The opinion of the court was delivered by: Robert L. Wilkins United States District Judge
SUMMARY MEMORANDUM OPINION; NOT INTENDED FOR PUBLICATION IN THE OFFICIAL REPORTERS
Consistent with this Court's July 2, 2012 Order, (Doc. 17), and August 2, 2012 Minute Order, the parties were allowed to file additional briefs and evidentiary records on the issue of whether the Plaintiff's administrative complaint, encompassing her disability discrimination claims, was pending when she filed the present lawsuit. The Court finds that such claims were pending and, accordingly, Defendant is entitled to summary judgment.
On or about August 19, 2010, Plaintiff filed an administrative complaint that included a disability discrimination claim, along with Title VII retaliation and hostile environment claims. (See Doc. 7-2, Def.'s Mot. to Dismiss at Ex. ECF. p. 1-3; Doc. 7-3, Prehearing Order at p. 1 n.1.) She later initiated the instant lawsuit, on August 31, 2010, asserting those same disability discrimination claims. (See Doc. 8-1, Pl.'s Summ. J. Resp. at pp. 12-13.) On September 22, 2010, she admittedly informed the administrative Hearing Officer that she was withdrawing her disability discrimination claims from the administrative proceeding:
Plaintiff informed the OOC Hearing Officer that she would remove a failure to accommodate claim from [the administrative proceeding]. . . . Plaintiff informed the Hearing Officer that "Complainant's failure to accommodate claim was asserted in OOC Case No. 10-AC-70. As stated during the September 22, 2010 Status Conference, Complainant voluntarily removes that claim in this [administrative proceeding]." Plaintiff removed the failure to accommodate from the OOC Case No. 10-AC-58 because that claim was part of OOC Case No. 10-AC-70, which had been already filed in federal court.
(Doc. 25, Pl.'s Resp. to Court at p. 2; see Doc. 24, Def.'s Sealed Attachment 1, Oct. 8, 2012 Pl.'s Mem. In Opposition to Mot. to Dismiss, 10-AC-58.) Although it appears that the disability discrimination claims were not substantively addressed prior to dismissal by the administrative tribunal, the fact remains that Plaintiff dismissed those claims in September 2010 after she had already filed the present complaint in August 2010. As such, the instant Court is without jurisdiction to consider her disability discrimination claim and this action will be dismissed with prejudice. See 2 U.S.C. § 1404 (once mediation is completed, the employee has two options: she "may either (1) file a complaint with the Office [of Compliance]" or (2) "file a civil action . . . in the United States district court. . . . " ); Delfani v. United States Capitol Guide Bd., 1:03-cv-949-RWR, 2005 WL 736644, at 2, 3-5 (D.D.C. Mar. 31, 2005) ("[S]ubject matter jurisdiction is tested as of the time of filing of the complaint."), aff'd 198 Fed. Appx. 9 (D.C. Cir. 2006) ("The district court lacked subject matter jurisdiction because the plaintiff had an administrative complaint pending when she filed this civil action.").