The opinion of the court was delivered by: Honorable David H. Coar
MEMORANDUM OPINION AND ORDER
Before this Court is Defendant John E. Potter's ("Defendant") Motion to Dismiss Plaintiff Robert C. Kelly's ("Plaintiff") Complaint. Plaintiff filed a Complaint alleging disability discrimination based upon the Rehabilitation Act of 1973, for failure to accommodate Plaintiff's physical needs and denying him benefits under the Family Medical Leave Act (Count I). The Complaint also claims race, religion, and sex discrimination under Title VII of the amended Civil Rights Act of 1964, alleging that the Plaintiff was a victim of disparate treatment in the accommodation of injuries and approval of FMLA benefits (Counts II-IV). Defendant moves to dismiss Plaintiff's complaint. For the reasons stated below, Defendant's motion to dismiss is GRANTED.
Plaintiff Robert Kelly is a former employee of the United States Postal Service ("USPS"). On July 7, 2007, Plaintiff filed a complaint with the Equal Employment Opportunity Commission ("EEOC") after he was denied certification under the Family Medical Leave Act ("FMLA") by Northern Illinois FMLA Coordinator Cora A. Krause. In his charge, he alleged discrimination based on race (African-American), religion (atheist), sex (male), and physical disability (shoulder trauma). When Plaintiff withdrew his request for a hearing before an administrative law judge ("ALJ") on December 6, 2007, his case was remanded to the USPS for a Final Agency Decision. The USPS issued its decision on January 7, 2008, finding that Plaintiff failed to prove that he was subjected to discrimination when denied FMLA coverage. Plaintiff was given 90 days -- until April 7, 2008 -- to file a civil action in the appropriate United States District Court.
On September 15, 2007, while his EEO complaint was still pending, Plaintiff was terminated by the USPS for "Failure to Maintain a Regular Schedule." Plaintiff challenged his termination before the Merit Systems Protection Board (MSPB) as a "mixed case," on the grounds that 1) FMLA certification, which potentially would have protected his absences, had been denied to him on the basis of race discrimination, 2) the USPS discriminated against him by failing to accommodate his disability, and 3) his dismissal was an unreasonably harsh penalty. Nina Puglia, the MSPB Administrative Law Judge ("ALJ"), issued her decision on January 14, 2008 -- a week after the EEOC released its decision -- finding that Defendant had not engaged in the alleged discrimination. The decision became final after February 18, 2008, when the Plaintiff declined to petition for a review before the MSPB. Plaintiff also surrendered his opportunity to obtain further review before the EEOC or a United States District Court by declining to file a petition or civil action before March 18, 2008, within 30 days after the MSPB's decision became final.
On April 3, 2008, Plaintiff filed an action before this Court to receive a trial on the claims in his EEO charge, regarding the pre-termination denial of FMLA benefits. Citing various reasons, including lack of subject matter jurisdiction, Defendant now files a motion to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6).
When seeking to dismiss a claim pursuant to Rule 12(b)(1), a party may engage in either a facial or a factual attack. Hay v. Ind. State Bd. of Tax Comm'rs, 312 F.3d 876, 879 n. 2 (7th Cir. 2002); Freiburger v. Emery Air Charter Inc., 795 F.Supp. 253, 256-57 (N.D. Ill. 1992).
In a facial attack, the movant asserts that "allegations of jurisdiction in the pleadings are facially insufficient to demonstrate the existence of jurisdiction." Freiburger, 795 F.Supp. at 256. The court must take the material allegations of the complaint as true and draw all reasonable inferences in the plaintiff's favor. Lee v. City of Chicago, 330 F.3d 456, 468 (7th Cir. 2003). In a factual attack, the movant challenges the factual existence of subject matter jurisdiction. Freiburger, 795 F.Supp. at 257. The allegations in the complaint do not control in a factual attack; only uncontroverted allegations are accepted as true for the purposes of such a motion. See Commodity Trend Serv., Inc. v. Commodity Futures Trading Comm'n, 149 F.3d 679, 685 (7th Cir. 1998). Moreover, where the parties have submitted evidence beyond the pleadings pertinent to subject matter jurisdiction, a court may properly look beyond the complaint to determine whether subject matter jurisdiction exists. Sapperstein v. Hager, 188 F.3d 852, 855 (7th Cir.1999) (quoting United Transp. Union, 78 F.3d at 1210); see also Hay, 312 F.3d at 879 ("the district court had not only the right, but the duty to look beyond the allegations of the complaint to determine that it had jurisdiction to hear the . . . claim."). Finally, the plaintiff bears the burden of providing "competent proof" that jurisdiction exists. Target Mkt. Publ'g v. Advo, Inc., 136 F.3d 1139, 1142 (7th Cir. 1998).
Although Defendant has not styled his brief to bring a factual attack on Plaintiff's complaint, the Court finds grounds in the attached materials to construe Defendant's motion to dismiss as such and proceeds accordingly.
A. Administrative Procedures
A federal employee presents a "mixed case" when he suffers an adverse personnel action and alleges discrimination in violation of Title VII. The aggrieved party may pursue his claim either by filing a mixed case complaint with his agency's EEOC office or by filing a mixed case appeal directly with the MSPB. 5 C.F.R. § 1614.302(b). The aggrieved party may not, however, do both. Id. Normally, the party's first filing constitutes an election to proceed in that forum. 29 C.F.R. § 1614.302 (b) ("The person shall be advised that he or she may not initially file both a mixed case complaint and an appeal on the same matter and that whichever is filed first shall be considered an election to proceed in that forum.").
If an individual elects to proceed with an appeal to the MSPB, any pending agency complaint raising the same matters shall be dismissed. 29 C.F.R. § 1614.107(a)(4). Alternatively, if 120 days have passed since the filing of the conflicting EEO complaint and the matter remains unresolved, the MSPB may assume jurisdiction pursuant to 5 C.F.R. § 1201.154(b)(2). If the party files an appeal with the MSPB prematurely, the judge may either dismiss the appeal without prejudice to its ...