The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge
MEMORANDUM OPINION GRANTING IN PART AND DENYING IN PART THE DEFENDANT'SMOTIONFOR PARTIAL DISMISSAL
George Short, a former employee of the U.S. Department of Homeland Security, ("the plaintiff") brings suit for employment discrimination against Michael Chertoff ("the defendant") in his official capacity as Secretary thereof. Before the court is the defendant's motion for dismissal of two of the four counts in the complaint. Specifically, the defendant argues that the court lacks subject-matter jurisdiction to entertain Count 3 claiming a violation of the Equal Pay Act, 29 U.S.C. § 206(d), ("EPA") because the plaintiff seeks damages exceeding $10,000. The defendant also challenges Count 4 claiming constructive discharge, because the plaintiff did not first contact the Equal Employment Opportunity Commission ("EEOC") to exhaust his administrative remedies. The plaintiff responds that Count 3 should survive because he seeks damages under $10,000, and that Count 4 should survive because the constructive discharge claim arises out of the same misconduct alleged in the plaintiff's prior EEOC complaints. Because the salary differential between the plaintiff and the individual promoted above would not result in back-pay damages exceeding $10,000, the court declines to dismiss Count 3 at this time. Because the plaintiff's failure to contact EEOC is unexcused, the court dismisses Count 4.
II. FACTUAL AND PROCEDURAL BACKGROUND
The plaintiff is a black male over the age of forty who formerly worked for the U.S. Department of Homeland Security ("the Department"), which he claims discriminated against him on the basis of his race, sex and age, and imposed conditions on his employment resulting in his constructive discharge via a premature voluntary retirement. Compl. ¶ 1. In Count 1 of his complaint charging discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., the plaintiff alleges that he performed the duties of a sergeant without commensurate pay from 1995 until his discharge on February 25, 2005, and that on February 13, 2003 he learned that the Department temporarily promoted a younger, less qualified female corporal to sergeant without first opening the position to competition. Id. ¶ 8; Pl.'s Opp'n to Def.'s Mot. for Partial Dismiss ("Pl.'s Opp'n") at 2. Count 2 reiterates this allegation of unfair promotion under the rubric of an age discrimination claim governed by the Age Discrimination in Employment Act, 29 U.S.C. §§ 623 et seq. Compl. ¶¶ 9-11. Count 3 phrases the allegation as gender discrimination violating the EPA, for which the plaintiff seeks $500,000 in damages. Id. ¶¶ 12-15. Count 4 levels an allegation of constructive discharge.*fn1 Id. ¶¶ 16-18. The complaint concludes with a prayer for damages for "back pay, future pay, interest and all damages the plaintiff is entitled to." Id. ¶ 21.
A. Legal Standard for Motion to Dismiss for Lack of Subject-Matter Jurisdiction
Federal courts are courts of limited jurisdiction and the law presumes that "a cause lies outside this limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-89 (1938); see also Gen. Motors Corp. v. Envtl. Prot. Agency, 363 F.3d 442, 448 (D.C. Cir. 2004) (noting that "[a]s a court of limited jurisdiction, we begin, and end, with an examination of our jurisdiction").
Because "subject-matter jurisdiction is an 'Art. III as well as a statutory requirement[,] no action of the parties can confer subject-matter jurisdiction upon a federal court.'" Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003) (quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxite de Guinea, 456 U.S. 694, 702 (1982)). On a motion to dismiss for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1), the plaintiff bears the burden of establishing by a preponderance of the evidence that the court has subject-matter jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). The court may dismiss a complaint for lack of subject-matter jurisdiction only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Empagran S.A. v. F. Hoffman-Laroche, Ltd., 315 F.3d 338, 343 (D.C. Cir. 2003) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
The level of scrutiny with which the court examines the allegations in the complaint that support a finding of jurisdiction, however, depends upon whether the motion to dismiss asserts a facial or factual challenge to the court's jurisdiction. See I.T. Consultants v. Pakistan, 351 F.3d 1184, 1188 (D.C. Cir. 2003). Facial challenges, such as motions to dismiss for lack of standing at the pleading stage, "attack[ ] the factual allegations of the complaint that are contained on the face of the complaint." Al-Owhali v. Ashcroft, 279 F. Supp. 2d 13, 20 (D.D.C. 2003) (internal quotation marks and citation omitted). "If a defendant mounts a 'facial' challenge to the legal sufficiency of the plaintiff's jurisdictional allegations, the court must accept as true the allegations in the complaint and consider the factual allegations of the complaint in the light most favorable to the non-moving party." Erby v. United States, 424 F. Supp. 2d 180, 181 (D.D.C. 2006); see also I.T. Consultants, 351 F.3d at 1188. The court may look beyond the allegations contained in the complaint to decide a facial challenge, "as long as it still accepts the factual allegations in the complaint as true." Jerome Stevens Pharm., Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253-54 (D.C. Cir. 2005).
Factual challenges, by contrast, are "addressed to the underlying facts contained in the complaint." Al-Owhali, 279 F. Supp. 2d at 20. Where a defendant disputes the factual allegations in the complaint that form the basis for a 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." Phoenix Consulting, Inc. v. Republic of Angola, 216 F.3d 36, 40 (D.C. Cir. 2000). Instead, a court deciding a Rule 12(b)(1) motion asserting a factual challenge "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." Id. In such situations, "the plaintiff's jurisdictional averments are entitled to no presumptive weight; the court must address the merits of the jurisdictional claim by resolving the factual disputes between the parties." Erby, 424 F. Supp. 2d at 181 (internal quotations omitted); see also Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1976) (holding that a court ruling on a factual challenge to its jurisdiction is not required to accept the plaintiff's factual allegations as true but, rather, "is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case . . . and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims").
B. The Court Has Subject-Matter Jurisdiction Over Count 3
The defendant moves to dismiss the plaintiff's EPA claim for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1). Def.'s Mot. for Partial Dismissal at 1. Arguing on statute of limitations grounds, the defendant syllogizes that: (1) a two-year limitations period exists for EPA claims; (2) the claim accrued on February 12, 2003 when the plaintiff discovered the discriminatory promotion of his colleague; and (3) the plaintiff filed his complaint on May 20, 2005; ...