The opinion of the court was delivered by: Judge Gregory L. Frost
Magistrate Judge Mark R. Abel
This matter is before the Court for consideration of Defendants' Motion to Dismiss (Doc. # 7.) For the reasons that follow, the Court finds the motion to dismiss well taken in regard to the asserted federal claims and declines to exercise jurisdiction over the state law claims.
In her Complaint--the factual contentions of which the Court accepts as true for the present inquiry--Plaintiff, Carolyn Kelly Simpson, states that she was an employee for Defendant, First USA Management. Plaintiff felt that her manager was "showing racial tendencies" and spoke with a human resources manager about the issue in late 2004. Her manager then wrote her up in what she perceives to be retaliation for complaining to human resources.*fn1
Plaintiff filed her pro se Complaint with this Court on April 14, 2006, which broadly construed asserts claims for racial discrimination and retaliation.*fn2 Defendant responded by filing a motion to dismiss (Doc. # 7), to which Plaintiff has not responded. The period for briefing has closed, and the motion is now ripe for disposition.
Defendant moves for dismissal under Federal Rule of Civil Procedure 12(b)(1), which enables a defendant to raise by motion the defense of "lack of jurisdiction over the subject matter." In considering such a motion the court may consider evidence outside the pleadings to resolve factual disputes concerning jurisdiction, and both parties are free to supplement the record by affidavits. However, where a defendant argues that the plaintiff has not alleged sufficient facts in her complaint to create subject matter jurisdiction, the trial court takes the allegations in the complaint as true.
Nichols v. Muskingum College, 318 F.3d 674, 677 (6th Cir. 2003) (citations omitted). A plaintiff bears the burden of proving jurisdiction. Id.; Moir v. Greater Cleveland Reg'l Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990).
Defendant moves to dismiss Plaintiff's race discrimination and retaliation claims on the grounds that, because she failed to exhaust administrative remedies and has not attached a right-to-sue letter to her pleading, she has failed to satisfy a condition precedent to this Court entertaining this action. Circuit precedent dictates that "[t]he exhaustion of administrative remedies is a condition precedent to a Title VII ... action."*fn3 Williams v. Northwest Airlines, Inc., 53 Fed. Appx. 350, 351, 2002 WL 31856089, at *1 (6th Cir. 2002) (citing Zipes v. TWA, 455 U.S. 385, 392-98 (1982) (Title VII); Parry v. Mohawk Motors of Mich., Inc., 236 F.3d 299, 309 (6th Cir.2000) (ADA), cert. denied, 533 U.S. 951 (2001)). See also Marcum v. Oscar Mayer Foods Corp., 46 Fed. Appx. 331, 333, 2002 WL 31074691, at *1 (6th Cir. 2002). The Sixth Circuit Court of Appeals has explained:
To exhaust administrative remedies, a plaintiff must file an EEOC charge within 180 days of the alleged unlawful employment practice or, if the plaintiff has instituted proceedings with a state or local agency, within 300 days. See 42 U.S.C. § 2000e-5(e). Once the EEOC dismisses the charge and issues a right-tosue letter, the plaintiff has 90 days to file a civil action. See 42 U.S.C. § 2000e-5(f)(1).
Williams, 53 Fed. Appx. at 352, 2002 WL 31856089, at *1. See also Marcum, 46 Fed. Appx. at ...