Niskey v. Napolitano
2014 U.S. Dist. LEXIS 137061
| D.D.C. | 2014Background
- Niskey experienced discriminatory and retaliatory treatment in 2002 within his DoD division, including leave disparities and a suspension of access to classified information.
- His security clearance was suspended in 2002 and revoked in 2006, with final revocation in 2007.
- He was terminated by DHS in September 2007, with MSPB appeal decided in 2008.
- Niskey did not file a formal EEOC complaint until September 2010, after initial counseling in 2002 and MSPB actions.
- The EEOC ultimately denied his reconsideration, and the government moved to dismiss for failure to exhaust administrative remedies.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Niskey exhausted administrative remedies for Title VII claims. | Niskey maintained broad discrimination/retaliation claims tied to agency actions. | Niskey failed to consult an EEO counselor within 45 days for most incidents and did not timely pursue formal filing. | Yes; exhaustion not satisfied for most claims; dismissal appropriate. |
| Whether equitable tolling could excuse untimely exhaustion. | Niskey’s delays were caused by agency missteps and counseling issues. | Delays were dilatory and not diligently pursued by Niskey. | No; equitable tolling not warranted; delays were self-created. |
| Whether a single 2002 meeting with an EEO counselor could exhaust all claims. | Counselor interaction indicated intent to pursue EEO process. | One meeting cannot exhaust all later-discovered claims. | No; one contact could not exhaust multiple, later-identified claims. |
| Whether Niskey’s post-termination letter to DHS GC sufficed to initiate EEO process. | Initiating contact with an agency official connected to EEO satisfies the first step. | Letter contained generic statements, not a formal discrimination charge. | No; insufficient to initiate EEO process. |
| Whether the alleged regulatory noncompliance by EEO could be a standalone Title VII claim seeking reinstatement and back pay. | Regulatory failures caused discrimination/retaliation and seek reinstatement and damages. | Title VII is exclusive remedy for such relief; untimely exhaustion governs. | No standalone Title VII remedy; complaint failed to exhaust; claim dismissed. |
Key Cases Cited
- Payne v. Salazar, 619 F.3d 56 (D.C. Cir. 2010) (exhaustion required for Title VII claims in court)
- Park v. Howard Univ., 71 F.3d 904 (D.C. Cir. 1995) (administrative exhaustion prerequisites)
- Brown v. Marsh, 777 F.2d 8 (D.C. Cir. 1985) (exhaustion is necessary to give agencies opportunity to handle matters internally)
- Bowden v. United States, 106 F.3d 433 (D.C. Cir. 1997) (burden on government to plead and prove untimely exhaustion)
- Kale v. Combined Ins. Co. of Am., 861 F.2d 746 (1st Cir. 1988) (equitable tolling may apply where employer misconduct or improper notices delayed rights)
- Forkkio v. Powell, 306 F.3d 1127 (D.C. Cir. 2002) (vigorous diligence required to preserve Title VII claims)