ORDER AND REASONS

MARTIN L.C. FELDMAN, District Judge.

Before the Court is the defendant's Rule 12(b)(6) and Rule 12(b)(1) motion to dismiss. For the reasons that follow, the motion is GRANTED.

Background

This employment discrimination case arises out of a former Housing Authority of New Orleans police officer's claims that HANO discriminated against him on the basis of his sex and sexual orientation, continued to discriminate against him, and ultimately terminated his employment in retaliation for his discrimination complaints as well as for his reports that other HANO officers engaged in payroll fraud.

Silas Phipps is a bisexual male.1 Mr. Phipps began working as a police officer with the Housing Authority of New Orleans in March 2013. He consistently met or exceeded his performance goals.

On December 5, 2014, Sergeant Harry Stanley left his assigned shift early, without clocking out, so that he could work an off duty paid detail. Phipps notified Captain Granetta Harris that Sgt. Stanley had committed payroll fraud in violation of Louisiana law. HANO took no action to address the Phipps's complaint or to discipline Sgt. Stanley. Phipps then reported this incident to the Metropolitan Crime Commission.

On March 17, 2015, during a roll call meeting in the presence of Phipps and other police officers, Captain Harris made derogatory comments regarding homosexuals. That same day, hoping to report Captain Harris for her remarks, Phipps attempted to contact, but was not able to reach, HANO's Director of Public Safety, Chief Robert Anderson. The next day, Phipps met with Chief Anderson and complained about Captain Harris's comments. Anderson instructed Phipps to speak with HANO's Human Resource Manager, Kelly Walker. That same day, Phipps lodged a complaint about Captain Harris.

Later that same day, Officer Emanuel Smith2 lodged a complaint against Phipps in which he stated that Phipps had searched law enforcement databases for criminal records concerning Officer Smith. Two days later on March 20, 2015, Sergeant Tommy Mercadel told Phipps that Captain Harris had gossiped about Phipps potentially having a sexual relationship with Sergeant Tyrone Martin. One week later, Chief Anderson and Ms. Walker met with Phipps to tell him that they determined that his complaint against Captain Harris was credible. Phipps was also told that he was under investigation based on Officer Smith's complaint.

A few days later on March 30, 2015, Phipps submitted a charge of discrimination to the Equal Employment Opportunity Commission regarding Captain Harris's comments made during the March 17th roll call. Under penalty of perjury, Phipps wrote in the charge:

On April 7, 2015, during a meeting with Chief Anderson, Captain Harris, and Sergeant Martin, Phipps was told that he was being placed on administrative leave pending the outcome of an investigation against him.4 Chief Anderson told Phipps that he would attempt to complete the investigation during the week of April 11, 2015. Less than 48 hours later, Phipps was served with a Notice of Proposed Termination.

Phipps appealed the decision to terminate his employment, but HANO upheld the termination, which became effective on May 21, 2015. Meanwhile, on May 14, 2015, the EEOC issued its right to sue letter related to the March 30, 2015 EEOC Charge concerning the comments made during March 17 roll call. Phipps filed a second charge of discrimination on June 17, 2015; he charged that he was discriminated against on the basis of sex and sexual orientation, and also charged retaliation for engaging in protected activity. He stated that the dates of discrimination and retaliation took place between March 17, 2015 and May 21, 2015.5

On August 5, 2015, Phipps sued HANO, alleging employment discrimination based on sex and sexual orientation, as well as retaliation under Title VII of the Civil Rights Act of 1964.6 Phipps also alleged, pursuant to the Court's supplemental jurisdiction, state law employment discrimination, retaliation, and whistleblower claims. HANO requested dismissal of the initial complaint, but the request was denied as moot after the plaintiff was granted leave to file an amended complaint. HANO now seeks to dismiss each of the claims advanced by the plaintiff in his amended complaint.

I.

A.

The subject matter jurisdiction of federal courts is limited. Kokkonen v. Guardina Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Indeed, "[i]t is to be presumed that a cause lies outside this limited jurisdiction," the Supreme Court has observed, "and the burden of establishing the contrary rests upon the party asserting jurisdiction." Id. (citations omitted). Motions filed under Rule 12(b)(1) of the Federal Rules of Civil Procedure allow a party to challenge the Court's subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). In challenging this Court's subject matter jurisdiction over the plaintiff's state law claims, the defendant contends that the plaintiff failed to state a claim under federal law, or otherwise failed to exhaust administrative remedies respecting all federal claims, and the Court lacks subject matter jurisdiction over the remaining state law claims.

The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction. King v. U.S. Dep't of Veterans Affairs, 728 F.3d 410, 416 (5th Cir. 2013); Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). The Court may find a plausible set of facts to support subject matter jurisdiction by considering any of the following: "(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996).

B.

In addition to the jurisdictional challenge, the defendant also seeks dismissal of the plaintiff's claims for failure to state a claim under Rule 12(b)(6). The standard of review applicable to motions to dismiss under Rule 12(b)(1) is similar to that applicable to motions to dismiss under Rule 12(b)(6). See Williams v. Wynne, 533 F.3d 360, 364-65 n.2 (5th Cir. 2008)(observing that the Rule 12(b)(1) and Rule 12(b)(6) standards are similar, but noting that applying the Rule 12(b)(1) standard permits the Court to consider a broader range of materials in resolving the motion). Rule 12(b)(6) of the Federal Rules of Civil Procedure allows a party to move for dismissal of a complaint for failure to state a claim upon which relief can be granted. Such a motion is rarely granted because it is viewed with disfavor. See Lowrey v. Tex. A & M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997) (quoting Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982)).

Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009)(citing Fed. R. Civ. P. 8). "[T]he pleading standard Rule 8 announces does not require `detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

In considering a Rule 12(b)(6) motion, the Court "accept[s] all well-pleaded facts as true and view[s] all facts in the light most favorable to the plaintiff." See Thompson v. City of Waco, Texas, 764 F.3d 500, 502 (5th Cir. 2014) (citing Doe ex rel. Magee v. Covington Cnty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 854 (5th Cir. 2012)(en banc)). But, in deciding whether dismissal is warranted, the Court will not accept conclusory allegations in the complaint as true. Id. at 502-03 (citing Iqbal, 556 U.S. at 678).

To survive dismissal, "`a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009)(quoting Iqbal, 556 U.S. at 678)(internal quotation marks omitted). "Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Twombly, 550 U.S. at 555 (citations and footnote omitted). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 ("The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully."). This is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679. "Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Id. at 678 (internal quotations omitted) (citing Twombly, 550 U.S. at 557). "[A] plaintiff's obligation to provide the `grounds' of his `entitle[ment] to relief'", thus, "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (alteration in original) (citation omitted).

II.

A.

HANO first seeks dismissal of the plaintiff's Title VII sex discrimination and retaliation claims based on events occurring after March 17, 2015 on the ground that those claims are premature because the plaintiff has not yet exhausted his administrative remedies. The plaintiff counters that he was not required to exhaust his administrative remedies prior to pursuing a retaliation claim arising out of an earlier charge, invoking Gupta v. East Texas State University, 654 F.2d 411, 414 (5th Cir. 1981).

Plaintiffs pursuing employment discrimination claims must exhaust administrative remedies before pursuing claims in federal court. Taylor v. Books A Million, Inc., 296 F.3d 376, 378-79 (5th Cir. 2002). This exhaustion requirement is met when the plaintiff files a timely charge with the EEOC and receives a right to sue letter. Id. (citation omitted). In Gupta, the Fifth Circuit endorsed a limited exception to the exhaustion rule, holding that a retaliation claim that is filed after and in response to an earlier discrimination charge is excepted from the exhaustion rule. 654 F.2d at 414. Whether Gupta is still good law, however, is the subject of some debate. Indeed, the Circuits that have considered whether Gupta-like rules were abrogated by the Supreme Court in Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) are split.7 But this Court need not weigh in on this debate because the Gupta exception is not triggered here, where the plaintiff simultaneously alleges discrimination and retaliation claims on the heels of a previously-exhausted discrimination claim. Because the plaintiff's second charge is not limited to advancing a retaliation claim arising from his first discrimination charge, it falls outside the scope of the Gupta exception.

The Gupta exception is limited; it allows a plaintiff to pursue an unexhausted retaliation claim if the acts underlying the retaliation claim came after and in response to a prior exhausted Title VII discrimination claim. See Gupta, 654 F.2d at 414; see also Scott v. Univ. of Miss., 148 F.3d 493, 514 (5th Cir. 1998)(Gupta "is limited to retaliation claims due to the special nature of such claims"), abrogated on other grounds by Kimel v. Fla. Bd. Of Regents, 528 U.S. 62 (2000); see also Sapp v. Potter, 413 Fed.Appx. 750, 752-53 (5th Cir. 2011)("Because the Gupta exception is premised upon avoiding procedural technicalities, it has only been applied to retaliation claims alone [and not] claims in which both retaliation and discrimination are alleged."); Simmons-Myers, 515 Fed.Appx. at 273-74 (noting that "this court has not applied the Gupta exception to claims in which both retaliation and discrimination are alleged.").

Here, the plaintiff filed a second EEOC charge on June 17, 2015, after the issuance of the right to sue letter by the EEOC pertaining to his first Title VII discrimination charge filed on March 30, 2015.8 The plaintiff admits that he has not yet received a right to sue letter relative to his 6/17/15 charge. He nevertheless argues that filing the second charge was not necessary because his retaliation claim grew out of his exhausted discrimination charge.9 Notably, however, in his second charge, Phipps claims sex discrimination and retaliation occurring after March 17, 2015 and culminating with his termination on May 21, 2015.10 Because the plaintiff's second charge is not limited to a retaliation claim arising out of his first discrimination charge, but instead additionally includes new charges of disparate treatment, Gupta does not save these claims from the exhaustion requirement. Accordingly, the plaintiff's discrimination and retaliation claims arising from his second EEOC charge must be dismissed without prejudice as premature.

B.

HANO next seeks dismissal of the plaintiff's sex discrimination claim arising out of Captain Harris's March 17, 2015 comments during roll call.

According to the plaintiff's first EEOC charge, Captain Harris asked a subordinate officer whether homosexual people were "born gay, or is it a choice?" Captain Harris suggested that she hoped her son was not gay. A police officer named Marcus Dubuclet stated that he did not agree with homosexuality, believed it was a choice, and stated that he did not associate with homosexuals. Offended, the plaintiff filed a charge of discrimination and, once he received his right to sue letter, he sued HANO alleging discrimination based on sex.

Title VII of the Civil Rights Act makes it unlawful to discriminate against a person because of that person's race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(1). Phipps alleges that HANO discriminated against him based on his sex and sexual orientation. Because sexual orientation is not a protected characteristic under Title VII,11 the Court focuses its attention on whether Phipps has stated a claim for disparate treatment based on his gender. Examining the complaint, Phipps alleges the following relative to his sex-stereotyping or sexbased associational bias theories of discrimination:

These allegations are nothing more than Phipps's theories of recovery stated in conclusory terms. What's missing is factual content supporting his theories of recovery. Nowhere in the amended complaint does the plaintiff present any factual allegations regarding HANO's perception of him, its perception of acceptable gender roles, or HANO's "gender stereotypes" or "associational bias" as to men; nowhere does plaintiff set forth factual allegations sufficient to support an inference that HANO discriminated against him because of his sex.

Phipps fails to allege facts, direct or circumstantial, that, if true, would suggest that HANO's actions (derogatory comments regarding homosexuals made during roll call) were based on Phipps's sex or its purported "sex stereotyping" or that HANO treated similarly situated employees who it did not subject to sex-based stereotyping more favorably. As for factual content, Phipps alleges that he is bisexual, that derogatory comments regarding homosexuals were made, that someone told him that Captain Harris had commented about Phipps and Martin "potentially having a sexual relationship." This fails to satisfy Rule 8's requirement that a plaintiff's statement show he is entitled to relief. Even considering the plaintiff's sex stereotyping allegations, such allegations are nothing more than labels and conclusions. Mere labels and conclusions do not satisfy the plaintiff's obligation to provide the grounds of his entitlement to relief.

In Price Waterhouse v. Hopkins, 490 U.S. 228, 235-42 (1989), the Supreme Court recognized that a Title VII sex discrimination/harassment plaintiff may pursue a theory of sex stereotyping to support her claim. There, the plaintiff, a senior manager in an accounting firm, was passed over for partnership in part because she was too "macho" and "overcompensated for being a woman." Id. at 235. To improve her chances for partnership, she was told to "walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry." Id. The Supreme Court held that when an employer makes employment decisions based on the degree to which an individual conforms to traditional notions of what is appropriate for one's gender, that is actionable discrimination under Title VII. Id. at 250. But, here, Phipps fails to allege any factual content that would align with this sex stereotyping theory. A plaintiff does not state a Title VII disparate treatment claim based on sex discrimination if he simply alleges in conclusory fashion that he is bisexual and his sexual practices did not conform to the gender stereotypes HANO associated with men. "[A] gender stereotyping claim should not be used to bootstrap protection for sexual orientation into Title VII." See Vickers v. Fairfield Medical Center, 453 F.3d 757, 763-64 (6th Cir. 2006)(quoting Dawson v. Bumble & Bumble, 398 F.3d 211, 218 (2d Cir. 2005)).12 Without alleging facts that would support a sex stereotyping theory,13 this is precisely what the plaintiff is attempting to do. See id. at 763 (affirming dismissal for failure to state claim that plaintiff was discriminated against because of sex stereotyping). There are no factual allegations that, if true, plausibly suggest that HANO discriminated against Phipps because he failed to conform to traditional gender roles, or that gender played a role in its employment decisions. Insofar as Phipps's allegations can be read to suggest that he was treated differently in the workplace, the factual content of his complaint does not point to animus based on gender, but, rather, at most based on his perceived homosexual relationship or bisexuality. As the text of Title VII as well as Price Waterhouse and its progeny make clear, this distinction is fatal to his Title VII claim.14

III.

Had the plaintiff sufficiently pled claims arising under Title VII, the Court would have the discretion to exercise supplemental jurisdiction over his remaining state law claims pursuant to 28 U.S.C. § 1367(a). However, because the Court dismisses all claims over which it has original jurisdiction, the Court may, and does, decline to exercise supplemental jurisdiction over the plaintiff's remaining state law claims. 28 U.S.C. § 1367(c). Phipps's state law claims are dismissed without prejudice.

Accordingly, for the foregoing reasons, the defendant's motion to dismiss is GRANTED. The plaintiff's Title VII claim based on the March 17, 2015 comments is hereby dismissed; the plaintiff's Title VII claims based on discrimination and retaliation arising from his June 17, 2015 charge of discrimination are hereby dismissed without prejudice as premature; and the plaintiff's state law claims are hereby dismissed without prejudice pursuant to 28 U.S.C. § 1367(c).