FELECIA L. RINGGOLD
JANET NAPOLITANO, SECRETARY, U.S. DEPARTMENT OF HOMELAND SECURITY
CATHERINE C. BLAKE, District Judge.
Plaintiff Felecia L. Ringgold brings this suit against defendant Janet Napolitano, Secretary of the U.S. Department of Homeland Security, for alleged disability discrimination by her former employer, the Transportation Security Administration ("TSA"). Napolitano now moves to dismiss or, in the alternative, for summary judgment. (ECF No. 7.) Ringgold moves for leave to proceed in forma pauperis. (ECF No. 2.) The court finds oral argument unnecessary to resolve the issues. See Local R. 105.6 (D. Md. 2011). For the reasons set forth below, the court will grant Napolitano's motion to dismiss or for summary judgment. The court also will grant Ringgold's motion to proceed in forma pauperis.
Ringgold appears to have brought this action under the Rehabilitation Act, 29 U.S.C. § 791 et seq., and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. She alleges she was "injured on the job while working" as a Transportation Security Officer ("TSO") at Baltimore Washington International Airport. (ECF No. 1 at 1.) According to Ringgold, she sustained an injury to the rotator cuff in her shoulder. (ECF No. 7, Ex. 2 at 1.) Ringgold argues that her former employer, the TSA, discriminated against her by forcing her to return to work before the rotator-cuff injury had fully healed, resisting her efforts to process a claim for injury, impeding her efforts to file a complaint for assault by a coworker, and attempting to damage her credibility. (ECF No. 7, Ex. 1 at 2; ECF No. 7, Ex. 7 at 1.)
Ringgold first complained of mistreatment by the TSA on December 23, 2008. (ECF No. 7, Ex. 1.) On that day, she contacted an Equal Employment Opportunity ("EEO") counselor, alleged discrimination based on disability, and requested compensatory damages. ( Id. ) No resolution was reached after Ringgold's contact with the EEO counselor, and on July 28, 2009, the EEO counselor mailed Ringgold a notice of right to file a formal complaint of discrimination. (ECF No. 7, Ex. 2.) The notice indicated Ringgold had "15 calendar days [from] receipt of this notice" to file a formal EEO complaint. ( Id. )
Ringgold received the notice on August 6, 2009 (ECF No. 7, Ex. 3), but she did not file a formal EEO complaint until June 18, 2010. As a result, on November 2, 2010, the Department of Homeland Security dismissed Ringgold's complaint as untimely. (ECF No. 7, Ex. 6.)
Ringgold appealed the decision, and on April 25, 2012, the Office of Federal Operations affirmed the dismissal of Ringgold's untimely complaint. (ECF No. 7, Ex. 7.) Ringgold's request for reconsideration was then denied on October 18, 2012. (ECF No, 7, Ex. 8.)
On January 18, 2013, Ringgold filed a pro se complaint in this court. (ECF No. 1.)
a. Motion to Dismiss for Failure to State a Claim
When ruling on a motion under Rule 12(b)(6), the court must "accept the well-pled allegations of the complaint as true, " and "construe the facts and reasonable inferences derived therefrom in the light most favorable to the plaintiff." Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997). "Even though the requirements for pleading a proper complaint are substantially aimed at assuring that the defendant be given adequate notice of the nature of a claim being made against him, they also provide criteria for defining issues for trial and for early disposition of inappropriate complaints." Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). "The mere recital of elements of a cause of action, supported only by conclusory statements, is not sufficient to survive a motion made pursuant to Rule 12(b)(6)." Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). To survive a motion to dismiss, the factual allegations of a complaint "must be enough to raise a right to relief above the speculative level... on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations and alterations omitted). "To satisfy this standard, a plaintiff need not forecast' evidence sufficient to prove the elements of the claim.... However, the complaint must allege sufficient facts to establish those elements." Walters, 684 F.3d at 439 (quotations and citation omitted). "Thus, while a plaintiff does not need to demonstrate in a complaint that the right to relief is probable, ' the complaint must advance the plaintiff's claim across the line from conceivable to plausible.'" Id. (quoting Twombly, 550 U.S. at 570).
b. Motion to Dismiss for Failure to Exhaust
Motions to dismiss for failure to exhaust administrative remedies are treated as motions to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1). Khoury v. Meserve, 268 F.Supp.2d 600, 606 (D. Md. 2003), aff'd, 85 Fed.App'x 960 (4th Cir. 2004); see also Jones v. Calvert Group, Ltd., 551 F.3d 297, 300 (4th Cir. 2009) ("[A] failure by the plaintiff to exhaust administrative remedies concerning a Title VII claim deprives the federal courts of subject matter jurisdiction over the claim."). A motion pursuant to Federal Rule of Civil Procedure 12(b)(1) should be granted "only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law." Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999); see also United States ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 347-48 (4th Cir. 2009). The plaintiff bears the burden of proving that subject matter jurisdiction exists. Piney Run Preservation Ass'n v. Cnty. Comm'rs of Carroll Cnty., Md., 523 F.3d 453, 459 (4th Cir. 2008). Moreover, "[w]hen a defendant challenges subject matter jurisdiction via a Rule 12(b)(1) ...