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Tinoco v. Thesis Painting, Inc.

United States District Court, D. Maryland, Southern Division

January 3, 2017



          GEORGE J. HAZEL United States District Judge.

         This 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 Dismiss.

         I. BACKGROUND[1]

         Tinoco 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, [2] 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.

         In 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.

         As a 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. ¶ 21.

         Shortly 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.

         On 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.

         On 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.


         A. Motion to Dismiss: Improper Venue R. 12(b)(3)

         Defendant 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)).

         Where, 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 denied.

         B. Motion to Transfer Venue

         Even 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.

         "To 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 ...

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