United States Court of Appeals, District of Columbia Circuit
September 26, 2016
from the United States District Court for the District of
Columbia (No. 1:13-cv-01269)
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,
Lawrence Niskey, pro se, filed the briefs for appellant.
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.
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
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
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
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.
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
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.
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
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.
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.
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.
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