion to dismiss as long as the requisite elements of the doctrine can be established by reference to the allegations in the plaintiff's complaint and public records that are properly the subject of judicial notice. See Day v. Moscow, 955 F.2d 807, 811 (2nd Cir.) (holding that res judicata may be adjudicated in a Rule 12(b)(6) motion "when all the relevant facts are shown by the court's own records"), cert denied, 506 U.S. 821 (1992); see also Matsushita Elec. Indus. Co. v. Epstein, 516 U.S. 367, 376 (1996).

III. Motion to Transfer Venue

A motion to transfer venue to another federal court may be brought under 28 U.S.C. § 1404, which provides: "For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." 28 U.S.C. § 1404(a). The Ninth Circuit has characterized these criteria as embodying an "individualized, case-by-case consideration of convenience and fairness." Jones v. GNC Franchising, Inc., 211 F.3d 495, 498 (9th Cir.) (quoting Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988)), cert. denied, 531 U.S. 928 (2000). Factors that a district court may consider in deciding whether transfer is appropriate are: (1) the plaintiff's choice of forum; (2) the location where the relevant agreements were negotiated and executed; (3) the state that is most familiar with the governing law; (4) the respective parties' contacts with the forum; (5) contacts relating to the plaintiff's cause of action in the chosen forum; (6) differences in the costs of litigation in the two forums; (7) the availability of compulsory process to compel attendance of unwilling nonparty witnesses; (8) the ease of access to sources of proof; and (9) any relevant public policy of the forum state. Jones, 211 F.3d at 498-99 (citing Stewart, 487 U.S. at 29-31, and Lou v. Belzberg, 834 F.2d 730, 739 (9th Cir. 1987)).

DISCUSSION

I. Res Judicata

Defendant first moves to dismiss on the ground that the doctrine of res judicata bars plaintiff from relitigating claims that were adjudicated in his prior action against the EEOC in the Western District of Washington. As previously noted, a party seeking to establish the defense of res judicata must prove that a prior action (1) involved the same "claim" as the present action; (2) reached a final judgment on the merits; and (3) involved the same parties or their privies. Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001) (citations omitted); see also Blonder-Tongue Labs. v. University of Ill. Found., 402 U.S. 313, 323-24 (1971). As the first two elements are undisputed here,*fn2 the question of the court's inquiry must focus on whether the claims raised in plaintiff's August 2000 complaint are identical to the claims now before the court.

It is well-established that res judicata bars only those claims that could have been brought in a prior action. Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001) (citations omitted). Here, the allegations of discrimination arise out of the denial of plaintiff's January 2002 request to be transferred to Seattle, which occurred after final judgment had been entered in plaintiff's previously filed action. As the Ninth Circuit has observed, "if the ideals of finality and repose underlying the doctrine of res judicata are to have any meaning, that right must have fully accrued when the judgment became final." Clifton v. Attorney General, 997 F.2d 660, 663 (9th Cir. 1993). Thus, given that the claims at issue here accrued after final judgment had been entered in the preceding litigation, defendant's motion to dismiss must be denied.*fn3

II. Motion to Transfer Venue

Having concluded that the doctrine of res judicata does not warrant dismissal of plaintiff's action, the court turns to defendant's motion to transfer venue to the Western District of Washington. As venue is undoubtedly proper in this district, see 28 U.S.C. § 1391(e)(3), the starting point for the court's analysis of the venue issues must begin with the rule establishing a strong presumption in favor of the plaintiff's choice of forum. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 266-267 (1981). That rule applies with particular force here, given that plaintiff is a pro se litigant and would be forced to travel to another state if this case were transferred to the Western District of Washington. This factor accordingly weighs heavily in favor of adjudicating plaintiff's claim in this district.

In contrast, the only factors that defendant cites in favor of litigating this action in the Western District of Washington are the purported geographic nexus between that district and the plaintiff's claims, and the fact that plaintiff's prior Title VII action was adjudicated there. As for the first factor, while it may be true that some potential witnesses reside in Seattle and some of the events giving rise to this action occurred there, the same could be said of Oakland, California and the District of Columbia. Final Decision at 4 & Tab F, Exh. F-7. Moreover, considerations related to the convenience of the defendant or of nonparty witnesses are rarely sufficient to warrant upsetting a plaintiff's choice of forum. See Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986) (citations omitted) (observing that a motion to transfer premised upon the convenience of the parties or witnesses should be granted only if the defendant makes a "strong showing of inconvenience"). Thus, the supposed nexus that this action has with Seattle is not sufficient to support transferring proceedings to the Western District of Washington.

That leaves the fact that plaintiff's prior action was litigated in the Western District of Washington as the only remaining factor that might favor transferring this action to that district. Admittedly, there is some benefit to having plaintiff's claims adjudicated in a court that is already familiar with the issues raised in his complaint. That being said, the instant action arises from events that occurred after final judgment was entered in plaintiff's prior action. For that reason, any efficiencies that might be realized by transferring this action to the Western District of Washington would be limited. Weighing that minimal benefit against the compelling interest that plaintiff has in litigating his claims in the forum of his choice, the court finds that transfer of this action is not warranted under 28 U.S.C. § 1404(a).

This conclusion compels the court to deny defendant's motion to transfer. That being the case, it should nevertheless be noted that plaintiff failed to attend the hearing held on this motion on August 1, 2005. If plaintiff intends to pursue his claims in this court, he is expected to participate actively in the proceedings and to attend all future hearings held in this action. Any future failure to appear at a court date will result in dismissal of his complaint for failure to prosecute.

CONCLUSION

For the reasons stated above, defendant's motion to dismiss under the doctrine of res judicata is DENIED. Defendant's motion to transfer venue to the United States District Court for the Western District of Washington is also DENIED.

IT IS SO ORDERED.


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