The opinion of the court was delivered by: Conti, District Judge
Pending before the court is a motion to dismiss (the "Motion") (Docket No. 4) filed by defendant Robert E. Gates, Secretary, United States Department of Defense ("defendant" or "DOD"). The motion seeks to dismiss the complaint (the "Complaint") filed by plaintiff Linda Ilgenfritz ("plaintiff" or "Ilgenfritz"), a former employee of the DOD's Defense Contract Management Agency ("DCMA" or the "agency") located in Pittsburgh, Pennsylvania. Plaintiff alleges that the DCMA discriminated against her based upon her age, in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq. Plaintiff claims, under a theory of constructive discharge, that the DCMA forced her to resign her position by changing her compressed work schedule ("CWS") and withdrawing her authorization to telework at home two days a week. Plaintiff seeks back pay, front pay or reinstatement, and compensatory damages. Because this court lacks subject-matter jurisdiction over the case, the Motion will be granted.
Plaintiff is an approximately sixty-year-old former procurement technician with the DCMA's regional office in Pittsburgh, Pennsylvania. (Compl. ¶¶ 7, 9, 10.) (Docket No. 1.) Prior to April 2009, plaintiff worked ten hours each day from Monday through Thursday. (Id. ¶ 11.) She also teleworked two days of each work week. (Id.) In early 2009, plaintiff asked her immediate supervisor if it would be possible for her to telework an additional day each week. (Id. ¶ 14.) Plaintiff was informed that her request was approved, but that she was being assigned management support office ("MSO") duties in addition to her regular duties which could be performed at home. (Id. ¶ 15.)
On March 23, 2009, plaintiff was advised by e-mail that her CWS and telework days were being suspended effective in the immediate future. (Id. ¶ 16.) Plaintiff inquired about the reason for the change and was told that the MSO duties required her daily presence at the office and that "Colonel Anderson and Kathy Lehman did not approve of CWS and wanted the practice discontinued throughout the Ohio River Valley region." (Id. ¶ 17.)
By an e-mail dated April 24, 2009, plaintiff learned that CWS was cancelled for all employees of the Pittsburgh office, and that telework requests would have to be resubmitted. (Id. ¶ 18.) By an e-mail dated May 1, 2009, the April 24, 2009 e-mail was rescinded for all employees but plaintiff. (Id.) At approximately the same time plaintiff learned that the DCMA Pittsburgh office would be relocating from Oakland, Pennsylvania to downtown Pittsburgh in late July 2009. (Id. ¶ 19.) Defendant refused to consider reinstating plaintiff's CWS and telework agreement. (Id. ¶ 21.) At the time plaintiff's CWS and telework option were cancelled, numerous employees who are substantially younger than plaintiff were permitted to continue on CWS and to telework. (Id. ¶ 22.) Plaintiff alleges that defendant's actions caused her to be constructively discharged effective July 31, 2009. (Id. ¶ 27.)
Plaintiff does not dispute the following facts set forth in the Motion. Plaintiff was a bargaining unit employee covered by a collective bargaining agreement ("CBA") between the DCMA and the American Federation of Government Employees, DCMA Council 170 ("AFGE" or the "union"). (Mot. ¶ 7) The CBA provides that an aggrieved employee who alleges discrimination may raise the matter under the statutory procedure - an Equal Employment Opportunity ("EEO") complaint - or under the negotiated grievance procedure, but not both. (Id.) The CBA provides for arbitration in the event that a grievance remains unresolved in the grievance process. (Id.)
On April 7, 2009, plaintiff sent an e-mail message to the DCMA's EEO officer, Kim Appleton, regarding the changes to plaintiff's work schedule expressing concern of possible discrimination based upon her age. (Id. ¶ 9) Appleton called plaintiff and discussed administrative remedies with plaintiff including the EEO process, union grievance procedures, and the DCMA Ombudsman program. (Id.) Plaintiff indicated she was going to send a letter to the union and did not want to pursue an EEO complaint at that time. (Id.) On the same day, plaintiff sent an e-mail message to the union president, Stephen Katchur ("Katchur"), regarding her changed work schedule. (Id. ¶ 10. ) In the e-mail plaintiff informed Katchur that she wished to file a grievance against the DCMA. (Id.)
On April 22, 2009, the union asked the DCMA to provide written justification for the changes in plaintiff's telework and work schedules. (Id. ¶ 11.) On May 6, 2009, the agency responded to the union's request for information indicating it was necessary to change plaintiff's work schedule because of the addition of MSO duties to plaintiff's job. (Id.)
On May 29, 2009, the union filed a step 1 grievance on plaintiff's behalf. In the grievance the union advised that the subject matters of the grievance were the changes made to plaintiff's work and telework schedules, but that discrimination was not an issue in the grievance. (Id. ¶ 12.) On June 26, 2009, the agency denied the step 1 grievance explaining that the addition of MSO duties to plaintiff's work assignment required her presence in the office on a daily basis. (Id. ¶ 13. ) On July 22, 2009, the union filed a timely step 2 grievance related to plaintiff's work schedule and telework option and stated that discrimination based on race, color, religion, age, sex, or national origin was not an issue in the grievance. (Id. ¶ 15.)
On August 2, 2009, plaintiff announced her retirement, effective July 31, 2009, in an e-mail sent to her DCMA team members. (Id. ¶ 16.) The next day plaintiff sent notice of her retirement to her supervisor. (Id.) On August 7, 2009, plaintiff's step 2 grievance was denied as moot. (Id. ¶ 17.) The union did not advance the grievance to arbitration. (Id. ¶ 18.) Neither plaintiff nor the union amended the grievance to add discrimination as an issue. (Id.) Plaintiff did not appeal the step 2 grievance decision to the Equal Employment Opportunity Commission ("EEOC"). (Id.) On August 11, 2009, plaintiff's attorney notified the DCMA's EEO office of plaintiff's desire to begin EEO counseling on a claim of forced retirement due to age discrimination and hostile work environment. (Id. ¶ 19.) On September 2, 2009, the DCMA's EEO counselor interviewed plaintiff's counsel. (Id. ¶ 20.)
On September 14, 2009, the DCMA's EEO office notified plaintiff's counsel that plaintiff's EEO counseling was completed and she could file a formal complaint of discrimination. (Id. ¶ 21.) The EEO office advised plaintiff that a formal complaint of discrimination must disclose whether the employee also filed a grievance under a negotiated procedure on the same claims. (Id.) On September 19, 2009, plaintiff filed a formal EEO complaint citing age discrimination, reprisal/hostile work environment, and forced retirement. (Id. ¶ 22.)
By letter dated October 13, 2009, the EEO office dismissed plaintiff's EEO complaint on the basis that plaintiff first elected to raise the matter of her changed work schedule under the negotiated grievance procedure and plaintiff's formal EEO complaint involved the same agency action as the union grievance. (Id. ¶ 23; Compl., Ex. 1.) The letter notified plaintiff that it constituted the "Final Agency Decision" on the matter of plaintiff's EEO complaint. (Id.) On October 16, 2009, plaintiff's attorney objected to the agency's final decision, arguing that the election of remedies rule should not apply where the grievance did not include the issue of discrimination. (Mot. ¶ 24.) On October 23, 2009, the agency responded explaining that the election of remedies applies irrespective of whether or not the issue of discrimination was specifically raised in the negotiated grievance process. (Id.)
On November 10, 2009, plaintiff filed the instant action alleging she exhausted her administrative remedies through the statutory EEO process. (Compl. ¶ 27.) Plaintiff did not indicate in the Complaint that she previously filed a grievance under the CBA negotiated procedure. On January 8, 2010, defendant filed the Motion and brief in support. (Docket No. 5). In the Motion defendant noted that the court would need to consider the negotiated procedure undertaking, which was a matter outside of the Complaint. On January 18, 2010, plaintiff filed a response to the Motion (Docket No. 6) and brief in support. (Docket No. 7.)
On June 8, 2010, the court held a hearing at which the parties argued their respective positions with respect to the Motion. As an initial matter at the hearing, the court noted that there is an unsettled question about whether a failure to exhaust administrative remedies affects subject-matter jurisdiction or whether it is in the nature of an affirmative defense. If it is an affirmative defense the court would need to consider the Motion to be a motion for summary judgment. Plaintiff and defendant agreed that the issue raised implicated subject-matter jurisdiction. The parties confirmed that there was not a dispute with ...