MEMORANDUM AND ORDER
ERIC F. MELGREN, District Judge.
Plaintiff Donald Culbertson ("Culbertson"), a former employee of the United States Penitentiary ("USP") in Leavenworth, Kansas, brings claims for disability discrimination pursuant to the Americans with Disabilities Act of 1990 ("ADA") and the Rehabilitation Act of 1973. Culbertson also asserts a claim for retaliatory discrimination pursuant to Title VII of the Civil Rights Act of 1974. Defendant United States Attorney General Eric H. Holder now moves to dismiss certain discrimination claims and all retaliatory discrimination claims for lack of subject matter jurisdiction because Culbertson failed to exhaust his administrative remedies. Defendant also moves for summary judgment on Culbertson's exhausted discrimination claim. For the reasons stated below, the Court grants Defendant's motion to dismiss all of Culbertson's unexhausted discrimination and retaliation claims. Additionally, the Court grants Defendant's motion for summary judgment on Culbertson's remaining exhausted discrimination claim.
I. Factual and Procedural Background
Culbertson was born with atrophy on the right side of his body, which restricts the total movement of his right leg and makes it difficult for him to grip with his right hand. From 1989 to 2010, Culbertson worked as a WS-8 Maintenance Mechanic Foreman Supervisor at USP Leavenworth in Leavenworth, Kansas. Culbertson also served a brief term as the Acting General Foreman from October 2009 through January 2010 and received an "Outstanding" evaluation during that period. On occasion, Culbertson also filled in as Acting General Foreman on a temporary basis throughout his career.
In June 2010, a federal employment website, USAJOBS.com, posted the position of General Foreman at USP Leavenworth. Culbertson applied for this position and was placed on a list of nine "Best Qualified" applicants. Scott Whitson, Facilities Administrator for the North Central Region in Kansas City, Missouri, received the list of nine "Best Qualified" applicants. Whitson was Culbertson's supervisor at USP Leavenworth from 1994 through 2000 and described Culbertson as a "very good worker." Whitson recommended three applicants to Mike Nalley, Regional Director of the North Central Region, who acted as the selecting official. Culbertson was not among the three applicants recommended to Nalley.
Culbertson alleges that his experience as Maintenance Mechanic Foreman Supervisor and Acting General Foreman made him more qualified than the successful applicant for the position of General Foreman. According to Culbertson, Whitson and Nalley refused to promote him due to his disability. But Defendant asserts that Nalley did not know Culbertson and had no knowledge of his disability. Additionally, Whitson provided sworn testimony that he did not consider Culbertson's disability when he chose not to recommend him for the General Foreman position.
When his application for the General Foreman position was denied, Culbertson filed an EEOC complaint, alleging that he had been discriminated against because of his disability. Following an investigation and hearing regarding Culbertson's 2010 disability discrimination claim, the EEOC rendered a final decision in Defendant's favor and issued Culbertson the right to bring a civil lawsuit. Culbertson subsequently filed a two-count complaint in this Court. In his first count, Culbertson alleges that Defendant discriminated against him by permitting discriminatory conduct during a new-employee training course in 1989, subjecting him to disparaging comments made by co-workers and supervisors, and refusing to hire him for the position of General Foreman in 1990, 1993, 1994, 1998, 2000, 2003, and 2010. In his second count, Culberson alleges that Defendant refused to promote him in retaliation for filing an EEOC complaint in 1998. In response to Defendant's dispositive motions, Culbertson also mentions "glass ceiling" or hostile work environment claims not asserted in his EEOC charge or complaint to this Court. Defendant now seeks to dismiss all but Culbertson's 2010 discrimination claim for failure to exhaust administrative remedies and requests summary judgment on that remaining claim.
II. Legal Standards
A. Rule 12(b)(1) Motion to Dismiss for lack of Subject Matter Jurisdiction
Federal courts are courts of limited jurisdiction. Under Title VII, the ADA, and the Rehabilitation Act, a plaintiff must exhaust administrative remedies before filing suit. "In the Tenth Circuit, exhaustion of administrative remedies is a jurisdictional prerequisite to suit." Thus, a district court must dismiss unexhausted claims for lack of subject matter jurisdiction.
B. Summary Judgment
Summary judgment is appropriate if the moving party demonstrates that there is no genuine issue as to any material fact, and the movant is entitled to judgment as a matter of law. A fact is "material" when it is essential to the claim, and issues of fact are "genuine" if the proffered evidence permits a reasonable jury to decide the issue in either party's favor. The movant bears the initial burden of proof, and must show the lack of evidence on an essential element of the claim. The nonmovant must then bring forth specific facts showing a genuine issue for trial. These facts must be clearly identified through affidavits, deposition transcripts, or incorporated exhibits-conclusory allegations alone cannot survive a motion for summary judgment. The court views all evidence and reasonable inferences in the light most favorable to the party opposing summary judgment.
A. Defendant's Motion to Dismiss for Failure to Exhaust ...