MEMORANDUM OPINION AND ORDER
HOLWELL, District Judge.
This action arises out of plaintiffs former employment as a geriatric dentist at the Veteran Affairs Medical Center in Bronx, New York. Dr. Nghiem's employment was terminated in 1993. Named as defendants in this action are the United States Department of Veterans Affairs ("VA"), an agency of the federal government of the United States, and four of plaintiffs individual supervisors in their official and individual capacities. In her complaint, plaintiff alleges the following nine causes of action: (1) racial and ethnic discrimination in the termination of her employment in violation of the Civil Rights Act of 1866, 42 U.S.C. § 1981, (2) violation of property and liberty rights without due process under the Civil Rights Act of 1871, 42 U.S.C. § 1983, (3) common law defamation per se, (4) common law self-publication defamation, (5) intentional infliction of emotional distress, (6) tortious interference with employment and prospective business relationships, (7) malicious prosecution, (8) abuse of process, and (9) violation of section 296 of New York State Human Rights Law, N.Y. Exec. Law § 296 (McKinney 2005). Plaintiff does not identify as a separate cause of action any claim under Title VII, but makes reference to violations under the Civil Rights Act of 1991, 42 U.S.C. § 2000e in her complaint. (Compl. ¶ 1.)
Defendants now move to dismiss the complaint in its entirety pursuant to Rule 12(b)(1) and Rule 12(b)(6), or, in the alternative, for summary judgment pursuant to Rule 56, and to stay discovery pending the Government's dispositive motion, Fed. R.Civ.P. 12, 56. For the reasons outlined below, defendants' motion is GRANTED.
The following facts, alleged in plaintiffs complaint, are taken as true for purposes of the Court's consideration of the instant motion.
Plaintiff is an Asian-American female of Vietnamese descent. (Compl. ¶ 4.) She has a Doctor of Dental degree ("DDS") from Georgetown University Dental School, Washington, D.C., a Masters Degree of Dentistry from New York University Dental School in periodontics, and a Certificate of Specialty in prosthodontics from Boston University. (Id.) She has also completed a UCLA fellowship in geriatric dentistry at the Veterans Administration Medical Center in Los Angeles. (Id.) In addition, she has a foreign DDS and advanced degrees from institutions in Vietnam and Paris, France. (Id.) She was employed as a geriatric dentist by the United States Veterans Administration Medical Center, located in Bronx, New York, from September 20, 1991 until September 17, 1993, just prior to the expiration of her two-year probationary period. (Id.) Plaintiff alleges that her supervisors, the individually named defendants, wrongly accused her of substandard dental treatment, illegally withheld her evidence from subsequent administrative proceedings, and suspended her hospital privileges, all of which ultimately culminated in her wrongful termination. (Id. at ¶ 11.) Plaintiff alleges that her 1993 termination was the result of discrimination on the basis of race and ethnicity. (Id.) Since her termination in 1993, plaintiff has been unable to find comparable, or indeed any, employment as a dentist. (Id. at ¶ 12.)
Finally, plaintiff has requested that defendants clear her personnel record, pursuant to an order issued by the University of the State of New York's Board of Regents on June 18, 2002 adopting findings made by the Regents Review Committee that "respondent is not guilty of the specifications
Defendants have now moved to dismiss the complaint in its entirety pursuant to Rule 12(b)(1) and Rule 12(b)(6), or in the alternative, for summary judgment pursuant to Rule 56. In support of their motion, defendants assert a myriad of jurisdictional, statute of limitations, and substantive defenses to plaintiffs complaint. The Court finds that plaintiffs claims must all be dismissed for lack of subject matter jurisdiction, as barred by the applicable statutes of limitations, or both, and therefore declines to convert this motion to dismiss to one for summary judgment and addresses only arguments related to these bases for dismissal.
1. Standard of Review
A motion to dismiss pursuant to Rule 12 must be denied "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90, (1974) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80, (1957)). For the purposes of a Rule 12 motion, all well pleaded allegations are accepted as true, and all inferences are drawn in favor of the pleader. Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir.1993).
"The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir.1995) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). In other words, "`the office of a motion to dismiss is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.'" Eternity Global Master Fund Ltd. v. Morgan. Guar. Trust Co. of New York, 375 F.3d 168, 176 (2d Cir.2004) (quoting Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir.1980)). Dismissal is only appropriate when "it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him or her to relief." Sweet v. Sheahan, 235 F.3d 80, 83 (2d Cir.2000); accord Eternity Global Master Fund, 375 F.3d at 176-77.
a. Rule 12(b)(1)
A case must be dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it. See Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000). A plaintiff asserting subject matter jurisdiction generally has the burden, once challenged, of proving by a preponderance of the evidence that jurisdiction exists. See id.
b. Rule 12(b)(6)
A motion to dismiss on statute of limitations grounds generally is treated as a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6), as opposed to under Rule 12(b)(1). See Ghartey v. St.
"When determining the sufficiency of plaintiff['s] claim for Rule 12(b)(6) purposes, consideration is limited to the factual allegations in [the] complaint, documents attached to the complaint as an exhibit or incorporated in it by reference, matters of which judicial notice may be taken, or documents either in plaintiff['s] possession or of which plaintiff[ ] had knowledge and relied in bringing suit." Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir.1993).
When a party submits additional evidence to the Court in connection with a motion to dismiss, the Court must convert the motion to dismiss into a motion for summary judgment or exclude the extraneous documents from consideration. See Fed. R.Civ.P. 12(b); Fonte v. Bd. of Managers of Cont'l Towers Condo., 848 F.2d 24, 25 (2d Cir.1988). The Second Circuit has held, however, that "when a plaintiff chooses not to attach to the complaint or incorporate by reference a [document] upon which it solely relies and which is integral to the complaint," the court may nevertheless take that document into consideration in deciding the defendants' motion to dismiss, without converting the motion into one for summary judgment. Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir.1991).
2. Section 1981
Plaintiff alleges that her termination was the result of racial and ethnic discrimination in violation of the Civil Rights Act of 1866, 42 U.S.C. § 1981. However, § 1981 does not provide a basis for the relief plaintiff seeks. "`Title VII is the exclusive remedy for [employment] discrimination by the federal government on the basis of race, religion, sex, or national origin.'" Lewis v. Snow, 01 Civ. 7785(CBM), 2003 WL 22077457, at *9 (S.D.N.Y. Sept. 8, 2003) (citing Briones v. Runyon, 101 F.3d 287, 289 (2d Cir.1996) (quoting Boyd v. United States Postal Serv., 752 F.2d 410, 413-14 (9th Cir. 1985))); see also Brown v. Gen. Serv. Admin., 425 U.S. 820, 835, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976) ("[T]he Civil Rights Act of 1964, as amended, provides the exclusive judicial remedy for claims of discrimination in federal employment."). By its terms, § 1981 protects contract rights "against impairment by nongovernmental discrimination and impairment under color of State law." 42 U.S.C. § 1981(c). "The
In addition, even if plaintiff's § 1981 claim for discriminatory termination was an otherwise cognizable cause of action, it would be barred as untimely. Section 1981 causes of action created by the 1991 amendments are subject to a "catch-all" four-year statute of limitations. 28 U.S.C. § 1658; see also Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 379-81, 124 S.Ct. 1836, 158 L.Ed.2d 645 (2004); Copeland v. New York City Bd. of Ed., 03 Civ. 9978(DAB), 2005 WL 3018267, at *4 (S.D.N.Y. Nov. 8, 2005) (noting that claims of wrongful termination fall under § 1658 because they are created by the 1991 amendments to § 1981).
3. Section 1983
Plaintiff purports to state a claim under 42 U.S.C. § 1983 because the reasons given for her termination by her direct supervisors, defendants Sabol, Petrazzuolo, Musumeci, and Bergan, were allegedly false and defamatory, constituting a deprivation of plaintiffs property and liberty interests without due process. (Compl. ¶ 21.) Plaintiff fails to state a claim under § 1983 because, like § 1981,
Even if plaintiffs purported cause of action under § 1983 were cognizable against these defendants, it would be barred as untimely. The applicable statute of limitations for § 1983 actions in New York is three years. Owens v. Okure, 488 U.S. 235, 249-50, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989) (holding that § 1983 claims are governed by a state's residual or general personal injury statute of limitations); Patterson v. County of Oneida, 375 F.3d 206, 225 (2d Cir.2004); Sackey v. City of New York, 04 Civ. 2775(WHP), 2006 WL 337355, at *4 (S.D.N.Y. Feb. 15, 2006); see also N.Y.C.P.L.R. 214(5) (McKinney 2003) (providing that New York statute of limitations for personal injury claims is three years). A cause of action under § 1983 begins to accrue "`when the plaintiff knows or has reason to know of, the injury which is the basis of his action.'" Radin v. Albert Einstein Coll. of Med. of Yeshiva Univ., 04 Civ. 0704(RPP), 2005 WL 1214281, at *17 (S.D.N.Y. May 20, 2005) (quoting Pearl v. City of Long Beach, 296 F.3d 76, 80 (2d Cir.2002); Harris v. City of New York, 186 F.3d 243, 247-48 (2d Cir.1999)). Therefore, even if § 1983 were the appropriate vehicle for a cause of action alleging the deprivation of a cognizable liberty interest without due process arising out of the inclusion of reasons for termination in a federal employee's personnel file, it is untimely. Plaintiff has known of the injury underlying her claim since 1993. This claim is dismissed.
4. Title VII
Although plaintiff does not specifically identify Title VII as the basis for any of her causes of action in her complaint, Title VII is cited in the complaint (Compl. ¶ 1), and is the sole subject of plaintiffs memorandum in opposition to defendants' motion to dismiss. Therefore the Court will discuss, for the sake of thoroughness, why any claims arguably brought under Title VII must be dismissed.
First, dismissal for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) would be appropriate with respect to any Title VII claims arising out of plaintiffs termination because plaintiff has not named the appropriate party defendant. Under Title VII, a federal employee may bring suit in which "the head of the department, agency, or unit, as appropriate, shall be the defendant." 42 U.S.C. § 2000e-16(a) (2000). In the case of the United States Department of Veteran Affairs, the appropriate defendant for a Title VII action is the secretary of the department, James Nicholson, in his official capacity. The United States Department of Veteran Affairs as an entity, therefore,
Even if plaintiff had clearly articulated a Title VII cause of action, and had named the appropriate party as defendant, her claim would be time-barred. The requirement that a plaintiff timely exhaust administrative remedies is not a jurisdictional prerequisite to filing suit in federal court, and should be treated as a statute of limitations. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). The Equal Employment Opportunity Commission ("EEOC") has promulgated regulations establishing the applicable administrative procedures that a federal employee must exhaust before resorting to federal court. They require that the aggrieved employee, inter alia, (1) consult with a counselor at the relevant agency's Equal Employment Office ("EEO") within forty-five days of the alleged discriminatory act, 29 C.F.R. § 1614.105(a)(1), and if the matter is not resolved after a mandatory counseling period, (2) file a formal written administrative complaint ("EEO complaint") within fifteen days of receipt of the EEO counselor's notice of final interview and right to file a formal complaint ("EEO notice"), 29 C.F.R. § 1614.106(a)-(b). The employee may then file a civil action (i) within ninety days of notice of a final agency decision on his or her EEO complaint, or (ii) after 180 days from the filing of the EEO complaint if the agency has not yet rendered a decision. See 42 U.S.C. § 2000e-16(c); 29 C.F.R. § 1614.408(a)—(b); see also Belgrave v. Pena, 254 F.3d 384, 386 (2d Cir. 2001) (discussing foregoing prerequisites to filing suit in federal court).
In this case, plaintiff filed a timely EEO complaint challenging her employer's decision to terminate her employment. On September 18, 1996, the EEOC affirmed the final agency decision terminating her employment. See Nghiem, Appeal No. 01950587, Agency No. 94-1140, 1996 EEPUB LEXIS 353 (1996). On April 9, 1998, the EEOC denied plaintiff's motion for reconsideration. See Nghiem, Appeal No. 01950587, Agency No. 94-1140 Request No. 05970025, 1998 EEOPUB LEXIS 1971 (1998).
5. Plaintiffs Remaining State Law Claims
Because plaintiff no longer has any viable federal claim, any remaining viable state law claims belong in state court. See United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966) ("Certainly, if the federal claims are dismissed before trial, . . . the state claims should be dismissed as well."); Sadallah v. City of Utica, 383 F.3d 34, 39-40 (2d Cir.2004) (citing Gibbs in directing district court to enter judgment for defendants on federal law claims and to dismiss any state law claims without prejudice). Accordingly, plaintiffs remaining state law claims, for common law defamation per se, common law self-publication defamation, intentional infliction of emotional distress, tortious interference with employment and prospective business relationships, malicious prosecution, abuse of process, and violation of section 296 of New York State Human Rights Law, N.Y. Exec. Law § 296, are hereby dismissed without prejudice.
For the foregoing reasons, defendants' motion to dismiss  is GRANTED. The Clerk of the Court is respectfully directed to close the case.