The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Warren Gladden has filed a pro se action against the Administrator of the National Aeronautics and Space Administration ("NASA") for race and age discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq, and the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq. Defendant has moved to dismiss for failure to timely exhaust his administrative remedies and for failure to state a claim upon which relief may be granted. Because Gladden filed this lawsuit more than ninety days after receiving NASA's final agency decision ("FAD"), defendant's motion will be granted and this action will be dismissed with prejudice.
From June 2007 to July 2007, plaintiff, then a 53-year-old African American male applied for a series of jobs at NASA, including a Management and Program Analyst position, two General Engineer positions, and a Program Analyst position. (Plaintiff's Complaint ["Compl."] ¶¶ 29, 39, 50, 58.) In order to complete his applications, plaintiff was asked to submit a resume highlighting his relevant experience for each of the positions. (Id. ¶¶ 21-22.) As GS-13, 14, and 15 positions, the vacancies required successful applicants to have high-level scientific and managerial skills in addition to "one year of specialized experience equivalent to the next lower grade." (Id. ¶¶ 31, 41, 52, 60.) When the application periods closed, RESUMIX, the automated hiring system that NASA uses to assess minimum qualifications, evaluated the resumes of each applicant and rated and ranked the applicants according to how closely their work experience aligned with the desired qualifications of each position. (Id. ¶ 23.) On August 11, 2007, plaintiff's applications for employment were denied on the grounds that he was not highly qualified for the positions. (Id. ¶¶ 29, 39, 50, 58.) Importantly, plaintiff was also informed "that only those applications that receive a highly qualified rating by the RESUMIX system are forwarded for further assessment by selecting officials." (Compl. Attach. 1 at 4.)
In light of his purportedly "extensive" experience, (Compl. ¶ 21), plaintiff argues that his unsuccessful attempts at employment are a result of "the systematic devaluation of [his] credentials by RESUMIX." (Id. ¶ 25.) Furthermore, plaintiff alleges that the RESUMIX selection process is discriminatory, and that it denied him employment on the basis of his race and age (id. ¶¶ 84-91), notwithstanding the fact that RESUMIX "does not take race, gender, or age into consideration when analyzing applicant resumes and generating a score for resumes." (Defendant's Motion to Dismiss ["Def.'s Mot."], Ex. 1 ¶ 8.) Defendant maintains that plaintiff's applications were rejected because he was not highly qualified for any of the positions. (Def.'s Mot. at 3.)
Plaintiff filed a formal complaint of discrimination with NASA on December 27, 2007. (Compl. ¶ 10.) After defendant completed its investigation, plaintiff requested a hearing before an Administrative Judge of the Equal Employment Opportunity Commission ("EEOC") on June 4, 2008. (Id. ¶ 12.) On January 4, 2010, after engaging in extensive discovery and having received no decision from the EEOC Administrative Judge, plaintiff withdrew his hearing request and asked NASA to issue a FAD. (Id. ¶¶ 13-14.) On August 10, 2010, NASA issued its FAD and found that "Complainant has failed to establish that management's reasons are pretextual or that he was, in fact, discriminated against on the bases of his race or age." (Id. ¶ 15, Attach. 1 at 12.) Upon receiving the FAD on August 16, 2010, plaintiff was advised that if he was dissatisfied with the decision, he had the right either to appeal directly to the EEOC or to file a civil action in district court "within 90 days of receipt of this final decision if no appeal has been filed." (Id. ¶ 15, Attach. 1 at 2; see also 29 C.F.R. § 1614.407(a).) Plaintiff chose the latter and filed this action on November 16, 2010 (ninety-two days after receiving his FAD), alleging that NASA's refusal to hire him constituted discrimination in violation of Title VII (Count I) and the ADEA (Count II).
Despite some confusion in this jurisdiction regarding "whether a failure to exhaust administrative remedies is properly brought in a Rule 12(b)(1) motion, as a jurisdictional defect, or in a Rule 12(b)(6) motion for failure to state a claim," recent cases "favor treating failure to exhaust as a failure to state a claim." Hansen v. Billington, 644 F. Supp. 2d 97, 102 (D.D.C. 2009) (listing cases); see also Kilby-Robb v. Spellings, 309 F. App'x 422, 423 n.1 (D.C. Cir. 2009) ("[T]he mandatory exhaustion requirement is not jurisdictional.").
As the Supreme Court recently held in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), "[t]o survive a motion to dismiss [under Rule 12(b)(6) of the Federal Rules of Civil Procedure], a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. at 1949 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint must be dismissed under Rule 12(b)(6) if it consists only of "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Id. "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557) (internal quotation marks omitted). The allegations in plaintiff's complaint are presumed true at this stage and all reasonable factual inferences must be construed in the plaintiff's favor. Maljack Prods., Inc. v. Motion Picture Ass'n of Am., 52 F.3d 373, 375 (D.C. Cir. 1995). In deciding a Rule 12(b)(6) motion, a court may consider only "the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, and matters about which the Court may take judicial notice." Hansen, 644 F. Supp. 2d at 102 (internal quotation omitted).
A motion for summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). There is a "genuine issue" of material fact if a "reasonable jury could return a verdict for the nonmoving party." Galvin v. Eli Lilly & Co., 488 F.3d 1026, 1031 (D.C. Cir. 2007) (quoting Anderson, 477 U.S. at 248). A moving party is thus entitled to summary judgment against "a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Waterhouse v. District of Columbia, 298 F.3d 989, 992 (D.C. Cir. 2002) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). When considering a motion for summary judgment, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255; see also Wash. Post Co. v. U.S. Dep't of Health and Human Servs., 865 F.2d 320, 325 (D.C. Cir. 1989). However, the non-moving party "may not rely merely on allegations or denials in its own pleading." Fed. R. Civ. P. 56(e)(2). "While summary judgment must be approached with special caution in discrimination ...