The opinion of the court was delivered by: Reggie B. Walton, United States District Judge
This matter comes before the Court upon defendant's motion to dismiss the plaintiff's complaint that alleges violations of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-16 (2000). Specifically, the defendant asserts that due to the plaintiff's failure to comply with Title VII's administrative filing deadlines, his complaint should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1). *fn1 Upon consideration of the parties' submissions and for the reasons set forth below, the Court must grant the defendant's motion to dismiss because the plaintiff has failed to sufficiently establish circumstances to warrant the application of either equitable tolling or estoppel.
The plaintiff, a fifty-one year-old African-American male, is a lead copier employed in the Office of Operation, Copier Services Division, at the United States Department of Agriculture (the "Department"). Complaint ("Compl.") at 2. On October 6, 1999, the plaintiff contacted an EEO counselor concerning allegations of employment discrimination based on his age and race. Compl. Exhibit ("Ex.") 1 at 1. On January 13, 2000, after resolution efforts of the plaintiff's claims were unsuccessful, he was notified by the Department's EEO counselor of his right to file a formal discrimination complaint with the Department within fifteen days and received a Notice of Right to File a Formal Complaint ("Notice"). Id. Twenty-five days later, on February 7, 2000, the plaintiff filed a formal complaint with the Department. *fn2 Id. at 2. On June 30, 2000, the Department's Office of Civil Rights issued its final decision and dismissed the complaint "in its entirety for failure to file in a timely manner." Id. at 1. The Department's final decision notified the plaintiff that an appeal of its decision may be filed with the Equal Employment Opportunity Commission ("EEOC") within thirty calendar days after receipt of its final decision. Id. at 2. In addition, the final decision notified the plaintiff of the applicable time periods in which he could file a civil action in federal court. *fn3 The plaintiff acknowledges that he received the final decision on September 29, 2000. Plaintiff's Motion in Opposition to Defendant's Motion for Dismissal ("Pl.'s Mot.") at 3. It was not until November 28, 2000, approximately one month after the October 29, 2000 deadline for filing an appeal, that the plaintiff filed an appeal with the EEOC. Id. at 4. Subsequently, on March 15, 2001, after a review of the final agency decision, the EEOC dismissed the plaintiff's appeal, finding that he had failed to comply with its thirty calendar day appeal filing requirement after receipt of the final decision of the Department's EEO and failed to offer an adequate justification for the untimely filing. Id. & n.1; Defendant's Motion to Dismiss the Compl. ("Def.'s Mot.") Ex. 8. However, prior to receiving the EEOC's decision, the plaintiff filed a complaint with this Court on January 22, 2001.
II. Standard of Review: Rule 12(b)(1)
Federal Rule of Civil Procedure 12(b)(1) requires that the plaintiff bear the burden of establishing by a preponderance of the evidence that the court has jurisdiction to entertain his claims. Fed. R. Civ. P. 12(b)(1); Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001) (holding that the court has an "affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority."); Pitney Bowes, Inc. v. United States Postal Serv., 27 F. Supp. 2d 15, 18 (D.D.C. 1998); Darden v. United States, 18 Cl. Ct. 855, 859 (Cl. Ct. 1989). While the Court must accept as true all the factual allegations contained in the complaint when reviewing a motion to dismiss pursuant to Rule 12(b)(1), Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993), because the plaintiff has the burden of proof to establish jurisdiction, the "'plaintiff's factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion' than in resolving a 12(b)(6) motion for failure to state a claim." Grand Lodge of Fraternal Order of Police, 185 F. Supp. 2d at 13-14 (citation omitted). Finally, the Court notes that in deciding a Rule 12(b)(1) motion, it is well established in this Circuit that a court is not limited to the allegations in the complaint but may consider material outside of the pleadings in its effort to determine whether the court has jurisdiction in the case. See EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624-25 n.3 (D.C. Cir. 1997); Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992); Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987); Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986); Grand Lodge of Fraternal Order of Police, 185 F. Supp. 2d at 14.
The issue for resolution in this case is whether the plaintiff's complaint should be dismissed because he has failed to timely file each and every request for administrative relief. The District of Columbia Circuit has stated that the EEOC has been given "broad authority to enforce [Title VII's] antidiscrimination mandate within the federal government, including responsibility for issuing regulations to control federal agencies' processing of discrimination complaints. Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997) (citing 42 U.S.C. § 2000e-16(b)). It is axiomatic that "[c]omplainants must timely exhaust these administrative remedies before bringing their claims to court." Id. (citing Brown v. GSA, 425 U.S. 820, 832-33 (1976); Bayer v. United States Dept. of the Treasury, 956 F.2d 330, 332 (D.C. Cir. 1992)). Individuals "who fail to comply, to the letter, with administrative deadlines 'ordinarily will be denied a judicial audience.'" Brown v. Marsh, 777 F.2d 8, 14 (D.C. Cir. 1985) (quoting Shehadeh v. Chesapeake & Potomac Telephone Co., 595 F.2d 711, 727 (D.C. Cir. 1978)). Administrative time limits contained in Title VII are not "jurisdictional bars to bringing suit . . . but function like statutes of limitations, these time limits are subject to equitable tolling, estoppel, and waiver." Marsh, 777 F.2d at 14 (citations omitted). In this Circuit it is clear that "[b]ecause untimely exhaustion of administrative remedies is an affirmative defense, the defendant bears the burden of pleading and proving it. If the defendant meets its burden, the plaintiff then bears the burden of pleading and proving facts supporting equitable avoidance of the defense." Bowden, 106 F.3d at 437 (citations omitted). While the plaintiff acknowledges that he failed to timely comply with the administrative filing deadlines, he alleges several considerations that he asserts provide grounds for equitable tolling of these deadlines or the application of equitable estoppel to prevent the defendant from asserting the failure to exhaust administrative remedies as an affirmative defense. See Pl.'s Mot. at 4-7. He therefore bears the burden of proving that equitable principles preclude the dismissal of this action. Bowden, 106 F.3d at 437.
(A) Equitable Remedies Available to the Plaintiff
As discussed above, it is undisputed, and in fact acknowledged by the plaintiff, that he failed to timely file his administrative complaint, which he filed ten days late, and his appeal to the EEOC of the Department's denial of his complaint, which was filed thirty days late. Nevertheless, the Court must examine whether the plaintiff has alleged sufficient facts for the Court to find that either the principle of equitable tolling or equitable estoppel preclude the dismissal of this action. The District of Columbia Circuit has explained the "distinct criteria" associated with each equitable principle:
[w]hereas equitable tolling allows a plaintiff to avoid the bar of the limitations period if despite all due diligence he is unable to obtain vital information bearing on the existence of his claims, citing Smith-Haynie v. District of Columbia, 155 F.3d 575, 579 (D.C. Cir. 1998), equitable estoppel in the statute of limitations context prevents a defendant from asserting untimeliness where the defendant has taken active steps to prevent the plaintiff from litigating in time, id. at 580 (citation omitted). Currier v. Radio Free Europe/Radio Liberty, Inc., 159 F.3d 1363, 1367 (D.C. Cir. 1998).
(1) The Administrative Complaint
As grounds for the application of equitable tolling of the fifteen day deadline for filing an administrative complaint once he received the Department's Notice, the plaintiff seemingly asserts that he failed to timely file his administrative complaint because he had difficulty obtaining certain "documents." Pl.'s Mot. at 3. Specifically, the plaintiff alleges that
[i]n a letter dated January 13, 2000, Mr. Cristwell was notified of his right to file a formal complaint with the Department within fifteen (15) calendar days. Mr. Cristwell completed his complaint and filed it on February 7, 2000. Around this time, the Office of Civil Rights told him that they were having trouble 'finding' him to send him documents. In fact, he was forced to go to the Office in February 2000 to ask about the investigator's report when he failed to receive his copy. However, Mr. Cristwell was ...