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Minh Hong v. Morgan Stanley & Co.

October 18, 2012

MINH HONG, PLAINTIFF,
v.
MORGAN STANLEY & CO., LLC, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Thelton E. Henderson, Judge United States District Court

ORDER GRANTING MOTION TO TRANSFER VENUE

This matter comes before the Court on Defendants' Motion to Transfer Venue to the Central District of California pursuant to 28 U.S.C. § 1404(a). The hearing scheduled for October 22, 2012 on this matter was vacated on October 17, 2012. After careful consideration of the parties' papers and the law, the Court now GRANTS the motion.

BACKGROUND

Plaintiff was employed in a broker trainee program at Morgan Stanley's Ontario, California office, located in the Central District, from about May, 2003 until about September, 2007. Opposition ("Opp'n") at 3-4. She had lived in San Francisco prior to entering the program and intended to return to San Francisco once she finished the program and built up her "book of business." Id.; Hong Declaration in Opposition ("Hong Decl.") ¶

3. She requested a transfer to the San Francisco office around the time she went out on disability leave in September or December, 2007. See Opp'n at 3, 4. A Human Resources ("HR") representative told her she would be able to transfer to the San Francisco office, and then later indicated she would not be able to transfer to the San Francisco office but could transfer to the Oakland or Palo Alto office instead. Id. at 4.

Plaintiff alleges that over her four-year period of employment at the Ontario office, she was subjected to a hostile and demeaning environment in which her supervisors showed her pornography, took her to strip clubs and sex toy shops, and showed her nude photographs while commenting on women's bodies. First Amended Complaint ("FAC") ¶ 14. This conduct was regular and ongoing. In the most egregious instance, she alleges that her mentor Rick Fontana, who had supervisorial responsibilities over her, "grabbed [her] on the wrist, turned [her] around, and slapped [her] hard three times on [the] buttocks" while she was in his office. Hong Decl. at 8. He then told her that he had spanked her "because [she] was a 'bad girl' for moving three boxes of his belongings back into his office from the conference room." Id. Later on the same day, Plaintiff alleges:

I opened the refrigerator in the break room in the office to get some milk, where Fontana and some other caucasian male employees had congregated nearby and were watching me intently. As I searched the refrigerator for the milk, I felt someone poke me in the lower buttocks. I turned around, and a couple of these gentlemen were laughing and snickering at me. Having been exposed to countless anal sex videos while employed at Morgan Stanley, I felt my safety was threatened and quickly left the room, upset and humiliated.

Id.

Plaintiff alleges that she spoke with various employees in the office about the conduct and made complaints. FAC ¶ 15. After four years of enduring this, Plaintiff had a psychological breakdown and went on disability leave. Opp'n at 3. She has been on disability leave for the past five years, and she suffers from "severe depression, post-traumatic stress disorder, dissociative disorder, high anxiety, panic attacks, self-mutilation, eating disorder, and suicidal ideation." Hong Decl. at 4. She avers that these disabilities are due to the conduct she suffered at Morgan Stanley ("MS"). Opp'n at 4.

In addition to the events in and around the Ontario office, Plaintiff alleges that she suffered sexual harassment during a training trip to San Francisco and a training trip to Dallas, Texas. Opp'n at 15. She alleges that her supervisor/mentor Rick Fontana also telephoned her after she moved to San Francisco and that this frightened her. Id. Other than these three incidents, all of the rest of the conduct alleged occurred in and around the Ontario office, in the Central District.

Plaintiff brings discrimination claims based on gender, race, national origin and disability under Title VII, the Americans with Disabilities Act, and the California Fair Employment and Housing Act, inter alia. Opp'n at 2.

LEGAL STANDARD

"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 or to any district or division to which all parties have consented." 28 U.S.C. § 1404(a). In order for a district court to transfer an action under section 1404, the court must therefore make two findings: First, that the transferee court is one where the action "might have been brought," and second, that the convenience of the parties and witnesses and the interest of justice favor transfer. Gelber v. Leonard Wood Mem'l For Eradication of Leprosy, No. C 07-01785 JSW, 2007 WL 1795746, at *2 (N.D. Cal. June 21, 2007) (citing Hatch v. Reliance Ins. Co., 758 F.2d 409, 414 (9th Cir. 1985)). To make a determination on the convenience and interest of justice prong, the court considers: the plaintiff's choice of forum; the convenience of the parties and witnesses; the ease of access to sources of proof; local interest in the controversy; the familiarity of each forum with the applicable law; and the relative congestion in each forum. Gelber, 2007 WL 1795746 at *2 (citing Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir.1986)).

In addition, Title VII has a special venue provision which provides that 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 . . . ." 42 U.S.C. § 2000e-5(f)(3). While Title VII's venue provision does not displace the traditional section 1404 analysis, "[t]he factors expressly identified as a basis for venue under Title VII . . . should . . . be key factors in analyzing the 'interests of justice' prong of section 1404(a) analysis." Ellis v. Costco Wholesale Corp., 372 F. Supp. 2d 530, 537 (N.D. Cal. 2005) (citation omitted).

DISCUSSION

There is no dispute that Hong could have sued Morgan Stanley in the Central District of California, where Plaintiff was employed and where the majority of the alleged actions occurred. See 28 U.S.C. ยง 1391(b)(2). ...


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