REPORT AND RECOMMENDATION

WILLIAM E. CASSADY, Magistrate Judge.

This cause is before the Magistrate Judge for issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b), on the complaint (Doc. 1), the defendants' motion to dismiss (Doc. 23), and plaintiff's response (Doc. 25), which consists of a request that she be granted leave to freely amend her complaint "to comply with all required formalities." (Id. at 1.)1 Upon consideration of the foregoing pleadings, the Magistrate Judge recommends that the Court GRANT the defendants' motion to dismiss (Doc. 23) for failure to state a claim upon which relief can be granted.

FINDINGS OF FACT

Brenda E. Balbuena filed a complaint in this Court on April 25, 2014, "based on at least two reasons: AGE, and Reprisal." (Doc. 1, at 1.) Before outlining the specifics of each claim, it need be noted that plaintiff "filed a formal discrimination complaint" on July 2, 2013, with the "EEO Office, U.S. Army[]Corps of Engineers, Mobile District" against the former Chief of Contracting, Leo J. Hickman, and that her discrimination complaint was denied. (Id.) It is apparent that the complaint plaintiff filed with the EEO Office was denied, at least in part if not entirely, because of Balbuena's failure to file her complaint within forty-five (45) days of the adverse employment action. (See id. at 2.) By her own admission, plaintiff avers that she learned of King's promotion on April 22, 2013. (Id.)

In support of her reprisal claim, Balbuena states the following:

(Id. at 1.) Balbuena, however, also references reprisal under her "Age" claim and the undersigned takes from such reference that plaintiff is claiming that Hickman retaliated against her by not affording her the same opportunity to complete her college education and be promoted—as was afforded to Sonya King—because of her 2002 EEO complaint against him and the forced mediation. (Compare id. at 2 with id. at 1.)

Balbuena's "Age" claim reads, in its entirety, as follows:

(Id. at 2-3.) As a resolution, Balbuena seeks a promotion "to a GS-12 with back pay, beginning with the date of Ms. King's promotion." (Id. at 3.)

CONCLUSIONS OF LAW

A. Motion to Dismiss Standard.

The defendants' motion to dismiss has been brought pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. 23.) The undersigned addresses each rule's appropriate standard in turn.

A motion to dismiss pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction

McElmurray v. Consolidated Gov't of Augusta-Richmond County, 501 F.3d 1244, 1251 (11th Cir. 2007); see also Andersen v. Omni Ins. Co., 2014 WL 838811, *1 (N.D. Ala. Mar. 4, 2014) ("Attacks on subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1) come in two forms. `Facial attacks' on the complaint require the court merely to look and see if the plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion. `Factual attacks,' on the other hand, challenge the existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits, are considered. These two forms of attack differ substantially. On a facial attack, a plaintiff is afforded safeguards similar to those provided in opposing a Rule 12(b)(6) motion— the court must consider the allegations of the complaint to be true. But when the attack is factual, the trial court may proceed as it never could under 12(b)(6) or Fed.R.Civ.P. 56. Because at issue in a factual 12(b)(1) motion is the trial court's jurisdiction—its very power to hear the case—there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." (internal emphasis, citations, brackets, and most quotation marks omitted)). The undersigned construes the defendants' jurisdictional argument2—the plaintiff having failed to "make any assertion which establishes subject matter jurisdiction[]" (Doc. 23, at 6) as a facial challenge because the defendants accept plaintiff's allegations as true for purposes of its motion3 (see Doc. 23, at 8, 11 & 12).

Turning to the defendants' Rule 12(b)(6) arguments, a Rule 12(b)(6) motion questions the legal sufficiency of a complaint; therefore, in assessing the merits of a Rule 12(b)(6) motion, the court must assume that all the factual allegations set forth in the complaint are true. See, e.g., United States v. Gaubert, 499 U.S. 315, 327, 111 S.Ct. 1267, 1276, 113 L.Ed.2d 335 (1991); Powell v. Lennon, 914 F.2d 1459, 1463 (11th Cir. 1990). Moreover, all factual allegations are to be construed in the light most favorable to the plaintiff. See, e.g., Brower v. County of Inyo, 489 U.S. 593, 598, 109 S.Ct. 1378, 1382, 103 L.Ed.2d 628 (1989).

Rule 8(a)(2) generally sets the benchmark for determining whether a complaint's allegations are sufficient to survive a Rule 12(b)(6) motion. See Ashcroft v. Iqbal, 556 U.S. 662, 677-678 & 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) ("Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a `short and plain statement of the claim showing that the pleader is entitled to relief.' As the Court held in Twombly, . . . the pleading standard Rule 8 announces does not require `detailed factual allegations,' but it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation."). Indeed, "[a] pleading that offers `labels and conclusions' or `a formulaic recitation of the elements of a cause of action will not do.'" Id. at 678, 129 S.Ct. at 1949, quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-1965, 167 L.Ed.2d 929 (2007). "Nor does a complaint suffice if it tenders `naked assertion[s]' devoid of `further factual enhancement.'" Id., quoting Twombly, 550 U.S. at 557, 127 S.Ct. at 1955.

Id. at 678-679, 129 S.Ct. at 1949-1950 (internal citations and quotation marks omitted); see also id. 680, 129 S.Ct. at 1951 (a plaintiff must nudge his claims "`across the line from conceivable to plausible.'"); see Speaker v. U.S. Dep't of Health & Human Services Centers for Disease Control & Prevention, 623 F.3d 1371, 1381 (11th Cir. 2010) ("[G]iven the pleading standards announced in Twombly and Iqbal, [plaintiff] must do more than recite [] statutory elements in conclusory fashion. Rather, his allegations must proffer enough factual content to `raise a right to belief above the speculative level.'"); Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260 (11th Cir. 2009) ("Although it must accept well-pled facts as true, the court is not required to accept a plaintiff's legal conclusions. In evaluating the sufficiency of a plaintiff's pleadings, we make reasonable inferences in [p]laintiff's favor, but we are not required to draw plaintiff's inference. Similarly, unwarranted deductions of fact in a complaint are not admitted as true for the purpose of testing the sufficiency of plaintiff's allegations. A complaint may be dismissed if the facts as pled do not state a claim for relief that is plausible on its face." (internal citations and quotation marks omitted)), abrogated on other grounds as stated in Mohamad v. Palestinian Auth., ___ U.S. ___, 132 S.Ct. 1702, 182 L.Ed.2d 720 (2012).

B. The Defendants' Rule 12(b)(1) Motion to Dismiss.

There is no question but that plaintiff has failed to allege in her complaint a basis for this Court's exercise of subject-matter jurisdiction. (See Doc. 1.) However, it is just as clear that Balbuena, through amending her complaint, can properly allege that subject-matter jurisdiction resides in this Court, either pursuant to 28 U.S.C. § 1331 (federal question jurisdiction) or through some other grant of statutory authority, such as 29 U.S.C. § 633a(a) (the federal-sector provision of the ADEA) and 42 U.S.C. § 2000e-16 (Title VII coverage of federal employees). See Baltin v. Alaron Trading Corp., 128 F.3d 1466, 1469 (11th Cir. 1997) ("In a given case, a federal district court must have at least one of three types of subject matter jurisdiction: (1) jurisdiction under a specific statutory grant; (2) federal question jurisdiction pursuant to 28 U.S.C. § 1331; or (3) diversity jurisdiction pursuant to 28 U.S.C. § 1332(a)."), cert. denied, 525 U.S. 841, 119 S.Ct. 105, 142 L.Ed.2d 84 (1998). Accordingly, should the Court choose to grant the defendants' Rule 12(b)(1) motion to dismiss, as opposed to their Rule 12(b)(6) motion, it should grant the plaintiff leave to amend her complaint to allege a basis for this Court's exercise of subject-matter jurisdiction, see FED.R.CIV.P. 15(a)(2) ("[A] party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires."), as she has requested (see Doc. 25). The undersigned, however, recommends that the Court pay "short shrift" to the defendants' 12(b)(1) argument and focus, instead, on their Rule 12(b)(6) arguments inasmuch as it is clear to the undersigned that plaintiff has not stated a claim upon which relief can be granted, nor can she state a claim for relief against the defendants.

C. Plaintiff's Complaint Fails to State a Title VII Retaliation Claim.

"Title VII prohibits a private employer from retaliating against an employee who opposed practices made unlawful employment practices by Title VII or who `"made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing [under title VII]."'" Rives v. Lahood, 605 Fed.Appx. 815, 818 (11th Cir. Mar. 25, 2015), quoting Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008), in turn quoting 42 U.S.C. § 2000e-3(a). And while it is clear that the section of Title VII that governs federal employees, 42 U.S.C. § 2000e-16, "does not specifically mention retaliation," the Eleventh Circuit has recognized that "§ 2000e-16 expanded Title VII coverage to federal employees to the same extent as it was applicable to non-federal employees." Id. (emphasis supplied), citing 42 U.S.C. § 2000e-16 and Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1243 (11th Cir. 1998). Thus, the undersigned focuses first on whether plaintiff's complaint states a prima facie case of retaliation.4

"To establish a prima facie case of retaliation,5 the plaintiff must show that `(1) [s]he engaged in a statutorily protected activity; (2) [s]he suffered an adverse employment action; and (3) [s]he established a causal link between the protected activity and the adverse action.'" Rives, supra, 605 Fed.Appx. at 818-819 (footnote added), quoting Bryant v. Jones, 575 F.3d 1281, 1307-1308 (11th Cir. 2009).

Id. at 819.

Here, the only statutorily protected activities referenced by Balbuena in her complaint are the EEO complaint she filed against Hickman in 2002 (see Doc. 1, at 1) and the EEO complaint she filed on July 2, 2013, again against Hickman (id.), this latter complaint, of course, having been filed after the alleged adverse employment actions referenced in her complaint (see id. at 2), that is, Hickman's actions of refusing to help pay for the completion of her accounting degree while, at the same time, readily agreeing to pay for a younger employee's completion of her college degree and his eventual promotion of that younger employee to a position requiring a college degree (see id. (plaintiff's allegations establishing that the referenced actions by Hickman began on or about 2010 through on or about April 22, 2013)). Balbuena's July 2, 2013 EEO complaint, however, cannot be utilized to establish the requisite causal link inasmuch as it is well-established that "[a]t a minimum, [a plaintiff] must show that the adverse act followed the protected conduct." Griffin v. GTE Florida, Inc., 182 F.3d 1279, 1284 (11th Cir. 1999); see also Sharpe v. Global Sec. Int'l, 766 F.Supp.2d 1272, 1292 (S.D. Ala. 2011) ("[A]n employer cannot be held liable for Title VII retaliation when the alleged retaliatory acts preceded the protected conduct.").6 Moreover, the EEO complaint she filed in 2002 cannot establish causation inasmuch as years (more than mere months) elapsed between this protected activity and the putative adverse employment activity described in the instant complaint. Needless to say, this multi-year delay between the filing of the EEO complaint and Hickman's actions in paying for a younger employee's college degree, while refusing to pay for plaintiff's completion of her college degree, and ultimate promotion of the younger employee to a position requiring a college degree, is much too long to establish the requisite causal link. See Rives, supra, 605 Fed.Appx. at 819; Grier v. Snow, 206 Fed.Appx. 866, 869 (11th Cir. Oct. 26, 2006) ("[A]n eight-month time period between the protected activity and the adverse employment [action] is insufficient, alone, to satisfy the `causal connection' element of Grier's prima facie case.").

In light of the foregoing, Balbuena's retaliation/reprisal claim is due to be DISMISSED for failure to state a claim upon which relief can be granted.

D. Plaintiff's Complaint Fails to State an ADEA Claim.

"A plaintiff may establish a prima facie case for an ADEA violation `by showing that [s]he (1) was a member of the protected age group, (2) was subjected to adverse employment action, (3) was qualified to do the job, and (4) was replaced by or otherwise lost a position to a younger individual.'" Cleveland v. Secretary of the Treasury, 407 Fed.Appx. 386, 388 (11th Cir. Jan. 4, 2011), quoting Chapman v. AI Transp., 229 F.3d 1012, 1024 (11th Cir. 2000). Initially, the undersigned notes that plaintiff's complaint is deficient because nowhere in the complaint does Balbuena set forth her age or the age of Sonya King; therefore, this Court has no basis upon which to find that plaintiff has properly "stated" the first and fourth elements of an ADEA violation. More importantly, plaintiff admits in her complaint that she was not qualified for the position that King garnered—Procurement Analyst—because she did not have a college degree; therefore, plaintiff cannot establish the third element of an ADEA claim, nor, in truth, can she establish the second element since her lack of qualification for the job means that the failure to promote her was not an adverse employment decision.

CONCLUSION

Based upon the foregoing, the Magistrate Judge recommends that the defendants' Rule 12(b)(6) motion to dismiss (see Doc. 23) be GRANTED.

NOTICE OF RIGHT TO FILE OBJECTIONS

A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to this recommendation or anything in it must, within fourteen (14) days of the date of service of this document, file specific written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); FED.R.CIV.P. 72(b); S.D. Ala. GenLR 72(c)(1) & (2). The parties should note that under Eleventh Circuit Rule 3-1, "[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice." 11th Cir. R. 3-1. In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the Magistrate Judge's report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the Magistrate Judge is not specific.