The opinion of the court was delivered by: A. Richard Caputo United States District Judge
Presently before the Court is Defendants Corporation for National and Community Service (the "Corporation"),*fn1 Leslie Lenkowsky, and Gloria Sokolowski's*fn2 ("Federal Defendants") Motion to Dismiss, as well as Defendant American Cancer Society's ("ACS") Motion to Dismiss, Plaintiff's Complaint. For the reasons set forth below, the Corporation's and Federal Defendants' Motion to Dismiss will be granted, and ACS's Motion to Dismiss will be granted. The Court has jurisdiction over this matter as to ACS pursuant to 28 U.S.C. §§ 1331 and 1343(a)(4). The Court lacks jurisdiction over this matter as to the Corporation and Federal Defendants.
Plaintiff, Charles Knight, an African-American male, was hired as a volunteer by the AmeriCorps*VISTA ("VISTA")*fn3 program on November 21, 2000. (Doc. 1-25 ¶¶ 18, 29). Two other applicants, Debbie Howard, a white female, and Jason Head, a white male, were hired the same day. (Doc. 1-25 ¶ 30). Plaintiff was assigned to work for ACS in the Wyalusing School District, located in Bradford County, Pennsylvania. (Doc. 1-25 ¶ 19). As a VISTA volunteer, Plaintiff was responsible for, inter alia, recruiting and interviewing potential volunteers for ACS fundraising programs, documenting interviews of potential volunteers, and organizing volunteers for the fundraising programs. (Doc. 1-25 ¶ 37). In addition to these responsibilities, Plaintiff also created "assessment charts" from statistics gathered on cancer cases and deaths in the county and school district, taught computer classes to fellow VISTA volunteers, conducted surveys regarding implementation of school health clinics, assisted in the orientation of new VISTA volunteers, and developed photographs for the VISTA newsletter. (Doc. 1-25 ¶ 39).
Charles Haun, not a defendant in the present case, was the Community Organization Specialist for ACS and the VISTA Project Site Supervisor for the ACS-VISTA service project. (Doc. 1-25 ¶¶ 21, 26). On or about July 24, 2001, Plaintiff learned from Haun that there was an opening for a VISTA leader position in the Bradford County project. (Doc. 1-25 ¶ 45). Plaintiff was informed by Haun that the leader position would be filled by an outside person. Id. Plaintiff was also under the impression that, to be eligible for consideration, an applicant for a VISTA leader position needed at least one year of service as a volunteer. (Doc. 1-25 ¶ 47). Plaintiff believed that the VISTA leader position would be filled by an outside applicant because, of the current Bradford County VISTA volunteers, Plaintiff, Howard and Head had the most experience at only eight (8) months. (Doc. 1-25 ¶¶ 48-49). On August 29, 2001, Sokolowski, a Corporation Supervisor, stated at a meeting that a person from outside the current VISTA volunteers who had one year of service would fill the Bradford County VISTA leader position. (Doc. 1-25 ¶ 51). Thereafter, on September 14, 2001, Plaintiff learned that Howard had applied for the VISTA leader position. (Doc. 1-25 ¶ 52). On September 19, 2001, Plaintiff emailed Haun about staying on for a second year of service. (Doc. 1-25 ¶ 53). In the email, Plaintiff also inquired as to whether a person from the current group of volunteers would be considered for the VISTA leadership position. Id. Haun did not respond to Plaintiff's email. (Doc. 1-25 ¶ 54). On September 25, 2001, Haun met with Plaintiff and told Plaintiff that Howard had in fact applied for the VISTA leader position and that Haun was going to approve her application. (Doc. 1-25 ¶ 56).
Plaintiff wrote Haun a letter on September 27, 2001, informing him that he felt "slighted" for not being considered for the VISTA leader position. (Doc. 1-25 ¶ 58). In response, Haun requested a meeting with Plaintiff, at which Haun told Plaintiff that Haun had previously suggested to Sokolowski that she consider Plaintiff for the VISTA leader position. (Doc. 1-25 ¶¶ 59-60). Haun told Plaintiff that Sokolowski responded that she did not like Plaintiff and that in no way would Plaintiff be hired as the VISTA leader. (Doc. 1-25 ¶ 60). Haun told Plaintiff that Howard was not capable of training other VISTA volunteers, and, therefore, Haun would propose to Sokolowski that there be two VISTA leader positions -- a Leader/Coordinator and a Leader/Trainer. (Doc. 1-25 ¶ 61). Haun stated that Plaintiff would be considered for the Leader/Trainer position and Howard would be considered for the Leader/Coordinator position. Id. In addition, Haun asked Plaintiff for a copy of his resume. Id. On October 27, 2001, Plaintiff received an email from Haun stating that Sokolowski had rejected Haun's idea of having two VISTA leaders and that she had accused Haun of "placating" Plaintiff. (Doc. 1-25 ¶ 65). Plaintiff alleges that the choice of Howard for the VISTA leader position,*fn4 as well as the treatment of Plaintiff as a whole,*fn5 was impermissibly based on Plaintiff's race and sex. (Doc. 1-25 ¶ 66).
On October 30, 2001, Plaintiff wrote the Corporation's Equal Opportunity ("EO") Director to complain about the treatment he received as a VISTA volunteer and to request that the matter be reviewed. (Doc. 1-25 ¶ 67). Shortly thereafter, Plaintiff filed an informal complaint with the Corporation's EO office alleging race and sex discrimination. (Doc. 1-25 ¶ 69). On January 24, 2002, an EO Counselor conducted an initial counseling interview with the Plaintiff. (Doc. 1-25 ¶ 9). A final counseling interview with the Plaintiff was conducted on February 7, 2002. (Doc. 1-25 ¶ 10). An EO Counselor's report was issued on February 12, 2002. (Doc. 1-25 ¶ 11). Plaintiff filed a formal complaint of discrimination and reprisal with the EO office on February 26, 2002. (Doc. 1-25 ¶ 12). An investigation of the formal complaint was conducted, and on October 29, 2002, a Report of Investigation was submitted to the Corporation. (Doc. 1-25 ¶¶ 14-15). The Corporation then issued a Final Agency Decision on March 17, 2003, concluding that Plaintiff "failed to establish by a preponderance of the evidence that he was discriminated against." (Doc. 1-25 ¶ 16; Doc. 1-25, Ex. A at 17). Plaintiff received the Final Agency Decision on March 24, 2003. (Doc. 1-25 ¶ 17).
On April 23, 2003, Plaintiff filed his initial complaint in the instant matter in the United States District Court for the Eastern District of Pennsylvania pursuant to federal regulations found in 45 C.F.R. pt. 1225 (1981). (Doc 1-23 p.2). On January 6, 2004, Plaintiff filed an Amended Complaint (Doc. 1-25) alleging discrimination on the basis of race and sex in violation of the following federal statutes: (1) Title VI of the Civil Rights Act of 1964 ("Title VI"), 42 U.S.C. § 2000d; (2) Title IX of the Education Amendments of 1972 ("Title IX"), 20 U.S.C. § 1681 et seq; (3) the National and Community Service Act of 1990 ("NCSA"), 42 U.S.C. § 12501 et seq; and (4) the Domestic Volunteer Service Act of 1973 ("DVSA"), 42 U.S.C. § 4950 et seq. (Doc. 1-25 p.1). Plaintiff named as defendants the Corporation, Lenkowsky and Sokolowski in their official capacities, and ACS. (Doc. 1-25 ¶¶ 4-7). Plaintiff averred jurisdiction over this matter pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706, as well as federal question jurisdiction under 28 U.S.C. § 1331. (Doc. 1-25 ¶ 1). In his Amended Complaint Plaintiff seeks monetary and equitable relief. (Doc. 1-25 p.1-2).*fn6 On June 23, 2003, the Corporation and Federal Defendants moved to dismiss Plaintiff's Amended Complaint for lack of subject matter jurisdiction. (Doc. 1-11). On July 10, 2003, ACS filed a motion to dismiss Plaintiff's Amended Complaint for improper venue and failure to state a claim upon which relief can be granted. (Doc. 1-12). On October 28, 2004, the United States District Court for the Eastern District of Pennsylvania (Surrick, J.) granted ACS's motion to dismiss for improper venue and transferred the case to the United States District Court for the Middle District of Pennsylvania, (Doc. 1-35; Knight v. Corp. for Nat'l & Cmty. Serv., No. 03-2433, 2004 U.S. Dist. LEXIS 21790 (E.D. Pa. Oct. 28, 2004)), where venue as to ACS, the Corporation and Federal Defendants, is proper. 28 U.S.C. §§ 1391(b)(2), (e)(2).*fn7 On April 15, 2005, ACS filed a renewed motion to dismiss Plaintiff's Amended Complaint for failure to state a claim. (Doc. 19-1). On May 2, 2005, the Corporation and Federal Defendants moved to dismiss Plaintiff's Amended Complaint for lack of subject matter jurisdiction. (Doc. 21-1). These motions are fully briefed and ripe for disposition.
I. The Corporation and Federal Defendants' Motion to Dismiss
Federal Rule of Civil Procedure 12(b)(1) provides for dismissal of an action where the court lacks jurisdiction over the subject matter of that action. FED.R.CIV.P. 12(b)(1). A defendant may challenge the existence of subject matter jurisdiction in two fashions. See Mortensen v. First Fed. Sav. and Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). Where a defendant attacks the complaint as deficient on its face, the Court must assume that "the allegations contained in the complaint are true." Id. However, when the motion to dismiss attacks the existence of subject matter jurisdiction in fact, no presumptive truthfulness attaches to the allegation included in the plaintiff's complaint. Carpet Group Int'l v. Oriental Rug Imps. Ass'n, Inc., 227 F. 3d 62, 69 (3d Cir. 2000) (quoting Mortensen, 549 F.2d at 891). Thus, the Court may weigh all of the available evidence to satisfy itself that subject matter jurisdiction indeed exists. Id. It is important to note also that the existence of disputed material facts will not preclude the Court from evaluating the jurisdictional allegations set forth in the complaint. Gould Elecs., Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000).
When subject matter jurisdiction is challenged under Rule 12(b)(1), the plaintiff will bear the burden of persuasion to show that jurisdiction does in fact exist. See Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir.1991) (quoting Mortensen, 549 F.2d at 891).
B. The Administrative Procedure Act
It is well settled that the United States, as sovereign, is immune from suit absent a clear and express waiver by statute. U.S. v. Sherwood, 312 U.S. 584, 586 (1941). Indeed, unless Congress has, via statute, "expressly and unequivocally waive[d] the United States' immunity from suit," U.S. v. Bein, 214 F.3d 408, 412 (3d Cir. 2000), actions against the United States must be dismissed for lack of subject matter jurisdiction. U.S. v. U.S. Fid. & Guar. Co., 309 U.S. 506, 514 (1940). Even when a federal officer is the nominal defendant in an action, rather than the United States itself, sovereign immunity will still bar the action if the relief sought against the federal officer will, in effect, operate against the ...