Yvonne S. Brown is an employee in the Food Safety and Inspection Service of the United States Department of Agriculture ("USDA" or "Agency"). In 1994, she complained to USDA's Equal Employment Opportunity ("EEO") office that she was a victim of employment discrimination. That charge was settled through a written Settlement Agreement in May 1998. In April 2000, Ms. Brown complained that the Settlement Agreement had been breached. That complaint was processed by the Office of Civil Rights of USDA and the United States Equal Employment Opportunity Commission ("EEOC" or "Commission"), each of which found no breach. Dissatisfied with the result, Ms. Brown has filed this lawsuit.
Pending before the Court is a motion to dismiss the amended complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). This motion has been fully briefed by the parties. For the following reasons, the Court will grant the motion and dismiss the amended complaint with prejudice.
On April 13, 1994, Ms. Brown filed an EEO complaint alleging that she had been denied a promotion, training, and other advancement opportunities because of her race (African-American) and in reprisal for prior protected conduct. On May 11, 1998, Ms. Brown and the Agency executed a Settlement Agreement under which she withdrew her 1994 EEO charge and waived all complaints or actions "for any matters involving her employment with the Agency, prior to the signing of this agreement." Def. Mot. to Dismiss Ex. 3. Pursuant to the Settlement Agreement, the Agency agreed to provide a mentor to Ms. Brown, to assist her in formulating a written Career Development Plan ("CDP"), and to provide a detail to a GS-14 position for a period not to exceed 120 days. Each party agreed to "[c]ooperate and communicate in good faith to implement and to abide by the terms of this agreement." Id. In addition, the Settlement Agreement specified:
That if the terms of this agreement are not carried out, through no fault of the Complainant, the Complainant may request enforcement of the terms of the agreement, or that the complaint be reinstated at the point at which it was closed by this agreement. This request must be filed within 30 days of the alleged failure to implement this agreement with the Director, Complaint Compliance Division, Office of Civil Rights, USDA.... Thereafter, the processing of the alleged breach claim shall be in accordance with 29 CFR Part 1614.
Id. (emphasis in original).
In April 2000, Ms. Brown submitted a letter to USDA alleging that the Agency had breached the Settlement Agreement. After reviewing this noncompliance charge, the USDA's Director of the Office of Civil Rights concluded that the Agency was in substantial compliance. Director Rosalind Gray stated:
It is clear that a formal CDP has not been completed. However, it is not because of the lack of effort by the Agency. Ms. Brown began to delay immediately after her return from leave, and developed a pattern of canceled meetings and lack of initiative to move forward. She identified four particular courses she wanted. The Agency determined the content and provided the same content in other local courses. Ms. Brown refused to accept this action, or provide other options. In fact, the Agency acted to ensure her enrollment by obtaining an extension of the application period, and prepared documents for her. She did not complete them nor discuss any concerns with the Agency.... [W]e find that Ms. Brown has not met her obligation to work in good faith with the Agency on this term.
Id. Ex. 5. The USDA decision denying Ms. Brown's charge that the Agency had breached the Settlement Agreement issued on September 14, 2000. She timely appealed to the EEOC, which affirmed the Agency by written decision on November 14, 2001.
Ms. Brown filed her original complaint in this Court on February 15, 2002, based on the discrimination and retaliation allegations in her 1994 EEO charge. Defendants filed a motion to dismiss, arguing that she had settled that charge in 1998. On January 23, 2003, the Court denied the motion to dismiss and offered Ms. Brown an opportunity to amend her complaint. Ms. Brown filed an amended complaint on February 19, 2003. She now advances three counts: (1) race discrimination and retaliation under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000(e) et seq.; (2) breach of the Settlement Agreement under 42 U.S.C. § 1981; and (3) common law breach of contract for noncompliance with the Settlement Agreement.*fn1
Under Federal Rule of Civil Procedure 12(b)(1), the plaintiff bears the burden of establishing by a preponderance of the evidence that the Court possesses jurisdiction. See Shekoyan v. Sibley Int'l Corp., 217 F. Supp. 2d 59, 63 (D.D.C. 2002). In deciding such a motion, the Court may consider materials outside the pleadings as it deems appropriate to determine whether jurisdiction exists. See Lockamy v. Truesdale, 182 F. Supp. 2d 26, 30-31 (D.D.C. 2001).
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), on the other hand, challenges the adequacy of a complaint on its face, testing whether the plaintiff has properly stated a claim. "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). For purposes of Rule 12(b)(6), the Court "may only consider the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, and matters about which the Court may take judicial notice." Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191 (D.D.C. 2002). See Krooth & Altman v. North Am. Life Assur. Co., 134 F. Supp. 2d 96, 99 (D.D.C. 2001) ("[T]he Court determines that it need not deny the motion to dismiss or convert the motion to dismiss to a summary judgment motion simply because it refers to materials outside the pleadings; the materials are attached to the motion to dismiss, are ...