This matter came before the court on August 14, 2009, for hearing of defendant's motion to dismiss plaintiff's complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), the parties having previously consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c). (Doc. Nos. 9 and 10.) Attorney John Bridges appeared at the hearing telephonically on behalf of plaintiff Steven Colmar. Attorney Jill Peterson appeared for defendant Jackson Band of Miwuk Indians. Oral argument was heard and defendant's motion was taken under submission.*fn1 For the reasons set forth below, defendant's motion to dismiss will be denied.
PLAINTIFF'S COMPLAINT AND PROCEDURAL BACKGROUND
In his complaint filed with this court on March 17, 2009, plaintiff alleges as follows. Plaintiff was employed by defendant at Jackson Rancheria Casino, Hotel & Convention Center beginning in June of 2001. In March of 2002, plaintiff was interviewed for and accepted a position in the Human Resources Department. In August of 2007, plaintiff was promoted to Vice President of that department. Prior to becoming the Vice President of Human Resources, plaintiff had completed five years of on-the-job training, had more than thirty years of work experience, and had earned a Bachelor's Degree in Business Administration.*fn2 As Vice President of the Human Resources Department plaintiff performed his job duties in a highly satisfactory manner and never received a negative performance evaluation, nor was he the subject of any disciplinary action. On April 8, 2008, plaintiff turned sixty years old, although plaintiff believes that defendant mistakenly thought that he was younger. On May 23, 2008 defendant terminated plaintiff's employment and soon thereafter replaced him as Vice President with an employee thirty years younger, who had little or no relevant experience and a limited education.
Based on these factual allegations, plaintiff claims that the defendant unlawfully discriminated against him based on his age in violation of 29 U.S.C. §§ 621-634.*fn3 ("Compl." (Doc. No. 1) at 2-5.)*fn4
On May 22, 2009, defendant filed the motion to dismiss now pending before the court. ("MTD" (Doc. No. 8.)) Plaintiff filed an opposition to that motion on June 23, 2009. ("Opp'n." (Doc. No. 13)) Defendant filed a reply on July 2, 2009. ("Reply" (Doc. No. 15.))
Defendant seeks dismissal of plaintiff's complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) on the grounds that this court lacks jurisdiction over the subject matter of this suit and that plaintiff has failed to state a cognizable claim upon which relief can be granted. Specifically, defendant argues this court lacks jurisdiction because plaintiff never filed a charge with either the Equal Employment Opportunity Commission ("EEOC") or the California Department of Fair Employment and Housing ("DFEH") and therefore failed to exhaust his administrative remedies as required. Defendant also contends that because plaintiff failed to exhaust his administrative remedies he cannot state a cognizable claim for relief. (MTD (Doc. No. 8) at 3-7.)
In opposing defendant's motion, plaintiff alleges that he did file a claim of discrimination with the EEOC. In this regard, plaintiff contends that on May 27, 2008, he prepared and sent an intake questionnaire to the EEOC regarding defendant's alleged discrimination against him on the basis of age. He also asserts that during the first week of June 2008, he received a telephone call from an EEOC representative informing him that the EEOC did not have jurisdiction over Indian Tribes, that the EEOC would not be corresponding with plaintiff in light of their lack of jurisdiction over the matter and advising plaintiff that he should consult an attorney. (Opp'n. (Doc. No. 13) at 2.)
In reply, defendant argues that plaintiff's mere submission of an Intake Questionnaire to the EEOC, does not constitute a valid administrative charge of discrimination.
Defendant also argues that because the EEOC determined that it had no jurisdiction, no valid charge could be filed by plaintiff with the EEOC. Defendant asserts that the filing of a valid charge with the EEOC is a statutory prerequisite to plaintiff filing suit under the ADEA. Finally, defendant argues that even if plaintiff's submission of the Intake Questionnaire constituted the filing of a valid EEOC charge, he was obligated to file this lawsuit within ninety days after learning that the EEOC had terminated its proceedings in response to his submission. Accordingly, defendant asserts that this action is time-barred because plaintiff waited nearly 300 days before filing his complaint in this action after being told by the EEOC that they lacked jurisdiction to act. (Reply (Doc. No. 15) at 2-9.)
LEGAL STANDARDS APPLICABLE TO DEFENDANT'S MOTION
Federal Rule of Civil Procedure 12(b)(1) allows a defendant to raise the defense, by motion, that the court lacks jurisdiction over the subject matter of an entire action or of specific claims alleged in the action. "A motion to dismiss for lack of subject matter jurisdiction may either attack the allegations of the complaint or may be made as a 'speaking motion' attacking the existence of subject matter jurisdiction in fact." Thornhill Publ'g Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979).
When a party brings a facial attack to subject matter jurisdiction, the issue is whether the allegations of jurisdiction contained in the complaint are insufficient on their face to demonstrate the existence of jurisdiction. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In a Rule 12(b)(1) motion of this type, the plaintiff is entitled to safeguards similar to those applicable when a Rule 12(b)(6) motion is made. See Sea Vessel Inc. v. Reyes, 23 F.3d 345, 347 (11th Cir. 1994); Osborn v. United States, 918 F.2d 724, 729 n. 6 (8th Cir. 1990). The factual allegations of the complaint are presumed to be true, and the motion is granted only if the plaintiff fails to allege an element necessary for subject matter jurisdiction. Savage v. Glendale Union High Sch. Dist. No. 205, 343 F.3d 1036, 1039 n. 1 (9th Cir. 2003), Miranda v. Reno, 238 F.3d 1156, 1157 n. 1 (9th Cir. 2001). Nonetheless, district courts "may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment" when resolving a facial attack. Safe Air for Everyone, 373 F.3d at 1039.
Alternatively, when a Rule 12(b)(1) motion attacks the existence of subject matter jurisdiction in fact, no presumption of truthfulness attaches to the plaintiff's allegations. Safe Air for Everyone, 373 F.3d at 1039; Thornhill Publ'g Co., 594 F.2d at 733. Under such a factual attack, the "dispute [concerns] the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction." Safe Air for Everyone, 373 F.3d at 1039. In the case of such a factual attach, "the district court is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction." McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). When deciding a factual challenge to subject matter jurisdiction, the court may only rely on facts that are not intertwined with the merits of the action. Safe Air for Everyone, ...