MEMORANDUM OPINION AND ORDER
Plaintiff Willie Stewart (“Mr. Stewart”) brings this action against Jeh Johnson, Secretary of the United States Department of Homeland Security (“DHS”),
I. BACKGROUND
When considering a motion to dismiss, the court accepts as true the allegations in the complaint and views the complaint in the light most favorable to the plaintiff. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993). The facts viewed in the light most favorable to Mr. Stewart are as follows: On or about August 3, 2002, Mr. Stewart, an African-American citizen of Durham, North Carolina, began working at the Transportation Security Administration (“TSA”), an agency within DHS, as a Supervisory Transportation Security Screener. (ECF No. 1 ¶¶ 33-34.) In January of 2003, Mr. Stewart applied for an open position at TSA as a Transportation Security Screening Manager. (Id. ¶ 35.) Although Mr. Stewart thought that he was the best candidate for the manager position, he was notified by TSA on February 18, 2003, that he was not selected for the position. (Id. ¶¶ 35-36, 40.) “Mr. Stewart was convinced he was not selected due to his race.” (Id. ¶ 36.) He therefore filed a formal complaint on April 9, 2003. (Id. ¶ 40.) On January 7, 2004, Mr. Stewart received notice of a proposed demotion because of “lack of candor.”
In March of 2005, DHS issued its Final Agency Decision on Mr. Stewart’s Complaint, finding that Mr. Stewart had failed to prove discrimination. (See id. ¶¶20, 21.) Mr. Stewart appealed this decision to the Equal Employment Opportunity Commission’s (“EEOC”) Office of Federal Operations (“OFO”). (Id. ¶22.) After initially affirming DHS’s decision, OFO reconsidered its decision at Mr. Stewart’s request. (Id. ¶¶ 23-25.) On November 14, 2011, OFO overruled its earlier deci
On May 17, 2013, DHS issued its Final Agency Decision, specifically related to the issue of compensatory damages. (ECF No. 1 ¶ 30; ECF No. 6-1 at 8.) DHS emailed this Final Agency Decision to Mr. Stewart and his attorney on May 22, 2013.
On June 28, 2013, DHS mailed to Mr. Stewart’s attorney its Final Agency Decision that had previously been emailed to Mr. Stewart and his attorney on May 22, 2013.
II. DISCUSSION
A. Rule 12(b)(6) Standard
The purpose of a motion made under Rule 12(b)(6) of the Federal Rules of Civil Procedure “is to test the sufficiency of a complaint.” Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir.1999). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted'as true, to ‘state a claim to relief that is plausible on its face.’ ” Ash
The, Court notes that both Mr. Stewart and DHS have attached documents to their briefing related to the ■ procedural background of Mr. Stewart’s claims in’ the administrative process. In particular, DHS has attached (1) the May 17, 2013, Final Agency Decision (ECF No. 6-1); (2) the May 22, 2013, email DHS sent to Mr. Stewart and his attorney that contained the May 17, 2013,- Final Agency Decision (ECF No. 6-2); (3) the June 4, 2013, Decision on a Petition for Clarification (ECF No. 6-3); (4) the June 28, 2013, letter from DHS containing the May 17, 2013, decision that DHS. previously transmitted to Mr. Stewart and his attorney (ECF No. 6-4); and (5) the January 4, 2012, letter from OFO containing the November 14, 2011, decision that OFO reissued due to a clerical error (ECF No. 12-1). Mr. Stewart has attached (1) email correspondence between his attorney and TSA regarding OFO’s issuance of the January 4, 2012, decision (ECF No, 11-1); (2) TSA’s Petition for Clarification of Remedial Order (ECF No. 11-2); and (3) OFO’s November 14, 2011, decision finding. discrimination (ECF No. 11-3).
Mr. Stewart’s exhibit containing email correspondence (ECF No. 11-1) appears related to his argument on equitable tolling of the 90-day window as discussed below. Similarly, DHS’s email exhibit containing the May 17, 2013, Final Agency Decision referenced in the Complaint is related to whether Mr. Stewart timely filed this action. (See ECF No. 6-2). These exhibits are central to Mr. Stewart’s Title VII claims since notice of a final agency decision starts the 90-day window. See Nguyen v. Inova Alexandria Hosp., No. 982215, 1999 WL 556446, at *2, *3 (4th Cir. July 30, 1999). Because neithér party has objected to these exhibits or disputed their authenticity, this Court may consider them along, with the other exhibits referenced in the Complaint without converting the motion to dismiss into a motion for summary judgment.
DHS first moves to dismiss Mr. Stewart’s first and second causes of action on the grounds that federal employees cannot bring an action under Section 1981 of the Civil Rights Act of 1866. Mr. Stewart concedes that the discrimination claim in his first cause of action cannot be brought under Section 1981; however, he argues that the retaliation claim asserted in his second cause of action can proceed because Section 1981 “is silent on the issue of nóndiscriminatory retaliation.” (ECF No. 11 at 5-6.) Mr. Stewart does not cite any cases to support his argument.
Contrary, to Mr. Stewart’s argument, it is well established that “Congress made Title VII the exclusive remedy for federal employment discrimination and retaliation claims, preempting Section 1981 and other remedies.” Olatunji v. District of Columbia, 958 F.Supp.2d 27, 32 (D.D.C.2013) (emphasis added) (citing Brown v. Gen. Servs. Admin., 425 U.S. 820, 828-29, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976)); see Middlebrooks v. Leavitt, 525 F.3d 341, 349 (4th Cir.2008) (explaining that Section 1981 of. the Civil Rights Act of 1886- does not “provide a remedy against federal officials”). Accordingly, the Court dismisses Mr. Stewart’s first and second causes of action asserted under Section 1981.
C. Title VII Claims
DHS also moves to dismiss the Title VII claims in Mr. Stewart’s third and fourth causes of action, contending that Mr. Stewart failed 'to file this lawsuit within 90 days of receipt of the Final Agency Decision.
Title VII provides that “[w]ithin 90 days of receipt of. notice of final action taken by a department, agency, ... or by the Equal Employment Opportunity Commission ... an employee ... may file a civil action.” 42 U.S.C. § 2000e-16(c). “The failure to file a complaint in the district court within ninety days of the issuance of a right-to-sue notice is not a jurisdictional defect but rather .a condition precedent appropriately raised as an affirmative defense.” Makabin v. G4S Secure Sols. (USA), Inc., No. 3:10-CV-00441-FDW-DCK, 2011 WL 900155, at *5 (W.D.N.C. Mar. 11, 2011). Ordinarily, an affirmative defense, such as a statute of limitations defense, cannot be raised in a Rule 12(b)(6) motion. Darden v. Cardinal Travel Ctr., 493 F.Supp.2d 773, 775 (W.D.Va.2007) (“Typically, affirmative defenses,- such as a limitations bar, may not be raised in a Rule 12(b)(6) motion because it is intended merely -to test the legal adequacy of the complaint.” (citing Brooks v. City of Winston-Salem, 85 F.3d 178, 181 (4th Cir.1996))). “However, a defense of the statute of limitations may be raised in a Rule 12(b)(6) motion where that defense appears clearly on the face of the complaint.” Id. ’(citing Richmond, Fredericksburg & Potomac R.R. Co. v. Forst, 4 F.3d 244, 250 (4th Cir.1993)). Although the Fourth Circuit has not decided which party bears the burden of establishing timeliness in- Title VII cases, courts within the Fourth Circuit have held that when a defendant challenges the timeliness of a Title VII action, the burden is on the plaintiff to demonstrate that his suit is timely. See Darden, 493 F.Supp.2d at 776; see, e.g., Cepada v. Bd. of Educ. of Balt. Cty., No. WDQ-10-0537, 2010 WL 3824221, at *3 (D.Md. Sept. 27, 2010); Ashby v. Eckerd Pharmacy/Brooks Pharmacy, LLC, No. 3:05cv475, 2007 WL 3224761, at *1 (W.D.N.C. Oct. 29, 2007); see also Green v. Union Foundry Co., 281 F.3d 1229, 1234 (11th Cir.2002).
Here, it is undisputed that Mr. Stewart and his attorney received notice of DHS’s Final Agency Decision on May 22, 2013, via email. Within fifteen minutes,
The fact that the May 17, 2013, decision was received by Mr. Stewart’s attorney through the mail on June 28, 2013, does not change the date the 90-day window started — May 22, 2013 — the date that both Mr. Stewart and his attorney received notice of the Final Agency Decision via email.
It is arguable that OFO’s June 4, 2013, decision on TSA’s Petition for Clarification was the final agency action for purposes of the commencement of the 90-day window. The certificate of mailing at the end of the decision states, “I certify that this decision was mailed to the following recipients on the date below.” (ECF No. 6-3 at 7.) Mr. Stewart is listed as one of the recipients, although his attorney is not listed. (Id.) The date noted on the decision is June 4, 2013. (Id.) Although Mr. Stewart’s Complaint states that OFO issued this decision on June 4, 2013, the Complaint does not provide any details related to the date Mr. Stewart received notice of this decision. Nor does Mr. Stewart make any argument concerning
Further, recognizing the untimeliness of this action, Mr. Stewart argues that DHS is not before the Court with clean hands. (ECF No. 11 at 7.) Mr. Stewart appears to advance an equitable tolling argument by claiming that DHS wrongfully delayed the administrative process in January and February of 2012. (Id.) Although equitable tolling is an appropriate remedy in cases where a claimant “has been induced or tricked by his adversary’s misconduct into allowing the filing deadline to pass,” Gayle v. United Parcel Serv., Inc., 401 F.3d 222, 226 (4th Cir.2005) (quoting Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990)), the Court is unable to grasp how events that occurred in early 2012 had any impact on Mr. Stewart’s ability to file a timely lawsuit in 2013. Nor has Mr. Stewart shown that “extraordinary circumstances beyond [his] control made it impossible to file the claims on time.” Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir.2000).
Finally, in his briefing, Mr. Stewart suggests that his Complaint includes a claim for constructive discharge that is not subject to dismissal. (See ECF No. 11 at 9 (“The elements of constructive discharge were alleged in the complaint as is the current state of the Fourth Circuit Opinion.”).) “It is well-established that parties cannot amend their complaints through briefing ....” S. Walk at Broadlands Homeowner’s Ass’n, Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 175, 184 (4th Cir.2013). For that reason alone, Mr. Stewart has failed to allege constructive discharge.
Even if, for the sake of argument, Mr. Stewart’s Complaint can be read to include a claim for constructive discharge under Title VII, that claim, like the rest of his Title VII claims, is time-barred for the reasons outlined above. Moreover, Mr. Stewart did not raise a constructive discharge claim during the administrative process, (see ECF No. 6-3 at 3), precluding review in this Court for lack of federal subject matter jurisdiction. Jones v. Calvert Grp., 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.”).
ORDER
' IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss (ECF No. 5) is GRANTED and that Plaintiffs claims are DISMISSED WITH PREJUDICE. A judgment dismissing this action will be entered contemporaneously with this Order.
. In the Complaint, Mr. Stewart named Janet Napolitano as the Defendant in this case. Jeh Johnson has since replaced Ms. Napolitano as Secretary of DHS. Under Rule 25(d) of the Federal Rules of Civil Procedure, Mr. Johnson is automatically substituted as the defendant in this action.
. At other places in his Complaint, Mr. Stewart alleges that he was demoted. (See ECF No. 1 ¶ 37.)
. OFO reissued this decision on January 4, 2012, “because of a clerical error in the original decision.” (ECF No. 1 ¶ 26.)
. The email from DHS is addressed to Mr. Stewart, but it does not show the email’s recipients. (See ECF No. 6-2.) However, Mr. Stewart's attorney responded to the email and copied Mr. Stewart. •
. On May 21, 2013, the Final Agency Decision ofDHS was mailed to Mr. Stewart's attorney and was returned to .DHS as "insufficient address,, unable to forward" on June 10, 2013. (ECF No. 6-4.) After receiving the correct address from TSA, DHS resent the Final Agency Decision via certified mail on June 28, 2013. (Id.) At all times relevant here, DHS is referencing the Final Agency Decision dated May 17, 2013, that it also sent via email to Mr. Stewart and his attorney on May 22, 2013.
.Mr. Stewart references the June 28, 2013, mailing in his Complaint but does not make clear that it was merely a mailing of the May 17, 2013, Final Agency Decision that had been previously emailed to him and his attorney on May 22, 2013. (See ECF No. 1 ¶ 31.)
. Rule 6(e) of the Federal Rules of Civil Procedure is now Rule 6(d) due to amendment.
. Similarly, the Court is not persuaded by Mr. Stewart’s argument that, since the certificate of service related to the June 28, 2013, mailing of the Final Agency Decision did not mention notice that the decision had been emailed to Mr. Stewart and his counsel on May 22, 2013, the Court should only consider the service acknowledged by mail on June 28, 2013. (See ECF No. 11 at 8.) Notice of the final agency action, which Mr. Stewart's attorney acknowledged on May 22, 2013, via email, is all that is required to trigger the 90-day window.
. In the Complaint, Mr. Stewart states, "On May 17, 2013, CRCL issued its Final Agency Decision.” (ECF No. 1 ¶ 30.) He then goes on to state, "On June 28, 2013, the Department of Homeland Security and through TSA issued a notice of the Final Agency Action, which was received on July 2, 2013.” (Id. ¶31.) The Court rejects Mr. Stewart’s attempt at characterizing the June 28, 2013, notice received by mail as something different than what was received on May 22, 2013, via email. Mr. Stewart's claims would likewise be untimely if his attorney received the June 28, 2013, decision on July 2, 2013.
. Other circumstances where equitable tolling may be appropriate include when "(1) the claimant received inadequate notice, (2) a motion for appointment of counsel was pending, [and] (3) the court led the plaintiff to believe that he had completed all the necessary requirements.” Thompson v. Potter, No. 1:03CV00593, 2004 WL 725629, at *1 (M.D.N.C. Mar. 31, 2004). None of these circumstances are present in this case to justify equitable tolling of the 90-day window.