The opinion of the court was delivered by: Gladys Kessler United States District Judge
Plaintiff William Porter ("Plaintiff" or "Porter") brings this action against Kathleen Sebelius in her official capacity as Secretary of the Department of Health and Human Services ("Defendant" or "Secretary"). Plaintiff alleges discrimination, retaliation, and hostile work environment in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and discrimination, retaliation, hostile work environment, and failure to provide a reasonable accommodation in violation of the Federal Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. § 701 et seq.*fn1
This matter is presently before the Court on Defendant's Motion for Partial Dismissal of Plaintiff's Amended and Consolidated Complaint [Dkt. No. 49]. Upon consideration of the Motion, Opposition, Reply, and Surreply, the entire record herein, and for the reasons stated below, Plaintiff's Complaint is dismissed without prejudice, and Defendant's Motion is denied without prejudice.
Porter, an African-American male, has worked as a Program Analyst at the Department of Health and Human Services ("HHS"), Administration and Finance Operations Section ("AFS") of the Office of Financial Program Analysis ("OFPA") in the Office of the Assistant Secretary of Preparedness and Response since 2007. Pl.'s Amended & Consolidated Complaint ("Complaint") p. 3, ¶ 4.
On May 24, 2010, Porter filed a complaint with the EEO Section of the Department of Health and Human Services ("Department"). EEO Complaint Final Agency Decision, June 3, 2011, at 2 n.1 [Dkt. No. 13-1]. The EEO Section permitted him to file six amendments adding additional claims to his complaint between July 1, 2010, and December 22, 2010. Id. On June 3, 2011, the Department issued its Final Agency Decision ("June 2011 FAD") on those claims. Id. at 1.
On August 26, 2011, Porter filed a Complaint in this Court seeking review of the June 2011 FAD. [Dkt. No. 1] On October 28, 2011, Porter's attorney moved to withdraw [Dkt. No. 7], and his Motion was granted by minute order on November 15, 2011.
On April 8, 2011, Porter filed another complaint with the EEO Section of the Department. EEO Complaint Final Agency Decision, Dec. 13, 2011 at 1. The EEO Section accepted additional claims for investigation on May 2, 2011, and June 10, 2011. Id. at 3-4. On December 13, 2011, the Department issued its FAD ("December 2011 FAD") addressing Porter's second amended complaint. Id. at 1.
On March 13, 2012, Porter filed a second Complaint in District Court seeking review of the December 2011 FAD. Case No. 12-392, Dkt. No. 1. On April 10, 2012, Case No. 12-1392 was consolidated by minute order with Case No. 11-1546.
On August 16, 2012, Porter's new attorney moved to withdraw. [Dkt. No. 34] On September 25, 2012, the Court granted the Motion to Withdraw, and directed Porter to file an amended and consolidated complaint. [Dkt. No. 43]
Porter, proceeding pro se, timely filed the amended and consolidated Complaint on October 26, 2012 [Dkt. No. 47]. On November 27, 2012, Defendant filed her Motion to Partially Dismiss the Consolidated Complaint ("Motion"). On November 30, 2012, Porter filed an "Answer" to the Motion [Dkt. No. 51], and Defendant filed her Reply in support of the Motion on December 10, 2012 [Dkt. No. 52]. Porter filed a Surreply by permission of the court on December 14, 2012 [Dkt. No. 53].
Under Rule 12(b)(1), Plaintiff bears the burden of proving by a preponderance of the evidence that the Court has subject matter jurisdiction. See Shuler v. United States, 531 F.3d 930, 932 (D.C. Cir. 2008). In reviewing a motion to dismiss for lack of subject matter jurisdiction, the Court must accept as true all of the factual allegations set forth in the Complaint; however, such allegations "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." Wilbur v. C.I.A., 273 F. Supp. 2d 119, 122 (D.D.C. 2003) (citations and quotation marks omitted). The Court may consider matters outside the ...