The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge
MEMORANDUM OPINION & ORDER
Plaintiffs Sharon Blackmon-Malloy, Dale Veal, Vernier Riggs, Luther Peterson, Duvall Phelps, Larry Ikard, and Frank Adams bring a class complaint on behalf of themselves and all current or retired African American United States Capitol Police Officers. Plaintiffs allege that Defendant has engaged in a pattern and practice of race discrimination in employment. Defendant is the United States Capitol Police Board.
Pending before this Court and ripe for its review is defendant's Motion to Dismiss plaintiffs' Joint Second Amended Class Action Complaint. Plaintiffs have also moved for class certification. By Order of March 8, 2004, this Court suspended briefing of the Motion for Class Certification until the Motion to Dismiss was resolved.
Filed under the Congressional Accountability Act*fn1 ("CAA" or 2000e, and the Civil Rights Act of 1991, 42 U.S.C. § 1981a. However, prior to the Congressional Accountability Act, these laws were not applicable to legislative branch employees. 42 U.S.C. § 1302. Thus, the Court will construe these statutes as incorporated by the Congressional Accountability Act. 42 U.S.C. § 1301 et. seq.
Count I of the Second Amended Complaint alleges disparate treatment based on race (a) in personnel decisions such as promotions, other selections, work assignments, discipline, and termination; (b) by creation of a hostile work environment; and (c) through harassment and retaliation against African American officers who oppose discrimination. Count II alleges the USCP has maintained a system of promotions, other selections, work assignments, discipline, and termination that has had a disparate impact on African American employees. Count III alleges that plaintiffs Mary Jane Rhone, a civilian USCP employee, and Thomas Spavone, a Hispanic Officer, have been subjected to a hostile work environment based on their known associations with African American officers.
Because Title VII of the Civil Rights Act of 1964, as written, does not extend to legislative branch employees, the Congressional Accountability Act provides the exclusive procedure by which current or former legislative branch employees can bring a suit challenging employment discrimination. See 42 U.S.C. § 2000e-16(a). Effective January 23, 1996, the CAA extends the rights and protections of eleven previously existing federal laws covering various labor, civil rights, and workplace matters to employees in the legislative branch. See 2 U.S.C. §§ 1302, 1311. Section 408(a) of the CAA provides:
The district courts of the United States shall have jurisdiction over any civil action commenced under section 1404 of this title and this section by a covered employee who has completed counseling under section 1402 of this title and mediation under section 1403 of this title. A civil action may be commenced by a covered employee only to seek redress for a violation for which the employee has completed counseling and mediation. In addition, section 402 provides that such counseling must be requested and completed within a specific time period:
To commence a proceeding, a covered employee alleging a violation of a law made applicable under part A of subchapter II of this chapter shall request counseling by the Office [of Compliance]. The Office shall provide the employee with all relevant information with respect to the rights of the employee. A request for counseling shall be made not later than 180 days after the date of the alleged violation. Section 403 requires an employee to file a request for mediation within 15 days of receipt of notice of the end of the counseling period. 2 U.S.C. § 1403(a).
Defendant moves to dismiss plaintiffs' Second Amended Complaint in its entirety pursuant to Federal Rule of Civil Procedure 12(b)(1) and Federal Rule of Civil Procedure 12(b)(6).
"Because subject-matter jurisdiction focuses on the court's power to hear the plaintiff's claim, a Rule 12(b)(1) motion imposes on the court an affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority." Uberoi v. EEOC, 180 F. Supp. 2d 42, 44 (D.D.C. 2001). Accordingly, "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." Id. The D.C. Circuit instructs that when a motion to dismiss "present[s] a dispute over the factual basis of the court's subject matter jurisdiction," the Court: may not deny the motion to dismiss merely by assuming the truth of the facts alleged by the plaintiff and disputed by the defendant. Instead the court must go beyond the pleadings and resolve any disputed issues of fact the resolution of which is necessary to a ruling upon the motion to dismiss.
Phoenix Consulting, Inc. v. Republic of Angola, 216 F.3d 36, 40 (D.C. Cir. 2000).
When a plaintiff fails to follow administrative requirements prior to filing suit, dismissal under Rule 12(b)(1) is appropriate. See. e.g. Martin v. EPA, 271 F. Supp. 2d 38, 42-47 (D.D.C. 2003).
When considering a Rule 12(b)(6) Motion to Dismiss, the Court construes the facts in the complaint as true and construes all reasonable inferences in the light most favorable to the plaintiff. See Swierkiewicz v. Sorema, 534 U.S. 506, 508 (2002). A Motion to Dismiss is granted and the complaint dismissed only if no relief could be granted on those facts. See Sparrow v. United Air Lines Inc., 216 F.3d 1111, 1114 (D.C. Cir. 2002).
A defendant may raise the affirmative defense of a statute of limitations via a Rule 12(b)(6) motion for failure to state a claim upon which relief may be granted when the facts giving rise to the defense are apparent on the face of the complaint. U.S. ex. rel. Purcell v. MWI Corp., 254 F. Supp. 2d 69, 73 (D.D.C. 2003).
A. Barriers to Litigation under the Congressional Accountability Act
1. Exhaustion of Administrative Remedies is a Jurisdictional Requirement to Filing Suit
As stated previously, section 408(a) of the CAA provides: The district courts of the United States shall have jurisdiction over any civil action commenced under section 1404 of this title and this section by a covered employee who has completed counseling under section 1402 of this title and mediation under section 1403 of this title. A civil action may be commenced by a covered employee only to seek redress for a violation for which the employee has completed counseling and mediation.
2 U.S.C. § 1408(a). Section 402 states that "[a] request for counseling shall be made not later than 180 days after the date of the alleged violation." 2 U.S.C. § 1402. Section 403 states that "[n]ot later than 15 days after receipt by the employee of notice of the end of the counseling period under section 1402 of this title, but prior to and as a condition of making an election under section 1404 of this title, the covered employee who alleged a violation of a law shall file a request for mediation with the Office [of Compliance]." 2 U.S.C. § 1403. Thus, defendant argues that this Court only has subject matter jurisdiction over an individual's claim if that plaintiff has alleged that she completed counseling and mediation regarding the alleged violation within the time limits specified by sections 402 and 403 of the Act. See id.
On the other hand, plaintiffs argue that this Court should take its cues from the Title VII case law and apply less stringent requirements. The Supreme Court has held the Title VII's timeliness requirements are "requirement[s] that, like a statute of limitations, [are] subject to waiver, estoppel and equitable tolling." See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982). Plaintiffs note that in Thompson v. Capitol Police Board, the court took the rationale in Zipes and applied it to the CAA to find that the CAA's timeliness requirements is not jurisdictional, but rather, like Title VII's timeliness requirement, is subject to equitable tolling. 120 F. Supp. 2d 78, 83 (D.D.C. 2000).
However, this Court does not find the reasoning in Thompson persuasive. Although the Zipes Court was cross-referencing the jurisdictional provision to see if it mentioned timeliness and the timeliness provision to see if it mentioned jurisdiction, it appears that the Thompson court only examined the timeliness provision to see if it mentioned jurisdiction. Compare Zipes, 455 U.S. at 393-94 ( "The provision granting district courts jurisdiction under Title VII, 42 U.S.C. §§ 2000e-5(e) and (f) does not limit jurisdiction to those cases in which there has been a timely filing with the EEOC. It contains no reference to the timely-filing requirement. The provision specifying the time for filing charges with the EEOC appears as an entirely separate provision, and it does not speak in jurisdictional terms or refer in any way to the jurisdiction of the district courts.") with Thompson, 120 F. Supp. 2d at 83 ("Similarly, the CAA provision that specifies a time for filing charges appears in a separate section from the one covering jurisdiction, and does not make any mention of jurisdiction.") (emphasis added).
The jurisdictional provision of Title VII, which is silent to timeliness, provides:
Each United States district court and each United States court of a place subject to the jurisdiction of the United States shall have jurisdiction of actions brought under this subchapter. Such an action 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). However, the jurisdictional provision of the CAA provides:
The district courts of the United States shall have jurisdiction over any civil action commenced under section 1404 of this title and this section by a covered employee who has completed counseling under section 1402 of this title and mediation under section 1403 of this title. A civil action may be commenced by a covered employee only to ...