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Trivette v. Walmart Stores, Inc.

United States District Court, W.D. North Carolina, Charlotte Division

November 8, 2017

CHRISTINE E. TRIVETTE, Plaintiff,
v.
WALMART STORES, INC. Defendant.

          ORDER

          Frank D. Whitney Chief United States District Judge

         THIS MATTER is before the Court on Defendant's Motion to Dismiss or, in the alternative, to Transfer Venue (Doc. No. 3). This motion has been fully briefed by the parties (Docs. Nos. 3-1, 8, 9) and is now ripe for disposition. For the reasons that follow, Defendant's Motion to Dismiss is DENIED, and Defendant's Motion to Transfer is GRANTED. Consequently, Defendant's Motion for Hearing (Doc. No. 5) is DENIED as MOOT.

         I. BACKGROUND

         Plaintiff, Christine E. Trivette, is a former employee of Defendant, Walmart Stores, Inc. Plaintiff filed her complaint in this Court on September 20, 2017, asserting three causes of action resulting from Defendant's alleged violations of Title VII of the Civil Rights Act of 1964, Title I of the American with Disabilities Act of 1990, as amended by the ADA Amendments Act of 2008, and the Family Medical Leave Act. (Doc. No. 1, p. 1-2).

         Plaintiff began working in Defendant's Kannapolis, North Carolina, location in 2009, subsequently taking positions at various Walmart locations in North and South Carolina. Id. at 3. The alleged wrongs and damages pertaining to Plaintiff's complaint, however, occurred at Walmart Store #01030 (“Walmart No. 1030”) in Lancaster, South Carolina. Id. at 1.

         While employed as the store manager of Walmart No. 1030, Plaintiff alleges she was discriminated against by Area Market Manager, Kurt Herkert, because of her sex. Id. at 3-4. On February 11, 2015, Plaintiff requested she be allowed to transfer to Defendant's location near Charlotte, North Carolina. Id. at 4. This request was denied; Plaintiff alleges this is directly attributable to Mr. Herkert's discrimination against her. Id. at 5.

         On April 25, 2016, Plaintiff filed a charge of discrimination with the Charlotte District Office of the U.S. Equal Employment Opportunity Commission (“EEOC”), alleging discrimination and retaliation based on her sex and/or gender against Defendant. Id. at 2. After receiving notices of Right to Sue from the EEOC on June 20, 2017, Plaintiff then filed this complaint. Id. at 3. As a resident of Charlotte, Plaintiff argues that venue is proper in this Court pursuant to 28 U.S.C. § 1391(b) and 42 U.S.C. § 2000e-5(f)(3), as she would have worked in North Carolina but for the alleged unlawful employment practice. Id.

         Defendant filed a Motion to Dismiss or, in the alternative, to Transfer Venue (Doc. No. 3) on October 16, 2017.

         II. ANALYSIS

         A. Motion to Dismiss

         Under Federal Rule of Civil Procedure 12(b)(3) a defendant may move to dismiss a complaint for improper venue. When a 12(b)(3) motion to dismiss is filed, the plaintiff bears the burden “to establish that venue is proper in the judicial districts in which the plaintiff has brought the action.” Plant Genetic Systems, N.V. vs. Ciba Seeds, 933 F.Supp. 519, 526 (M.D. N.C. 1996).

         Plaintiff correctly points out that Defendant is considered a resident of the Western District of North Carolina pursuant to 28 U.S.C. § 1391(c)(2). This Court, therefore, finds that under both 28 U.S.C. § 1391 and 42 U.S.C. § 2000e-5(f)(3), Title VII's venue provision, venue in the Western District of North Carolina is proper. Accordingly, Defendant's motion to dismiss is denied.

         B. Motion to Transfer

         This Court further finds, however, that in the interest of justice this case should be transferred to the District of South Carolina, Rock Hill ...


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