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Berg v. Aetna Freight Lines

July 15, 2008


The opinion of the court was delivered by: Magistrate Judge Amy Reynolds Hay

Judge Nora Barry Fischer


HAY, Magistrate Judge

In this Title VII action, three Motions filed by Defendants, Aetna Freight Lines ("Aetna") and Transportation Investments, Inc. ("TII"), are pending: a Motion to Dismiss TII as a party, a Motion to Dismiss Count III of the Complaint, and a Motion for Transfer of Venue pursuant to 28 U.S.C. § 1404(a). The Court here addresses only the Motion for Transfer of Venue.*fn1 The remaining Motions will be considered separately, in a Report and Recommendation.


The Plaintiff, Kirsten Berg ("the Plaintiff" or "Berg"), a Medford, Oregon resident, filed a three count Complaint alleging that the Defendants created and maintained a hostile work environment, engaged in sexual harassment and gender discrimination, and retaliated against her by terminating her position, all in violation of Title VII of the Civil Rights Act, 42 U.S.C. §2000e et seq. Berg alleges that she began working from her home as a freight dispatcher for the Defendants in early August 2006. (Doc 1. at 3).*fn2 On March 7, 2007, she received a sexually inappropriate email from the work computer of her supervisor, Aetna's Vice President and General Manager, Thomas Tomasko ("Tomasko"), who worked and lived in Warren, Ohio. Ten days later, Tomasko drove Berg from Aetna's Ohio headquarters to a social event sponsored by TII for Aetna agents in Pittsburgh, Pennsylvania. During that trip - it is not clear whether the two were in Ohio or in Pennsylvania when this happened - Tomasko asked Berg whether she thought that he was "attractive" or "fat." (Doc. 1 at 4). He also claimed that his hands were cold, and touched Berg in an offensive manner. (Id.).

Later the same day, Berg and Tomasko attended the event in Pittsburgh aboard the Gateway Clipper, a vessel which may be rented for cruises of Pittsburgh's three rivers. Berg alleges that on this cruise, Tomasko broadcast sexually suggestive remarks about her over the vessel's sound system, and that these remarks were heard by other attendees. (Id. at 5). Then, in what seems to have been a more private moment, Tomasko told Berg that she was the "prettiest girl" at the event. (Id.). Berg claims that she was also approached by Daniel Singer ("Singer"), an officer of TII, who "rubbed his hand up and down the back of Berg's dress," commenting that she had put it on backward. (Id.).

On April 2, 2007, Berg received a second sexually offensive email from Tomasko. (Id.). "On or about April 10, she constructively discharged herself due to Tomasko's sexual harassment," but Tomasko called her, and persuaded her to remain in her job. (Id.). She agreed. She resumed her duties the next day, but alleges that when, as part of a work-mandated procedure, she sought credit approval for a transaction from Aetna/TII, she was informed that the department could no longer process her credit requests because her employment had been terminated. Later in the day, Tomasko communicated with Berg, telling her that "we should, you, me, Aetna part ways." (Id at 6). Berg then notified Douglas McAdams, President of TII and Aetna, of Tomasko's offensive emails, but did not receive a response. (Id.). She filed a sexual harassment charge with the Equal Employment Opportunity Commission in early June 2007, (id.), and received a Notice of Right to Sue the following month. (Id. at 2). This action followed.

Establishing Venue For Purposes of Title VII

Citing the general venue provisions of 28 U.S.C. § 1391, the Defendants contend that venue lies in the Northern District of Ohio where Aetna is based, Tomasko worked and resides, and where "a substantial part of the events or omissions giving rise to the claim occurred." (Doc. 8 at 11). The Defendants' reliance on Section 1391 is misplaced. Title VII's exclusive mandatory venue provisions are set out at 42 U.S.C. § 2000e-5(f)(3). Pursuant to this Section, venue in a Title VII action is proper:

(1) in any judicial district in the state in which the unlawful employment practice is alleged to have been committed,

(2) in the judicial district in which the employment records relevant to such practice are maintained and administered, or

(3) in the judicial district in which the aggrieved person would have worked but for the alleged unlawful employment practice.

If none of these disjunctive options applies, the action is to be brought "within the judicial district in which the respondent ...

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