The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge
Plaintiff Frank Adams brings this action under the Age Discrimination in Employment Act ("ADEA"), the Fair Labor Standards Act ("FLSA"), and Title VII of the Civil Rights Act of 1964 ("Title VII"). Pending before the Court is Defendant's Motion to Dismiss the Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Upon consideration of the motion, the response and reply thereto and the entire record, and for the reasons articulated in this Memorandum Opinion, Defendant's Motion to Dismiss is GRANTED for lack of subject-matter jurisdiction.
Plaintiff Frank Adams is a 54 year-old African-American Lieutenant with the United States Capitol Police Board ("USCP"). Compl. ¶ 1. Plaintiff is also a member of the Blackmon-Malloy class action in this Court alleging employment discrimination by the USCP against African-American officers. Id. ¶ 5; see Blackmon-Malloy v. United States Capitol Police Bd., Civ. No. 01-02221. Plaintiff filed this Complaint against USCP on May 21, 2007, bringing claims under the ADEA and the FLSA, as well as under Title VII for hostile work environment and retaliation. Id. ¶¶ 6-9. Plaintiff avers that he was discriminated against on account of his age when the USCP approved settlements for younger officers that alleged age discrimination, but did not approve a settlement for him. Id. ¶ 6. Additionally, Mr. Adams claims that he was denied fair overtime compensation because he was wrongfully classified as an exempt employee under the FLSA. Id. ¶ 7. Plaintiff further alleges that he was subject to a hostile work environment because the USCP refused to properly investigate a letter describing misconduct by two of the highest-ranking African-American officers on the force. Id. ¶ 8. Finally, Plaintiff argues that USCP retaliated against him for his participation in the Blackmon-Malloy class action by changing the eligibility requirements of the John Hopkins Graduate Public Safety Executive Leadership Program ("PELP"), making it impossible for him to participate. Id. ¶ 9.
Plaintiff demands a jury trial and seeks an injunction enjoining Defendant from discriminating and retaliating against him. Id. ¶¶ 11-12. Mr. Adams also requests that the Court order the USCP to provide him with funds and leave to pursue advanced educational opportunities, promote Plaintiff to Inspector, award maximum compensatory damages allowed by law, award all of Plaintiff's costs including reasonable attorney fees and expert witness fees, award full back pay for promotional opportunities denied, award overtime compensation not paid, discipline discriminating officials and provide any other relief the Court deems just. Id. ¶¶ 13-18.
On November 26, 2007, Defendant filed a Motion to Dismiss alleging that Plaintiff failed to exhaust administrative remedies before filing this Complaint. Alternatively, Defendant argues that Plaintiff failed to state a claim upon which relief could be granted.*fn1
On a motion to dismiss for lack of subject-matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), the plaintiff bears the burden of establishing that the court has subject-matter jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). The court must give the plaintiff's factual allegations closer scrutiny when resolving a Rule 12(b)(1) motion than would be required for a Rule 12(b)(6) motion because subject-matter jurisdiction focuses on the court's power to hear the claim. Macharia v. United States, 334 F.3d 61, 64, 69 (D.C. Cir. 2003). In resolving a motion to dismiss for lack of subject-matter jurisdiction, the Court may consider materials outside the pleadings to determine whether it has jurisdiction. Alliance for Democracy v. Fed. Election Comm'n, 362 F. Supp. 2d 138, 142 (D.D.C. 2005).
When a plaintiff fails to exhaust administrative remedies, dismissal under 12(b)(1) is appropriate. Blackmon-Malloy v. United States Capitol Police Bd., 338 F. Supp. 2d 97, 101 (D.D.C. 2004); Martin v. United States EPA, 271 F. Supp. 2d 38, 42 (D.D.C. 2002); Halcomb v. Office of the Senate Sergeant-At-Arms of the United States Senate, 209 F. Supp. 2d 175, 179 (D.D.C. 2002). While plaintiffs bear the burden of persuasion to establish subject matter jurisdiction in response to a 12(b)(1) motion to dismiss, see Thompson v. Capitol Police Bd., 120 F. Supp. 2d 78, 81 (D.D.C. 2000), bare allegations of exhaustion are not sufficient to establish jurisdiction. See Vinieratos v. United States Dep't of Air Force, 939 F.2d 762, 772 (9th Cir. 1991); Blackmon-Malloy, 338 F. Supp. 2d at 107.
The pleadings of pro se parties "[are] to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 127 S.Ct. 2197, 2199 (2007) (internal quotation marks and citations omitted). However, "although a court will read a pro se plaintiff's complaint liberally, a pro se complaint, [no less than any other complaint], must present a claim on which the Court can grant relief." Chandler v. Roche, 215 F. Supp. 2d 166, 168 (D.D.C. 2002) (citing Crisafi v. Holland, 665 F.2d 1305, 1308 (D.C. Cir. 1981)).
Defendant moves to dismiss the Complaint under Federal Rule of Civil Procedure 12(b)(1) on the grounds that Plaintiff has failed to exhaust administrative remedies. The Congressional Accountability Act ("CAA") provides the exclusive remedy by which legislative branch employees can bring a suit challenging employment discrimination. 42 U.S.C. § 2000e-16(a) (2008). The CAA extends the rights and protections of the ADEA, FLSA and Title VII, among other existing laws, to legislative branch employees. See 2 U.S.C. §§ 1302, 1311. In order for a district court to have jurisdiction over a civil action commenced by a covered employee, the CAA requires the exhaustion of certain administrative remedies including: (1) a request for counseling within 180 days of the alleged violation; (2) attendance at a counseling session in person; (3) a request for mediation within 15 days of receiving notice of the end of the counseling period; and (4) attendance at a mediation session ...