The opinion of the court was delivered by: Conti, District Judge.
MEMORANDUM OPINION AND ORDER
Plaintiff Linda Ilgenfritz ("plaintiff"), a former employee of the Defense Contract Management Agency ("DCMA" or the "agency"), filed a one-count complaint against defendant Robert Gates ("defendant"), former Secretary of the United States Department of Defense. (ECF No. 1.) Plaintiff asserted claims under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq. Specifically, she claimed that the DCMA changed her compressed work schedule and withdrew her authorization to work at home two days per week, while other younger employees were permitted to keep their flexible work schedules. She claimed the schedule changes ultimately forced her to retire early.
Pending before the court is a motion to dismiss plaintiff's complaint for failure to exhaust administrative remedies. (ECF No. 4.) Defendant presents the motion as one for relief under Rule 12(b)(1), asserting that the court lacks subject-matter jurisdiction; in the alternative, defendant argues dismissal is appropriate under Rule 12(b)(6) or Rule 56 of the Federal Rules of Civil Procedure. (ECF No 5 at 10.)*fn1
II.Factual Background as Set Forth in the Amended Complaint
The complaint in this case is a nearly verbatim recitation of the allegations in the complaint from Ilgenfritz v. Gates, Civ. No. 09-1502 ("Ilgenfritz I"), which the court dismissed without prejudice for failure to exhaust administrative remedies on July 26, 2010. Ilgenfritz v. Gates, Civil Action No. 09-1502, 2010 WL 2978090 (W.D. Pa. July 26, 2010). The only change in substance is the addition of paragraph 26, which provides:
Prior to initiating this action, Plaintiff exhausted all of her administrative remedies. Plaintiff timely filed the denial of her grievance to the EEOC. (See letter dated July 15, 2010 accepting the appeal attached hereto as Exhibit 1). The EEOC closed its files on April 12, 2011 after the EEOC could not and would not issue a Final Agency Decision. More than 180 days had elapsed since the EEOC docketed the Appeal on June 21, 2010. A true and correct copy of this decision is attached hereto as Exhibit 2. (Compl. (ECF No. 1) ¶ 26.)
Plaintiff is an approximately sixty-three-year-old former procurement technician, who was employed in DCMA=s regional office in Pittsburgh, Pennsylvania. (Compl. (ECF No. 1) ¶¶ 7, 9.) Prior to April 2009, plaintiff worked ten hours each day from Monday through Thursday.
(Id. ¶ 11.) She also teleworked on two days of each work week. (Id.) In mid-March 2009, plaintiff asked her immediate supervisor if it would be possible for her to telework an additional day each week. (Id. & 13.) Plaintiff was informed that her request was approved, she was being assigned management support office (AMSO@) duties in addition to her regular duties, and these additional duties could be performed at home. (Id. & 14.)
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. & 15.) Plaintiff inquired about the reason for the change and was told that the MSO duties required her daily presence at the office, and that AColonel Anderson did not approve of CWS and wanted the practice discontinued throughout the Ohio River Valley region.@ (Id. & 16.)
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. & 17.) By an e-mail dated May 1, 2009, the April 24, 2009 e-mail was rescinded for all employees except 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. & 18.) The relocation caused an increase in the time of plaintiff's commute, as well as the expense of her parking. (Id. ¶ 19.) The complaint alleges that the defendant was aware of plaintiff's "health issues," which made the increased commute "impractical." (Id.) Defendant refused to consider reinstating plaintiff=s CWS and telework agreement. (Id. & 20.) At the time plaintiff=s CWS and telework option were cancelled, numerous employees who were substantially younger than plaintiff were permitted to continue on CWS and to telework. (Id. & 21.) Plaintiff alleges that defendant=s actions caused her to be constructively discharged effective July 31, 2009. (Id. ¶¶ 22-24.)
Plaintiff does not dispute the following facts set forth in the motion to dismiss. Plaintiff was a bargaining unit employee covered by a collective bargaining agreement (ACBA@) between the DCMA and the American Federation of Government Employees, DCMA Council 170 (AAFGE@ or the Aunion@). (Mot. & 7) The CBA provides that an aggrieved employee who alleges discrimination may raise the matter under the statutory procedure - an Equal Employment Opportunity (AEEO@) 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 about 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 ...