United States District Court, E.D. Pennsylvania
NORMA L. SHAPIRO, District Judge.
Pro se plaintiff Michael Gyda ("Gyda") alleges that a Visiting Scientist Program at the Federal Bureau of Investigation Crime Laboratory ("FBI Crime Lab") violates the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., by discriminating unlawfully against applicants over the age of forty. The Visiting Scientist Program requires an eligible post-graduate applicant to have received a doctorate within five years of his or her intended start date. Gyda has filed suit against various federal defendants-the FBI Crime Lab, the United States Department of Energy Office of Science, and the Oak Ridge Institute for Science and Education (collectively, the "federal defendants")-and the private consortium Oak Ridge Associated Universities.
The federal defendants and Oak Ridge Associated Universities have moved to dismiss Gyda's Amended Complaint under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). Gyda fails to state claims under the ADEA and the motions to dismiss will be granted.
I. FACTUAL BACKGROUND
Gyda is 55 years old and received a Ph.D. in Cell, Molecular, and Developmental Biology in 2007. Am. Compl. ¶ 21. He has fifteen years of adjunct faculty experience in Philadelphia-area schools. Am. Compl. ¶ 23. He has attempted unsuccessfully to secure positions in state crime laboratories and to acquire environmental laboratories. Am. Compl. ¶¶ 26, 29.
On or about April 13, 2013, Gyda first learned of the Visiting Scientist Program ("VSP") at the FBI Laboratory in Quantico, Virginia. Am. Compl. ¶ 25. The fellowship program is designed to provide participants-including eligible students, post-graduates, and faculty-an opportunity to engage in forensic science research initiatives and further their scientific careers. Am. Compl. Ex. 1. According to the VSP's guidelines, to be eligible for the program a post-graduate applicant must have received a post-graduate degree within five years of his or her intended start date (the "eligibility requirement"). Am. Compl. Ex. 1. Gyda graduated at least six years prior to his intended start date in 2013 and does not meet the VSP's eligibility requirement. Am. Compl. ¶ 21.
The VSP is provided in cooperation with Oak Ridge Associated Universities ("ORAU"), a private consortium of universities and non-governmental contractor for the Department of Energy. Am. Compl. Ex. 1; Am. Compl. ¶ 7; Tr. at 4. The program is administered by the Oak Ridge Institute for Science and Education ("ORISE"), a U.S. Department of Energy agency. Am. Compl. Ex. 1; Am. Compl. ¶ 6; Tr. at 3-4.
In April 2013, Gyda contacted personnel in ORAU's Equal Employment Opportunity ("EEO") office to complain about the eligibility requirement. Am. Compl. ¶¶ 10-12; Am. Compl. Ex. 3. On September 5, 2013, Gyda, alleging age discrimination in connection with the VSP selection process, filed a charge against ORAU with the Equal Employment Opportunity Commission ("EEOC") in Philadelphia. Am. Compl. ¶ 14. On September 24, 2013, the EEOC dismissed Gyda's charge and informed him of his right to file a district court action against ORAU. Am. Compl. ¶ 15; Am. Compl. Ex. 5.
On October 11, 2013, Gyda contacted an EEO counselor at the FBI's Philadelphia Field Office. Am. Compl. ¶ 17; Am. Compl. Ex. 6. On November 26, 2013, the counselor informed Gyda of his right to file a formal complaint. Am. Compl. ¶ 18; Am. Compl. Ex. 6. On December 7, 2013, Gyda filed a formal complaint with the FBI's EEO office in Washington, D.C. Am. Compl. ¶ 19; Am. Compl. Ex. 6. Seventeen days later, he initiated this action.
The federal defendants argue that Gyda's procedural approach was improper in two ways. First, he failed to adhere to the Code of Federal Regulations by not giving the FBI's EEO office written notice of intent to sue and timely contacting an EEO counselor. 29 C.F.R. § 1614.105(a)(1); 29 C.F.R. § 1614.201; Fed. Br. at 16-19. Second, he failed to exhaust the EEO administrative process by bringing this action seventeen days after filing a formal complaint with the FBI's EEO office. Fed. Br. at 19-20. In response, Gyda argues that ORAU's EEO office failed to give him prompt and accurate guidance on administrative protocol. Response to Fed. Motion to Dismiss at 17.
Gyda alleges the VSP's eligibility requirement violates the ADEA and attempts to assert "disparate impact" and "disparate treatment" claims against ORAU and the federal defendants. ...