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Kimber v. Plus3 It Systems, LLC

United States District Court, D. Maryland

April 5, 2019

JOSHUA KIMBER Plaintiff
v.
PLUS3 IT SYSTEMS, LLC ALISSA JEAN CAULEY BETH PAOLICELLI KRISTIN HURLBUT Defendants.

          MEMORANDUM

          Ellen L. Hollander United States District Judge

         Plaintiff Joshua Kimber, who is self-represented, filed suit against his former employer, Plus3 IT Systems, LLC ("Plus3"), as well as Plus3 employees Alissa Jean Cauley, Elizabeth Patterson[1], and Kristin Hurlbut. ECF 1 ("Complaint"); ECF 5 ("Amended Complaint"). Plaintiff, who resides in Virginia, alleges that defendants harassed him and discriminated against him on the basis of race and sex during the course of his employment with Plus3, in violation of 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, codified at 42 U.S.C. §§ 2000e to 2000e-17. ECF 5 at 3, 5. Further, plaintiff alleges that defendants retaliated against him for complaining about the harassment and unlawfully terminated him in violation of these federal laws. The Amended Complaint also alleges a state contract claim, multiple state tort law claims law, and' claims under the Virginia Human Rights Act, Va. Ann. Code §§ 2.2-3900 to -3903. Id. at 4.

         Cauley, Patterson, and Hurlbut (collectively, the "Employees"), who reside in Virginia, filed a Motion to Dismiss for Lack of Jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(2). ECF 10. It is supported by a memorandum of law (ECF 10-1) (collectively, the "Motion to Dismiss") and the affidavits of Patteron (ECF 10-2), Cauley (ECF 10-3), and Hurlbut. ECF 10-4. Plus3, located in Virginia, filed a Motion to Transfer Venue to the Eastern District of Virginia, pursuant to 28 U.S.C. § 1404(a). ECF 15. It is supported by a memorandum (ECF 15-1) (collectively, the "Motion to Transfer") and the affidavit of Plus3's President. ECF 15-2. Plaintiff opposes the Motion to Dismiss and, alternatively, moves to transfer the case to the Eastern District of Virginia, under 28 U.S.C. § 1404(a). ECF 16. Defendants have jointly replied. ECF 17.

         Plaintiff has also moved for leave to file a second amended complaint. ECF 18 ("Motion to Amend"). Although I shall not resolve this motion, I note that it contains no allegations that would alter the outcome of the disposition of the motions to transfer.

         The Motion is fully briefed, and no hearing is necessary to resolve it. See Local Rule 105.6. In addressing the Motion to Transfer, the Court is mindful of its obligation to construe liberally the pleadings of a pro se litigant, which are "held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also White v. White, 886 F.2d 721, 722-23 (4th Cir. 1989).

         For the reasons that follow, I shall transfer the case to the Eastern District of Virginia, pursuant to 28 U.S.C. § 1404, without consideration of the merits of the Motion to Dismiss or the Motion to Amend.

         I. Factual Background [2]

         Kimber, a black man who resides in Virginia, began working for Plus3 in September 2017. ECF 5 at 2, 6. "Plus3 is a company that provides information technology services to customers including the United States Government." ECF 15-2, ¶ 3. Its only physical office is in Reston, Virginia., id. ¶ 9, and it has "never operated within the State of Maryland, other than having its principal office there for purpose of its registration with the Maryland State Department of Assessments and Taxation." Id. ¶ 5.[3]

         As noted, plaintiff and the Employees all reside in Virginia. ECF 5 at 2; ECF 10-2, ¶ 7; ECF 10-3, ¶ 6; ECF 10-4, ¶ 6. And, Kimber and the Employees all worked at Plus3's office in Virginia. Id. ¶ 9. Moreover, none of the Employees have ever lived, worked, or owned real estate in Maryland. ECF 10-2, ¶¶ 9-10; ECF 10-3, ¶¶ 7-8; ECF 10-4, ¶¶ 7-8.

         In October and November 2017, Cauley, a white woman and the then-Human Resources Officer, allegedly "began making sexually suggestive comments and romantically charged gestures" toward Kimber. Id. Plaintiff reports that Cauley "was always talking about looking for a man, [and] always screaming out loudly in the office 'Why am I not married?'" Id. at 7. Plaintiff overheard a conversation in which Cauley and another employee "referenced] sex and penis." Id.

         Kimber also vaguely alleges that Patterson, whom plaintiff describes as the "nominal head of human resources," engaged in "problematic conduct." Id. at 6. He asserts that Cauley and Patterson "were in cahoots when it came to ignoring [his] objections to the discrimination and harassment[.]" Id. at 6-7.

         Plaintiff "filed an internal sexual harassment charge [against Cauley] in the company's human-resources department." Id. at 6. But, according to plaintiff, Cauley was "the head human resources officer at the time." Id. He eventually "discuss[ed] the matter with two co-employees." Id. at 6.

         According to the Amended Complaint, in December 2017, plaintiff spoke with his supervisor regarding Cauley's "erratic behavior" and "her lying and deceptive ways[.]" Id. at 7. He also complained about the "erratic behavior" of Hurlbut, a "member of the corporate division." Id. According to plaintiff, his supervisor "did not want [plaintiff] to make a big deal of it[.]" Id. Further, he said "he did not want [Kimber] to get fired over drama." Id.

         In February 2018, Patterson led an investigation of Kimber. Id. ¶ 8. This resulted in a "progress report." Id.

         Hurlbut spoke "rudely" to plaintiff on March 29, 2018, while he was talking with another coworker. Id. She called him "unprofessional, thus causing a scene." Id. Plaintiff alleges that Patterson then came out of her office "and assault[ed him] by putting her hands on [him], dragging [him] out of the office, shov[ing him] into another room," and telling plaintiff what he was doing wrong. Id.

         On June 11, 2018, plaintiff emailed Patterson and copied the Plus3 Chief Executive Officer, Mark Jefferson, stating that he needed "help," without identifying the problem. Id. at 9. Plaintiff clarified the issue on June 18, 2018, and filed a complaint against Cauley. Id. According to the Amended Complaint, Patterson told plaintiff the next day that she was at a conference and would address the issue upon her return to the office. Id. Kimber alleges that Patterson and the CEO of Plus3 met with a law firm on June 21, 2018. Id. On June 28, 2018, Plus3 fired plaintiff "for no reason and offered [him] a tiny severance that [he] rejected." Id.

         The next day, Kimber filed a Charge of Discrimination with the Fairfax County Office of" Human Rights and Equity naming Plus3 as the respondent. ECF 1-2 at 1. The Charge was cross-filed with the Equal Employment Opportunity Commission ("EEOC") as EEOC Charge No. 570-2018-02691. Id. On July 3, 2018, the EEOC issued him a Notice of Right to Sue. ECF1-2at3.

         II. ...


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