The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff applied for a Special Agent position with the Federal Bureau of Investigation ("FBI"), and he received a conditional offer of employment in 1999. The FBI thereafter rescinded its offer, which it now claims was the result of plaintiff's failure to adequately disclose information about his 1982 encounter with the police. In 2003, plaintiff sued alleging disparate treatment and disparate impact based on race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Plaintiff's claims were dismissed without prejudice because he had failed to exhaust his administrative remedies. See Jones v. Ashcroft, 321 F. Supp. 2d 1, 12 (D.D.C. 2004) ("Jones I"). Plaintiff has now refiled his lawsuit, and upon the completion of discovery, defendant has moved for summary judgment. With respect to the disparate treatment claim (Count II), defendant argues that plaintiff failed to exhaust his administrative remedies and has failed to rebut the FBI's legitimate reasons for rescinding its offer. With respect to the disparate impact claim (Count I), defendant again argues exhaustion, as well as standing, and in his reply, he raises for the first time a challenge on the merits insofar as he argues that plaintiff has failed to rebut the FBI's showing of business necessity by demonstrating the existence of an alternate employment practice that would meet the employer's legitimate needs without a similar discriminatory effect. Plaintiff opposes defendant's motion and has moved to strike defendant's belated attack on the disparate impact claim. As explained herein, defendant's motion for summary judgment will be denied, and the plaintiff's motion to strike will be granted.
A. Plaintiff's Application
Plaintiff first applied for a Special Agent position with the FBI in 1995. Jones I, 321 F. Supp. 2d at 3. This first application was rejected, but when plaintiff reapplied in 1999, he advanced to the next phase of the process, which included a series of tests and a panel interview. Id. On October 18, 1999, the FBI extended a conditional offer to plaintiff contingent upon successful completion of a physical examination, polygraph examination, background investigation, and an overall determination that plaintiff would be a "suitable" agent. Id. at 3-4.
Plaintiff completed the FBI's Application for Employment, which is commonly known as the "FD-140." Section IX of the FD-140 is labeled "Court Record" and asks the applicant the following:
Have you ever been arrested or charged with any violation, including traffic, but excluding parking tickets? . . . If so, list all such matters even if not formally charged or no court appearance, or found not guilty, or matter settled by payment of fine or forfeiture of collateral. (Def.'s SJ Mot., Exh. 6 at 4.)
Two incidents in plaintiff's past became relevant to his application. First, on September 4, 1982, plaintiff was detained by the police and received a citation for a traffic offense. Jones I, 321 F. Supp. 2d at 4 n.1. While plaintiff had previously disclosed this incident when he applied for a security clearance in 1986, he acknowledges that he failed to do so on his FD-140, and he is unable to recall whether he discussed it during his personnel security interview. (Pl.'s Resp. to Def.'s Facts ¶¶ 12-13, 17, 20.)*fn1 However, plaintiff subsequently mentioned the 1982 incident during his second polygraph test. (Pl.'s Resp. to Def.'s Facts ¶ 21.)
The second incident occurred on February 14, 1984, when plaintiff was charged with disorderly conduct by undercover police officers. (Def.'s SJ Mot., Exh. 6 at 4.) According to plaintiff, the officers failed to properly identify themselves, dragged him and a friend from a car while using racial epithets, and punched and kicked him while he was on the ground. (Pl.'s Opp'n, Exh. 22 at 2; Pl.'s Facts ¶ 28.*fn2 ) This case was dismissed, and plaintiff paid $50 for court costs even though there was no finding of probable cause. (Id.) Plaintiff disclosed this incident on his FD-140. (Def.'s SJ Mot., Exh. 6 at 4.)
The Department of Defense Investigative Service ("DDIS") provides an alternate version of this 1984 incident. According to plaintiff's DDIS file, which the FBI utilized during its background investigation, the officers identified themselves and asked plaintiff to back up his car in order to alleviate a traffic jam. (Pl.'s Opp'n, Exh. 22 at 2.) Then plaintiff and his friend allegedly became belligerent and initiated a fight with the officers. (Id.)
B. The FBI's Suitability Determination
At the time of plaintiff's application, the FBI's suitability determinations were conducted by the Bureau Applicant Employment Unit ("BAEU"). (Pl.'s Facts ¶ 5.) Patrick Maloy was chief of the BAEU, and he reported to Michael Varnum and Michael Mason, both of whom were Section Chiefs in the FBI's Administrative Services Division. (Id. ¶ 6.) Therese Rodrique was one of four program managers working under Mr. Maloy. (Id.) Ms. Rodrique reviewed plaintiff's file and commented on his suitability. (Id. ¶ 27.) James Burrus also examined plaintiff's application in his role as Chief of the Applicant Processing Section. (Id. ¶ 6.)
On July 13, 2000, Therese Rodrique recommended that the FBI discontinue plaintiff's application. (Pl.'s Opp'n, Exh. 34.) She provided her reasoning in a note to plaintiff's file:
Two incidents involving the applicant and law enforcement officers during which applicant was uncooperative and/or disorderly. Applicant did not list one of the incidents on his FD-140 and he did not disclose it during his PSI [i.e., personnel security interview]. (Id.) Mr. Maloy concurred with Ms. Rodrique's decision (Def.'s Resp. to Pl.'s Interrog. No. 3), and on July 17, 2000, he notified plaintiff of the FBI's rescission of its job offer. (Def.'s SJ Mot., Exh. 11.)
On July 28, 2000, plaintiff wrote a letter to Mr. Maloy asking him to reconsider his decision. (Def.'s SJ Mot., Exh. 12.) Michael Varnum, one of Mr. Maloy's superiors and the Personnel Officer for the FBI, responded on September 11, 2000:
During your background investigation, it was revealed that in 1982 you were arrested*fn3 for Failure to Submit (your driver's license) to a Police Officer. You did not disclose this information on your application for employment or mention it during your Personnel Security Interview in November, 1999. Although the charge was dismissed, your lack of forthrightness regarding this matter precludes your case from being further processed. Forthrightness is an essential attribute that individuals must demonstrate in order to be considered for any position with the FBI. You can be assured that your case was handled consistent with other candidates being considered for the Special Agent position. (Def.'s SJ Mot., Exh. 13.)
Thereafter, in February 2001, Mr. Maloy's other superior, Michael Mason, wrote a letter to plaintiff explaining the rescission by reference to plaintiff's failure to disclose the 1982 incident during his personnel security interview and his polygraph examinations.*fn4 (Pl.'s Opp'n, Exh. 41.) Neither Mr. Varnum nor Mr. Mason mentioned the 1984 incident in their letters to plaintiff. (Def.'s SJ Mot., Exh. 13; Pl.'s Opp'n, Exh. 41.) Nevertheless, more than one year later, James Burrus wrote a letter to plaintiff citing the 1984 incident. (Pl.'s Opp'n, Exh. 11.) Mr. Burrus noted that "on two separate occasions, official records indicate you behaved in a belligerent manner and you were uncooperative with police." (Id.)
Plaintiff first contacted the Equal Employment Opportunity Commission ("EEOC") on November 24, 2000, and he filed a formal complaint on December 5, 2000. (Def.'s SJ Mot., Exh. 14.) While this complaint focused on age discrimination, plaintiff also cited race as a basis for his complaint. (Id.) After an investigation, the U.S. Department of Justice ("DOJ") issued a Final Decision on February 24, 2003, denying plaintiff's racial discrimination claim.*fn5 (Pl.'s Opp'n, Exh. 31.) Plaintiff appealed the Final Decision on March 28, 2003, but he withdrew his appeal in August 2003 (prior to a final EEOC decision) to pursue his initial lawsuit. Jones I, 321 F. Supp. 2d at 4. This suit was dismissed without prejudice because he had withdrawn his administrative appeal before the 180-day period had run in violation of 29 C.F.R. § 1614.407(d). Id. at 10, 12.
Plaintiff refiled on June 8, 2004. His claims are identical to those in his initial suit. He alleges that the FBI's hiring practices have a disparate impact on racial minorities (Count I), and that the FBI's refusal to hire him constituted disparate treatment based on race (Count II). (Compl. ¶¶ 10-12.) Defendant has moved for summary judgment on both counts.
Defendant argues that plaintiff failed to exhaust his administrative remedies because he did not contact an EEOC counselor within 45 days of the FBI's revocation of his job offer, as required by 29 C.F.R. § 1614.105(a)(1). (Def.'s SJ Mem. 6-7.) Plaintiff contends that defendant is barred from raising this defense for the first time in a motion for summary judgment. (Pl.'s Opp'n 6.) In response, defendant argues that "failure to plead an exhaustion of administrative remedies defense explicitly in the answer is not fatal" and "pleadings are not to be hyper-technically construed." (Def.'s Reply 2.) Defendant also contends that he was not required to assert this defense under Fed. R. Civ. P. 8(c), since it is not included in the list of affirmative defenses that a party must raise when responding to a pleading. (Id.)
Defendant's position is without legal support. In fact, exhaustion is generally considered to be an affirmative defense falling within the scope of Fed R. Civ. P. 8(c). See Jones v. Bock, 127 S.Ct. 910, 919 (2007) ("the usual practice under the Federal Rules is to regard exhaustion as an affirmative defense"). Therefore, it is improper for defendant to raise this issue for the first time in his summary judgment motion. See Harris v. Sec'y, U.S. Dep't of Veterans Affairs, 126 F.3d 339, 345 (D.C. Cir. 1997) ("In order to preserve the notice purpose of Rule 8(c) and the discretionary structure of Rule 15(a), we hold that ...