The opinion of the court was delivered by: Reggie B. Walton United States District Judge
Gary Hamilton, the plaintiff in this civil suit, seeks compensatory damages as a result of employment practices that he alleges are in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2000e-17 (2006), and that the agency failed to make competitive a detail that was assigned to Annette Burrell, in violation of the Whistleblower Protection Act, 5 U.S.C. § 2302. Amended Complaint (the "Compl.") at 5. Currently before the Court is a motion to dismiss or, in the alternative, for summary judgment filed by the defendant, Timothy Geithner, in his official capacity as Secretary of the Treasury, arguing that the plaintiff failed to exhaust his administrative remedies as to his Title VII claim, Memorandum of Points and Authorities In Support of Defendant's Motion to Dismiss, Or In the Alternative, Motion for Summary Judgment (the "Def.'s Mem.") at 1, that the agency did not violate Section 2302 of the Whistleblower Protection Act in assigning Burrell to the detail, and that in any event, the plaintiff failed to raise his Section 2302 claim with the Office of Special Counsel, id. at 2. After carefully considering the defendant's motion to dismiss, and all relevant memoranda of law and exhibits attached thereto,*fn1 the Court concludes for the reasons below that the defendant is entitled to summary judgment as to the plaintiff's Title VII claim, and that it must dismiss the plaintiff's Whistleblower Protection Act claim for lack of subject-matter jurisdiction.
The plaintiff worked as a Grade 12 Industrial Hygienist at the Internal Revenue Service ("IRS") in the Division of Real Estate Facilities Management ("Facilities Management") of the Agency Wide Shared Services since 2001. Defendant's Statement of Material Facts to Which There is No Genuine Dispute ("Def.'s Facts") ¶ 1. Annette Burrell was employed as a Management and Program Analyst in the same IRS office and division as the plaintiff, and on August 11, 2002, she received a temporary promotion from a Grade 13 to a Grade 14 Management Analyst position.*fn2 Def.'s Facts ¶¶ 2-3; Pl.'s Facts ¶ 7. Although Burrell's original detail was to last no longer than 120 days, Pl.'s Facts ¶ 8; Def.'s Facts ¶2, the detail was renewed and Burrell ultimately held the Management Analyst position until July 2003, Pl.'s Facts ¶ 9; Def.'s Facts ¶¶ 4-6.
The IRS advertised a job announcement from May 5, 2003 to May 19, 2003, for a Safety and Occupational Health Manager position. Def.'s Facts ¶ 7; Pl.'s Facts ¶ 13. After interviewing the plaintiff and three other candidates, the IRS selected Burrell for the position. Hamilton v. Paulson, 542 F. Supp. 2d 37, 40-41 (D.D.C. 2008) (Walton, J.). The plaintiff learned that he was not chosen for the Safety and Occupational Health position on August 11, 2003. Id. ¶ 8.
On August 14, 2003, a staff assistant sent an email that congratulated Burrell on her selection for the new Safety Manager position and also noted that she had been on detail to the Facilities Management Headquarters for the one year prior to her promotion. Def.'s Facts ¶ 9; Pl.'s Facts ¶ 24. On August 28, 2003, the plaintiff contacted an Equal Employment Opportunity Commission (the "EEOC") counselor regarding his non-selection for the Safety Manager position. Pl.'s Opp'n at 5. The counselor interviewed the plaintiff on September 2, 2003, Def.'s Facts ¶ 12, during which point he told the counselor that he had not been selected for the Burrell detail, see Pl.'s Facts ¶ 28. Upon completion of the informal counseling process, the plaintiff filed a formal complaint with the defendant on October 21, 2003. Def.'s Facts. ¶ 13; Pl.'s Facts ¶ 29. The defendant confirmed receipt of the plaintiff's complaint in a letter to the plaintiff dated December 17, 2003, and further stated the following:
Based on our review of the formal complaint and the EEO Counseling Report, the complaint is accepted for processing under the provisions of the Equal Employment Opportunity Commission . . . regulations, 29 CFR [§] 1614. The claim to be investigated is:
Was the Complainant discriminated against based on his race (African American), color (light skinned) and/or sex (male) when he was not selected on August 11, 2003, for promotion to the position of Safety and Health Manager, GS-0018-14, under Vacancy Announcement Number 15-02-OFM03706?
If you disagree with the claim, please notify me in writing within 15 days of the date of this letter. . . . If no response is received, I will assume that you agree with the claims(s) and will proceed with the investigation of the complaint.
Pl.'s Opp'n, Ex. 7 (December 17, 2003 Letter from Jerry Armstrong to Howard Wallace ("Dec. 17, 2003 Letter")), at 1 (emphasis added).
On January 20, 2004, the defendant notified the plaintiff that he was not chosen for another Health and Safety Manager detail position. Def.'s Facts ¶ 15. The position was awarded to a white female named Camille Carraway. Hamilton, 542 F. Supp. 2d at 41. The plaintiff contacted an EEO counselor on February 23, 2004, concerning his non-selection for this second Safety Manager detail (the "Carraway detail"). Def.'s Facts ¶ 16. In his administrative complaint for his non-selection for the Carraway detail, the plaintiff stated that his non-selection was based upon a "[p]lanned, arranged and executed . . . non-competitive selection process of a detail assignment [with] a discriminatory motive," the motivating factors being his race, color and sex. Id. ¶ 17 (second alteration in original). The plaintiff met with an EEO counselor on February 26, 2004, concerning his non-selection for the Carrway detail position, id. ¶ 18, and sent a letter in August 2004 requesting that his original EEO claim be amended to include his new claim for his non-selection for the Carraway detail, id. ¶ 19.
The plaintiff initially filed his complaint in this Court on August 1, 2005, alleging that the defendant engaged in unlawful discrimination by declining to select him for the Health Safety Manager position, and that the defendant retaliated against him by not giving him the opportunity to apply for the Carraway detail. Hamilton, 542 F. Supp. 2d at 41. On August 14, 2007, the defendant filed a motion for summary judgment on both counts of the complaint. Id. at 41. In opposing the defendant's summary judgment motion, the plaintiff asserted a new claim for race and sex based discrimination based on his non-selection for the Burrell detail. Id. at 42. The defendant objected to the Court entertaining this new claim on the grounds that the plaintiff has not exhausted his administrative remedies as to this claim, id. at 62, neglected to assert this claim in his complaint filed in this Court, and that the claim was untimely, id. at 42. Ultimately, the Court granted the defendant's motion for summary judgment on both counts of the plaintiff's complaint pursuant to Fed. R. Civ. P. 56. Id. at 57, 61. However, this Court declined to dismiss the plaintiff's claim of discrimination based on the Burrell detail. Id. at 62. Relying on the District of Columbia Circuit's decision in Wiley v. Glassman, 511 F.3d 151 (D.C. Cir. 2007), the Court concluded that dismissal of this new claim, although raised for the first time in the plaintiff's brief filed in opposition to summary judgment, was improper because the defendant "ha[d] not articulated any undue prejudice arising from the consideration of this claim," and that the Court could not "adjudicate the merits of the defendant's exhaustion argument without additional briefing from the parties." Hamilton, 542 F. Supp. 2d at 61-62. The plaintiff then amended his complaint to include a claim for discrimination in regards to the Burrell detail, Compl. ¶ 19, while also asserting that the defendant engaged in a prohibited personnel action in violation of 5 U.S.C. § 2302, id. at 5. Not surprisingly, the defendant filed the motion now before the Court, arguing that the plaintiff's claims should be dismissed for failure to exhaust his administrative remedies. Def.'s Mem. at 2
The defendant moves to dismiss the plaintiff's complaint for lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1), for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6), and, in the alternative, the defendamt ...