The opinion of the court was delivered by: John D. Bates United States District Judge
Plaintiff David Foster ("Foster") brings this employment-discrimination action against Alberto Gonzales, Attorney General of the United States, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (2000). Foster alleges that the Federal Bureau of Investigation ("FBI") intentionally and wrongfully terminated him on the basis of his Hispanic race and Peruvian national origin. See id. § 2000e-2. The government has filed a motion to dismiss the action for failure to state a claim, which the Court will treat as a motion for summary judgment. For the reasons stated below, the Court concludes that Foster failed to exhaust his administrative remedies and therefore grants summary judgment for defendant.
The parties do not disagree over the following facts. Foster was employed by the FBI as a Special Agent beginning in March 1996. Compl. ¶ 4. In 2001, the FBI notified Foster that it was investigating nine allegations of professional misconduct that allegedly occurred while Foster was on assignment with the FBI's San Juan, Puerto Rico Division. Id. ¶ 7. At the conclusion of the investigation, the FBI's Office of Professional Responsibility ("OPR") notified Foster in March 2004 that it had substantiated seven of the charges and therefore was proposing his termination. Id. ¶ 9. Foster, acting through counsel, submitted a written response to the proposal on June 3, 2004, and made an oral presentation to the OPR on June 29, 2004. Id. ¶¶ 10-11. On July 16, 2004, Foster received a letter from the acting assistant director ("AD") of the OPR, dated July 7, 2004, informing Foster that the acting AD had considered his written response and oral presentation and ultimately found that the seven allegations were indeed supported by a preponderance of the evidence. Id. ¶ 12. The letter then stated: "Therefore, I am dismissing you from the rolls of the FBI for the efficiency of the service, effective upon your receipt of this letter." Aff. of Pl., Daniel Foster ("Foster Aff."), Ex. 1 ("July 2004 termination letter") at 1. The letter also identified Foster's internal appeal rights:
Should you desire to appeal this action, you may address your written response stating the grounds on which you base your appeal to the Assistant Director (AD), Administrative Services Division (ASD), Room 6012, U.S. Department of Justice, Federal Bureau of Investigation, J. Edgar Hoover Building, 935 Pennsylvania Avenue, Northwest, Washington, D.C. 20535-0001. Any appeal must be filed within ten calendar days following notification of the disciplinary action. The discipline imposed by this letter is not postponed pending your appeal. . . .
Upon receipt of an appeal of a suspension more than fourteen calendar days, dismissal, or demotion, the AD, ASD, will establish a Disciplinary Review Board (DRB) to review the action taken by the OPR. In exercising appellate authority, ASD and a DRB may independently redetermine the factual findings and/or the penalty imposed . . . .
July 2004 termination letter at 16; see also Compl. ¶¶ 12, 13.
Foster appealed his July 16, 2004, termination by way of a twelve-page letter to the Administrative Services Division ("ASD") of the FBI, submitted pro se on July 24, 2004. Compl. ¶ 14. The ASD denied Foster's appeal in a letter that was dated August 5, 2005, and received by Foster on August 13, 2005. Id. ¶ 16. After learning of this decision, and on the advice of his newly-acquired counsel, Foster contacted the FBI's Equal Employment Opportunity ("EEO") officer in Miami*fn1 on August 18, 2005, "to complain about the role of discrimination in the FBI's action dismissing him from . . . service." Compl. ¶ 23; see also Foster Aff. ¶ 3. Foster separately filed a formal Petition for Reconsideration and to Reopen for the Receipt of New Evidence ("Petition for Reconsideration") before the ASD on September 12, 2005. Compl. ¶ 19. This Petition for Reconsideration addressed only the merits of the OPR's termination decision, which are distinct from Foster's EEO discrimination claim. See id. ¶¶ 19, 21. The ASD denied Foster's petition on September 23, 2005. Id. ¶ 22. Foster next filed his formal EEO complaint for employment discrimination with the FBI on October 5, 2005. Id. ¶ 24. Although the FBI acknowledged receipt of Foster's complaint and initiated an investigation into its allegations, the investigation had not been completed, nor had there been resolution of Foster's EEO complaint, at the time this action was filed on July 20, 2006.*fn2 Id.
The government has filed a motion to dismiss for failure to state a claim and relies on declarations, as does plaintiff. When, on a Rule 12(b)(6) motion, "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). Here, 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 defendant's 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 (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.
The government has moved to dismiss this action, contending that Foster failed to exhaust his mandatory administrative remedies. Specifically, defendant asserts that Foster failed to contact an EEO counselor within 45 days of the effective date of the allegedly discriminatory personnel action, as required by applicable federal regulations. See 29 C.F.R. § 1614.105(a)(1) (2006). Foster makes two arguments in response. First, he asserts that the OPR's termination decision of July 2004 was tentative, and thus he did not need to contact an EEO counselor until August 2005, when his termination became "final" upon the FBI's denial of his internal appeal. Second, ...