Al-Saffy v. Vilsack, 54 F. Supp. 3d 79

Mohamed Tawid Al-Saffy, an Egyptian‑American Muslim, was employed by USDA’s Foreign Agricultural Service (FAS) and selected for Director positions for the Saudi Arabia and Yemen Agricultural Trade Offices (ATOs) in late 2008.
Travel to Saudi Arabia was briefly placed on hold in 2009; Al‑Saffy filed and then withdrew an informal EEO complaint after the hold was lifted and he began his overseas assignment.
While in Yemen, Al‑Saffy alleged interference by a State Department economic officer, reported the conduct to FAS supervisors, and was later removed as Director of the Yemen ATO; he filed formal USDA EEO complaints in 2011 and 2012 alleging religion, national origin discrimination, and retaliation.
The USDA and State Department submitted adverse affidavits criticizing Al‑Saffy’s performance; Al‑Saffy filed a formal complaint with the State Department in 2013, which was dismissed.
Al‑Saffy filed this Title VII suit on October 10, 2013 against the Secretaries of Agriculture and State, alleging discrimination and retaliation; defendants moved to dismiss for failure to exhaust administrative remedies.
The court converted the motion to one for summary judgment, found defendants had shown non‑exhaustion and that Al‑Saffy failed to rebut or justify tolling, and granted summary judgment for defendants.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether claims tied to the 2009 informal complaint were exhausted	Al‑Saffy relied on the 2009 EEO contact that preceded his deployment and asserted related claims in court	Defendants: no formal complaint was filed for 2009 matters, so administrative remedies were not exhausted	Court: Not exhausted; claims based on 2009 allegations dismissed
Timeliness/exhaustion of 2011 USDA EEO complaint	Al‑Saffy contended USDA process and EEOC actions led to final agency action	Defendants: Al‑Saffy withdrew and failed to bring suit within 90 days after final administrative action; no tolling shown	Court: Untimely; claims based on 2011 complaint time‑barred
Timeliness/exhaustion of 2012 USDA EEO complaint	Al‑Saffy argued administrative process was ongoing and complaints should be heard	Defendants: EEOC dismissal and lack of USDA final order meant dismissal became final; suit was filed after 90‑day window	Court: Untimely; claims based on 2012 complaint time‑barred
State Department liability and exhaustion for 2013 complaint	Al‑Saffy asserted State Dept. employees interfered and filed a 2013 complaint against State	Defendants: Title VII covers employees/applicants; Al‑Saffy was not a State Dept. employee or applicant and he failed to contact EEO counselor within 45 days	Court: State not a proper Title VII defendant here and Al‑Saffy failed to exhaust State Dept. remedies; claims dismissed

Artis v. Bernanke, 630 F.3d 1031 (D.C. Cir. 2011) (affirmative‑defense exhaustion is non‑jurisdictional)
Menominee Indian Tribe of Wis. v. United States, 614 F.3d 519 (D.C. Cir. 2010) (same principle on nonjurisdictional defenses)
Bowden v. United States, 106 F.3d 433 (D.C. Cir. 1997) (defendant bears burden to show non‑exhaustion; plaintiff must rebut or invoke equitable doctrines)
Brown v. Marsh, 777 F.2d 8 (D.C. Cir. 1985) (purposes of administrative exhaustion and requirement to give agency notice)
Celotex Corp. v. Catrett, 477 U.S. 317 (summary judgment standards)
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (standards for genuine dispute and weighing inferences on summary judgment)
Brown v. General Services Administration, 425 U.S. 820 (Title VII as the remedy for federal employee discrimination)
Kizas v. Webster, 707 F.2d 524 (Title VII coverage for federal employees)
Robinson v. Shell Oil Co., 519 U.S. 337 (exception for post‑employment retaliatory actions)
Sibley Mem. Hospital v. Wilson, 488 F.2d 1338 (exception when agency controls access to employment)
Davis v. Califano, 613 F.2d 957 (proper Title VII defendant is head of the agency)
Hackley v. Roudebush, 520 F.2d 108 (same principle on proper Title VII defendant)