The opinion of the court was delivered by: Robert H. Cleland United States District Judge
OPINION AND ORDER DENYING DEFENDANT'S MOTION TO DISMISS, ALLOWING PLAINTIFF TO FILE HIS AMENDED COMPLAINT, AND SETTING DEADLINE TO FILE ANSWER
In this civil-rights action brought under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, Plaintiff asserts that Defendant Michigan Department of Human Services ("DHS") discriminated against him because his race. Plaintiff, an African American, worked for Defendant as a Fire and Safety Officer, but was laid off in May 2008. Plaintiff claims that, as a result of racial discrimination, Defendant removed him from a state-wide recall list, that similarly situated white males were not removed from the state-wide recall list, that two white males with less seniority were allowed to apply for job openings before Plaintiff, and that two new white males were offered jobs before Plaintiff. Before the court is Defendant's motion to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). For the reasons stated below, the court will deny Defendant's motion.
Plaintiff was employed by Defendant as a Fire and Safety Officer beginning in February 2001. (Compl. ¶7.) In May 2009, Plaintiff was laid off from his position due to downsizing. (Compl. ¶10.) On June 12, 2009, Plaintiff completed a Recall Preference Form indicating his location preferences if any job opportunities should become available. (Compl. ¶¶11-12.) Plaintiff asserts that he indicated a preference for any job opportunities within the state of Michigan. (Compl. ¶12.) Defendant asserts, to the contrary, that Plaintiff indicated only certain counties within the state in which he preferred to work and that Defendant acknowledged this preference in a letter dated July 1, 2008. (Mot. Br. at 1; Ex. B.) Plaintiff argues that there is no evidence that he received the July 1, 2008 letter, (Resp. Br. at 4-5.), and that even if he had, the letter indicates an acknowledgment of his preferences, not a removal from the state-wide recall list. (Compl. ¶¶13-15.)
Plaintiff asserts that he first discovered his removal from the state-wide recall list on February 18, 2009, when he learned that two while males with less seniority were allowed to apply for open positions with Defendant. (Compl. ¶¶15-19.) Plaintiff also claims that no other person's state-wide recall preference had been removed in the same manner. (Compl. ¶¶15-17.)
On June 22, 2009, Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC"). (Pl.'s Ex. 1.) In a letter dated August 27, 2009, Plaintiff was notified that the EEOC would not be taking any further action and that he had the right to file a civil action. (Pl.'s Ex. 2.) The letter indicated that Plaintiff had ninety days from his receipt of the letter to file his complaint. (Id.) Plaintiff filed his complaint in this case on November 29, 2009.
Defendant brings its Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). Rule 12(b)(1) allows dismissal for "lack of jurisdiction over the subject matter," while Rule 12(b)(6) addresses the failure to state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(1), (b)(6). When a defendant moves for a motion to dismiss under both Rule 12(b)(1) and (b)(6), the court should consider the 12(b)(1) motion first because the 12(b)(6) motion is moot if subject matter jurisdiction does not exist. Moir v. Greater Cleveland Reg'l Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990).
When ruling on a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must construe the complaint in a light most favorable to the plaintiff and accept all the factual allegations as true. Evans-Marshall v. Board of Educ., 428 F.3d 223, 228 (6th Cir. 2005); Rossborough Mfg. Co. v. Trimble, 301 F.3d 482, 489 (6th Cir. 2002). In doing so, "the court must draw all reasonable inferences in favor of the plaintiff." Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007). Yet, the court "need not accept as true legal conclusions or unwarranted factual inferences." Gregory v. Shelby County, 220 F.3d 433, 466 (6th Cir. 2000).
Though decidedly generous, this standard of review does require more than the bare assertion of legal conclusions. Lillard v. Shelby County Bd. of Educ., 76 F.3d 716, 726 (6th Cir. 1996).
[A] plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements will not do. Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the complaint's allegations are true.
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted). Further, the complaint must "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957) (abrogated on different grounds by Twombly, 550 U.S. 544). In application, a "complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory." Lillard, 76 F.3d at 726 (citation omitted). A court cannot grant a motion to dismiss under Rule 12(b)(6) based upon its disbelief of a complaint's factual allegations. Wright v. MetroHealth Med. Ctr., 58 F.3d 1130, 1138 (6th Cir. 1995).
A. Rule 12(b)(1)--Failure to Bring a Timely Charge
Federal Rule of Civil Procedure 12(b)(1) allows for motions asserting lack of jurisdiction of the subject matter. Fed. R. Civ. P. 12(b)(1). Where a Rule 12(b)(1) motion contains a factual attack, the court need not construe the allegations in the non-moving party's favor because the burden of proving jurisdiction is on the party asserting it. Moreover, it is recognized that a party faced with a Rule 12(b)(1) motion to dismiss may not rest on the truth of the facts asserted in its pleadings. See Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990) ("[W]hen a court reviews a complaint under a factual attack [on jurisdiction], . . . no presumptive truthfulness applies to the factual allegations."); Exchange ...