TABLE OF CONTENTS

Table of Authorities......................................................... iii

Jurisdiction......................................................................... 1

Nature of the Case............................................................. 3

Relief Sought...................................................................... 4

Issue Presented.................................................................. 4

Statement of Facts.............................................................. 4

Challenged Order.............................................................. 9

Reasons Why the Writ Should Issue............................ 12

I. Venue is proper in the Eastern District of Louisiana........................................................... 13

II. American Screening did not satisfy its “significant burden” of showing that venue is “clearly more convenient” for the parties and witnesses in the Western District of Louisiana............................................................................ 16

Conclusion........................................................................ 27

Addendum

I. R.7-1, American Screening’s Brief in Support of Motion to Dismiss for Improper Venue or, Alternatively, for Transfer............................ A-1

II. R.16, EEOC’s Memorandum in Opposition to Motion to Dismiss for Improper Venue or, in the Alternative, for Transfer...................... A-19

III. R.19, American Screening’s Reply to EEOC’s Opposition.................................................... A-55

IV. R.23, Eastern District Court’s Order and Reasons.......................................................... A-64

V. R.31-1, Email Activity Notifications......... A-73

VI. R.32, Western District Court’s Denial of Motion to Transfer....................................... A-77

Certificate of Compliance

Certificate of Service

TABLE OF AUTHORITIES

CASES

Braun v. Berenson, 432 F.2d 538 (5th Cir. 1970)............ 15

Broussard v. First Tower Loan, LLC, 135 F. Supp. 3d 540

(E.D. La. 2015)............................................................ 14, 21

Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367 (2004)..... 1

Coleman v. Trican Well Serv., L.P., 89 F. Supp. 3d 876 (W.D. Tex. 2015)............................................................... 24

Def. Distributed v. Bruck, 30 F.4th 414 (5th Cir. 2022)... 1, 3, 17, 19, 20, 23

Duncan v. Walker, 533 U.S. 167 (2001)........................... 13

Frederick v. Advanced Fin. Sols., Inc., 558 F. Supp. 2d 699 (E.D. Tex. 2007)................................................................ 21

Freeman v. Bee Mach. Co., 319 U.S. 448 (1943)............... 15

Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947).... 17, 18, 25, 26

In re Cragar Indus., Inc., 706 F.2d 503 (5th Cir. 1983) (per curiam)........................................................................ 2

In re Horseshoe Ent., 337 F.3d 429 (5th Cir. 2003) (per curiam)
(on panel reh’g).......................................................... 17, 26

In re Radmax, Ltd., 720 F.3d 285 (5th Cir. 2013) (per curiam).............................................................................. 18

In re Red Barn Motors, Inc., 794 F.3d 481 (5th Cir. 2015) (per curiam).................................................................... 1, 3

In re Volkswagen of Am., Inc., 545 F.3d 304

(5th Cir. 2008) (en banc)...................... 9, 13, 16, 17, 22, 27

Mateos v. Select Energy Servs., L.L.C., 919 F. Supp. 2d 817

(W.D. Tex. 2013)............................................................... 22

Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493
(9th Cir. 2000)................................................................... 24

Pension Advisory Grp., Ltd. v. Country Life Ins. Co., 771 F. Supp. 2d 680
(S.D. Tex. 2011)................................................................. 22

Richardson v. Ala. State Bd. of Educ., 935 F.2d 1240 (11th Cir. 1991)..................................................................... 14, 25

Roco v. Am. Airlines, Inc., No. 3:21-cv-2839-L, 2022 WL 658566
(N.D. Tex. Mar. 4, 2022).................................................. 21

Sprow v. Hartford Ins. Co., 594 F.2d 412 (5th Cir. 1979). 8

Starnes v. McGuire, 512 F.2d 918 (D.C. Cir. 1974) (en banc).................................................................................... 2

STATUTES & RULES

28 U.S.C. § 1404(a)................................................. 9, 12, 16

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.......................................................................... 3

§ 2000e-5(f)(3)............................... 3, 8, 10, 13, 15, 16

La. Code Civ. Proc. art. 1266(A).................................... 16

Fed. R. Civ. P. 45(c)(1)..................................................... 20

OTHER AUTHORITIES

14D Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure (4th ed., Apr. 2022 update)...... 14

H.R. Rep. No. 914, 88th Cong., 1st Sess. (1963)........... 15

H.R. Rep. 112-10, 112th Cong., 1st Sess. (2011), 2011 U.S.C.C.A.N. 576, available at 2011 WL 484052............ 15

110 Cong. Rec. 12723 (June 4, 1964).............................. 15

Where Am I, Distance Between Cities, https://where-am-i.org/distance-calculator.php (last visited July 25, 2022).............................................................................................. 8

JURISDICTION

Mandamus is the “prescribed vehicle” for review of an order transferring venue. Def. Distributed v. Bruck, 30 F.4th 414, 423 (5th Cir. 2022). This Court has jurisdiction only if a petitioner “diligently seek[s] review of the transfer.” In re Red Barn Motors, Inc., 794 F.3d 481, 483 (5th Cir. 2015) (per curiam). The EEOC has done so here.

The Eastern District of Louisiana transferred this case to the Western District of Louisiana without giving the EEOC an opportunity to move for reconsideration. See R.31-1, Addendum at 73 (Email Activity Notifications) (notice of transfer order received June 15 at 3:45 p.m.; notice that case had been transferred received June 16 at 10:38 a.m.).[1] Twelve days later, the EEOC asked the Western District to (1) transfer the case back to the Eastern District for the Eastern District to reconsider its order, or (2) stay proceedings for thirty days to enable the EEOC to consider options for further review. R.28. This was an appropriate course of action. See Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 379-80 (2004) (“In light of the drastic nature of mandamus and our precedents holding that mandamus may not issue so long as alternative avenues of relief remain available, the Government cannot be faulted for attempting to resolve the dispute through less drastic means.”); cf. In re Cragar Indus., Inc., 706 F.2d 503, 505 (5th Cir. 1983) (per curiam) (transferee court may not itself reconsider transfer); Starnes v. McGuire, 512 F.2d 918, 924 (D.C. Cir. 1974) (en banc) (“[I]t is well established that a transferee court cannot directly review the transfer order itself ….”). The EEOC’s motion promptly alerted court and counsel, before the Western District took any substantive action on the case, that the EEOC intended to challenge the transfer order.[2]

Yesterday (Sunday, July 24), the Western District denied the EEOC’s motion to transfer. R.32, Addendum at 77. The EEOC now petitions for mandamus pursuant to Fed. R. App. P. 21 and 5th Cir. R. 21. We file this petition the day after the Western District denied our motion, and only forty days after the Eastern District issued its transfer order. See Def. Distributed, 30 F.4th at 424 (jurisdiction existed where party sought mandamus relief thirty-nine days after transfer order); cf. In re Red Barn Motors, 794 F.3d at 482 (no jurisdiction when petition for mandamus was filed more than three months after transfer order and after proceedings had begun in transferee court).

NATURE OF THE CASE

This is an enforcement action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. The EEOC’s complaint alleges that respondent American Screening, LLC, engaged in race discrimination when it fired an African American woman shortly after she stopped wearing a wig with straight hair. R.1. The EEOC filed suit in the Eastern District of Louisiana pursuant to Title VII’s special venue provision. Id. § 2000e-5(f)(3). American Screening moved to dismiss for lack of venue or, in the alternative, to transfer the case to the Western District of Louisiana. R.7. The district court denied the motion to dismiss but granted the motion to transfer. R.23, Addendum at 64. In so doing, it overrode the EEOC’s considered decision on where to bring suit.

RELIEF SOUGHT

The EEOC respectfully asks this Court to issue a writ of mandamus ordering the district court for the Western District of Louisiana to transfer this case back to the Eastern District for all further proceedings.

ISSUE PRESENTED

Was the Eastern District’s transfer order patently erroneous because the court overlooked critical facts and relied on unsupported assumptions in concluding that American Screening met its “significant burden” of showing that venue is “clearly more convenient” for the parties and witnesses in the Western District?

STATEMENT OF FACTS[3]

In October 2021, the EEOC filed a Title VII complaint in the Eastern District of Louisiana against American Screening, a distributor for drug-testing and medical-testing supplies. American Screening is located in Shreveport, which is in the Western District of Louisiana. R.7-2 ¶ 2 (Ronald Kilgarlin Decl). The company agreed to waive service of a summons. R.6.

The EEOC’s complaint alleges that, in the summer of 2018, Rebecca Isham of staffing agency Kelly Services referred Imani Jackson for a sales position with American Screening. R.1 ¶ 11(A). Jackson, an African American woman with tightly curled hair, wore a wig with straight hair for her interview. Id. ¶¶ 11(A), (C). American Screening offered her the job, and she began working in mid-August. Id. ¶¶ 11(D), (E).

For the first month of her employment, Jackson wore the wig to work each day. Id. ¶ 11(G). In mid-September, she stopped wearing the wig and wore her hair uncovered, usually in a neat bun. Id. ¶ 11(H). Other employees also wore their hair in buns or ponytails. Id.

On October 8, Chief Operating Officer Shawn Kilgarlin instructed Human Resources Manager Cheryl LaCour and Payroll Manager Rita Gossett to “talk to [Jackson] about her hair and looking more professional,” noting that Jackson “came in with beautiful hair” but now “looks like she rolls out of bed.” Id. ¶ 11(I). The next day, LaCour informed Isham about Kilgarlin’s concerns. Id. ¶ 11(J). Isham responded that “[e]mployers can require employees to have neatly groomed hair, but such rules must respect racial differences in hair,” and “employers should make sure grooming standards are race-neutral, adopted for nondiscriminatory reasons and consistently applied.” Id. LaCour shared this information with Kilgarlin, who asked, “Is [Jackson] going to fix her hair?” Id.

On October 11, Kilgarlin told Jackson that her hair was unacceptable and that she had to wear her hair straight, i.e., with the wig. Id. ¶ 11(K). That same day, LaCour and Gossett also relayed Kilgarlin’s message that Jackson’s hair was unacceptable and that she had to wear her hair straight. Id. ¶ 11(L). They added, however, that they thought Jackson’s hair was acceptable and that Kilgarlin was acting unlawfully. Id. They advised Jackson to find other work. Id.

The next day, Kilgarlin told LaCour and Gossett, “She needs neatly groomed hair[.] Some days it’s sticking every which way and looks like she just rolls out of bed and comes to work.” Id. ¶ 11(M). Six days later, Kilgarlin terminated Jackson. Id. ¶¶ 11(N)-(O). She notified Isham that Jackson was terminated “not for performance,” but “because I no longer needed her services.” Id. ¶ 11(P). On November 1, two weeks after terminating Jackson, American Screening replaced her with an employee who is not African American. Id. ¶ 11(Q).

Jackson filed a race-discrimination charge with the EEOC. Id. ¶ 6. During the ensuing investigation, the EEOC obtained emails and text messages between Isham, Kilgarlin, LaCour, and Gossett. See R.16-5 (emails); R.16-6 (texts). The only documents that American Screening provided were electronic copies of its EEO policy and dress code. See R.16-1 at 4-6 (attachments to American Screening’s response to EEOC charge).

Since the events in question, Isham has moved from Shreveport to Biloxi, Mississippi, where she continues to work for Kelly Services as a remote recruiter. R.16-17 (Accurint report of Jan. 31, 2022); R.16-18 (LinkedIn profile of Feb. 16, 2022). She is now across state lines, seventy-seven miles from New Orleans and 322 miles from Shreveport (measured “as the crow flies”). See Sprow v. Hartford Ins. Co., 594 F.2d 412, 417 (5th Cir. 1979) (measuring distance “as the crow flies”); Where Am I, Distance Between Cities (“Distance Calculator”), https://where-am-i.org/distance-calculator.php (last visited July 25, 2022). Neither LaCour nor Gossett still works for American Screening. R.7-1 at 14, Addendum at 14. Their last known addresses were in Shreveport. Id.

The courthouse in the Eastern District, where the EEOC filed suit, is in New Orleans; the courthouse for the Western District is in Shreveport. The two courthouses are 281 miles apart, measured “as the crow flies.” See Sprow, 594 F.2d at 417; Distance Calculator.

American Screening moved to dismiss for lack of venue or, in the alternative, to transfer the case to the Western District. R.7. In support of its motion to dismiss, American Screening argued that Title VII’s special venue provision, 42 U.S.C. § 2000e-5(f)(3), requires that an employer be “found” in a district before venue is proper. R.7-1 at 5-11, Addendum at 5-11. Given that its sole office is in Shreveport and the events in question occurred in Shreveport, American Screening argued, Shreveport is the only district where it can be “found.” Id. at 6, Addendum at 6. Even if venue were permissible in the Eastern District, American Screening said, the Western District would be “clearly more convenient” for the parties and witnesses, warranting transfer pursuant to 28 U.S.C. § 1404(a). R.7-1 at 11-17, Addendum at 11-17; see In re Volkswagen of Am., Inc., 545 F.3d 304, 315 (5th Cir. 2008) (en banc) (movant must demonstrate that transferee venue is “clearly more convenient”).

The EEOC opposed both motions. R.16, Addendum at 19. Under the plain language of Title VII’s special venue provision, the EEOC argued, venue is proper in the Eastern District. Id. at 5-13, Addendum at 23-31. Moreover, the EEOC said, American Screening had not demonstrated that the Western District would be more convenient—much less clearly more convenient—than the Eastern District. Id. at 15-34, Addendum at 33-52.

CHALLENGED ORDER

The district court denied the motion to dismiss but granted the motion to transfer. R.23, Addendum at 64. In denying the motion to dismiss, the court held that Title VII’s special venue provision renders venue proper “in any judicial district in the State in which the unlawful employment practice is alleged to have been committed.” Id. at 5, Addendum at 68 (quoting 42 U.S.C. § 2000e-5(f)(3)). Rejecting American Screening’s argument that it could only be “found” in Shreveport (within the Western District), the district court stated that “[w]hether a defendant is ‘found’ within a district typically depends on whether the defendant is subject to personal jurisdiction there.” Id. Here, the court stated, because American Screening has filed a waiver of service, the Eastern District has personal jurisdiction. Id. at 5-6, Addendum at 68-69.

Nonetheless, the court held that transfer to the Western District was “necessary.” Id. at 6, Addendum at 69. Characterizing its decision as “a close call,” the court determined that the Western District would be “clearly more convenient” because the relevant factors “slightly” favored the Western District. Id. at 6, 7, Addendum at 69, 70.

Specifically, the court held, (1) relevant documents are “likely” located in Shreveport, even if only a small number of them are stored in physical, rather than electronic, form, id. at 6, Addendum at 69; (2) even though American Screening has not identified any specific witnesses who would need to be “commanded to attend trial,” if such witnesses exist and if they live near Shreveport, the expense of participating at trial in New Orleans “may be substantial,” thus precluding compulsory service of process, id. at 6-7, Addendum at 69-70; (3) because a “significant portion” of witnesses “likely live in the Shreveport area,” travel to New Orleans would be expensive; additionally, holding trial in Shreveport would allow flexibility in the order of testimony and prevent technical delays from virtual testimony in New Orleans, id. at 7, Addendum at 70; and (4) there is a local interest in having the case heard in Shreveport, where the alleged discrimination occurred and where American Screening operates its business, id. at 8, Addendum at 71.

The court did not mention that Isham, a key witness who lives across state lines, would be subject to compulsory service of process only in the Eastern District. See infra at 19-20, 25-26. It acknowledged that the case might reach trial more quickly in the Eastern District, R.23 at 7-8, Addendum at 70-71, but did not consider this factor sufficient to overcome its other findings.

Notwithstanding its earlier statement that the decision was a “close call,” R.23 at 6, Addendum at 69, the court concluded, “if § 1404(a) did not apply in this case—where the alleged discrimination occurred in the Western District, many of the likely witnesses reside there, relevant documents are stored there, and Defendant’s only place of business is located there—it would be difficult to imagine a case where it would apply.” Id. at 8, Addendum at 71.

Twelve days after the Eastern District transferred the case, the EEOC asked the Western District to transfer it back to the Eastern District for the Eastern District to reconsider its ruling. R.28. The Western District denied this motion yesterday, on Sunday, July 24. R.32, Addendum at 77.

REASONS WHY THE WRIT SHOULD ISSUE

In transferring this case from the Eastern District to the Western District, the district court made unsupported assumptions in favor of the Western District and failed to acknowledge that Isham is subject to compulsory service of process only in the Eastern District. The court’s errors “produce[d] a patently erroneous result” warranting issuance of the writ. See Volkswagen, 545 F.3d at 310.

I. Venue is proper in the Eastern District of Louisiana.

As the district court correctly held, R.23 at 5, Addendum at 68, Title VII’s special venue provision provides three options for venue, so long as the defendant is “found” within the chosen jurisdiction. 42 U.S.C. § 2000e-5(f)(3). The special venue provision states, in relevant part:

[An action under this subchapter] may be brought in any judicial district in the State in which the unlawful employment practice is alleged to have been committed, in the judicial district in which the employment records relevant to such practice are maintained and administered, or in the judicial district in which the aggrieved person would have worked but for the alleged unlawful employment practice, but if the respondent is not found within any such district, such an action may be brought within the judicial district in which the respondent has his principal office.

42 U.S.C. § 2000e-5(f)(3) (emphasis added).

Courts must give effect, if possible, to every word in a statute. Duncan v. Walker, 533 U.S. 167, 174 (2001). Thus, Title VII authorizes venue in any district in the state in which the alleged unlawful employment action took place. See Richardson v. Ala. State Bd. of Educ., 935 F.2d 1240, 1248 (11th Cir. 1991) (language of Title VII “means anywhere in the relevant state”); Broussard v. First Tower Loan, LLC, 135 F. Supp. 3d 540, 544 (E.D. La. 2015) (“Title VII unambiguously provides for venue in any district court in Louisiana.”). It is not necessary that the challenged employment action have occurred in the chosen venue. See 14D Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3825 (4th ed., Apr. 2022 update) (“Unlike the other Title VII alternatives, with this choice, venue need not be laid in the very district in which the challenged practice was committed. It is sufficient that the forum district simply be in the same state as that in which the unlawful practice was committed.”).

The legislative history indicates that Congress deliberately included the statewide venue provision to expand a Title VII plaintiff’s options. As originally proposed, the draft of the venue provision contained in the House bill provided that actions under Title VII “may be brought either in the judicial district in which the unlawful employment practice is alleged to have been committed or in the judicial district in which the respondent has his principal office.” H.R. Rep. No. 914, 88th Cong., 1st Sess. 12 (1963) (text of H.R. 7152, sec. 707(d)). The Senate substituted the version that Congress ultimately enacted, adding the option for statewide venue. 110 Cong. Rec. 12723 (June 4, 1964).

The statewide venue provision is one of the three statutory options that only apply if the defendant is “found” in the judicial district in which the plaintiff files suit. 42 U.S.C. § 2000e-5(f)(3). The district court correctly rejected American Screening’s argument that it cannot be “found” in the Eastern District. R.23 at 5-6, Addendum at 68-69. Contrary to American Screening’s contention, “‘found’ in the venue sense does not necessarily mean physical presence.” Freeman v. Bee Mach. Co., 319 U.S. 448, 454 (1943); Braun v. Berenson, 432 F.2d 538, 544 (5th Cir. 1970) (same). Instead, it means any jurisdiction in which the defendant may be served with process. Freeman, 319 U.S. at 454 (“[A] corporation may be ‘found’ in a particular district for venue purposes merely because it had consented to be sued there.”); see also H.R. Rep. 112-10, 112th Cong., 1st Sess. (2011), 2011 U.S.C.C.A.N. 576, available at 2011 WL 484052, at *20 (report on Federal Courts Jurisdiction & Venue Clarification Act of 2011) (“Traditionally, the ‘may be found’ formulation carried this service-of-process connotation….”).

American Screening’s sole office is in Shreveport, but it has consented to service of process throughout the state of Louisiana. See La. Code Civ. Proc. art. 1266(A); see also R.6 (American Screening’s waiver of service of summons). Accordingly, there is no bar to applying the statewide venue provision, and venue is proper in the Eastern District.

II. American Screening did not satisfy its “significant burden” of showing that venue is “clearly more convenient” for the parties and witnesses in the Western District of Louisiana.

The general venue statute, incorporated by reference into Title VII, 42 U.S.C. § 2000e-5(f)(3), authorizes a change of venue “[f]or the convenience of parties and witnesses, in the interest of justice.” 28 U.S.C. § 1404(a). The plaintiff’s choice of venue places a “significant burden” on the movant to show “good cause” for the transfer. Volkswagen, 545 F.3d at 314 n.10. The movant can establish good cause only by demonstrating that the desired venue is “clearly more convenient” for the parties and witnesses. Id. at 315. “[T]he standard is not met by showing one forum is more likely than not to be more convenient, but instead the party must adduce evidence and arguments that clearly establish good cause for transfer based on convenience and justice.” Def. Distributed, 30 F.4th at 433.

Mere speculation does not show “good cause.” Courts err “by considering and giving weight to the mere ‘possibility’ of vague and indefinite circumstances.” In re Horseshoe Ent., 337 F.3d 429, 434 (5th Cir. 2003) (per curiam) (on panel reh’g). “Where there is no demonstration by the movant, let alone a clear one, the court cannot weigh a factor against the non-movant and in favor of transfer.” Def. Distributed, 30 F.4th at 434.

To determine whether a transfer is “clearly more convenient” and in the interest of justice, the district court must consider the four “private interest” and four “public interest” factors the Supreme Court first articulated in Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947). Volkswagen, 545 F.3d at 315. The four private-interest factors are: “(1) the relative ease of access to sources of proof; (2) the availability of compulsory process to secure the attendance of witnesses; (3) the cost of attendance for willing witnesses; and (4) all other practical problems that make trial of a case easy, expeditious and inexpensive.” Id. (citation omitted). The four public-interest factors are: “(1) the administrative difficulties flowing from court congestion; (2) the local interest in having localized interests decided at home; (3) the familiarity of the forum with the law that will govern the case; and (4) the avoidance of unnecessary problems of conflict of laws [or in] the application of foreign law.” Id. (citation omitted). None of these factors is dispositive. Id.

On a petition for a writ of mandamus, this Court conducts an independent analysis of the Gilbert factors to determine whether the district court reached a “patently erroneous result.” In re Radmax, Ltd., 720 F.3d 285, 288, 290 (5th Cir. 2013) (per curiam) (citation omitted). Here, the district court committed significant errors warranting issuance of the writ.

The first private-interest factor—relative ease of access to sources of proof—is neutral. The district court weighed this factor in favor of transfer based on speculation that unidentified documents “are likely located in Shreveport, even if only a small portion of those documents are physical and not electronically stored.” R.23 at 6, Addendum at 69. In fact, American Screening never identified a single document, physical or otherwise, that is relevant to this case. The only documents American Screening submitted to the EEOC during the administrative investigation were its EEO policy and dress code—both of which are now in the EEOC’s possession. See R.16-1 at 4-6 (attachments to American Screening’s response to EEOC charge). The bulk of documentary evidence will likely be the emails and texts that the EEOC has already produced to the court. See R.16-5 (emails); R.16-6 (texts). A finding that this factor favors the movant “requires an actual showing of the existence of relevant sources of proof, not merely an expression that some sources likely exist in the prospective forum.” Def. Distributed, 30 F.4th at 434.

The second private-interest factor—the availability of compulsory process to secure the attendance of witnesses—strongly favors the Eastern District. The EEOC advised the district court that it intends to call Isham, who communicated directly with American Screening about Jackson’s hair. R.16 at 28, Addendum at 46. Isham still works for Kelly Services; thus, even if she is personally willing to testify in this case, the EEOC anticipates that her employer will not permit her to do so without a subpoena. She may be compelled to attend trial in the Eastern District because she lives within 100 miles of New Orleans, making her subject to compulsory process there. Fed. R. Civ. P. 45(c)(1)(A). However, because she lives in Mississippi and more than 100 miles from Shreveport, she cannot be compelled to testify in the Western District. Fed. R. Civ. P. 45(c)(1)(A)-(B). The district court did not mention, let alone consider, this fact.

As a party officer, Kilgarlin may be subpoenaed to attend trial anywhere within Louisiana. See Fed. R. Civ. P. 45(c)(1)(B)(i). The EEOC identified a handful of other individuals in its complaint, R.1 at 3, 5 (referring to Jackson, Isham, LaCour, and Gossett), but American Screening has not indicated that it intends to call any of them, much less one who is subject to compulsory process only in the Western District. See Def. Distributed, 30 F.4th at 434 (finding it “inexplicabl[e]” for court to weigh this factor in favor of movant when movant has not identified any witness who is subject to compulsory process only in transferee forum).

The third private-interest factor—the cost of attendance of willing witnesses—is neutral. The district court speculated that travel would be expensive because “[a] significant portion of the witnesses likely live in the Shreveport area.” R.23 at 7, Addendum at 70. American Screening will presumably call Kilgarlin, but, as a party witness, the cost of her attendance should be given less weight (and will, in any event, presumably be paid by her employer). See Broussard, 135 F. Supp. 3d at 547 (“While the cost of attendance for party witnesses can be considered, the cost of attendance for nonparty witnesses is entitled to greater weight.”).[4] The EEOC has its own party witness, lead investigator Tanya Darensberg, who is located in New Orleans. R.16 at 26 n.21, Addendum at 44. Darensberg’s cost of attendance balances out Kilgarlin’s costs.

American Screening has not identified anyone else whom it intends to call, let alone where they live or what they would say. “When a movant claims that transfer is warranted for the convenience of witnesses, ‘[t]he movant must specifically identify the key witnesses and outline the substance of their testimony.’” Mateos v. Select Energy Servs., L.L.C., 919 F. Supp. 2d 817, 823 (W.D. Tex. 2013) (citation omitted); Pension Advisory Grp., Ltd. v. Country Life Ins. Co., 771 F. Supp. 2d 680, 710 (S.D. Tex. 2011) (same). In Volkswagen, for example, the movant submitted a list of potential witnesses with witness affidavits stating why travel would be inconvenient, and an explanation of why their testimony was critical to the case. 545 F.3d at 317. American Screening has not provided similar specificity.

Even if American Screening had identified willing witnesses, it would most likely be the EEOC, not American Screening, that would call them. LaCour and Gossett, who were involved in discussions about Jackson’s hair, are unlikely to testify on American Screening’s behalf as they both told Jackson that they believed Kilgarlin had acted unlawfully. See R.1 ¶ 11(L). The EEOC routinely covers the costs of travel for willing witnesses it asks to testify at trial, and it will do so for any willing witnesses from the Shreveport area.

The fourth private-interest factor—all other practical problems that make trial of a case easy, expeditious, and inexpensive—is also neutral. The district court found otherwise based on its unsupported assumption that “a number of witnesses likely live near Shreveport,” and that it would be easier to sequence live testimony there. R.23 at 7, Addendum at 70. Such speculation is not a basis for finding in favor of the movant. See Def. Distributed, 30 F.4th at 434. As described above, American Screening has not identified any witnesses it intends to call, thus providing no basis to believe that it will need to sequence multiple witnesses. The factual allegations make it unlikely that more than a handful of people will have relevant information, lessening the possibility of practical difficulties.

The public-interest factors also do not support transfer. The first factor—administrative difficulties flowing from court congestion—favors the Eastern District, as the district court acknowledged. R.23 at 7-8, Addendum at 70-71. In fiscal year 2019, the most recent year for which comparative statistics are available, the median interval between the filing of a civil case and the beginning of trial was 22.3 months in the Eastern District and 39.6 months in the Western District. R.16-19 (judicial caseload profile).

The second public-interest factor—local interest in having localized interests decided at home—favors the Western District, but, as the district court recognized, only slightly. R.23 at 7, Addendum at 70. It is true that American Screening has its sole office in Shreveport and that the challenged employment action occurred there. However, Title VII’s venue provision was intended to neutralize, not emphasize, local interests. Thus, the local-interest factor is “somewhat tempered by Congress’s enactment of Title VII’s broad venue provision.” Coleman v. Trican Well Serv., L.P., 89 F. Supp. 3d 876, 885 (W.D. Tex. 2015); see also Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 504 (9th Cir. 2000) (“[T]his broad provision for alternative forums was necessary to support the desire of Congress to afford citizens full and easy redress of civil rights grievances.”) (quoting Richardson, 935 F.2d at 1248).

The remaining two public-interest factors are neutral or do not apply. The Eastern and Western Districts are equally familiar with Title VII, and there is no issue here regarding conflict of laws or the application of foreign law.

In sum, the only Gilbert factor even slightly favoring the Western District is the “local interest in having localized interests decided at home.” In contrast, the “availability of compulsory process to secure the attendance of witnesses” strongly favors the Eastern District. Isham’s testimony is crucial to the EEOC’s case: LaCour told her that Kilgarlin was requiring Jackson to wear her hair straight, Isham responded that it was illegal to discriminate based on racial differences in hair, and Kilgarlin then told Isham that she had fired Jackson for non-performance reasons. R.1 ¶¶ 11(J), (P). The district court ignored that the EEOC can compel Isham’s testimony only in the Eastern District.

Likewise, the factor of “administrative difficulties flowing from court congestion” favors the Eastern District. Statistically, this case is far more likely to go to trial earlier in the Eastern District than in the Western District. See R.16-19 (judicial caseload profile).

On a petition for mandamus, this Court must “review[] carefully the circumstances presented to and the decision making process used by the … [c]ourt.” In re Horseshoe Ent., 337 F.3d at 432. Here, the district court characterized the venue question as a “close call,” determined that the factors only “slightly” favored the Western District, but nonetheless found that it was “clearly more convenient” to try the case in Shreveport rather than New Orleans. R.23 at 6-8, Addendum at 69-71. In so holding, the court ignored the EEOC’s inability to subpoena a critical witness for trial in Shreveport, and drew unwarranted assumptions in favor of American Screening. The district court’s assessment of the Gilbert factors thus created a “patently erroneous result,” warranting issuance of the writ. See Volkswagen, 545 F.3d at 310.

CONCLUSION

For the foregoing reasons, the EEOC respectfully asks this Court to grant the petition for a writ of mandamus and order the Western District of Louisiana to transfer this case back to the Eastern District, for the Eastern District to assume jurisdiction over all further proceedings.

[1] “R.__” refers to record entries on the district court’s docket sheet.

[2] American Screening, LLC, filed its Answer on the same day that the EEOC moved to transfer. R.27 (Answer), R.28 (Motion). American Screening would have had to file its answer regardless of venue, and the district court took no substantive action in response or otherwise.

[3] The following allegations are drawn from the EEOC’s complaint. See R.1 at 3-6. The complaint names some of the individual actors by title, not by name; because their identities are important for the venue analysis, the EEOC supplies their names here.

[4] In Volkswagen, this Court considered the cost of attendance for all willing witnesses; it did not address whether party witnesses should be treated differently from non-party witnesses. 545 F.3d at 317-18. District courts within this circuit consistently weigh costs to non-party witnesses more heavily than costs to party witnesses. See, e.g., Roco v. Am. Airlines, Inc., No. 3:21-cv-2839-L, 2022 WL 658566, at *3 (N.D. Tex. Mar. 4, 2022) (“The convenience of non-party witnesses is accorded the greatest weight, … while the convenience of employee witnesses of the party seeking transfer is given less weight because the party will be able to compel their testimony at trial.”); Frederick v. Advanced Fin. Sols., Inc., 558 F. Supp. 2d 699, 704 (E.D. Tex. 2007) (“[T]he availability and convenience of party-witnesses is generally insignificant because a transfer based on this factor would only shift the inconvenience from movant to nonmovant.”) (citation omitted).