The opinion of the court was delivered by: James Robertson United States District Judge
Timothy D. Taylor, plaintiff pro se, alleges that his former employer, the Department of the Navy,*fn1 discriminated against him on the basis of race, gender, and disability, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and Section 501 of the Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq., and that the Navy retaliated against him for filing a complaint with his Equal Employment Opportunity office. The Navy moves to dismiss, or, in the alternative, for summary judgment. Because Mr. Taylor failed to exhaust his administrative remedies, the motion to dismiss will be granted with respect to his Rehabilitation Act claims. The motion for summary judgment will be granted with respect to his Title VII claims.
Mr. Taylor is a 47-year-old African-American male, who worked in the Navy's Human Resources Office for more than 23 years. In March 2004 and December 2005, he sustained two on-thejob back injuries that required surgery in January 2006 and prevented him from working during a five-month rehabilitation period. While he was on leave, Mr. Taylor applied and interviewed for four open positions within his organization, but the Navy did not select him for any of them. Mr. Taylor subsequently contacted an EEO counselor and alleged that his non-selection was because of discrimination based on race, gender, and disability.
In July 2006, Mr. Taylor re-injured his back at work and was restricted from working until February 2007. When he returned to work, the Navy terminated him for failure to follow proper leave request procedures and for absence from work without leave. Mr. Taylor appealed the termination to the Merit Systems Protection Board on March 8, 2007.
"Before filing a Title VII suit, a federal employee must timely pursue administrative remedies, following the requirements set forth in 29 C.F.R. § 1614." Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997).*fn2 To exhaust his administrative remedies, a plaintiff must contact an EEO counselor within 45 days of the alleged discrimination in an effort to resolve the situation informally. 29 C.F.R. § 1614.105(a)(1). The 45-day time limit will be extended "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." Hines, 594 F. Supp. 2d at 22.
If the plaintiff is unable to resolve the issue through informal counseling, then he or she has 15 days from receipt of a Notice of Right to File Formal Complaint, "subject to application of equitable doctrines such as waiver, estoppel, and tolling," Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002), to file such a complaint. Once the agency issues an adverse final decision, or when 180 days have elapsed without a decision, the plaintiff may file a civil action. 42 U.S.C. § 2000e-16(c).
Mr. Taylor's claim can withstand the Navy's dispositive motion only "if he timely filed his EEO complaint and exhausted administrative remedies . . . or if the circumstances surrounding [the alleged discrimination] warrant equitable tolling." Hairston v. Tapella, 2009 WL 3379008, *4 (D.D.C. October 21, 2009).
Failure to exhaust administrative remedies compels dismissal, but courts in this District differ on whether the defect is jurisdictional. See, e.g., Marcelus v. Corrections Corp. of America/Correctional Treatment Facility, 540 F. Supp. 2d 231, 234 n. 4 (D.D.C. 2008). Because I do not regard exhaustion as a jurisdictional prerequisite, I must consider the Navy's motion with respect to Mr. Taylor's Title VII claims under Rule 12(b)(6), rather than Rule 12(b)(1). See, Hodge v. United Airlines, 2009 WL 3416202, *1 (D.D.C. October 26, 2009) (citing Avocados Plus Inc. v. Veneman, 370 F.3d 1243, 1248 (D.C. Cir. 2004)). Moreover, because both parties have filed materials outside the pleadings that are relevant to the exhaustion issue, Rule 12(b)(6) requires that I handle the Navy's motion with respect to the Title VII claims as one for summary judgment.*fn3
(The Navy's motion to dismiss the Rehabilitation Act claims will be considered under Rule 12(b)(1) because that statute explicitly states that exhaustion is jurisdictional. Spinelli v. Goss, 446 F.3d 159, 162 (D.C. Cir. 2006) (citing 29 U.S.C. § 794a(a)(1)).)
The basis for Mr. Taylor's initial discrimination claim was the Navy's decision not to hire him for four positions: Naval Installations Command ("CNIC")/Naval District Washington("NDW") Site Manager; National Naval Medical Center ("NNMC")/Bethesda Satellite Manager; Naval Facilities and Engineering Command ("NAVFAC") Site Manager (collectively, "Satellite Manager positions"); and Director for the HRO-W Labor and Employee Relations ("LR/ER").*fn4
Mr. Taylor's non-selection claims with respect to the three Satellite Manager positions fail because he did not comply with the required time limits, thereby failing to exhaust his administrative remedies. He was notified of his non-selection for the three Satellite Manager positions on February 21, 2006,[Dkt. # 6, Def. Ex. 14, Ex. F], but he waited 56 days - 11 days beyond the deadline - before contacting the EEO counselor. His EEO counselor sent him a Notice of Right to File a Formal Complaint on September 18, 2006, [Dkt. # 6, Def. Ex. 24]. The notice advised him that he had 15 calendar days to file his formal complaint, but he did not do so until June 12, 2007, [Dkt. # 6, Def. Ex. 40], some 252 days late.
With respect to Mr. Taylor's non-selection claim for the Director for the HRO-W Labor and Employee Relations position, Mr. Taylor did make timely contact with the EEO counselor, but he did not comply with the deadline for filing a formal complaint.
Mr. Taylor's response is to deny that he received either the February 21, 2006 email notifying him of his non- selection for the three Satellite Manager positions or the September 18, 2006 Notice of Right to File Formal Complaint. [Dkt. # 10, Pl. Ex. 1]. This denial is contradicted by the Navy's dated documentation. [Dkt. # 6, Def. Ex. 14, Ex. F; Def. Exs. 24, 25]. Mr. Taylor offers no particularized details to support his version of the facts -- no evidence that he ever inquired about the positions or about the status of the EEO investigation, no recitation of actions he took, other than extremely belated attempts to reinitiate contact with his EEO counselor in June 2007 after his MSPB claim was dismissed. He has not established his entitlement to equitable tolling. Conteh v. Kandarian, 2002 WL 1635368, * 1 (D.C. Cir. July 23, 2002) (affirming dismissal of ...