Lawrence Niskey v. John F. Kelly, 2017 U.S. App. LEXIS 10258

Background

Lawrence Niskey, an African-American DoD IT specialist requiring a security clearance, had his clearance suspended (Sept 2002), then permanently revoked (Mar 30, 2006), and was removed (Sept 2007). His personnel/EEO files later transferred to DHS.
Niskey contacted a DoD EEO counselor in Sept 2002 who told him not to file a formal complaint until the clearance was finally revoked and otherwise did not process the claim.
Niskey appealed the clearance revocation to DHS security officials and to the MSPB; his MSPB filings focused on procedural defects and did not plead race discrimination or retaliation before the ALJ. The Board affirmed in July 2008.
Niskey first contacted the EEOC in Nov 2009, was told to file a formal DHS EEO complaint (and allegedly told his time would be tolled), but he did not file the DHS formal complaint until Sept 2010.
DHS dismissed his formal EEO complaint as untimely; the EEOC affirmed. Niskey then sued in district court (Aug 2013). The district court dismissed for failure to exhaust administrative remedies; the D.C. Circuit affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Niskey exhausted administrative remedies before suing under Title VII	Niskey argued he initiated EEO contact in 2002 and relied on counselor advice, so equitable tolling should excuse delays	DHS argued Niskey’s formal EEO complaint was untimely and his later gaps in pursuing administrative remedies were fatal	Court: Initial informal contact in 2002 tolled time until final revocation, but subsequent delays (post-revocation/MSPB) were not diligently pursued and exhaustion fails
Whether the suspension of security clearance (with pay) was a materially adverse action triggering EEO deadlines	Niskey argued the suspension prevented him from performing his job and was therefore materially adverse	DHS argued initial suspension-with-pay was not sufficiently adverse to trigger the 45-day contact rule	Court: Suspension of clearance was materially adverse because it foreclosed performance of job duties, so initial contact was timely
Whether equitable tolling applies because EEO counselor misadvised/dropped the claim	Niskey argued he reasonably relied on counselor’s instruction to wait and is entitled to tolling for that period	DHS argued any tolling had ended with revocation/Board decision and Niskey failed to act thereafter	Court: Counselor’s advice supports tolling up to revocation, but tolling ended thereafter; plaintiff failed to show continued diligence required for further tolling
Whether MSPB proceedings preserved discrimination claims or substituted for EEO exhaustion	Niskey argued MSPB appeals and letters to agency officials sufficed to preserve discrimination claims	DHS argued discrimination/retaliation were not litigated before the ALJ and plaintiff did not timely present them to the agency EEO process	Court: Because discrimination claims were not presented to the ALJ or timely to the agency/EEO, MSPB proceedings did not satisfy Title VII exhaustion requirements

Key Cases Cited

Kloeckner v. Solis, 133 S. Ct. 596 (2012) (explains mixed-case option between MSPB and EEO processes)
Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982) (EEOC filing requirement is like statute of limitations and subject to equitable tolling)
Holland v. Florida, 560 U.S. 631 (2010) (two-part test for equitable tolling: diligence and extraordinary circumstances)
Bowden v. United States, 106 F.3d 433 (D.C. Cir. 1997) (relief where plaintiff reasonably relied on government official’s misleading advice about limitations)
Forkkio v. Powell, 306 F.3d 1127 (D.C. Cir. 2002) (analysis of materially adverse actions vs. changes that are not actionable)
Czekalski v. LaHood, 589 F.3d 449 (D.C. Cir. 2009) (objective-tangible-harm standard for adverse employment action)
Dyson v. District of Columbia, 710 F.3d 415 (D.C. Cir. 2013) (applicant’s failure to show diligence can defeat equitable tolling)