The opinion of the court was delivered by: Townes, United States District Judge
Plaintiff Armando C. Jones -- a Senior Officer Specialist employed at the Metropolitan Detention Center in Brooklyn -- brings this pro se action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, alleging that his employer, the United States Department of Justice ("DOJ"), discriminated against him on account of his race, color and national origin. Defendant now moves to dismiss plaintiff's complaint or, in the alternative, for summary judgment on the ground that plaintiff was late both in filing his formal administrative complaint and in filing his appeal from DOJ's final decision regarding his claim. For the reasons stated below, defendant's motion to dismiss is granted and this action is dismissed.
Plaintiff instituted this action in March 2005 by filing a complaint (the "Complaint") alleging discriminatory acts that purportedly began on or about September 1, 2002. See Complaint at ¶ 4. According to a chronology attached to the Complaint, plaintiff made his "[f]irst official contact with [an Equal Employment Opportunity ("EEO")] Counselor" on October 21, 2002. See "Facts of the Case #1" (appended to the Complaint as an unmarked exhibit) at 5. On that date, the Counselor provided him with a "Notice of Rights and Responsibilities," a copy of which is also attached to the Complaint. That notice -- which was signed by plaintiff on October 21, 2002, but not countersigned by the EEO Counselor -- indicates that plaintiff chose to proceed with EEO Counseling rather than an alternative dispute resolution ("ADR") process.
Counseling failed to resolve the matter to plaintiff's satisfaction and on January 21, 2003, plaintiff's EEO Counselor, A. Pat Smith, gave plaintiff a written notice of his right to file a Complaint of Discrimination.*fn1 The notice itself is not attached to the Complaint, but a document which is attached -- entitled "Complainant['s] Statement of Facts" -- contains a detailed, page-long account of the events of January 21, 2003. See Complainant['s] Statement of Facts (appended to the Complaint as an unmarked exhibit) at 1. In this document, plaintiff states that he contacted the EEO Counselor at 7:30 on the morning of January 21st to ask when they could meet, and was told by the Counselor to talk to his supervisor about setting a time. Id. A supervisor granted plaintiff's request to meet with the Counselor. Before plaintiff could do so, however, he was forced to attend some sort of disciplinary hearing at which he was summarily re-assigned to a housing unit. This re-assignment made it difficult for plaintiff to meet with the EEO Counselor, but plaintiff nonetheless managed to do so. Plaintiff acknowledges receiving and signing the "Right to File Notice" on January 21, 2003, id., but claims that the Counselor did not have sufficient time to explain the administrative process or to mention the time limitations for filing a formal complaint.
One week later, on January 28, 2003, plaintiff was injured while trying to restrain an inmate in the housing unit. See "Facts of the Case #1" at 6. Plaintiff did not return to work until March 24, 2003. Id. Nonetheless, plaintiff alleges that he saw his EEO Counselor again on February 25, 2003, when he learned for the first time that his EEO Complaint had to be filed within 15 days of his receipt of the notice of his right to file. Complainant['s] Statement of Facts at 3. It is not clear precisely when his EEO Complaint was ultimately filed; plaintiff signed his Complaint of Discrimination on February 25, 2003, but the copy of the EEO Complaint which is appended to plaintiff's complaint was date-stamped March 10, 2003, by the EEO Office of the Federal Bureau of Prisons.
Defendant subsequently moved to dismiss the Complaint of Discrimination, alleging that plaintiff had failed to file it within 15 days of receiving the Notice of Right to File a Discrimination Complaint. In an Order of Dismissal dated June 16, 2004, Administrative Judge David Norken granted that motion and dismissed plaintiff's Complaint of Discrimination as untimely. The Complaint Adjudication Office of the DOJ subsequently adopted Judge Norken's decision and informed plaintiff of this final agency decision in a letter dated July 28, 2004 (hereinafter, the "Final Agency Decision" or "FAD"). The Final Agency Decision also advised plaintiff that he had 30 days from the date of his receipt of the FAD in which to file an appeal with the Equal Employment Opportunity Commission ("EEOC").
Plaintiff filed an appeal. However, according to a decision issued by the EEOC's Office of Federal Operations on December 13, 2004, plaintiff received a copy of the FAD on August 2, 2004, but did not postmark his Notice of Appeal until September 2, 2004 -- 31 days later. See Dismissal of Appeal (appended to the Complaint as an unmarked exhibit) at 1. Accordingly, the EEOC dismissed plaintiff's appeal as untimely, and advised plaintiff that he had a right to file suit in a United States District Court within 90 days of the date he received the EEOC's decision.
On March 15, 2005, plaintiff commenced this action. Defendant now moves to dismiss on the ground that plaintiff failed to properly or timely exhaust his administrative remedies. First, defendant argues that plaintiff failed to file his EEO Complaint within 15 days of his receipt of the notice of his right to file it, as required by 29 C.F.R. §§ 1614.105(d) and 1614.106(a) and (b). Second, defendant contends that plaintiff's administrative appeal of the Final Agency Decision was late in that it was not postmarked within 30 days of plaintiff's receipt of the FAD. In support of these two arguments, defendant submits various exhibits, some of which are also appended to plaintiff's complaint. Therefore, while defendant principally moves to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6), defendant also moves, in the alternative, for summary judgment pursuant to Fed. R. Civ. P. 56.
The Rule 12(b)(6) Standard
In considering a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court must accept all of the factual allegations in the complaint as true and must draw all reasonable inferences in the plaintiff's favor. See, e.g., Board of Educ. of Pawling Cent. Sch. Dist. v. Schutz, 290 F.3d 476, 479 (2d Cir. 2002), cert. denied, 537 U.S. 1227 (2003); Jaghory v. New York State Dept. of Educ., 131 F.3d 326, 329 (2d Cir. 1997). A court "may not dismiss a complaint unless 'it appears beyond doubt, even when the complaint is liberally construed, that the plaintiff can prove no set of facts which would entitle [the plaintiff] to relief.'" Jaghory, 131 F.3d at 329 (quoting Hoover v. Ronwin, 466 U.S. 558, 587 (1984) (Stevens, J., dissenting)). Moreover, pleadings drafted by pro se litigants are held "to less stringent standards than formal pleadings drafted by lawyers." Hughes v. Rowe, 449 U.S. 5, 9 (1980) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)); McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004).
In deciding a Rule 12(b)(6) motion, a court's "consideration is limited to the factual allegations in plaintiffs' [pleading] . . . , to documents attached to the complaint as an exhibit or incorporated in it by reference, to matters of which judicial notice may be taken, or to documents either in plaintiffs' possession or of which plaintiffs had knowledgeand relied on in bringing suit." Brass v. Am. Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993) (citing Cortec Indus., Inc. v. Sum Holding L.P, 949 F.2d 42, 47-48 (2d Cir. 1991), cert. denied, 503 U.S. 960 (1992)). If material other than that listed above "is presented to and not excluded by the court, 'the motion shall be treated as one for summary judgment and disposed of as provided in [Federal Rule of Civil Procedure] 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion . . . .'" Id. (quoting Fed. R. Civ. P. 12(b)). However, affirmative defenses, such as statute of limitations claims, "may be raised by a pre-answer motion to dismiss under Rule 12(b)(6), without resort to summary judgment, if the defense appears on the face of the complaint." McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004) (quoting Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 74 (2d Cir. 1998); see Ghartey v. St. John's Queens Hospital, 869 F.2d 160, 162 (2d Cir. 1989).
Although defendant has submitted numerous exhibits in support of his motion to dismiss, the facts essential to deciding defendant's first argument -- that plaintiff filed his EEO Complaint more than 15 days after receiving the notice of his right to file it -- are also apparent from exhibits to the Complaint. Accordingly, this Court does not need to ...