The opinion of the court was delivered by: Paul L. Friedman United States District Judge
This matter is before the Court on defendant's motion for partial dismissal pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("Mot.") and plaintiff's opposition to that motion ("Opp."). For the reasons stated below, the Court will grant defendant's motion and dismiss Count II of plaintiff's complaint.
Plaintiff Rosa R. Moore claims to suffer from epilepsy and major depressive disorder. See Compl. ¶ 10. During the time period relevant to her complaint, Ms. Moore was employed as an Audit Liaison and Management Control Officer by the United States Department of Agriculture. See id. ¶ 4. According to Ms. Moore, in or about February 2005 she began "request[ing] both orally and in writing that the agency provide her with reasonable accommodations [for her disabilities] that would enable her to continue performing her job duties." Id. ¶ 15.*fn2 The agency denied Ms. Moore's requests. Id. ¶ 17. According to Ms. Moore, she complained of discrimination by the USDA on or about April 22, 2005. Id. ¶ 22. On April 29, 2005, the agency sent Ms. Moore an advisory memorandum warning her that her attendance and performance were not acceptable, and that "'appropriate disciplinary' action would be taken if her behavior did not improve." Id. ¶ 24.
On or about May 2, 2005, Ms. Moore sought Equal Employment Opportunity counseling with respect to four issues: (1) the USDA's alleged failure to provide reasonable accommodations for her disabilities; (2) the USDA's alleged denial of due process in the processing of her request for reasonable accommodations; (3) the USDA's allegedly inappropriate disclosure of medical information; and (4) the USDA's issuance of the advisory memorandum on April 29, 2005, which Ms. Moore regarded as retaliatory. See Mot., Ex. 3, EEO Counselor Report at 2 (date unknown). Ms. Moore resigned from her position on May 20, 2005. She claims that she "felt she had no choice except to resign given the fact that the agency refused to grant her a reasonable accommodation and was threatening her with disciplinary action." Compl. ¶ 25. Soon thereafter she was notified of her right to file a formal EEO complaint. See Mot., Ex. 3, Notice of Right to File (June 15, 2005). Ms. Moore filed her formal complaint on July 1, 2005, and the USDA's Office of Civil Rights acknowledged that complaint in a letter sent to Ms. Moore's attorney dated November 23, 2005. See Mot., Ex. 2, Letter from USDA Acknowledging Receipt of Plaintiff's Formal EEO Complaint at 1 (Nov. 23, 2005) ("Acknowledgment Letter").
In the USDA's November 2005 letter to Ms. Moore, the agency specified that it was "accepting and referring for investigation the following claims":
Whether the agency subjected [Ms. Moore] to discrimination based on physical and mental disabilities (seizure disorder and neuromuscular condition) and reprisal (prior EEO activity) when:
1. on April 1, 2005, [Ms. Moore] was denied due process in her request for reasonable accommodations[;]
2. on April 22, 2005, [Ms. Moore's] sensitive medical records were inappropriately released to her supervisor;
3. on April 25, 2005, [Ms. Moore] was denied reasonable accommodation, including temporary accommodation[;] and
4. on April 29, 2005, [Ms. Moore] was issued an advisory notice of concern regarding her conduct and performance?
Acknowledgment Letter at 1. That letter further specified that "[i]f you do not agree with the defined claim, you must provide us with sufficient reasons, in writing, within 7 calendar days from receipt of this letter . . . .". Acknowledgment Letter at 2.
Ms. Moore never indicated any disagreement with the description of her claims as set forth in the November 2005 Acknowledgment Letter. She did, however, move to amend her formal administrative complaint to add an allegation of constructive discharge on or about June 9, 2006. See Opp., Ex. D, Consent Motion to Amend Complaint at 1-2 (June 9, 2006) (stating that "[w]hile [Ms. Moore] contends that the Complaint already contains allegations sufficient to create a claim for constructive termination, out of an abundance of caution, [Ms. Moore] is seeking the inclusion" of an explicit allegation of constructive discharge). Counsel for the USDA apparently consented to this motion, but the ALJ before whom the case was pending denied the motion on the ground that it was untimely. See Mot., Ex. 5, Order in EEOC Case No. 570-2006-00059X, at 1 (Oct. 23, 2006) ("Contrary to [Ms. Moore's] assertion, I find that the requested amendment, i.e. the constructive termination claim, was the subject of undue dealay as it was not requested until several months into the discovery process.").
On December 21, 2006, Ms. Moore voluntarily withdrew her EEO complaint. She filed suit in this Court on June 5, 2007, alleging (1) discrimination in violation of Section 501 of the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq. (in the form of denial of reasonable accommodations of her disabilities); (2) constructive discharge in violation of Section 501; and (3) unlawful retaliation for protected activity in violation of ...