The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge
MEMORANDUM OPINION AND ORDER
Plaintiffs bring this action on behalf of a putative class of individuals who have been employed by, or sought employment with, the Library of Congress ("LOC") from approximately January 1, 2003, to December 20, 2004. Plaintiffs assert a variety of claims alleging discrimination on the basis of color, national origin, and/or race pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, as well as 42 U.S.C. § 1981. Defendant James H. Billington, the Librarian of Congress, moves to dismiss plaintiffs' complaint under Fed. R. Civ. P. 12(b)(1) based on plaintiffs' asserted failure to exhaust their administrative remedies. Upon consideration of LOC's motion, the opposition thereto, and the record of this case, the court concludes that LOC's motion must be denied.
Plaintiffs seek judicial review of a wide range of LOC personnel policies and practices. Specifically, plaintiffs maintain that manifestations of LOC's discriminatory conduct are visible in: "selections for competitive positions and promotions, transfers, assignments and other career enhancing opportunities; preferred assignments; discipline, awards and bonuses; [and] training." Compl. ¶ 1. In addition, plaintiffs charge that they have been subjected to harassment, a hostile work environment, and retaliation for the assertion of their protected rights. Id.
Plaintiffs first brought their concerns to the attention of LOC on May 28, 2004, when three black LOC employees-Christine Mills, Amy Barnes and Priscilla Ijeomah-assumed the role of "class agents"*fn1 and filed an informal class action complaint with LOC's Equal Employment Opportunity Complaints Office ("EEOCO"). In response to plaintiffs' informal complaint, LOC retained a private firm-Delany, Siegal & Zorn-to conduct counseling related to the class agents' claims. As part of its counseling services, Delany, Siegal, & Zorn acquired the assistance of Claudia Withers, a principal in the firm of Winston, Withers and Associates, Inc., a consulting agency with expertise in the litigation and settlement of employment disputes.
On July 15, 2005, Withers attended a meeting with Mills, Barnes, Ijeomah, and their representative, Howard Cook. According to Withers, one of the primary purposes of the meeting was to elicit as much information as possible about the precise nature of plaintiffs' discrimination claims, including the positions held by members of the alleged class, and the dates upon which specific acts of discrimination took place. In addition to this initial meeting, Withers arranged a second meeting with the class agents on August 18, 2005, and a separate meeting with LOC's management representative, Jesse James, on August 10, 2004.
At the conclusion of her investigation, Withers prepared an EEO Counselor's Report. In her Counselor's Report, Wither's stated that "[w]hen asked, the class agents did not or could not identify incidents of alleged discrimination specific to themselves but instead referred the counselor to the May 28, 2004, letter of Ms. Mills, Ijeoamah, and Barnes." Def.'s Mot. to Dismiss, Ex. 5 at 5 (EEO Counselor's Report). In addition, Withers reported that she "made several attempts to get the class agents to provide precise dates for the acts of discrimination they complained of; however, they, and their representative . . would not identify specific dates . . . ." Id. at 1.
Withers's EEO Counselor's Report was presented to LOC's EEOCO on September 7, 2004. Based on this report, LOC's EEOCO issued a decision, dated September 20, 2004, that canceled plaintiffs' complaint. The EEOCO concluded that plaintiffs' refusal to provide specific information to Withers and unwillingness to actively participate in the counseling sessions constituted a failure to exhaust their administrative remedies.
LOC argues that because plaintiffs failed to exhaust their administrative remedies this court lacks jurisdiction to adjudicate their claims. Accordingly, LOC moves to dismiss plaintiffs' complaint pursuant to Fed. R. Civ. P. 12(b)(1).*fn2
LOC is indeed correct that federal employees must exhaust their administrative remedies prior to bringing suit under Title VII. See, e.g., Bayer v. Dep't of Treasury, 956 F.2d 330, 332 (D.C. Cir. 1992). It is well-settled that a plaintiff's failure to exhaust her administrative remedies will deprive a district court of subject matter jurisdiction, Artis v. Greenspan, 158 F.3d 1301, 1302 (D.C. Cir. 1998), and that before a federal court may hear a case, it must ascertain whether it has jurisdiction over the underlying subject matter of the action, Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986) ("Federal courts are not courts of general jurisdiction; they have only the power that is authorized by Article III of the Constitution and the statutes enacted by Congress pursuant thereto.").
A defendant may contest the legitimacy of the court's jurisdiction either through attacking the complaint "on its face" or by attacking "the factual truthfulness of its averments." Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993) (citations omitted). A facial challenge focuses on "the factual allegations of the complaint" as expressed on "the face of the complaint," while a factual challenge targets those facts underlying the complaint. Loughlin v. United States, 230 F. Supp. 2d 26, 35--36 (D.D.C. 2002) (citations omitted). Under either type of challenge, the plaintiff bears the burden of proving jurisdiction. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 182--183 (1936); Land, 330 U.S. at 735. In the instant case, LOC raises a factual challenge as it disputes plaintiffs' contention that they took all necessary steps to exhaust their ...