then-brand new Telecommunications Management and Operations
Division, and "has been a key person in designing and initiating
the various programs now operating in that Division." See id.
Mr. Krishnan has remained at the GS-14 level since 1989. See
Compl. at 5. During Mr. Krishnan's tenure at the FAA, he has
applied for more than 25 promotions, but has never been promoted
to the GS-15 level. See id.
The current dispute revolves around two promotions Mr.
Krishnan sought in 1997 but did not receive. During the time
period in question, the FAA advertised two GS-15 level Program
Manager positions in vacancy announcements AWA-AOP-97
10013-15182 ("AOP 400") and 10128-15242 ("AOP 500"). See
Compl. at 6. On May 16, 1997, the defendant appointed Jay Rupp,
then a 32-year-old white male, to the AOP 400 position. See
Pl.'s Opp'n at 8. On the same day, the defendant appointed Jeff
Yarnell, then a 39-year-old white male, to the AOP 500 position.
On May 19, 1997, John Zalenchak, a member of the defendant's
interviewing panel and selection panel, e-mailed all the
candidates regarding the selections for the promotions. Mr.
Krishnan, however, claims that he did not receive this
correspondence, and was not aware of the promotions until a
co-worker informed him of the selections on June 6, 1997. See
id. In his affidavit, Mr. Krishnan says, "I was on official
business travel from May 19, 1997 through May 23, 1997. . . . I
did not return to the office until Tuesday, May 27, 1997 because
of the Memorial Day holiday." See Pl.'s Opp'n, Ex. 1.
On July 8, 1997, the plaintiff contacted an Equal Employment
Officer ("EEO") to seek counseling and to discuss his belief
that his non-selection to AOP 400 and AOP 500 was based on
discriminatory animus. See Compl., Ex. 1. After EEO counseling
failed to resolve the problem, the plaintiff filed a formal
administrative complaint with the Equal Employment Opportunity
Commission ("EEOC") on November 7, 1997. See Pl.'s Opp'n at 9.
After an agency investigation, Mr. Krishnan requested a hearing
before an administrative law judge. See id. On February 2,
2000, Administrative Judge Kevin M. Kraham granted summary
judgment for the defendant. See id. The plaintiff filed the
instant case on May 8, 2000.
A. Legal Standard
In reviewing a motion to dismiss for lack of subject-matter
jurisdiction under Rule 12(b)(1), the court must accept all the
complaint's well-pled factual allegations as true and draw all
reasonable inferences in the plaintiffs favor. See, e.g.,
Pitney Bowes v. United States Postal Serv., 27 F. Supp.2d 15, 19
(D.C. 1998) (Urbina, J.). On a motion to dismiss pursuant to
Rule 12(b)(1), the plaintiff bears the burden of persuasion to
establish subject-matter jurisdiction by a preponderance of the
evidence. See Darden v. United States, 18 Cl.Ct. 855, 859
(Cl.Ct. 1989). While the court must accept all well-pled
allegations of fact, allegations that are overbroad and
unsupported by specific factual averments are insufficient to
state a claim on which relief can be granted. See DeVoren
Stores, Inc. v. Philadelphia, 1990 WL 10003, *1 (E.D.Pa. 1990);
Crowder v. Jackson, 527 F. Supp. 1004, 1006 (W.D.Pa. 1981).
For a complaint to survive a rule 12(b)(6) motion to dismiss,
it need only provide a short and plain statement of the claim
and the grounds on which it rests. See FED.R.CIV.P. 8(a)(2);
Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80
(1957). A motion to dismiss under Rule 12(b)(6) tests not
whether the plaintiff will prevail on the merits, but instead
the plaintiff has properly stated a claim. See FED.R.CIV.P.
12(b)(6); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683,
40 L.Ed.2d 90 (1974), overruled on other grounds by Harlow v.
Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396
(1982). Thus, the court may dismiss a complaint for failure to
state a claim only if it is clear that no relief could be
granted under any set of facts that could be proved consistent
with the allegations. See Hishon v. King & Spalding,
467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); Atchinson v.
D.C., 73 F.3d 418, 422 (D.C.Cir. 1996). As with rule 12(b)(1)
motions, the court must accept as true all well-pleaded factual
allegations. See Pitney Bowes, 27 F. Supp.2d at 19.
B. The Plaintiff Has Exhausted His Administrative Remedies
As a threshold matter, the defendant claims that the plaintiff
has not complied with EEOC regulations regarding counseling
deadlines. Before filing a discrimination suit in federal court,
a Title VII plaintiff must exhaust her administrative remedies.
See Brown v. General Serv. Admin., 425 U.S. 820, 96 S.Ct.
1961, 48 L.Ed.2d 402 (1976). The Code of Federal Regulations
("C.F.R.") states that individuals wishing to bring suit on the
basis of race, color, religion, sex, national origin, age, or
handicap must first attempt to resolve the matter informally
with an EEO counselor, and that the initial contact with the
counselor must take place within 45 days of the defendant's
allegedly discriminatory action. See 29 C.F.R. § 1614.105(a).
The C.F.R. also provides that the 45-day limitations period is
triggered when a "complainant should reasonably suspect
discrimination, but before all the facts that would support a
charge of discrimination have become apparent."
29 C.F.R. § 1614.105(b).
In this case, the defendant contends that the plaintiff
reasonably should have suspected the alleged discrimination when
Mr. Zalenchak e-mailed the promotion list to all applicants on
May 19, 1997. See Mot. to Dis. at 11-12. Thus, the defendant
maintains that the plaintiffs July 8, 1997 contact with the EEOC
would be 50 days after the discriminatory act, and would exceed
the limitations period.
On a motion to dismiss, however, the court must accept all the
plaintiffs well-pled allegations as true. See Pitney Bowes,
27 F. Supp.2d at 19. In his affidavit, the plaintiff states that he
did not learn of his non-selection until a co-worker informed
him on June 6, 1997. Accepting this as true, the court
determines that the plaintiff initiated contact with the EEOC
well within the 45-day limitations period. Furthermore, the
plaintiff alleges that he attempted to contact an EEO counselor
before July 8, but had difficulty finding a counselor to speak
with since several counselors were out on sick leave, were
traveling, or already had a full caseload. See Pl.'s Opp'n,
Ex. 1. Accordingly, the court holds that the plaintiff properly
exhausted his administrative remedies, and therefore denies the
defendant's motion to dismiss pursuant to Rule 12(b)(1).
C. The Plaintiff Has Stated a Claim on Which Relief Can Be
The defendant next asserts that Mr. Krishnan has failed to
state a claim on which relief can be granted because he has not
established a prima-facie case of discrimination. Specifically,
the defendant contends that Mr. Krishnan has not demonstrated
that he was similarly situated with respect to the employees
selected for the promotions. See Mot. to Dis. at 25. The D.C.
Circuit has held, however, that a plaintiff does not have to
"`make out a prima facie case of discrimination' in his
complaint, specifically point to `similarly situated employees
who were given preferential treatment over him,' or offer
`evidence to demonstrate that [the