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Niskey v. Kelly

United States Court of Appeals, District of Columbia Circuit

June 9, 2017

Lawrence Niskey, Appellant
John F. Kelly, U.S. Department of Homeland Security, Appellee

          Argued September 26, 2016

         Appeal from the United States District Court for the District of Columbia (No. 1:13-cv-01269)

          Matt Rosenthal, Student Counsel, argued the cause as amicus curiae in support of appellant. With him on the briefs were Thomas Burch, appointed by the court, Aaron Parks and Rachel Zisek, Student Counsel.

          Lawrence Niskey, pro se, filed the briefs for appellant.

          John C. Truong, Assistant U.S. Attorney, argued the cause for appellee. On the brief were R. Craig Lawrence and Peter R. Maier, Assistant U.S. Attorneys.

          Before: Millett and Pillard, Circuit Judges, and Williams, Senior Circuit Judge.


          Millett, Circuit Judge.

         Before federal employees can bring a claim of employment discrimination to court, they must first present the claim to their employing agency so that the agency can attempt to resolve the matter internally. While Lawrence Niskey initiated this administrative exhaustion process for his claims of race discrimination and retaliation, he did not see it through to the end. Accordingly, we hold that the district court properly dismissed his claims against the Department of Homeland Security for failure to exhaust his administrative remedies.


         Lawrence Niskey is an African American male who was employed by the Department of Defense as an Information Technology Specialist, a job that involved classified material. According to the allegations in his district court complaint, in April 2002, Niskey noticed that his supervisors were not granting leave to employees evenhandedly. After Niskey complained about this problem to his supervisors, John O'Connor and Fred Herr, his work came under increased scrutiny, and he was warned by other employees that trouble was headed his way. Then, on the morning of September 11, 2002, Niskey spoke to Carl Law-his next-in-line supervisor-to request three to four hours of emergency leave because he thought his car had been stolen. Law denied Niskey's leave request and told Niskey that he would be considered absent without leave. After Niskey obtained a replacement vehicle, he called a different supervisor-John O'Connor-to report that he was coming into work. But O'Connor told Niskey to stay home for the rest of the day.

         The next day, Niskey's access to classified information was suspended, and Niskey himself was suspended from his job, albeit with pay. That same day, Niskey contacted Defense Department Equal Employment Opportunity Counselor Allison Stafford to complain that his security clearance suspension was based on discriminatory animus and retaliation for his previous complaints to his supervisors about inequalities in the leave-approval process. According to Niskey, Stafford told him not to file a formal discrimination or retaliation complaint until the agency took final action on his security clearance.

         On October 28, 2002, Niskey was suspended without pay. A letter notifying Niskey of the suspension also informed him that if he felt that the decision was made for discriminatory reasons, he should contact the Equal Employment and Cultural Diversity Office at the Department of Defense. On an unspecified date in October 2002, Niskey sent a letter instead to the headquarters of the United States Equal Employment Opportunity Commission complaining about the Defense Department's discrimination and retaliation. Niskey never received a response to that letter.

         In 2003, Niskey's job, as well as his equal employment opportunity complaints to Stafford, were transferred from the Department of Defense to the Department of Homeland Security, along with his personnel files. For nearly three years, no action was taken by the agency on Niskey's security clearance suspension or his discrimination and retaliation claims.

         On March 30, 2006, Niskey's security clearance was permanently revoked. Niskey filed an appeal of the revocation with officials in the Department of Homeland Security charged with handling security-clearance disputes and requested a formal hearing. In November 2006, Niskey, now represented by counsel, sent a formal request to appear at the hearing.

         That hearing was scheduled for April 25, 2007. However, the day before the hearing, Niskey's attorney informed him that she would no longer represent him. Because Niskey was unable to obtain information about the location or time of the hearing, he did not appear. On May 11, 2007, the Chief Security Officer affirmed the revocation of Niskey's security clearance.

         As a result of the security clearance revocation, the Department notified Niskey of his proposed removal on August 10, 2007. Although Niskey protested the decision, he was notified on September 4, 2007, that the decision to remove him had been finalized. That notice also advised Niskey to contact the Department's equal employment opportunity office if he believed that the removal was the result of discrimination. Niskey then sent a letter challenging his removal to an Attorney-Advisor for Labor and Employment in the Department's Office of General Counsel. Niskey's removal became effective on September 12, 2007.

         With the aid of new counsel, on October 12, 2007, Niskey appealed his termination to the Merit Systems Protection Board. However, Niskey's appeal documents and hearing testimony before the Board's administrative law judge ("ALJ") made no mention of racial discrimination or retaliation, focusing instead on alleged procedural errors in the security revocation and termination process. A Board ALJ affirmed Niskey's termination, finding no material error in the procedures that led to his security clearance revocation or his removal.

         Niskey filed pro se a petition for review of the ALJ's decision with the Board. In his petition for review, Niskey alleged that race discrimination played a part in his initial temporary suspension for being "absent without leave, " which led to his security clearance suspension and, ultimately, to his termination. The Board affirmed the decision of the ALJ, ruling that Niskey did not present any new or previously unavailable evidence, and did not demonstrate that the ALJ committed any material legal error. The Board issued its final decision on July 9, 2008.

         Over a year later, in November 2009, Niskey contacted the Equal Employment Opportunity Commission's Washington Field Office about his termination, and was advised to file a formal complaint with the Department of Homeland Security's Equal Employment Opportunity ("EEO") office. Niskey claims that he was told that his time limit for filing his complaint would be equitably tolled. In August 2010, Niskey contacted a counselor in the Department's EEO office, and in September 2010, Niskey filed a formal complaint with that office. The complaint alleged that race ...

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