United States District Court, D. Maryland, Southern Division
J. HAZEL United States District Judge.
removal action stems from Arelis Tinoco's
("Plaintiff'' or "Tinoco") sexual
discrimination claims against her former employer, Thesis
Painting, Inc. ("Defendant" or "Thesis"),
for purported violations of Chapter 27 of the Montgomery
County Code. Pending before the Court is Defendant's
Motion to Dismiss or in the Alternative, Transfer to the
Eastern District of Virginia, ECF No. 2. A hearing is
unnecessary. Loc. R. 105.6 (D. Md. 2016). For the reasons
stated below, the Court will deny Defendant's Motion to
is a resident and domiciliary of Montgomery County, Maryland.
ECF No. 6 ¶ 6. Tinoco was employed by Thesis as a
laborer from March 26, 2014 through February 20, 2015.
Id. ¶ 9. Although Thesis is a Virginia
corporation, it regularly performs work and services in the
State of Maryland, including within Montgomery County,
Maryland. Id. ¶¶ 3, 7. Thesis was a
predominantly male environment, and Tinoco alleges that she
was regularly the subject of sexual comments while working at
Thesis" different jobs sites. Id. ¶ 16.
Specifically, she claims that one male colleague, Edgar,
started a rumor that she was a prostitute saying, "I
went out with [Tinoco] and she charged me $100 and she took
me to the apartment where her daughter was also."
Id. ¶ 17. This led to male colleagues at her
job sites making comments such as "she is the woman who
charges $100 to sleep with men." id. ¶16.
and Tinoco being informed by a coworker at the company's
morning meeting that others were talking about her
"selling herself." Id. ¶ 18.
Additionally, when a new painter arrived on the job on or
around January 22, 2015, he referred to her by asking
"for the girl who charges $100." Id.
¶ 19. Because of this harassment, Tinoco suffered mental
anguish, frequent headaches, sleepless nights and an
irregular appetite. Id. ¶ 20. Tinoco claims
that two of Thesis' foremen, Nelson and Carlos, knew
about these comments but did not inform Human Resources or
higher-level management. Id. ¶ 18. Thus, Thesis
did not conduct an investigation nor did they take any
disciplinary measures. Id.
addition to harassment by her co-workers, Tinoco alleges that
she was sexually harassed by Elmer Lazo ("Lazo"),
her direct supervisor on a project she was assigned to in
January 2015, located at the Twinbrook apartment building
site in Rockville, an area within Montgomery County,
Maryland. Id. ¶ 22. Tinoco claims that from
November 2014 through January 2015, Lazo sent her crude,
sexually explicit messages. Id. ¶ 23-24. For
example, on January 12, 2015, he asked her "when we
gonna fuck" and told her not to go into work because he
would pay her for the day if she would take his offer to
"show you what 2 do with a guy." Id.
¶ 25. Tinoco responded to this message by saying,
"[w]hat do you want?" to which Lazo replied,
"I wanna have fun with u." Id. ¶ 26.
Although Tinoco attempted to demonstrate that Lazo's
conduct was unwelcome by stating "[y]ou scare me, "
Lazo went on to text her "u gonna leave me wanting 2
make love 2 u that's so mean baby." Id.
Lazo continued the exchange of text messages on the following
day. making more sexually harassing comments such as "I
wanna make love 2 u baby" and "I think u need a
good massage 2 relax baby. Fm up for it, I got lots of
experience baby." Id. ¶ 28.
result of these experiences, on January 23, 2015, Tinoco
complained to Thesis' co-owner, Barbara Spyridakis
("Spyridakis"), about the sexual harassment she was
experiencing. Id. ¶¶ 21. 29. At this
meeting, Tinoco verbally conveyed her concerns and showed
Spyridakis the text messages she received from Lazo.
Id. ¶ 29. Nonetheless, Thesis took no steps to
address her concerns, such as disciplining the harassers or
conducting sexual harassment trainings. Id. ¶
after making this report, Tinoco had her hours drastically
reduced. Id. ¶ 30. After a few weeks, Tinoco
was again given regular work, but was assigned to a job site
where Lazo, one of her alleged harassers, would be her
supervisor. Id. ¶31. Rather than work with Lazo
as her supervisor, Tinoco left her job on or about February
20, 2015. Id. ¶ 32.
January 20, 2016. Plaintiff commenced the above-captioned
matter in the Circuit Court for Montgomery County. Maryland.
ECF No. 1-1 ¶ L Plaintiff brought this case pursuant to
Md. Code, State Gov't § 20-1202, which allows a
person who is "subjected to a discriminatory act
prohibited by the county code."' here Chapter 27 of
the Montgomery County Code, to maintain a civil action
against the person that committed the alleged discriminatory
act. Md. Code, State Gov't §20-1202.
March 15, 2016, Defendant removed the matter to this Court.
ECF No. 1. That same day, Defendant tiled a Motion to Dismiss
based on improper venue and failure to state a claim, moving
in the alternative to transfer the case to the Eastern
District of Virginia. ECF No. 2. On April 14, 2016, Plaintiff
filed a Motion to Remand, ECF No. 18. which the Court denied
on November 1, 2016, ECF No. 22. Plaintiff subsequently filed
an Opposition to Defendant's Motion to Dismiss, ECF No.
26, and Defendant submitted a timely Reply. ECF No. 27. In
its Reply, Defendant raises for the first time a lack of
subject matter jurisdiction, and also moves to dismiss on
that ground. ECF No. 27 at 17.
Motion to Dismiss: Improper Venue R. 12(b)(3)
alleges that that the case should be dismissed based on
improper venue. A motion to dismiss for improper venue arises
under Federal Rule of Civil Procedure 12(b)(3). It is the
Plaintiffs burden to establish that venue is proper. See
Davis v. White, No. CV RDB-15-1108, 2016 WL 1159206, at
*4 (D. Md. Mar. 24, 2016). However, "in deciding a
motion to dismiss [for improper venue], all inferences must
be drawn in favor of the plaintiff, and 'the facts must
be viewed as the plaintiff most strongly can plead
them."' Id. (quoting Three M Enters.,
Inc. v. Tex. D.A.Ar. Enters., Inc., 368 F.Supp.2d 450,
454 (D. Md. 2005)).
as here, a state action is removed to federal court,
"venue is governed exclusively by the federal removal
statute, 28 U.S.C. § 1441(a), ''' rather
than the general venue statute, 28 U.S.C. § 1391.
Am. Ins. Mktg. Corp. v. 5 Star Life Ins. Co., 958
F.Supp.2d 609, 613 (D. Md. 2013). Thus, "the only
question that must be answered to determine the propriety of
venue is whether removal was effectuated to the district
court 'for the district and division embracing the
place' where the suit was filed originally."
Id. (quoting Polizzi v. Cowles Magazines,
Inc., 345 U.S. 663, 665-66 (1953)); see also Hollis
v. Florida State Univ., 259 F.3d 1295, 1299 (11th Cir.
2001). This case was commenced by Plaintiff in the Circuit
Court for Montgomery County, Maryland. ECF No. 1-1 ¶ 1.
Because the Southern Division of the District of Maryland
encompasses the Circuit Court for Montgomery County, removal
was properly effectuated under §1441(a) and
Defendant's Motion to Dismiss for improper venue is
Motion to Transfer Venue
when venue is proper, a defendant may request that their case
be transferred pursuant to 28 U.S.C. § 1404(a), which
allows transfer "for the convenience of parties and
witnesses, in the interest of justice." 28 U.S.C. §
1404(a). Here, Defendant argues that the case should be
transferred to the U.S. District Court for the Eastern
District of Virginia, located in Alexandria, Virginia. ECF
No. 3 at 5.
prevail on a motion to transfer venue under § 1404,
'the defendant must show by a preponderance of the
evidence' that the proposed transfer will better and more
conveniently serve the interests of the parties and witnesses
and better promote the interests of justice."
CoStar Realty Info.. Inc. v. Meissner, 604
F.Supp.2d 757, 770 (D. Md. 2009)(quoting Helsel v.
Tishman Realty & Constr. Co., Inc., 198
F.Supp.2d 710. 711 (D. Md. 2002)). "Mere assertions of
inconvenience or hardship, without more, are insufficient to
sustain a motion.. .to transfer pursuant to §
1404(a)." Id. When deciding a motion to
transfer venue, the court must "weigh in the balance a
number of case-specific factors." Stewart Org.. Inc.
v. Ricoh Corp., 487 U.S. 22, 29, (1988).
The host of convenience factors a court should consider
include: (1) the plaintiffs choice of forum; (2) relative
ease of access to sources of proof; (3) availability of
compulsory process for attendance of unwilling witnesses, and
the cost of obtaining attendance of willing and unwilling
witnesses; (4) possibility of a view of the premises, if
appropriate; (5) enforceability of a judgment, if one is
obtained; (6) relative advantage and obstacles to a fair
trial; (7) other practical problems that make a trial easy,
expeditious, and inexpensive; (8) administrative difficulties
of court congestion; (9) local interest in having localized
controversies settled at home; (10) appropriateness in ...