The opinion of the court was delivered by: Magistrate Judge Norah McCann King
This is an employment action brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), in which plaintiff alleges that he was discriminated against on account of his race, sex and age and retaliated against for his protected activities when he was denied permission to telecommute, a decision that allegedly eventually forced plaintiff to retire earlier then he had intended and to declare bankruptcy. With the consent of the parties, 28 U.S.C. § 636©), this matter is before the Court on Defendants' Motion to Dismiss, Doc. No. 22. For the reasons that follow, defendants' motion is GRANTED in part and DENIED in part.
Plaintiff was employed by the United States Marshal Service ("USMS") until January 2004 when plaintiff alleges he was forced to retire. Complaint p. 2, ¶ 7. Plaintiff filed this action on June 7, 2005.
On January 12, 2006, following a preliminary pretrial conference, defendants were granted until March 31, 2006, to contest the subject matter jurisdiction of this Court. Doc. No. 21. On March 31, 2006, defendants filed Defendants' Motion to Dismiss, Doc. No. 22, arguing that this Court lacks subject matter jurisdiction because plaintiff's Complaint alleges claims that fall outside the scope of the charge filed by plaintiff with the Equal Employment Opportunity Commission ("EEOC") and, therefore, the claims asserted in this action are unexhausted. On April 25, 2006, plaintiff filed his memorandum contra Defendants' Motion to Dismiss ("Plaintiff's Memorandum Contra"), Doc. No. 23, and on April 27, 2006, defendants filed their reply in support of their motion to dismiss ("Defendants' Reply"), Doc. No. 24.
A. Dismissal Pursuant Fed. R. Civ. P. 12(b)(1) and Fed. R. Civ. P. 12(b)(6)
Defendants move to dismiss for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) and for failure to state a claim upon which relief can be granted under Fed. R. Civ. P. 12(b)(6) by reason of plaintiff's alleged failure to exhaust six of the claims he presents in the Complaint.
With a motion to dismiss pursuant to Rule 12(b)(1), the moving party is challenging the court's subject matter jurisdiction. The plaintiff bears the burden of establishing, by a preponderance of the evidence, the existence of federal subject matter jurisdiction. McNutt v. General Motors Acceptance Corp. of Indiana, 298 U.S. 178, 189 (1936); Rogers v. Stratton Indus., Inc., 798 F.2d 913, 915 (6th Cir. 1986). When the party asserting federal jurisdiction finds its allegations challenged, it must submit evidence substantiating its claims. Amen v. City of Dearborn, 532 F.2d 554, 560 (6th Cir. 1976). The district court has "wide discretion to allow affidavits, documents and even a limited evidentiary hearing to resolve disputed jurisdictional facts." Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990) (citations omitted). The court may consider such evidence without turning the motion into one for summary judgment. Id. Ferrero v. Henderson, 244 F. Supp.2d 821, 826 (S.D. Ohio 2002) (J. Rice). Additionally,
[w]here the court elects to decide the jurisdictional issue on the written materials submitted, the plaintiff is required only to make a prima facie case of jurisdiction. Armbruster v. Quinn, 711 F.2d 1332, 1335 (6th Cir. 1983) [overruled in non-relevant part in Arbaugh v. Y&H Corp., 126 S.Ct. 1235, 1242 (2006)]. In other words, she must only "demonstrate facts which support a finding of jurisdiction in order to avoid a motion to dismiss." Id. (citations omitted). The Court must consider the pleadings and affidavits in the light most favorable to the plaintiff. Id.
When a court considers a motion to dismiss under Rule 12(b)(6), the complaint must be construed in the light most favorable to the plaintiff, and all well-pleaded facts must be accepted as true. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Bower v. Federal Express Corp., 96 F.3d 200, 203 (6th Cir. 1996); Misch v. The Cmty. Mutual Ins. Co., 896 F. Supp. 734, 738 (S.D. Ohio 1994). A claim will be dismissed if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
In this case, plaintiff is proceeding without the assistance of counsel. A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than are formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21(1972); see also Estelle v. Gamble, 429 U.S. 97, 106 (1976). A court should make a reasonable attempt to read the pleadings of a pro se litigant to state a valid claim on which the plaintiff could prevail, despite any failure to cite proper legal authority, confusion of various legal theories, poor syntax and sentence construction, or unfamiliarity with pleading requirements. Ashiegbu v. Purviance, 74 F. Supp.2d 740, 749 (S.D. Ohio 1998) (J. Kinneary) (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). "This standard does not mean, however, that pro se plaintiffs are entitled to ...