The opinion of the court was delivered by: John D. Bates United States District Judge
Plaintiff Carla Harris brings this employment discrimination suit against the Attorney General of the United States pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Plaintiff alleges that she was unlawfully discriminated against when she was terminated fromher position at the Executive Office for United States Attorneys (EOUSA) of the Department of Justice (DOJ)because she was pregnant.
Defendant has moved to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defendant argues that plaintiff failed timely to exhaust her administrative remedies before bringing suit by exceeding the 45-day time limit for initiating the complaint process. In response, plaintiff contends that the 45-day time limit to initiate administrative proceedings should be extended because she had no knowledge of the requirement.
The Court concludes that plaintiff failed timely to exhaust her administrative remedies. Accordingly, the Court grants summary judgment for defendant.
The following facts are taken from plaintiff's complaint and the uncontroverted declarations submitted by the parties. Plaintiff was an employee of Integrated Management Services (IMSI), a private contracting company providing services to the DOJ in 2002 and 2003, during which time plaintiff was assigned to a position in the EOUSA offices reviewing security clearance applications. Ms. Gloria Harbin, a supervisor at DOJ, had previously interviewed plaintiff and approved her hiring. After a "significant delay" between the interview and her first day of work, plaintiff, then visibly pregnant, reported to the EOUSA offices for duty. She arrived after lunch on her first day, was given a tour of the office and shown her work area. Later that day Ms. Harbin met with plaintiff and detailed the duties and expectations of the position.
The next morning, June 1, 2003, plaintiff was contacted by IMSI and told to clear out her desk and report back to headquarters.*fn1 There she was fired from her position at DOJ. Plaintiff later became convinced Ms. Harbin had ordered her firing because she was pregnant and contacted an Equal Employment Opportunity (EEO) counselor on January 15, 2004, more than six months after her firing, in order to file a complaint.
Defendant has filed a motion to dismiss for failure to state a claim and relies on declarations, as does plaintiff. "When matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Fed. R. Civ. P. 12(b); see Yates v. District of Columbia, 324 F.3d 724, 725 (D.C. Cir. 2003). The Court has considered declarations outside of the pleadings and thus treats the motion as one for summary judgment. Both parties were given a reasonable opportunity to submit materials outside the pleadings, as evidenced by the submission of declarations from both sides. Further, an opportunity was afforded to each party to respond to the other's submissions. Therefore, a conversion of the Rule 12(b)(6) motion to one for summary judgment is appropriate.
Summary judgment is appropriate when the pleadings and the evidence demonstrate that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its motion by "informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 'which it believes demonstrate the absence of a genuine issue of material fact.'" Id. (quoting Fed.R.Civ.P. 56(c)).
In determining whether there exists a genuine issue of material fact sufficient to preclude summary judgment, the court must regard the non-movant's statements as true and accept all evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A non-moving party, however, must establish more than the "mere existence of a scintilla of evidence" in support of its position. Id. at 252. By pointing to the absence of evidence proffered by the non-moving party, a moving party may succeed on summary judgment. Celotex, 477 U.S. at 322. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (internal citations omitted). Summary judgment is appropriate if the non-movant fails to offer "evidence on which the jury could reasonably find for the [non-movant]." Id. at 252.
Defendant moves to dismiss on the ground that plaintiff failed to timely exhaust her administrative remedies before bringing suit by exceeding the 45-day time limit for initiating the complaint process. In response, plaintiff contends that the 45-day time limit to initiate administrative proceedings should be extended because she had no knowledge of the regulation.
The exhaustion of administrative remedies is a prerequisite to relief under Title VII of the Civil Rights Act of 1964. Bayer v. U.S. Dept. of Treasury, 956 F.2d 330, 332 (D.C. Cir. 1992); Armstrong v. Reno, 172 F. Supp. 2d 11, 20 (D.D.C. 2001). The exhaustion of administrative remedies must also be timely; a plaintiff must initiate administrative proceedings by contacting an EEO counselor within 45 days of the allegedly discriminatory action. 29 C.F.R. § 1614.105(a)(1) (requiring a complainant to contact an EEO counselor "within 45 days of the date of the matter alleged to be discriminatory"); see Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995); Armstrong, 172 F. Supp. 2d at 20. The failure to exhaust administrative remedies is an affirmative defense and ...