The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge
MEMORANDUM OPINION DENYING THE DEFENDANT'S MOTION TO DISMISS
This matter comes before the court on the defendant's motion to dismiss for lack of subject matter jurisdiction. The pro se plaintiff filed suit against the defendant, alleging that the Federal Aviation Administration ("FAA") violated Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000 et seq., the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621, and the Equal Pay Act of 1963 ("EPA"), 29 U.S.C. § 206(d). The defendant moved to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, asserting that the plaintiff failed to exhaust her administrative remedies by contacting an EEO counselor more than forty-five days after the allegedly discriminatory act. Concluding that a failure to exhaust administrative remedies by initiating untimely contact with an EEO counselor is not a jurisdictional defect, the court construes the defendant's motion as one brought under Rule 12(b)(6) rather than Rule 12(b)(1). And because it is not clear from the face of the complaint that the plaintiff's claim is time-barred, the court denies the defendant's motion to dismiss pursuant to Rule 12(b)(6).
II. FACTUAL & PROCEDURAL BACKGROUND
The plaintiff is an African-American female over the age of 40 who is currently employed by the FAA as a Program Manager. See generally Compl. She alleges that the FAA discriminated against her on the basis of her race, sex and age and, after she filed an Equal Employment Opportunity ("EEO") complaint, retaliated against her by demoting her. Id. ¶¶ 1-20. The plaintiff also contends that the FAA violated the EPA by paying white females in the office more for performing similar work. Id. ¶¶ 13-14.
In the spring of 2000, the FAA began a transition from its general schedule pay system to a pay-for-performance pay system known as the "core compensation" system. Id. at 3. Between March 26, 2000 and August 26, 2000, the plaintiff was converted from her GS-15 pay grade to pay band J under the new system. Id. at 11. Three similarly situated white co-workers were converted from pay grade GS-15 to pay band K and then, during the same time period, to pay band L. Id. A fourth white co-worker was converted from an unknown pay level to GS-15 then, less than a month later, to pay band K. Id. The plaintiff asserts that these changes in pay bands were not accompanied by a change in location or position; rather, management simply changed her co-workers' pay bands to give them an unfair salary advantage. Id. ¶ 3.
In 2003, the FAA announced that an activity analysis would be performed in order to correct some inconsistencies in its pay structure. Id. at 5. The plaintiff alleges that she was assured that the review would be fair and that pay bands for employees performing similar jobs would be uniform. Id. at 3; Pl.'s Opp'n at 4. On November 17, 2003, the plaintiff became concerned by rumors that her white co-workers had been promoted to several pay bands above her. Pl.'s Opp'n at 5. The same day, the plaintiff contacted the personnel office about her concerns. Id. She was told that the core compensation policy was being adhered to and that the office could not reveal the pay bands of other employees. Id. As a result, the plaintiff contacted the FAA's Office of Civil Rights, requested an EEO counselor and filed an EEO complaint in December 2003. Id. at 6.
Upon learning of the EEO complaint, the plaintiff's supervisor, Kathy Randall, told the plaintiff that if she withdrew her complaint, "management officials might do something for her." Id. at 7. The plaintiff did not withdraw her complaint; on April 14, 2004, the Director of Acquisition services, Dennis DeGatano, then reassigned the plaintiff to a position in which she was supervised by a former peer and had diminished responsibilities and duties. Id. Later, in November 2004, the plaintiff was passed over for a promotion in favor of a white co-worker. Id. at 8-9; Compl. at 15. The plaintiff alleges that these incidents constitute reprisal and retaliation for filing the EEO complaint in December 2003. Id.
An administrative judge ultimately dismissed the plaintiff's EEO complaint as untimely and denied her motion for reconsideration. See Pl.'s Opp'n, Ex. 3. The plaintiff filed suit in this court on May 23, 2008, and the defendant now moves to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1).
A. The Court Construes the Defendant's Motion Under Rule 12(b)(6)
The defendant argues that this court lacks subject matter jurisdiction over the plaintiff's claim because the plaintiff failed to timely exhaust her administrative remedies. Def.'s Mot. at 1. The threshold question before the court, therefore, is whether the failure of a plaintiff to make timely contact with an EEO counselor constitutes a jurisdictional defect barring the court's jurisdiction over the claim. The regulation at issue requires that a federal employee claiming discrimination by an administrative agency "initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action." 29 C.F.R. § 1614.105(a)(1). But the regulation also requires that the forty-five day contact requirement be equitably tolled when the individual shows "that he or she did not know and reasonably should not have... known that the discriminatory matter or personnel action occurred." Id. § 1614.105(a)(2).
The Supreme Court has stated "that filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling." Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982); see also Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002) (reaffirming that the "time period for filing a charge is subject to equitable doctrines such as tolling or estoppel"). The Circuit has explicitly recognized that, in the context of Title VII, "the administrative time limits created by the EEOC erect no jurisdictional bars to bringing suit." Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997); see also Stewart v. Ashcroft, 352 F.3d 422, 425-26 (D.C. Cir. 2003) (remarking that "this Court has noted that the exhaustion of remedies is not jurisdictional, but more akin to a statute of limitations"). Additionally, ...