UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________ ) GARY HAMILTON, ) ) Plaintiff, ) ) v. ) Civil Action No. 05-1549 (RBW) ) TIMOTHY GEITHNER, ) Secretary of Treasury, ) ) Defendant. ) ____________________________________)

MEMORANDUM OPINION Gary Hamilton, the plaintiff in this civil suit, seeks compensatory damages as a result of employment practices that he alleges are in viol ation of Title VII of th e Civil Rights Act of 1964, 42 U.S.C. § 2000e-2000e-17 (2006), and that the agen cy failed to make competitive a detail that was assigned to Annette Burrell, in violation of the Whistleblow er Protection Act, 5 U.S.C. § 2302. Amended Complaint (the “Compl.”) at 5. Currently before the Court is a motion to dismiss or, in the alternative, for summary judg ment filed by the defendant , Timothy Geithner, in his official capacity as Secretar y of the Treasury, arguing that th e plaintiff failed to exhaust his administrative remedies as to his Title VII cl aim, Memorandum of Poin ts and Authorities In Support of Defendant’s Motion to Dismiss, Or In the Alternative, Motion for Summary Judgment (the “Def.’s Mem.”) at 1, that the agency did notviolate Section 2302 of the Whistleblower Protection Act in assigning Burrel l to the detail, and th at in any event, the plaintiff failed to raise his Section 2302 cl aim with the Office of Special Counsel, id. at 2. After carefully considering the defendant ’s motion to dismiss, and all relevant memoranda of law and2 exhibits attached thereto, 1 the Court concludes for the reasons below that the defendant is entitled to summary judgment as to the plaintiff’s Title V II claim, and that it must dismiss the plaintiff’s Whistleblower Protection Act claim for lack of subject-matter jurisdiction. I. Background The plaintiff worked as a Grade 12 Industrial Hygienist at the Internal Revenue Service (“IRS”) in the Division of Real Estate Facilities Management (“Fa cilities Management”) of the Agency Wide Shared Services since 2001. Defenda nt’s Statement of Material Facts to Which There is No Genuine Dispute (“Def.’s Fact s”) ¶ 1. Annette Burre ll was employed as a Management and Program Analyst in the same IR S office and division as the plaintiff, and on August 11, 2002, she received a temporary prom otion from a Grade 13 to a Grade 14 Management Analyst position. 2 Def.’s Facts ¶¶ 2-3; Pl.’s Fact s ¶ 7. Although Bu rrell’s original detail was to last no longer than 120 days, Pl.’s Facts ¶ 8; Def.’s Facts ¶2, the detail was renewed

1 In addition to the amended complaint and the Defendan t’s Motion to Dismiss the Amended Complaint or, in the Alternative, Motion for Summary Judgment and memorand um in support thereof, the Court considered the following documents in reaching its deci sion: (1) the Defendant’s Statement of Material Facts to Which There is No Genuine Dispute (the “Def.’s Facts”); (2 ) the Plaintiff’s Statements of Genuine Issue of Material Facts Necessary to Be Litigated (the “Pl.’s Facts”); (3 ) the plaintiff’s Memorandum in Supp ort of Plaintiff’s Opposition to the Defendant’s Motion to Dismiss or in the Alternative for Summary Judgment (the “Pl’s Opp’n”); and (4) the Defendant’s Reply to Plaintiff’s Oppo sition to Defendant’s Motion to Dismi ss the Amended Complaint, or in the Alternative, Motion for Summary Ju dgment (the “Def.’s Reply”). Additionally, the plaintiff moves strike pages 13-16 from the defendant’s reply brief on the grounds that the defendant raised two new defenses that were not raised in his motion to dismiss or, in the alternative, for summary judgment. Specifically, the plaintiff asse rts that the defendant raised for the first time in his reply that the detail assigned to Burrell was not a prohibited personnel action under 5 C.F.R. § 335.103(c)(3)(v) and IRM 6.335.1.7(2)(b), Plaintiff’s Motion to Strike Pages 13-14 of the Defendant’s Reply to Plaintiff’s Opposition to Defendant’s Motion to Dismiss or in the Alternative for Summary Judgment at 3, and that he also raised for the first time the argument that the plaintiff was required to seek review of his claim before the Merit System Protection Board (the “MSPB”) in order to bring suit in federal court, Plaintiff’s Supplemental Motion to Strike Pages 14-16 of Defendant’s Reply to Plaintiff’s Oppo sition to Defendant’s Motion to Dismi ss the Amended Complaint, or in the Alternative, Motion for Summary Judgment; see also Def.’s Reply at 15 (arguing that the plaintiff was required to exhaust his administrative remedies before the MSPB after seeking review before the Office of Special Counsel). Given the Court’s conclusion below that the Court lacks subject-matter jurisdiction due to the plaintiff’s failure to raise a proper “mixed case” complaint before the Equal Employment Of fice (the “EEO”), see infra p. 20, the Court need not address whether the Burrell detail complied with Treasury Department’s internal regulations, or whether the plaintiff was required to exhaust his claim before the MSPB. The Court, therefore, denies the plaintiff’s motion to strike as moot.

2 For ease of reference, the Court will refer to Bu rrell’s temporary promotion as the “Burrell Detail.”3 and Burrell ultimately held the Management Analyst position until July 2003, Pl.’s Facts ¶ 9; Def.’s Facts ¶¶ 4-6. The IRS advertised a job announcement from May 5, 2003 to May 19, 2003, for a Safety and Occupational Health Manager position. De f.’s Facts ¶ 7; Pl.’s Facts ¶ 13. After interviewing the plaintiff and th ree other candidates, the IRS sele cted Burrell for the position. Hamilton v. Paulson , 542 F. Supp. 2d 37, 40-41 (D.D.C. 2008) (Walton, J.). The plaintiff learned that he was not chosen for the Safe ty and Occupational H ealth position on August 11, 2003. Id . ¶ 8. On August 14, 2003, a staff assistant sent an email that congratulated Burrell on her selection for the new Safety Manager position and also noted that she had been on detail to the Facilities Management Headquarters for the one y ear prior to her promotion. Def.’s Facts ¶ 9; Pl.’s Facts ¶ 24. On August 28, 2003, the plainti ff contacted an Equal Employment Opportunity Commission (the “EEOC”) counselor regardin g his non-selection for the Safety Manager position. Pl.’s Opp’n at 5. The counselor interv iewed the plaintiff on September 2, 2003, Def.’s Facts ¶ 12, during which point he told the counselorthat he had not been selected for the Burrell detail, see Pl.’s Facts ¶ 28. Upon completion of the in formal counseling process, the plaintiff filed a formal complaint with the defendant on October 21, 2003. Def.’s F acts. ¶ 13; Pl.’s Facts ¶ 29. The defendant confirmed receipt of the plain tiff’s complaint in a letter to the plaintiff dated December 17, 2003, and further stated the following: Based on our review of the formal comp laint and the EEO Counseling Report, the complaint is accepted for processing under the provisions of the Equal Employment Opportunity Commission . . . regulations, 29 CFR [§] 1614. The claim to be investigated is: Was the Complainant discriminated against based on his race (African American), color (light skinned) a nd/or sex (male) when he was not selected on August 11, 2003, for promoti on to the position of Safety and4 Health Manager , GS-0018-14, under Vacancy Announcement Number 15- 02-OFM03706? If you disagree with the claim, please notify me in writing within 15 days of the date of this letter . . . . If no response is recei ved, I will assume that you agree with the claims(s) and will pr oceed with the investigation of the complaint. Pl.’s Opp’n, Ex. 7 (December 17, 2003 Letter fr om Jerry Armstrong to Howard Wallace (“Dec. 17, 2003 Letter”)), at 1 (emphasis added). On January 20, 2004, the defendant notified the plaintiff that he was not chosen for another Health and Safety Manager detail positio n. Def.’s Facts ¶ 15. The position was awarded to a white female named Camille Carraway. Hamilton , 542 F. Supp. 2d at 41. The plaintiff contacted an EEO counselor on February 23, 2004, concerning his non-selection for this second Safety Manager detail (the “Carraway detail”). Def.’s Facts ¶ 16. In his administrative complaint for his non-selection for the Carraway detail, the plaintiff stated that his non-selection was based upon a “[p]lanned, arranged and executed . . . non-competitive selection process of a detail assignment [with] a discriminatory motiv e,” the motivating factors being his race, color and sex. Id. ¶ 17 (second alteration in original). The plaintiff met with an EEO counselor on February 26, 2004, concerning his non-select ion for the Carrway detail position, id . ¶ 18, and sent a letter in August 2004 reque sting that his original EEO cl aim be amended to include his new claim for his non-selection for the Carraway detail, id . ¶ 19. The plaintiff initially filed his complaint in this Court on August 1, 2005, alleging that the defendant engaged in unlawful discrimination by declining to select him for the Health Safety Manager position, and that the defendant reta liated against him by not giving him the opportunity to apply for the Carraway detail. Hamilton , 542 F. Supp. 2d at 41. On August 14, 2007, the defendant filed a motion for summary j udgment on both counts of the complaint. Id . at5 41. In opposing the defendant’s summary judgmen t motion, the plaintiff asserted a new claim for race and sex based discrimination based on hi s non-selection for the Burrell detail. Id. at 42. The defendant objected to the C ourt entertaining this new claim on the grounds that the plaintiff has not exhausted his administrative remedies as to this claim, id. at 62, neglected to assert this claim in his complaint filed in this Court, and that the claim was untimely, id. at 42. Ultimately, the Court granted the defendant’s motion for su mmary judgment on both counts of the plaintiff’s complaint pursuant to Fed. R. Civ. P. 56. Id. at 57, 61. However, this Court declined to dismiss the plaintiff’s claim of discriminati on based on the Burre ll detail. Id. at 62. Relying on the District of Columbia Circuit’ s decision in Wiley v. Glassman , 511 F.3d 151 (D.C. Cir. 2007), the Court concluded that dismissal of this new claim, although raised for the first time in the plaintiff’s brief filed in opposition to summary judgment, was improper because the defendant “ha[d] not articulated any undue pr ejudice arising from the considera tion of this claim,” and that the Court could not “adjudicate the merits of the defendant’s exhaustion argument without additional briefing from the parties.” Hamilton , 542 F. Supp. 2d at 61-62. The plaintiff then amended his complaint to include a claim for di scrimination in regards to the Burrell detail, Compl. ¶ 19, while also asserting that the defend ant engaged in a prohibited personnel action in violation of 5 U.S.C. § 2302, id. at 5. Not surprisingly, the defendant filed the motion now before the Court, arguing that th e plaintiff’s claims should be dism issed for failure to exhaust his administrative remedies. Def.’s Mem. at 2 II. Standards of Review The defendant moves to dismiss the plainti ff’s complaint for lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1), for fa ilure to state a claim upon which relief can be6 granted under Federal Rule of Civil Procedure 12( b)(6), and, in the alte rnative, the defendamt moves for summary judgment pursuant to Federal Rule of Civil Procedure 56.
A. Federal Rule of Civil Procedure 12(b)(1) In deciding a motion to dismiss based upon lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), a Court is not limited to the allegations set forth in the complaint, but “may consider materials outside of the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction[.]” Jerome Stevens Pharms., Inc. v. FDA , 402 F.3d 1249, 1253 (D.C. Cir. 2005). Under Rule 12(b)(1), “it is to be pres umed that a cause lies outside [the federal courts’] limited jurisdiction,” Kokkonen v. Guardi an Life Ins. Co. of Am. , 511 U.S. 375, 377 (1994), unless the plaintiff establishes by a preponderance of the evidence that the Court possesses juri sdiction, see e.g. Hollingsworth v. Duff , 444 F. Supp. 2d 61, 63 (D.D.C. 2006) (Collyer, J.).
B. Federal Rule of Civil Procedure 12(b)(6) A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests whether a complaint has properly stated a claim upon which relief may be granted. Woodruff v. DiMario , 197 F.R.D. 191, 193 (D.D.C. 2000). For a complaint to survive a Rule 12(b)(6) motion, Federal Rule of Civil Procedure 8(a) requires that it co ntain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Although Rule 8(a) does not require “detailed factual allegations,” a pl aintiff is required to provide “more than an unadorned, the-defendant-unlawfully-harme d-me accusation,” Ashcroft v. Iqbal , ___ U.S. ___, ___, 129 S. Ct. 1937, 1949 (2009) (citi ng Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555-57 (2007)), in order to “give the defendant fair notic e of what the . . . claim is and the grounds upon which it rests,” Twombly , 550 U.S. at 555 (omission in original). In other words, “a complaint7 must contain sufficient factual matter, accepted as true, to ‘state a cl aim to relief that is plausible on its face.’” Iqbal , ___ U.S. at ___, 129 S. Ct. at 1949 (quoting Twombly , 550 U.S. at 547). A claim is facially plausible “when the plaintiff plead s factual content that allows the court to draw [a] reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly , 550 U.S. at 556). A complaint alleging f acts which are “merely consistent with a defendant’s liability . . . stops sh ort of the line between possibility and plausibility of entitlement to relief.” Id. (quoting Twombly 550 U.S. at 557) (internal quotation marks omitted). In evaluating a Rule 12(b)(6) motion under th is framework, “[t]he complaint must be liberally construed in favor of the plaintiff, who must be granted th e benefit of all inferences that can be derived from the facts alleged,” Schuler v. United States , 617 F.2d 605, 608 (D.C. Cir. 1979) (internal quotation marks and citations omitted), and the Court “may consider only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint[,] and matters of which [the Court] ma y take judicial notice,” E.E.O.C. v. St. Francis Xavier Parochial Sch. , 117 F.3d 621, 624 (D.C. Cir. 1997) (footnote omitted). Although the Court must accept the plaintiffs’ f actual allegations as true, any conclusory allegations are not entitled to an assumption of truth, and even thos e allegations pled with factual support need only be accepted to the extent that “they plausibly give rise to an entitlemen t to relief.” Iqbal , ___ U.S. at ___, 129 S. Ct. at 1950. If “the [C]ourt fi nds that the plaintiff[] has failed to allege all the material elements of [his] cause of action,” then the Court may dismiss the complaint without prejudice, Taylor v. FDIC , 132 F.3d 753, 761 (D.C. Cir. 1997), or with prejudice, provided that the Court “determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the defi ciency,” Firestone v. Firestone , 76 F.3d 1205, 1209 (D.C. Cir. 1996) (internal quotation marks and citations omitted).8 C. Federal Rule of Civil Procedure 56 Before granting a motion for summary judg ment pursuant to Federal Rule of Civil Procedure 56, this Court must fi nd that “the pleadings, the discove ry and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. ” Fed. R. Civ. P. 56(c). A material fact is one that “might affect the outcom e of the suit under the governing law.” Anderson v. Liberty Lobby , 477 U.S. 242, 248 (1986). When ruling on a moti on for summary judgment, “the court must draw all reasonable inferences in favor of the nonmoving party, a nd it may not make credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 150 (2000) (citations omitted). The moving party has the burden of demonstrating the absence of a genuine issue of ma terial fact, and that the non-m oving party “fail[ed] to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). In responding to a summary judgment motion, the non-moving party “must do more than simply show that there is some metaphysical doubt as to the material f acts.” Matsushita Elec. Indus. Co., v. Zenith Radio Corp. , 475 U.S. 574, 586 (1986). Accordingly, the non-moving party must not rely on “mere allegations or denials . . . but . . . must set fort h specific facts showing that there [are] genuine issu e[s] for trial.” Anderson , 477 U.S. at 248 (int ernal quotation and citation omitted) (second omission in original). Thus , “[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Id. at 249-50 (citations omitted).9 III. Legal Analysis The issues presented to the Court by the defendant’s summary judgment motion are several. First, the Court must decide whethe r the plaintiff has exhausted all administrative remedies with regards to his allegation that he was discriminated ag ainst by being passed over for the Burrell detail. Second, the Court must de termine whether it has juri sdiction to entertain the plaintiff’s claim that the defendant committe d a prohibited personnel action in violation of 5 U.S.C. § 2302. Third, if the plaintiff’s prohibi ted personnel action claim is properly before the Court, it must decide whether the defendant did, in fact, engage in a proh ibited personnel action in violation of the aforementione d statutory and regulat ory provisions. For the reasons discussed below, the Court concludes that the plaintiff ha s failed to exhaust his administrative remedies regarding his discrimination claim, and that it need not decide the question of whether the defendant engaged in a prohibite d personnel action because the pl aintiff has failed to properly pursue administrative review of this claim.
A. Failure to Exhaust Administrative Remedies Regarding the Title VII Claim. As an initial matter, the defendant’s attemp t to have the Court dismiss the plaintiff’s complaint is without merit. See Def.’s Mem. at 1 (moving to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6 )). First, the plaintiff's failure to exhaust his administrative remedies under Title VII does not implicate a court's subject-matter jurisdiction and, thus, dismissal pursuant to Federal Rule of Ci vil Procedure 12( b)(1) would be inappropriate. “The word ‘exhaustion’ . . . desc ribes two distinct legal concepts.” Avocados Plus Inc. v. Veneman , 370 F.3d 1243, 1247 (D.C. Cir. 2004). The first “is a judicially created doctrine requiring parties who seek to challenge agency action to exhaust available administrative remedies before bringing their cas e to court,” whereas “[t]he second form of10 exhaustion arises when Congress requires resort to the administrative pro cess as a predicate to judicial review.” Id. Only the latter concept has jurisdictional implications. See id. (explaining that so-called “jurisdictional exhaustion” is “rooted ... in C ongress' power to control the jurisdiction of the federal courts”) . Moreover, a district court must“presume [that] exhaustion is non-jurisdictional unless Congr ess states in clear, unequivocal te rms that the judiciary is barred from hearing an action until the administrative agency has come to a decision.” Id. at 1248 (internal quotation marks and citation omitted). As the Court has already held in this case, an exhaustion of administrative remedi es challenge raised in the Titl e VII context is an affirmative defense that is not jurisd ictional in nature. See Hamilton v. Geithner , 616 F. Supp. 2d 49, 61-62 (D.D.C. 2009) (Walton, J.) (noting that 42 U.S.C. § 2000e-16(c) provides only that a plaintiff “may file a civil action” if the requirements of the statute are met). Thus, the defendants cannot invoke Rule 12(b)(1), which authorizes dismissals for lack of subject-matter jurisdiction, as a basis for the dismissal of the complaint. The defendant also cannot rely on Rule 12(b)(6) as a basis for dismissing the complaint for the failure to exhaust all administrative reme dies. Federal Rule of Civil Procedure 8(a)(2) requires the plaintiff to provide a short and plain statement sett ing forth the plaintiff’s grounds for relief, and in his amended complaint, the plai ntiff asserts that he “timely filed his formal charges of discrimination . . . with [the] Equa l Employment Opportunity [Commission],” Compl. ¶ 6, and that “[t]he condition precedent to this suit has been satisfied,” id. ¶ 7. While it is true that, as a general matter, legal “conclusions[] are not entitled to the assumption of truth,” Iqbal , ___ U.S. at ___, 129 S. Ct. at 1950, here the requir ement that a party must exhaust all available administrative remedies is a condition precedent to bringing a Title VII claim in federal court, Million v. Frank , 47 F.3d 385, 389 (10th Cir. 1995), and thus, the plaintiff may allege that this11 condition has been satisfied, see Fed. R. Civ. P. 9(c) (stating th at “it suffices to allege generally that all conditions precedent have occurred or been performed” (emphasis added)). The only possible procedural mechanism available to the defendant to raise his exhaustion of administrative remedies defense at this stage of the proceedings, therefore, is Federal Rule of Civil Procedure 56. The Court should note that the defendant ha s moved for summary judgment before any discovery has been conducted in re sponse to the amended complaint. To be sure, a district court faced with a summary judgment motion pre-discove ry must be cognizant that the parties are “allow[ed] . . . both a reasonable opportunity to pr esent all material made pertinent to such a motion by Rule 56 and a chance to pur sue reasonable discovery.” Taylor , 132 F.3d at 765 (internal quotation marks and citation omitted). N onetheless, a district court can consider a summary judgment motion when it “is satisfied th at the parties are not taken by surprise or deprived of a reasonable opportunity to contest f acts averred outside the pl eadings and the issues involved are discrete and dispositive.” Smith v. United States , 518 F. Supp. 2d 139, 154 (D.D.C. 2007) (Walton, J.) (internal quotation marks and citation omitted); see also Kennedy v. Empire Blue Cross & Blue Shield , 989 F.2d 588, 592 (2d Cir. 1993) (finding no error in district court's conversion of motion to dismiss under Rule 12(b )(6) to motion for summary judgment without prior notice to parties where both parties submitted evidence in support of their positions). In this instance, the Court finds it appropriate to a ddress the motion in light of the fact that both parties have submitted briefings and have full y discussed the factual issues surrounding the administrative exhaustion issue. Furthermore, wh ile the parties have not conducted discovery in regards to the claims set forth in the plaintiff’ s amended complaint, the parties did engage in discovery in regards to the plaintiff’s original complaint, and neither party has requested the need12 for additional discovery in orde r to resolve the claims now before the Court. Accordingly, neither party would be deprived of the bene fit of uncovering new information in discovery regarding the exhaus tion issue as they have had adequa te opportunity to conduct discovery concerning this matter, and the exhaustion issue ha s been extensively discussed in the briefings by both parties. As noted above, the defendant’s assertion that the plaintiff fa iled to exhaust his administrative remedies before filing this action is considered an affirmative defense that does not have jurisdictional implicat ions. Pearsall v. Holder , 610 F. Supp. 2d 87, 95 (D.D.C. 2009) (Friedman, J.). As an affirmative defense, the defendant bears the burden of raising and producing evidence that ev idences the plaintiff’s failure to satisfy all of the procedural requirements regarding his discri mination claim for not receiving the Burrell detail. Bowden v. United States , 106 F.3d 433, 437 (D.C. Cir. 1997). If the de fendant satisfies this burden, then the plaintiff must either rebut the defendant’s evid ence or rely upon an equitable doctrine such as tolling, waiver, or estoppel to avoid dismissal. Id. “It is well-established that a federal employee may assert a Title VII claim in federal court only after a timely complaint has been pr esented to the agency involved.” Nurriddin v. Goldin , 382 F. Supp. 2d. 79, 92 (D.D.C. 2005) (Bates, J. ). Thus, a “federal employee filing a Title VII action must exhaust his . . . administrativ e remedies before seeking judicial review.” Rhodes v. Napolitano , 656 F. Supp. 2d 174, 179 (D.D.C. 2009) (Sullivan, J.) (citing Brown v. Gen. Servs. Admin. , 425 U.S. 820, 832-33 (1976)). Specifi cally, a federal employee must initiate contact with an EEO couns elor within forty-five days of the date of the event believed to be the discriminatory or retaliatory action. 29 C.F.R. § 1614.105(a)(1) ( 2010). With regard to personnel actions, contact with the EEO counselor must occur within forty-five days of the13 effective date of the personnel action. Id. The EEO counselor must then conduct a final interview within thirty days of the employee’s contact with th e EEO counselor, otherwise, the counselor is required to notify the employee of his right to file an administrative complaint within fifteen days of the notice. Id. § 1614.105(d). And, the administrative complaint may be amended at any time prior to the conclusi on of the agency’s investigation. Id. § 1614.106(d). An employee may bring a civil action within ni nety days of receipt of notice of the EEO counselor’s final action, id. § 1614.407(a), or 180 days from the filing of the complaint if no appeal or final action has occurred, id. § 1614.407(b). See also 42 U.S.C. § 2000e-16(c). These administrative requirements have been consistently r ecognized by the District of Columbia Circuit as being prerequisites for instituti ng a Title VII acti on in the district court. See Bowden , 106 F.3d at 437 (holding that the plaintiff in fact failed to timely exhaust his administrative remedies before filing a Title VII claim, but later held that the doctrine of waiver applied and the claim was not dismissed). The purpose of these requirements is to give the agency notice of the allegations th at it faces and allow it the opport unity to internally investigate and resolve the matter. Pearsall , 610 F. Supp. 2d at 98; see also Romero-Ostolaza v. Ridge , 370 F. Supp. 2d 139, 149 (D.D.C. 2005) (Lamberth, J.). By forgoing or circumventing this administrative process, the defendant agency is stripped of the opportunity to reach an internal resolution regarding the matter. Pearsall , 610 F. Supp. 2d at 98. A dditionally, administrative exhaustion works to preserve th e court’s time and resources by authorizing only the presentation of claims that have been “diligen tly pursued” by the plaintiff. See Romero-Ostolaza , 370 F. Supp. 2d at 149 (quoting Velikonja v. Mueller , 315 F. Supp. 2d 66, 74 (D.D.C. 2004) (Huvelle, J.), rev’d on other grounds sub nom. Velikonja v. Gonzales , 466 F.3d 122, 123 (D.C. Cir. 2006)) (observing that among the purposes of exhaustion is to “‘ensure[] that only claims [the] plaintiff14 has diligently pursued will survive’”). These procedures cannot go unful filled unless the Court finds that the equitable doctrines of either waiver, estoppel or tolling applies. Nat’l R.R. Passenger Corp. v. Morgan , 536 U.S. 101, 113 (2002); see also Bowden , 106 F.3d at 437. Most importantly, an employee must exhaust the administrative process above for each discrete action for which he or she seeks to bring a claim. See Morgan , 536 U.S. at 113; Coleman-Adebayo v. Leavitt , 326 F. Supp. 2d 132, 137 (D.D.C . 2004) (Friedman, J.) In assessing whether an administrative claim has been timely filed, the Supreme Court in Morgan noted that “each incident of discrimination a nd each retaliatory adverse employment decision constitutes a separate actionable ‘u nlawful employment practice.’” Id. at 114. The Court in Coleman-Adebayo further elaborated that [t]he key to determining whether a claim mu st meet the procedural hurdles of the exhaustion requirement itself, or whether it can piggy-back on another claim that has satisfied those requirements, is whethe r the claim is of a ‘discrete’ act of discrimination or retaliation or, instead, of a hostile work environment. ‘Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire’ are individual acts that ‘occu r’ at a fixed time. Accord ingly, plaintiffs alleging such discriminatory action must exhaust the administrative pr ocess regardless of any relationship that may exist between those discrete claims and any others. Coleman-Adebayo , 326 F. Supp. 2d at 137-38 (quoting Morgan , 536 U.S. at 114). Therefore, “[e]ach discrete discriminatory act starts a ne w clock for filing charges alleging that act.” 3 Morgan , 536 U.S. at 114. The facts of this case call for the conclusion that the non-sel ection for the Burrell detail was a discrete incident. Indee d, neither party disputes this poi nt. Instead, the plaintiff argues

3 The Supreme Court has recognized that an employee need not file a complaint for every single discriminatory act where the employee has been subjected to an “unlawful employment practice,” Morgan , 536 U.S. at 115, which did not occur at any particular moment, but instead occured over a period of time, i.e., “over a series of days or perhaps years,” id. at 103. This is distinguishable from a discrete act because in those instances “a single act . . . may not be actionable on its own.” Id. Therefore, “[s]uch claims are based on th e cumulative effect of individual acts.” Id. at 115 This exception to the general rule that a plaintiff must exhaust his administrativ e remedies for each discrete action is inapplicable here, however, because the plaintiff does not (nor could he) dispute that the alleged discrimination in regards to the Burrell detail was a discrete act and not an ongoing practice.15 that he followed all of the required administ rative steps in pursuing his discrimination claim concerning the Burrell detail. Pl.’ s Opp’n at 7. In support of hi s position, the plaintiff relies on the EEO counselor’s report that memorialized the informal investigation that occurred in this case, in which the counselor provided the following brief summary of the allegedly discriminatory actions that led the plaintiff’s request for counseling: The AP (Plaintiff) alleges discrimina tion based on race – African American, color- black, and [] sex – male, with the issue being non selection when management:
 Selected a Caucasian female w ith observably/demonstrably less qualifications than [the plaintiff]

 Planned, arranged and execute d with a discriminatory motive to give the same white woman preferential treatme nt by giving a detail (for 12 months) into the position.

 Planned, arranged and executed the sele ction process using an evaluation process with a discriminatory motive thatis subjective in nature to form an otherwise (pretext) defensible legitimate selection process. Pl.’s Opp’n at 6. The pl aintiff asserts that the EEO counselo r’s report reflects that one purpose of the meeting and initial contac t with the EEO counselor was to assert a discrimination claim for the Burrell detail. Id. at 6-7. The defendant, on the other hand, argues that the reference to the Burrell detail in the EEO’s counseling report is nothing more than “background information” that places his allegations regarding the discrimi natory selection of the Health Safety Manager position “in context.” Def.’s Mem. at 8. In ot her words, the defendant argues that the reference to the Burrell detail in the EEO counselor’s summa ry reflects “one of three contributory factors that [the p]laintiff believed led to his non select ion for the Safety Specialist position, and nothing more.” Id. While a plain and isolated reading of the EEO counselor’s descripti on of the plaintiff’s complaint can harbor both interpretations proffere d by the parties, a review of the entire report drafted by the EEO counselor, togeth er with the other documents in the record, leaves the Court16 with the unmistakable impression that the plaintiff failed to pursue a separate claim for discrimination based on the Burre ll detail. In the EEO counselo r’s summary description of the complaint, the plaintiff asserted that “he was not selected for the . . . Safety Specialist” position, even though his qualifications were supe rior to Burrell’s qualifications. Id. , Ex. 7 (EEO Counselor’s Report) at 4. The plaintiff then wenton to state that “he ha[d] twenty-one years in the field of [o]ccupational [s]afety [and h]ealt h, a[n undergraduate] degree in [i]ndustrial [h]ygiene, [and] a [m]asters degr ee in [p]ublic [h]ealth” and th at he had been promoted from positions at the “entry level, to journeyman, to policy,” unlike Burrell, who “does not have a degree, and does not have [twenty-one] years of experience.” Id. , Ex. 7 (EEO Counselor’s Report) at 5. The plaintiff did mention the Burrell detail, but he never asserted that he was more qualified than Burrell for the detail; rather, he simply states that “[t]he detail assignment for the white female was used to give her preferential treatment” for the Safety Specialist position. Id. Thus, when the initial inte rview is considered in context, it is apparent that the plaintiff invoked the Burrell detail only to suggest that it was a pr etext to justify awardi ng the Safety Specialist position to Burrell, and not th at he should have been se lected for the detail. The Court’s conclusion concerning the EEO c ounselor’s summary is further buttressed by the remaining portions of her report, where she memorializes her findings from her informal investigation. For example, th e Selection Official conveyed to the EEO counselor that the plaintiff “did not answer the questions clearly” during his interview for the Safety Specialist position, and that the panel unanim ously agreed that his “intervi ew [did not] go as well as the other candidates.” Id. Moreover, as for the counselor’s own investigativ e efforts, she “developed a graphic comparative analysis . . . fo r the candidates who app lied for the position of Safety Specialist,” and that based on this inform ation, she did not believe that the plaintiff’s non-17 selection was due to discrimination. Id. Nowhere in these summaries, however, is there any mention of the Burrell detail. In sum, there is nothing in the EEO counselor’s report that denotes any communication by the plaintiff that he even complained of be ing passed over for the Burrell detail, let alone that he was discriminated against by not being sele cted for the position. More compelling evidence regarding the plainti ff’s failure to raise a complaint regarding the Burrell detail is actually di sclosed by the events that occu rred after the EEO counselor completed her informal investigation. After receiving the notice of his right to file a formal EEO complaint on October 9, 2003, see id. , Ex. 7 (EEO Counselor’s Report), at 4, the plaintiff filed a formal complaint with the Departme nt of Treasury on October 21, 2003, id. , Ex. 6 (Hamilton EEO Complaint), at 1. In that complaint, the pl aintiff was asked to designate the title and grade of the position he was denied due to unlawful discrimination. Id. In response, the plaintiff does not list the Burrell detai l; rather, the only position he identifies is the Safety Specialist position. In fact, upon receipt of the plaintiff’s formal EEO complaint, the defendant confirmed that “[t]he claim to be investigated is” whether the plaintiff was “discriminated against based on his race . . . , color[,] and/or sex . . . when he was not selected . . . for promotion to the position of Safety and Health Manager.” Id. , Ex. 8 (Dec. 17, 2003 Letter), at 1. The letter does not reference the Burrell detail, and certainly if the plaintiff believed that this claim was inadvertently or inappropriately omitted from the charges he want ed to be investigated, he certainly had the opportunity (and informed responsibility) to apprise the agency of its error. See id. (“If you disagree with the claim, please notify me in writing within [fif teen] days of the date of this letter.”). Accordingly, the plaintiff’s form al complaint, and his subsequent silence upon receiving the confirmation letter, confirms the conc lusion that the plaintiff had no intention at the18 agency stage to pursue a discrimination claim base d on the Burrell detail, and that he did not, in fact, pursue such a claim with the agency. 4 Furthermore, none of the equitable defenses available to a Title VII plaintiff—equitable tolling, estoppel, or waiver—excuse the plaintiff’s failure to exhaust his administrative remedies. To be clear, the doctrines of equitable estoppel or tolling have no application here, as the plaintiff does not seek to toll the limitations period, see Currier v. Radio Free Europe/Radio Liberty, Inc. , 159 F.3d 1363, 1367 (D.C. Cir. 1998) (“Both equitabl e estoppel and equitable tolling operate, in a practical sense, to toll a limitations period.”); i ndeed, he is asserting that his claim regarding the Burrell detail was timely submitted to the EEO counselor, see Pl.’s Opp’n at 6 (asserting that the plaintiff “definitely” and “clearly” submitt ed his claim of discrimination regarding the Burrell detail “in a timely fashion” ). As to whether the need to exhaust was waived, the plaintiff appears to allude to this defense by stat ing the following in his opposition memorandum: Defendant himself asked Plai ntiff twice during discovery , via interrogatories and deposition, whether Plaintiff wished to pursue his discrimination claim on the non-selection for the detail, and he answ ered in the affirmative. (emphasis added). Additionally, Defendant also as ked . . . whether Plaintiff believed he qualified for the detail that Burrell got. If Defendant’s assertion were truly sincer e, then it would not have made the type of inquiries it made of Plai ntiff during discovery. . . . The purpose of discovery is to enable parties to obtain the factua l information needed to prepare their cases for trial. Pl’s Mem. at 7-8 (citation omitted). To the extent that the plaintiff believes that these allegations merit a waiver determination, his is mistaken. Th e waiver doctrine applies where an agency has accepted , investigated , and decided the merits of a plaintiff’s clai m, despite the plaintiff’s failure to strictly comply with all of the administra tive requirements for pursuing a Title VII claim in district court. Bowden , 106 F.3d at 438-39; see also Saltz v. Lehman , 672 F.2d 207, 208 (D.C.

4 Additionally, the record is devoid of any additional documentation establishing that the plaintiff filed a separate EEO formal complaint based on the Burrell detail.19 Cir. 1982). There is nothing in the record to su pport a finding that the defendant accepted this new discrimination claim during di scovery, that it conducted the t ype of internal investigation that is at the heart of the administrative e xhaustion requirement, or th at, more importantly, it issued a decision on the merits of a claim regardi ng the Burrell detail. Simply stated, none of the equitable principles that would excuse the plaint iff’s failure to timely exhaust his administrative remedies as to the Burrell detail have any applicability based on the facts in this case. Thus, the Court must grant summary judgment to the defendant on this claim.
B. Failure to Exhaust Administrative Reme dies for Prohibited Personnel Action Claim With regards to the plaintiff’s claim that th e defendant engaged in a prohibited personnel action in violation of 5 U.S.C. § 2302 when Ms. Burrell received the detail, the Court must turn to provisions of the Civil Service Reform Act, Pub. L. No. 95-454, Stat. 1111 (codified in various sections of Title 5 of the United States Code), which “provides the exclusive set of remedies for claims brought” under Section 2302. SeeHarris v. Bodman , 538 F. Supp. 2d 78, 82 (D.D.C. 2008) (Robertson, J.) (citing Richards v. Kiernan , 461 F.3d 880, 885 (7th Cir. 2006)). As a general matter, a party seeking to challeng e a prohibited personnel ac tion must first present such a claim to the Office of Special Counsel. 5 U.S.C. § 1214 (2006). Here, however, the plaintiff alleges that not only did the defendant engage in di scrimination when Burrell was assigned the detail, but that the defendant engaged in prohibited personnel action when he did so.
See Pl.’s Opp’n at 24 (“In addition to this disc riminatory detail, there is prohibited personnel action.”). Thus, the plaintiff argues that this is a “mixed case” suit involving a discriminatory and non-discriminatory action, and th erefore “this type of case is to be treated as a unit[] and [can] be brought before the . . . [C]ourt.” Pl.’s Opp’n at 24 (c iting Ikossi v. Dep’t of the Navy , 516 F.3d 1037 (D.C. Cir. 2008)).20 The plaintiff is correct that a complainant who pursues a “mixed case” need not first present his claim to the Office of Special Counse l. As the District of Columbia Circuit has recognized, 29 C.F.R. § 1614.302 (2010) allows a complainant to choose between filing a “mixed case complaint” with the EEO office and f iling a “mixed case appeal” directly with the MSPB. Butler v. West , 164 F.3d 634, 638 (D.C. Cir. 1999). Ho wever, a plaintiff must choose one procedural mechanism; recovery unde r both avenues is not available. See 29 C.F.R. § 1614.302 (“An aggrieved person may initially file a mixed case complaint with an agency . . . or an appeal on the same matter with the MSPB . . . but not both.”). Regardless of whether a complainant seeks to solely challenge a prohib ited personnel action before the Office of Special Counsel, or in a “mixed case” before the EEO office or MSPB, one of these administrative remedies must be exhausted before suit can be heard in federal court. See Weaver v. U.S. Info. Agency , 87 F.3d 1429, 1433 (D.C. Cir. 1996) (“Unde r the [Civil Service Reform Act], exhaustion of administrative remedies is a jurisdictional prerequisite to suit.”). Here, there is no evidence that the plaintiff exhausted his administrative remedies before either the EEO office or the MSPB. Indeed, as not ed above, the plaintiff insists that he sought review of his claim regarding the Burrell deta il before the EEO office, and thus, by negative inference, he did not seek a direct “mixed case appeal” with the MSPB. Furthermore, the Court has already concluded that the pl aintiff failed to pursue a claim of discrimination in regards to the Burrell detail in the proceedings before the EEO office, and thus the plaintiff could not be said to have filed a “mixed case” complaint before that office. Based on the record before the Court, the plaintiff’s prohibited personnel action claim must be dismissed due to his failure to seek relief through the appropria te administrative procedures.21 IV. Conclusion “One of the fundamental purposes of any exha ustion requirement is to ensure that the agency has notice of a claim ‘and the opportun ity to handle it inte rnally.’” Pearsall , 610 F. Supp. 2d at 98 (quoting Velikonja , 315 F. Supp. 2d at 74). With regards to the Burrell detail, the plaintiff made no attempt to exhaust any administ rative remedies that were available to him, regardless of whether it was pursu ed under Title VII or the Whistle blower Protection Act. Thus, he deprived the defendant of the opportunity to conduct an internal inves tigation and to possibly resolve this matter informally. By failing to comply with the appropriate administrative procedures before filing suit in this forum, the Court has no choice but to grant summary judgment to the defendant with regards to the Ti tle VII claim, and to dismiss the complaint for lack of subject-matter jurisdiction as to the prohibited personnel action claim. SO ORDERED this 13th day of October, 2010. 5

REGGIE B. WALTON United States District Judge

5 A final order will be issued contemporaneously with th is memorandum opinion (1) denying the defendant’s motion to dismiss the plaintiff’s Title VII claim pursuant to Federal Rule of Civil Procedure 12(b)(1), (2) granting the defendant’s motion to dismiss the plaintiff’s Whistleblow er Protection Act claim pursuant to Rule 12(b)(1), (3) denying the defendant’s motion to dismiss the plaintiff’s Title VII claim pursuant to Federal Rule of Civil Procedure 12(b)(6), (4) denying as moot the defendant’s motion to dismiss the plaintiff’s Whistleblower Protection Act claim pursuant to Rule 12(b)(6), (5) granting the defendant’s mo tion for summary judgment as to the plaintiff’s Title VII claim, (6) denying as moot the defendant’s motion for summary judgment as to the plaintiff’s Whistleblower Protection Act claim, (7) denying as moot both the Plaintiff’s Motion to Strike Pages 13-14 of the Defendant’s Reply to Plaintiff’s Oppositi on to Defendant’s Motion to Dismiss or in the Alternative for Summary Judgment and the Plaintiff’s Supplemental Motion to Strike Pages 14- 16 of Defendant’s Reply to Plaintiff’s Opposition to Defendant’s Motion to Dismiss the Amended Complaint, or in the Alternative, Motion for Summary Judgment, and (8) closing this case.