United States District Court, M.D. Alabama, Northern Division
KATHY J. MOORE, Plaintiff,
JIMMY H. BAKER, et al., Defendants.
REPORT AND RECOMMENDATION
A. BAKER UNITED STATES MAGISTRATE JUDGE.
Kathy J. Moore, sues Wallace Community College Selma, its
president, the Chancellor of Alabama Community College
System, the Board of Trustees of Alabama Community College
System, and the Board of Trustees' president and members,
alleging retaliation and discrimination in employment based
on gender and age. (Doc. 1). Before the court is
Defendants' Partial Motion to Dismiss for Lack of
Jurisdiction and Failure to State a Claim Upon Which Relief
Can be Granted (Doc. 28), Defendants' Motion to Transfer
Venue to the Southern District of Alabama (Doc. 29), and
Defendants Ron Fantroy and Susan Foy's Motion to Dismiss
and Motion to Transfer (Doc. 41). Plaintiff filed a response
in opposition. (Doc. 44). Defendants replied. (Docs. 48, 49).
For the reasons that follow, it is recommended that the
motions to transfer venue be granted and
this case be transferred to the Selma Division of the
Southern District of Alabama. Given this recommendation, it
is further recommended that the Defendants' motions to
dismiss be held in abeyance to be decided by the transferee
court and terminated in this Court.
matter jurisdiction is conferred by 28 U.S.C. §§
1331, 1343; 29 U.S.C. § 216(b), § 626(b); and 42
U.S.C. § 2000e-5(f)(3) as to Plaintiff's causes of
action. Defendants contest jurisdiction and venue, alleging
the Southern District of Alabama is the more appropriate
forum. On February 23, 2018, the above-styled matter was
referred to the undersigned for review by United States
District Judge Myron H. Thompson. (Doc. 30); see
also 28 U.S.C. § 636(b); Rule 72, Fed. R. Civ. P.;
United States v. Raddatz, 447 U.S. 667 (1980);
Jeffrey S. v. State Bd. of Educ. of State of Ga.,
896 F.2d 507 (11th Cir. 1990).
BACKGROUND AND FACTS
alleges she was involuntarily transferred/demoted on the
basis of gender and age from the position of Director of
Student Support Services for Wallace Community College Selma
(WCCS) to Adult Education Counselor/Student Success Coach.
(Doc. 1, ¶¶ 41-43).
filed this action in the Middle District of Alabama. (Doc.
1). She alleges venue is proper on the basis of 28 U.S.C.
§1391(b) because this action is brought within the State
where the unlawful employment practice was committed under 42
U.S.C. §2000e-5(f)(3). Plaintiff is a citizen of Dallas
County, Alabama. (Doc. 1, ¶ 5). Dallas County is in the
Southern District of Alabama, which is where Defendants
request the case be transferred. WCCS, where Plaintiff works,
is located in Dallas County, Alabama. Id., ¶
17. Plaintiff sues James Mitchell, individually and in his
capacity as president of WCCS; he is alleged to be a resident
of Dallas County. Id., ¶ 18. Herbert Thomas,
Plaintiff's alleged comparator, works at WCCS which is
located in the Selma Division of the Southern District of
Alabama. (Doc. 29 at 3).
sues the Board of Trustees of the Alabama Community College
System (“ACCS Board”), which is a department of
Alabama state government, headquartered in Montgomery,
Montgomery County, Alabama. (Doc. 1, ¶ 7). The ACCS
Board members-Governor Kay Ivey, Al Thompson, Ron Fantroy,
Susan Foy, Frank Caldwell, Crystal Brown, Milton A. David,
Chuck Smith, and Blake McAnally-are alleged to be citizens of
the following counties: Montgomery, Baldwin, Conecuh,
Tallapoosa, Walker, Morgan, Jefferson, and
Marengo. Id., ¶¶ 8-16. Jimmy
Baker, who is sued in his official capacity as the Chancellor
of the ACCS, resides in Montgomery County. Id.,
complaint, Plaintiff alleges her employers, WCCS and the ACCS
Board, discriminated against her in violation of Title VII,
the Equal Pay Act, and the Age Discrimination in Employment
Act (ADEA) by intentionally paying her less than a
similarly-situated, less-qualified, younger male (Herbert
Thomas). Id., ¶¶ 70-87, 97-105. She
additionally claims WCCS and the ACCS Board retaliated
against her for protesting gender and age discrimination.
Id., ¶¶ 106-18. She sues WCCS President
Mitchell, ACCS Chancellor Baker, and the Trustee Defendants
for civil rights violations, alleging violation of the Equal
Protection clause of the Fourteenth Amendment to the United
States Constitution, as remedied through 42 U.S.C.§
1983, by intentionally paying her less as Director of Student
Support Services than a similarly-situated male employee in
the same position. Id., ¶¶ 88-96.
alleges she was hired as the Director of Student Support
Services (SSS) in August 2006 in a temporary appointment.
Id., ¶ 40. She was made full-time in that
position in approximately June 2007 and continued to hold the
SSS Director position until August 31, 2015. Id. At
that time, WCCS President Mitchell reassigned her to a new
position as an Adult Education Counselor/Student Success
Coach effective October 1, 2015. Id., ¶ 41. She
alleges the reassignment/transfer was a demotion because she
no longer was a supervisor, no longer had decision-making
authority, and no longer was responsible for creating and
administering a budget. Id., ¶ 42. She filed
her initial charge of discrimination with the EEOC on
February 19, 2016. Id., ¶ 43.
December 2016, Mitchell and WCCS hired Herbert Thomas as SSS
Director. Id., ¶ 47. Plaintiff alleges that
Thomas is male, substantially younger than her, and less
qualified for the position, and yet he was paid nearly thirty
percent more than she was for performing the same duties.
Id., ¶¶ 48-49. She asserts she was more
qualified than Thomas for the SSS Director position.
Id., ¶ 65. Plaintiff filed her second EEOC
charge of discrimination on March 25, 2017. Id.,
¶ 69. She filed this lawsuit in January 2018. (Doc. 1).
have moved to dismiss the claims against them based on
failure to exhaust administrative remedies, untimeliness,
failure to state a claim, and Eleventh Amendment immunity.
(Docs. 28, 41). Additionally, Defendants seek to have venue
transferred to the Selma Division of the Southern District of
Alabama because the facts, as alleged by Plaintiff,
demonstrate the alleged unlawful employment practices
occurred there, the decision-maker Mitchell and alleged
comparator Thomas are both in the Southern District of
Alabama, and the relevant employment records are maintained
and administered at WCCS which is in the Southern District of
Alabama. (Docs. 29, 41).
LEGAL STANDARD -- VENUE
in a Title VII case is governed by U.S.C. §
2000e-5(f)(3),  which allows a Title VII plaintiff to file
an action in “any judicial district in the State”
of Alabama. 42 U.S.C. § ...