The opinion of the court was delivered by: LEONARD B. SAND
In evaluating a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, a court may take into account evidence outside the pleadings. Kamen v. American Tel. & Tel. Co., 791 F.2d 1006, 1011 (2nd Cir. 1986). Our discussion of the relevant facts and of the procedural history of this case is based not only on the pleadings, but also on the declarations and affidavits of the parties.
A. Statement of Facts Plaintiff Danielle Sheahan was hired by the IRS on May 6, 1991 as a Resources Management Intern, and promoted to a Resources Management Specialist on December 1, 1991. Declaration of Linda Azmon Dated November 22, 1993 ("Azmon Dec.") PP 4-5 and Exhibits ("Exs.") A & D. Plaintiff remained as a Resources Management Specialist at the IRS until her termination on April 3, 1992. Id. at P 12 and Ex. H; Plaintiff's Complaint ("Compl.") at 7-8.
Defendant claims that plaintiff was terminated for submitting an altered college transcript upon her application for employment. Azmon Dec. P 12 and Ex. H. As an appointee under the "Outstanding Scholarship Program," plaintiff was required to be a college graduate and to have a grade-point average of 3.5 or higher on a 4.0 scale, or to have graduated in the top ten percent of her class. Defendant alleges that it fired plaintiff upon discovering that she "had a friend at [Vassar College] who did [plaintiff] a favor by altering [her] transcript" to include grades for coursework completed at other colleges. Azmon Dec. P 10-11 and Ex. H.
Plaintiff, on the other hand, alleges that she faced discrimination and eventual termination at the IRS because of her race and color. See Compl. at 3. Plaintiff, who is white, claims that she was ostracized by her mostly black co-workers from the moment of her arrival. Id. at 6. She alleges that three black co-workers lodged false complaints against her because she was white. Id. at 6; Pl.'s Br. at 2. She further maintains that her black supervisors and co-workers conspired against her and falsely accused her of altering her transcripts in order to bring about her termination from the IRS. Compl. at 3, 6-8; Pl.'s Br. at 2-3.
Plaintiff appealed her termination from the IRS to the Merit Systems Protection Board ("MSPB"). Azmon Dec. P 13 and Ex. I. On October 16, 1992, the MSPB issued a final decision dismissing plaintiff's complaint for lack of jurisdiction. Id. P 16 and Ex. J.
In the meantime, plaintiff also filed a charge with the Equal Employment Opportunities Commission ("EEOC"). Id. P 24 and Ex. O. On October 22, 1992, the EEOC issued a decision dismissing plaintiff's case on the grounds that a proper appeal was already pending before the Merit Systems Protection Board. Id. P 25 and Ex. P. However, because of the MSPB final decision of October 16, 1992, there was actually no MSPB appeal pending on the date of the EEOC dismissal. The EEOC's grounds for dismissing plaintiff's case were therefore erroneous.
Pursuant to instructions in the EEOC's October 22 decision, plaintiff filed suit pro se in this Court on November 12, 1992, within thirty days of the EEOC's decision. Compl. at 1. On November 9, however, the Treasury Department had filed a Request to Reopen the EEOC's October 22 decision on the grounds that the EEOC had erred in finding that plaintiff had a pending appeal before the MSPB. Azmon Dec. P 26 and Ex. Q. When she filed her civil suit three days later, plaintiff was apparently either unaware of the existence of defendant's Request to Reopen or did not believe that such a request would affect her ability to bring a civil suit. Following notice that plaintiff had filed her complaint in district court, the EEOC closed plaintiff's case on July 20, 1993. Azmon Dec. P 17 and Ex. R.
Plaintiff asserts a claim of discrimination under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-16 (prohibiting discriminatory practices against federal employees). This statute requires the exhaustion of administrative remedies prior to the initiation of a civil action in federal court. 42 U.S.C. § 2000e-16(c); See Stewart v. United States Immigration & Naturalization Serv., 762 F.2d 193, 197 (2nd Cir. 1985). Under the statute and its accompanying regulations, a ...