The opinion of the court was delivered by: Elizabeth T. Hey, M.J.
Plaintiff, an employee at the United States Postal Service, filed a three-count amended complaint against the Postmaster General. Doc. 9-2. Count I alleges a due process violation based on the denial of a hearing in Plaintiff's whistleblower reprisal investigation. Count II alleges disability discrimination in violation of the Rehabilitation Act, 29 U.S.C. § 791(b), and Count III alleges retaliatory discrimination in violation of the same provision.
Defendant has filed a motion to dismiss the amended complaint, arguing that sovereign immunity bars the constitutional claim stated in Count I, and that Plaintiff failed to administratively exhaust his claims in Counts II and III before the Equal Employment Opportunity Commission ("EEOC"). See Doc. 14. In response, Plaintiff has withdrawn Count I, see Doc. 19 at 2 n.1, 16,*fn1 and counters that he did, in fact, administratively exhaust his claims, and that his disability discrimination and retaliation claims in Counts II and III fall within the scope of the charge he filed with the EEOC. See id. at 6-16.*fn2
I. FACTS AND PROCEDURAL HISTORY
According to the amended complaint, on November 4, 2000, Plaintiff was given a rehabilitation job assignment, limiting his lifting due to medical restrictions. Doc. 9-2 ¶ 7, 10, 11. On April 20, 2009, Plaintiff initiated an EEO complaint against his supervisor, Janet Felix, for issuing him a letter of warning while not issuing warnings to other employees outside his class of disability. Id. ¶ 79. On May 27, 2009, at approximately 6:30 p.m., Plaintiff found a hidden bag of mail in the supervisor's office. Id. ¶ 12. After seeking guidance on what to do, Plaintiff took the mail to the Lindbergh Center in his personal vehicle. Id. ¶ 20. Sometime between May 29, 2009, and June 5, 2009, Felix issued Plaintiff an "Emergency Placement in Off-duty Status," requiring him to take three days without pay and giving him a reassignment of job duties which exceeded the physical limitations of his rehabilitation job assignment. Id. ¶ 23-25. Plaintiff alleges that the decision to modify his job duties was motivated by his disability and was causally connected to his EEO complaint. Id. ¶¶ 76, 82.
On August 27, 2009, Plaintiff filed a complaint with the EEOC ("the EEOC Complaint") in which he noted that his supervisor had a "resentment and hostility to those . . . with disability." Doc. 14-1 at 2 (EEOC Complaint attached as Exh. A to Defendant's motion).*fn3 He checked boxes on the form indicating that he had been discriminated against on the basis of his sex, age, retaliation, and disability. Id. In an addendum to the EEOC Complaint, Plaintiff complained that he had been issued a letter of warning on March 23, 2009, and had been placed in an off-duty status on June 3, 2009. Doc. 19 at 23 (addendum to EEOC Complaint attached as Exh. B to Plaintiff's response).
On September 24, 2009, the EEOC sent Plaintiff a notice that it would investigate the issues relating to the June 3, 2009 placement on off-duty status, but advised that the investigation would not include the letter of warning issued on March 23, 2009. See Doc. 14-2 (Partial Acceptance/Partial Dismissal Letter dated Sept. 24, 2009, attached as Exh.
B to Defendant's motion). On March 15, 2012, Plaintiff received a final agency decision granting him the right to file a civil action. Doc. 12 ¶ 39.
On May 15, 2012, Plaintiff filed a complaint in federal court. See Doc. 1. After the court granted Defendant's motion to dismiss, see Docs. 4 & 5, and granted Plaintiff's motion for reconsideration, see Docs. 6 & 8, Plaintiff filed an amended complaint. See Doc. 12. On November 14, 2012, Defendant filed a motion to dismiss the amended complaint, arguing among other things, that Plaintiff failed to exhaust his administrative remedies with respect to the second and third counts of the amended complaint. See Doc. 14. Plaintiff responded, Defendant filed a Reply, and Plaintiff filed a Sur-Reply. See Docs. 19, 21 & 22.
Defendant has sought to dismiss the action for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) rather than pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted. See Doc. 14 at 4-5. The distinction is not merely one of semantics. When considering a factual challenge brought pursuant to Rule 12(b)(1), no presumption of truthfulness attaches to plaintiff's allegations and the existence of an issue of material fact does not bar the court's consideration of the jurisdictional claim. Turicento, S.A. v. Am. Airlines Inc., 303 F.3d 293, 300 (3d Cir. 2002); Anjelino v. N.Y. Times Co., 200 F.3d 73, 87 (3d Cir. 1999). In considering a motion brought pursuant to Rule 12(b)(6), the court is to accept the facts alleged in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Anjelino, 200 F.3d at 87 (citing Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)).
Although Plaintiff has not objected to Defendant's citation to Rule 12(b)(1) for authority to dismiss the complaint, the Third Circuit has held that a motion challenging a failure to exhaust administrative remedies in an employment case is properly considered under Rule 12(b)(6). In Anjelino. the Third Circuit rejected the district court's reliance on Rule 12(b)(1), determining that motions to dismiss based on failure to exhaust and timeliness did not test the court's subject matter jurisdiction and thus were properly considered under Rule 12(b)(6).
We conclude that the District Court erred in considering the Times' failure to exhaust and timeliness defenses as grounds for dismissal under Rule 12(b)(1) for lack of subject matter jurisdiction. Although it is a "basic tenet" of administrative law that a plaintiff should timely exhaust all administrative remedies before seeking judicial relief, the purpose of this rule is practical, rather than a matter affecting substantive justice in the manner contemplated by the District Court. The rule is meant to "provide courts with the benefit of an agency's expertise, and serve judicial economy by having the administrative agency compile the factual record." Robinson v. Dalton, 107 F.3d 1018, 1020 (3d Cir. 1997). Failure to exhaust is "in the nature of statutes of limitation" and do[es] not affect the District Court's subject matter jurisdiction." Hornsby [v. United States Postal Serv.], 787 F.2d , 89 [3d Cir. 1986)] (citing Zipes v. Trans World Airlines, Inc. 455 U.S. 385, 392-98 (1982)). The characterization either of lack of exhaustion or of untimeliness as a jurisdictional bar is particularly inapt in Title VII cases, where the courts are permitted to equitably toll filing requirements in certain circumstances. Robinson, 107 F.3d at 1021 (citing Bowen v. City of New York, 476 U.S. 467, 482 (1986)).
Anjelino, 200 F.3d at 86. Relying on Anjelino, I will analyze Defendant's motion under Rule 12(b)(6). See also Slingland v. Donahoe, Civ. No. 11-4591, 2012 WL 4473231, at *2 (E.D. Pa. Sept. 27, 2012) (Stengel, J.) (motion to dismiss on exhaustion grounds properly construed under Rule 12(b)(6) not 12(b)(1)); Deserne v. Madlyn & Leonard Abramson Ctr. for Jewish Life, Inc., Civ. No. 10-3694, 2010 WL 4665915, at *1 n.1 (E.D. Pa. Nov. 17, 2010) (O'Neill, J.) (motion to dismiss claim for failure to exhaust administrative remedies governed ...