The opinion of the court was delivered by: Richard J. Holwell, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Joyce Brundage brings this suit under Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), 42 U.S.C. §§ 2000e et seq., and under the New York State Human Rights Law ("NYHRL"), N.Y. Exec. Law § 290 et seq., against Eric K. Shinseki in his official capacity as Secretary of the Department of Veterans Affairs, Martina Parauda, acting director, and Albert Mitchner, transportation supervisor, alleging discrimination on the basis of her gender. The defendants move to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction and pursuant to Rule 12(b)(6) for failure to state a claim under which relief can be granted. For the reasons discussed below, the defendants' motion is granted.
The following facts are taken from the complaint and are not findings of fact by the Court. They are assumed to be true for the purpose of deciding this motion and are construed in a light most favorable to the plaintiff, the non-moving party. Information regarding the procedural history of this matter is drawn from the EEOC's dismissal of Brundage's appeal, Brundage v. Shinseki, Appeal No. 0120091558 (EEOC May 29, 2009) (hereinafter "EEOC Appeal"), which the Court may consider because Brundage attached it to her complaint. Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007).
Brundage is an employee of the Department of Veterans Affairs. (Compl. 2.) She applied for a promotion and was told she was qualified for the position. (Am. Compl. 3.) Brundage was not selected for an interview, but other of Brundage's male co-workers were. (Am. Compl. 3.) Ultimately, one of Brundage's male co-workers received the promotion. (Am. Compl. 3.) Following his promotion, he treated Brundage abusively. (Am. Compl. 3.)
Brundage filed an Equal Employment Opportunity ("EEO") complaint with the Veterans Administration. On September 25, 2008, the Veterans Administration issued a Final Agency Decision ("FAD") finding that Brundage did not establish that she had been the target of gender discrimination. EEOC Appeal at 1. The Veterans Administration informed Brundage in its decision that she had the right to appeal its decision to the Equal Employment Opportunity Commission ("EEOC") within thirty days or the right to file a civil action with a United States district court within ninety days. Id. Brundage received this decision via certified mail on October 10, 2008. Id. On February 25, 2009, Brundage filed an appeal with the EEOC. On May 9, 2009, the EEOC dismissed Brundage's appeal because she had not complied with the thirty day deadline to file an appeal. Id. Brundage argued to the EEOC that she filed her appeal late because she sent her documentation to the wrong court and because she suffered from medical difficulties, but the EEOC did not consider these excuses adequate. Id. Brundage submitted her complaint to this Court's Pro Se Office on July 10, 2009, and the complaint was filed on July 24, 2010.
In considering a motion to dismiss pursuant to Rule 12(b)(1), the Court must "must accept as true all material facts alleged in the complaint and draw all reasonable inferences in the plaintiff's favor." Sharkey v. Quarantillo, 541 F.3d 75, 83 (2d Cir. 2008). A complaint can survive a motion to dismiss under Rule 12(b)(6) only when the complaint sets out "enough facts to state a claim for relief that is plausible on its face." Vaughn v. Air Line Pilots, Ass'n, Int'l, 604 F.3d 703, 709 (2d Cir. 2010). Finally, "when the plaintiff proceeds pro se, as in this case, a court is obliged to construe his pleadings liberally, particularly when they allege civil rights violations." McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004).
Brundage brings suit pursuant to two statutes, the NYHRL and Title VII, and against the director of the Veterans Administration in his official capacity and two other employees of the Veterans Administration. The Court shall address each of these claims in turn.
I. New York State Human Rights Law Claims
Brundage, as a federal employee, is not entitled to bring claims under the NYHRL. The Supreme Court has held that in extending Title VII to federal employees in 1972, Congress intended "to create an exclusive, pre-emptive administrative and judicial scheme for the redress of federal employment discrimination." Brown v. General Serv. Admin., 425 U.S. 820, 829 (1976). As such, federal employees are not entitled to sue the federal government under the NYHRL for redress of gender discrimination. Garvin v. Potter, 367 F. Supp. 2d 548, 559 (S.D.N.Y. 2005). The Court accordingly grants the defendants' motion to dismiss Brundage's claims brought pursuant to the NYHRL.
II. Title VII Claims against Parauda and Mitchner
Brundage's claims against Parauda and Mitchner, supervisors at the Department of Veterans Affairs, must be dismissed because Parauda and Mitchner are not proper defendants in a Title VII action. When federal employees file civil actions pursuant to Title VII, the law provides that "the head of the department, agency, or unit, as appropriate, shall be the defendant." 42 U.S.C. § 2000e-16(c). Brundage may not bring suit against Parauda and Mitchner because "individual defendants with supervisory control may not be held personally liable under Title VII." Nghiem v. United States Dep't of Veteran Affairs, 451 F. Supp. 2d 599, 605 (S.D.N.Y. 2006); see also ...