The opinion of the court was delivered by: Reggie B. Walton United States District Judge
On July 8, 2009, the plaintiff, Debra Clark Gordon, commenced this action against her employer, the Office of the Architect of the Capitol, alleging discriminatory and retaliatory employment practices in violation of 2 U.S.C. § 1311(a)(1) and 2 U.S.C. § 1317(a) of the Congressional Accountability Act ("CAA"). Complaint ("Compl.") ¶ 1. Currently before this Court is the Defendant's Motion to Dismiss, or in the Alternative, for Summary Judgment ("Def.'s Mot."), arguing that the "[p]laintiff has failed to exhaust her administrative remedies with respect to her claims [therefore] this Court lacks jurisdiction to address those claims." Def.'s Mot. at 1. Alternatively, the defendant moves for summary judgment stating "that there is no genuine issue of material fact and [it] is entitled to a judgment as a matter of law." Id. After carefully considering the defendant's motion to dismiss, all relevant memoranda of law, and the exhibits attached thereto,*fn1 the Court concludes, for the following reasons, that it must grant in part and deny in part the defendant's motion.
The evidence viewed in the light most favorable to the plaintiff is the following. The plaintiff is an African American female, Compl. ¶ 25, who since January 2005 has been employed by the defendant, working in the Superintendent's Office of the Senate Office Buildings as an Administrative Support Assistant at the GS-08 Step 6 level, id. ¶ 7. On November 16, 2007, the defendant advertised that it was seeking applications for a GS-03128-9 Supervisory Secretary position in Vacancy Announcement SOB 2008-104. Defendant's Statement of Material Facts Not in Dispute ("Def.'s Facts") ¶¶ 3, 6. Due to an omission in the initial announcement, the availability of the position was advertised again on two occasions, once in Vacancy Announcement SOB 2008-014R1A on November 23, 2007, and again in Vacancy Announcement SOB 2008-014R2A on December 17, 2007. Compl. ¶¶ 10-11; Def.'s Facts ¶ 6. The plaintiff applied for the position based on the initial announcement and re-applied again in response to the final announcement, and she was ultimately interviewed for the position. Compl. ¶¶ 8, 14-15.
Before the vacancy was announced, the "[p]laintiff was assigned and . . . [had] perform[ed] the higher graded duties of the vacant position on a regular basis," and according to the plaintiff was therefore "highly qualified" for the Supervisory Secretary position. Id. ¶¶ 15-16. However, Robin Morey, Superintendent of the Senate Office Buildings and the selecting official for the position, chose Christine Camera, a Caucasian female, for the position. Def.'s Facts ¶¶ 9-10; Compl. ¶ 18. On January 24, 2008, Mr. Morey notified the defendant's Human Resources Office of his decision using AVUE, a digitalized human resources software package. Def.'s Facts ¶¶ 5, 11. At the time of her selection, Ms. Camera was a GS Step 1 Time and Attendance Clerk and had only been employed by the defendant for approximately five months. Compl. ¶ 19.
On January 30, 2008, Mr. Morey, in a private conversation with the plaintiff, informed her of his decision not to select her for the position. Id. at ¶ 17. On the following day, the plaintiff met with Edwin Lopez, an Equal Opportunity Office specialist in the defendant's Office of Employment Opportunity and Conciliation Programs ("Office of Employment Opportunity"), and "discussed her opposition to the selection of [Ms.] Camarata [sic]" for the Supervisory Secretary position.*fn2 Id. at ¶ 21. Subsequent to the meeting, the plaintiff informed Mr. Lopez of her decision to file a complaint concerning her non-selection with the Office of Compliance, Defendant's Statement of Material Facts Not in Dispute ("Def.'s Facts") ¶ 14; Plaintiff's Opposition to Defendant's Statement of Material Facts ("Pl.'s Facts") ¶ 14, the administrative body created by the CAA to entertain employment related complaints of congressional employees, 2 U.S.C. §§ 1301(12), 1402(a). During that same meeting, Mr. Lopez reminded the plaintiff of the 180 day limit she had to file a request for counseling with the Office of Compliance as required by the CAA. Def.'s Facts ¶ 14; Pl.'s Facts ¶ 14. However, the Plaintiff asserts that Lopez did not inform her of the date when the 180 day time period commenced.
Pl.'s Facts ¶ 14. Further, the plaintiff maintains that she was not informed that the effective date of Ms. Camera's selection was January 24, 2008, until receiving the defendant's motion to dismiss. Plaintiff's Opposition to Defendant's Motion to Dismiss, or in the Alternative, for Summary Judgment with supporting Memorandum of Points and Authorities ("Pl.'s Opp'n"), Ex. 2 (Declaration of Debra Clark Gordon) ¶ 11.
On July 28, 2008, the plaintiff requested counseling with the Office of Compliance, "alleging that she was not selected for a promotion because of [her] race, and was subsequently constructively demoted, and denied training and other promotional opportunities in retaliation [for her opposition to] alleged race discrimination." Def.'s Mot., Ex. 2 (Notice of Invocation of Mediation). At the conclusion of the counseling period, the plaintiff continued to pursue her administrative remedies with the Office of Compliance by submitting a request for mediation. Id. The plaintiff commenced this action when a resolution of her complaints could not be resolved through the mediation process. Compl. ¶ 5.
In her Complaint, the plaintiff asserts three claims arising from her non-selection for the Supervisory Secretary position: (1) "Discrimination based on [her] African American race and color;" (2) "Retaliation in violation of 2 U.S.C. 1317(a) based on [her] opposition to matters made unlawful by the CAA and participation in federally protected activities under the CAA;" and (3) "Retaliation based on [her] participation in federal[ly] protected activities in violation of section 207(a): creation of a hostile work environment." Compl. at 5-7. In response, the defendant filed the motion to dismiss the complaint for lack of subject matter jurisdiction, or in the alternative, for summary judgment that is the subject of this memorandum opinion.
As noted above, the defendant seeks dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1), or in the alternative, summary judgment under Rule 56.
A. Motion to Dismiss under Rule 12(b)(1)
A motion to dismiss under Rule 12(b)(1) "presents a threshold challenge to the Court's jurisdiction . . . [and] the Court is obligated to determine whether it has subject-matter jurisdiction in the first instance." Curran v. Holder, 626 F. Supp. 2d 30, 32 (D.D.C. 2009) (internal citation and quotation marks omitted). When reviewing a motion to dismiss pursuant to Rule 12(b)(1), the Court must accept as true all of the factual allegations contained in the complaint. Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993). Under Rule 12(b)(1), "it is to be presumed that a cause lies outside [the federal courts'] limited jurisdiction," Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994), unless the plaintiff establishes by a preponderance of the evidence that the Court possesses jurisdiction, see, e.g., Hollingsworth v. Duff, 444 F. Supp. 2d 61, 63 (D.D.C. 2006). Therefore, the "plaintiff's factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim." Grand Lodge of Fraternal Order of Police v. ...