The opinion of the court was delivered by: O'neill, J.
Plaintiff Michael Raffaele, a United States Postal Service employee, filed a complaint against defendant Postmaster General John E. Potter alleging age and sex discrimination as well as retaliation. 29 U.S.C. § 621 et seq., as amended (Age Discrimination in Employment Act), 42 U.S.C. § 2000e (Title VII of the Civil Rights Act of 1964). I have before me defendant's motion for partial dismissal or, alternatively, for partial summary judgment, plaintiff's response, defendant's reply, and plaintiff's sur-reply. The parties also submitted a stipulation to clarify which factual allegations are not relied upon as a basis for liability under any of the three counts in the complaint. Furthermore, on January 7, 2010, in light of the fact that both the defendant and plaintiff presented matters outside of the pleadings, I ordered the motion to dismiss be treated as a motion for summary judgment. Thus, I also have before me plaintiff's supplemental opposition brief.
Plaintiff is a 53-year old male who is employed by the USPS as the Postmaster of the Warminster, Pennsylvania Post Office. Between 2006 and 2009 he submitted dozens of hiring requests to fill vacancies, most of which were never filled. During this same time period, some of the hiring requests of Lisa Layman, Postmaster of the Norristown, Pennsylvania Post Office, who is younger and female, were approved. Because plaintiff's hiring requests were not approved, there was a staff shortage. Plaintiff claims that the staff shortage caused him stress, to receive lower performance ratings and a reduction in merit and retirement pay.
On November 27, 2007, plaintiff requested an appointment with a USPS Equal Employment Office Dispute Resolution Specialists ("EEO counselor"). Plaintiff signed an Information for Pre-Complaint Counseling form ("IPC") on December 6, 2007 which was received by the EEO on December 10, 2007.*fn1 The IPC--filed by plaintiff without the assistance of counsel--alleged that defendant discriminated against him based on his age, race and sex when his hiring requests were not approved. Plaintiff submitted a letter to the EEO dated December 7, 2007 and received on January 8, 2008 amending the list of "Official(s) Responsible for Action(s)" in the IPC. On February 14, 2008, the EEO received a revised IPC which added plaintiff's attorney as his representative. Thereafter, no other changes were made to the IPC.*fn2
On March 3, 2008, plaintiff filed an "EEO Complaint of Discrimination in the Postal Service." The EEO complaint alleged age discrimination but not race or sex discrimination as alleged in the IPC.*fn3 Plaintiff omitted the sex discrimination claim from the EEO complaint "because he did not have sufficient evidence to support this theory of liability." Pl. Opp. Mot. Summ. J., 2 and Pl. Aff. at 2. The EEO complaint also added a charge of retaliation in response to a "message [that] was sent to him, i.e. 'he does not know who he is dealing with.'"
On the same day, plaintiff filed his EEO complaint, March 3, 2008, the EEO issued an Acceptance For Investigation notice which stated,
We have reviewed your complaint of discrimination filed on March 3, 2008. Your complaint has been accepted for investigation. The scope of the investigation will include the following issue(s) only: Specific Issue(s): The Complainant alleges discrimination based on Age . . . and Retaliation (for EEO activity) . . . .
If you do not agree with the defined accepted issue(s), you must provide a written response specifying the nature of your disagreement within seven (7) calendar days of receipt of this letter to the EEO Services Analyst . . .
The notice informed plaintiff that the investigation would be completed within 180 calendar days of the date of his filing the EEO complaint unless the investigation period was extended by agreement in writing. The notice stated that the investigation period could also be extended an additional 180 days from the date of any amendment made by plaintiff.
On March 18, 2008, plaintiff's attorney sent a letter to the EEO objecting to the phrasing of the retaliation issue. On March 21, 2008, the EEO notified plaintiff that the scope of the investigation would be modified accordingly.
On June 6, 2008, the investigation of plaintiff's EEO complaint was completed and plaintiff was provided with a copy of the investigative report. At that point, plaintiff had the option to have his case heard by an Administrative Judge or request that the agency head or designee render a final agency decision without a hearing. Plaintiff elected to have his case heard by an Administrative Judge. A settlement conference was held on February 11, 2009 before Administrative Judge Charetta Harrington. Plaintiff's counsel "advised Agency Counsel that [plaintiff] was adding a claim of sex discrimination" during this conference. Pl. Opp. Mot. Summ. J., Pl. Aff. at 4. Defendant objected to the amendment, "but the Administrative Judge . . . overruled the objection and stated that a Complainant can add another theory of discrimination at any time." Id. On March 28, 2009, plaintiff served on defendant his Pre-Hearing Statement in which he indicated again that he was alleging discrimination based on sex and age as well as retaliation.
Subsequently, plaintiff withdrew his request to have his case heard by an Administrative Judge and the case was remanded to the EEO on April 13, 2009 for a final agency decision without a hearing. Plaintiff's counsel sent a letter dated April 20, 2009 to defendant's counsel which confirmed his intent to request a final agency decision without a hearing and also stated, Complainant advised the Agency during the Settlement Conference that he was also alleging disparate treatment based on gender and addressed this issue on [sic] his pre hearing submission. As you know, the Administrative Judge stated that a complainant can alleged [sic], at any time, another theory of liability based on the same facts. As such, I respectfully requests [sic] that the Final Agency Decision addressed [sic] the issues raised in Complainant's pre-hearing submissions.
The Final Agency Decision was issued on May 18, 2009 and found that the evidence did not support a finding that plaintiff ...