Lawrence Niskey v. John F. Kelly

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 26, 2016 Decided June 9, 2017
No. 14-5285
LAWRENCE NISKEY,
APPELLANT
v.
JOHN F. KELLY, U.S. DEPARTMENT OF HOMELAND SECURITY,
APPELLEE
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.
2
Opinion for the Court filed by Circuit Judge MILLETT.
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.
I
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.
3
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
4
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.
5
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 discrimination and
retaliation stemming from the 2002 discriminatory leave policy
led to the suspension of his security clearance and his eventual
termination.
The Department’s EEO office found that Niskey had failed
to initiate contact with a Department EEO counselor within 45
days of the unlawful termination or other discriminatory act, as
required by regulation. Niskey appealed to the Equal
Employment Opportunity Commission, which affirmed the
Department’s decision.
On August 20, 2013, Niskey filed suit under Title VII, 42
U.S.C. § 2000e-2, in the United States District Court for the
District of Columbia, again asserting that race discrimination
6
and retaliation led to his termination. The district court
subsequently dismissed Niskey’s complaint for failure to
exhaust his administrative remedies. See Niskey v. Johnson, 69
F. Supp. 3d 270, 271 (D.D.C. 2014). The district court
concluded that Niskey failed to seek timely administrative
review of his final security clearance revocation, and continued
for years thereafter to allow fatal time gaps in his exhaustion
efforts. Id. at 273–275.
II
We review de novo the district court’s dismissal of the
complaint for failure to state a claim. See Harris v. District of
Columbia Water & Sewer Auth., 791 F.3d 65, 68 (D.C. Cir.
2015). In doing so, we assume the truth of the complaint’s
factual allegations and all reasonable inferences to be drawn
from them. See, e.g., Erickson v. Pardus, 551 U.S. 89, 94
(2007); Kassem v. Washington Hosp. Ctr., 513 F.3d 251, 253
(D.C. Cir. 2008).
A
Title VII broadly prohibits discrimination in employment
on the basis of race, color, religion, sex, or national origin. 42
U.S.C. § 2000e-2. That protection extends to employees of
federal agencies, including the Departments of Defense and
Homeland Security. Id. § 2000e-16(a) (“All personnel actions
affecting employees or applicants for employment * * * in
executive agencies as defined in section 105 of Title 5
* * * shall be made free from any discrimination based on race,
color, religion, sex, or national origin.”); see generally Gomez-
Perez v. Potter, 553 U.S. 474, 487 (2008).
While Title VII’s protection against discrimination is quite
straightforward, the process for enforcing that right is
7
labyrinthine. Federal employees, most of whom are
proceeding on their own without legal counsel, have to
navigate a maze of administrative processes before they can
bring a claim to federal court. See generally 42 U.S.C.
§ 2000e-16(c).
First, if subjected to discriminatory action, the federal
employee must within 45 days contact a counselor in the
employing agency’s equal employment opportunity office. 29
C.F.R. § 1614.105(a)(1). At that initial meeting, the EEO
counselor is required to provide the employee with a written
document that outlines his rights and responsibilities in the
employing agency’s EEO process. Id. § 1614.105(b)(1). The
counselor is supposed to investigate the claim and, within 30
days of that initial meeting, conduct a final interview with the
employee. Id. § 1614.105(d). If the issue has not been resolved
by the time of the final interview, the EEO counselor is
required to provide the employee with a written document
informing him that he has the right to file a formal
discrimination complaint with the employing agency. Id. The
counselor is prohibited from “attempt[ing] in any way to
restrain the [employee] from filing a complaint.” Id.
§ 1614.105(g).
After receipt of that written notice, the employee has
fifteen days to file a formal complaint with his employing
agency. 29 C.F.R. § 1614.106(b). The agency then has 180
days to complete its investigation of the complaint and to
attempt to resolve it. See id. § 1614.108(e).
At this juncture, the employee’s procedural path forward
divides depending on whether the employing agency decides
the claim or fails to act within the designated 180-day
timeframe.
8
Option 1: If the employing agency issues a decision with
which the employee is dissatisfied, the employee can file suit
in federal court, 29 C.F.R. § 1614.407(a), or appeal to an Equal
Employment Opportunity Commission (“EEOC”) ALJ, who
has 180 days to render a decision, id. § 1614.109(i). The EEOC
ALJ’s decision binds the agency if the agency either accepts
the decision or fails to object to it within 40 days. Id.
§§ 1614.109(i), 1614.110(a).
Once there is a final EEOC ALJ decision, the employee
may either go directly to court within 90 days, or may first
appeal within 30 days to the full Equal Employment
Opportunity Commission. 29 C.F.R.
§§ 1614.407(a), 1614.402(a). If the employee elects to appeal
to the EEOC, he will have 90 days after the EEOC’s final
decision to bring his claims to federal district court. Id.§ 1614.407(c). If the Commission fails to act within 180 days
of the filing of an appeal, the employee may also bring his case
to federal court at that time, id. § 1614.407(d), or may choose
just to wait for the EEOC’s decision.
Option 2: If the employing agency has failed to issue a
decision within the 180-day time period, the employee can
request an immediate final decision from the agency. 29 C.F.R.
§§ 1614.108(f), 1614.110(b). That decision must be issued
within 60 days of the employee’s request. Id. § 1614.110(b).
Once the agency decides, the employee has the same options
for filing suit in federal district court or proceeding before the
EEOC outlined in Option 1.
As an alternative to demanding an immediate agency
decision, an employee confronted with tardy decisionmaking
by the employing agency can request a hearing before an
EEOC ALJ, just as he could have done if a timely decision had
issued. Or he can forgo obtaining an agency decision
9
altogether and proceed directly to federal district court. 29
C.F.R. §§ 1614.407(b), 1614.106(e)(2). If the employee
chooses to pursue an EEOC ALJ hearing, the matter proceeds
along the track described in Option 1.
But wait—there is more: Niskey claims that he was
pressing what is known as a “mixed case”—a case in which the
asserted claim (or claims) both arises under a federal
employment discrimination law (such as Title VII) and also
relates to or stems from an action that is within the jurisdiction
of the Merit Systems Protection Board (“Board”) (here,
Niskey’s challenge to the revocation of his security clearance
and his resultant removal). See 5 U.S.C. § 7702; see also 29
C.F.R. § 1614.302(a) (defining “mixed case complaints” and
“mixed case appeals”); Kloeckner v. Solis, 133 S. Ct. 596, 600
(2012) (“A federal employee subjected to an adverse personnel
action such as a discharge or demotion may appeal her
agency’s decision to the Merit Systems Protection Board[.]
* * * In that challenge, the employee may claim, among other
things, that the agency discriminated against her in violation of
a federal statute.”). Such cases are deemed “mixed” because
unlike employment discrimination claims, which can
eventually proceed to federal district court, claims alleging
only violations of civil service rules must be litigated before
the Board, and appealed from there to the United States Court
of Appeals for the Federal Circuit. See 5 U.S.C. § 7703; see
generally Kloeckner, 133 S. Ct. at 600–607.
The long and the short of all this is that a federal employee
complaining that an adverse action was taken against him for
discriminatory reasons has yet another available administrative
avenue through which to pursue his claim. Specifically, the
employee can forgo the internal agency exhaustion process and
take his claim directly to the Board. See 5 U.S.C. § 7702; 5
C.F.R. §§ 1201.154, 1614.302(a)(2), (b); Kloeckner, 133 S. Ct.
10at 601. Alternatively, the employee may file a mixed case
complaint with the agency and then appeal to the Board after
the agency disposes of (or fails to timely act on) the mixed-case
complaint. See 5 U.S.C. § 7702; 5 C.F.R. § 1201.154; 29
C.F.R. § 1614.302(a), (b), (d). If the Board upholds the agency
action, the employee may press the complaint before the EEOC
or may seek judicial review. See 5 U.S.C. §§ 7702, 7703(b);
see also 5 C.F.R. §§ 1201.120, 1201.175; 29 C.F.R.
§ 1614.303(a).
B
Congress required federal employees to exhaust
discrimination claims “to give federal agencies an opportunity
to handle matters internally whenever possible,” and to impose
on employing agencies “the opportunity as well as the
responsibility to right any wrong that it might have done.”
Brown v. Marsh, 777 F.2d 8, 14 (D.C. Cir. 1985) (quoting
President v. Vance, 627 F.2d 353, 362 (D.C. Cir. 1980)); see
also id. (exhaustion “ensure[s] that the federal courts are
burdened only when reasonably necessary”).
Unfortunately, as the Supreme Court has understated, “the
intersection of federal civil rights statutes and civil service law
has produced a complicated, at times confusing, process for
resolving claims of discrimination in the federal workplace.”
Kloeckner, 133 S. Ct. at 603. Yet if an employee fails to meet
any of those statutory or regulatory deadlines, the employee’s
federal court action may be dismissed for failure to
administratively exhaust the claim. See, e.g., Hernandez v.
Pritzker, 741 F.3d 129, 134 (D.C. Cir. 2013).
Because administrative exhaustion requirements are not
jurisdictional, however, an employee who missteps in the
process may avoid dismissal if he qualifies for equitable relief
11
from the deadline by demonstrating good cause for the
procedural failure. See Zipes v. Trans World Airlines, Inc., 455
U.S. 385, 393 (1982) (“[F]iling a timely charge of
discrimination with the EEOC is not a jurisdictional
prerequisite to suit in federal court, but a requirement that, like
a statute of limitations, is subject to waiver, estoppel, and
equitable tolling.”); see also Doak v. Johnson, 798 F.3d 1096,
1104 (D.C. Cir. 2015). An employee is entitled to equitable
tolling if he demonstrates “(1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstance
stood in his way.” Holland v. Florida, 560 U.S. 631, 649
(2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005)).
III
Niskey alleges that he was first discriminated against on
the basis of his race and retaliated against for challenging racial
discrimination when his supervisors denied him leave in 2002.
But Niskey did not file a formal complaint with the Department
of Homeland Security’s EEO office until 2010. That is a
yawning time gap for Niskey to bridge. While timely
exhaustion steps and equitable tolling get Niskey part of the
way there, they do not bring him home.
A
To start, Niskey timely made initial contact with the EEO
Counselor of his predecessor employer, the Defense
Department, within 45 days of both his security clearance
suspension and his suspension from employment with pay.
The district court refused to credit that initiation of the
informal EEO process, reasoning that the mere suspension of a
security clearance and suspension from work with pay are not
12
sufficiently adverse personnel actions to support triggering the
EEO process. See Niskey, 69 F. Supp. 3d at 273. That was
error because a security clearance was necessary to perform
Niskey’s job, and so the suspension resulted in a complete
inability to perform all of his job responsibilities.
The prohibition on discrimination applies to “materially
adverse” employment actions. See, e.g., Chambers v. Burwell,
824 F.3d 141, 144 (D.C. Cir. 2016). Actions are “materially
adverse” if they affect the “terms, conditions, or privileges of
employment or future employment opportunities” in such a
way that a reasonable trier of fact could find “objectively
tangible harm.” Czekalski v. LaHood, 589 F.3d 449, 454 (D.C.
Cir. 2009) (quoting Forkkio v. Powell, 306 F.3d 1127, 1131
(D.C. Cir. 2002)).
Prohibited discrimination, in other words, is not rigidly
confined to “hirings, firings, promotions, or other discrete
incidents.” Holcomb v. Powell, 433 F.3d 889, 902 (D.C. Cir.
2006); see Forkkio, 306 F.3d at 1130 (“Actions short of an
outright firing can be adverse within the meaning of Title VII,
but not all lesser actions by employers count.”). Instead, when
“objectively tangible harm” results, actionable employment
actions can include such events as (i) an unchanged
performance rating if the employee claims that he was
discriminatorily denied an improved performance rating, see
Walker v. Johnson, 798 F.3d 1085, 1095 (D.C. Cir. 2015); (ii)
a law enforcement agency’s discriminatory refusal to
investigate a death threat made against its agent by a federal
prison inmate, Rochon v. Gonzales, 438 F.3d 1211, 1219–1220
(D.C. Cir. 2006); and (iii) an agency’s discriminatory denial of
a bonus or payment of a reduced bonus, Russell v. Principi, 257
F.3d 815, 818–820 (D.C. Cir. 2001).
13
Under the circumstances of this case, a reasonable trier of
fact could find that the suspension of Niskey’s security
clearance, even though initially with pay, was materially
adverse. That is because the nature of Niskey’s job was such
that, without a security clearance, he could not perform any
aspects of his job. A reasonable trier of fact could conclude
that a total loss of ability to function as an employee amounted
to “objectively tangible harm,” Czekalski, 589 F.3d at 454.
Indeed, such employment paralysis seems to be far more than
the type of “purely subjective harm[ ]” for which suit might not
stand. Forkkio, 306 F.3d at 1131 (reassigning an employee to
a job with significantly different responsibilities can constitute
an adverse employment action); see also Douglas v. Donovan,
559 F.3d 549, 553–556 (D.C. Cir. 2009).
The district court’s reliance on Forkkio, supra, was
misplaced. There, this court held that a federal employee’s loss
of his job title as “Section Chief” during an agency
reorganization was not a materially adverse employment
action. Forkkio, 306 F.3d at 1129. For good reason. In
Forkkio, the employee retained the accoutrements of his
position and continued to perform nearly all of the
responsibilities of his job. See id. at 1130–1131. The
reorganization also had no effect on his pay or benefits. Quite
the opposite—Forkkio received a pay increase shortly after the
reorganization. Id. at 1131. 1 In other words, Forkkio lost little
more than his job title; the substance of his work, pay, and
1
In addition to losing his “Section Chief” title, Forkkio also no
longer attended weekly meetings with the other section chiefs, no
longer received certain communications sent to management
officials, and reported to a colleague who was previously his peer in
the agency. Forkkio, 306 F.3d at 1129. Those changes bear little
resemblance to the complete loss of job responsibilities that Niskey
suffered.
14
benefits did not materially change for the worse. Id. Niskey,
by contrast, alleges that he lost almost everything.
B
Niskey contends that he undertook sufficient efforts to
exhaust his claims, and that inadequate agency responses merit
equitable tolling of the ensuing time gaps in exhausting his
claims. Niskey notes that, at his initial meeting with an EEO
counselor in September 2002, the EEO counselor failed to
begin the informal EEO process and instead instructed Niskey
to wait until his security clearance was formally revoked to file
a complaint. After that, the EEO counselor apparently did
nothing more with Niskey’s claim.
We agree that Niskey could not have been expected to file
a formal EEO complaint during the four-year time period
preceding his security clearance revocation. That is because
the EEO counselor completely dropped the ball on processing
his informal claim. By telling Niskey to delay filing a formal
complaint until the security clearance was actually revoked, the
counselor ignored her obligation under the regulations to begin
the EEO process immediately and to inform Niskey of his
rights in the process. See 29 C.F.R. § 1614.105(b)(1). Most
relevantly, the counselor failed to apprise Niskey of the
“administrative and court time frames” to which his claim was
subject. Id.Aggrieved employees, especially those proceeding pro se,
justifiably rely on the instructions of EEO counselors in
processing their claims. Bowden v. United States, 106 F.3d
433, 438 (D.C. Cir. 1997) (“Like other courts, we have excused
parties who were misled about the running of a limitations
period, whether by an adversary’s actions, by a government
official’s advice upon which they reasonably relied, or by
15
inaccurate or ineffective notice from a government agency
required to provide notice of the limitations period[.]”)
(citations omitted); cf. Jarrell v. United States Postal Serv., 753
F.2d 1088, 1091–1092 (D.C. Cir. 1985) (“The failure to contact
an EEO Counselor within thirty days of the alleged
discriminatory event may be excused if it is the result of
justifiable reliance on the advice of another government
officer.”). Niskey, therefore, satisfied his obligation to initiate
contact with the EEO Counselor within 45 days of his adverse
personnel action, 29 C.F.R. § 1614.105(a)(1), and he is entitled
to equitable tolling for the period that elapsed leading up to the
final revocation of his security clearance.
Crediting Niskey’s informal EEO claim only gets him so
far though. The formal revocation of Niskey’s security
clearance in March 2006, the denial of his appeal of that
revocation in May 2007, and his termination in August 2007,
were new adverse employment actions that ended the period of
equitable tolling. Once his security clearance was formally
revoked, however, Niskey failed to follow the instruction he
did receive: to file a formal complaint after his security
clearance was permanently revoked. See Dyson v. District of
Columbia, 710 F.3d 415, 422 (D.C. Cir. 2013) (“A ‘petitioner
is entitled to equitable tolling only if she shows * * * that she
has been pursuing her rights diligently[.]’”) (quoting Holland,
560 U.S. at 649) (alterations omitted).
To demonstrate timely exhaustion of those claims, Niskey
points to his efforts to appeal the security clearance revocation,
letters he submitted to agency officials challenging the various
adverse personnel decisions, and his proceedings before the
Merit Systems Protection Board. See Br. of Amicus Curiae in
Supp. of Appellant at 8–10. None of those efforts suffices.
16
Niskey did not raise his racial discrimination and
retaliation allegations in his security revocation proceedings.
Instead, he chose to rely exclusively on procedural arguments.
In addition, Niskey was specifically advised in his final notice
of removal that, if he believed the decision was infected by
racial discrimination or retaliation, he had to either contact the
Department of Homeland Security EEO office or raise the
allegation in his appeal to the Board ALJ. Niskey did neither.
After the Board ALJ ruled, Niskey did mention in his
petition for review of the ALJ’s decision to the Board that race
discrimination was the reason he did not receive leave one day
in September 2002. It seems unlikely, however, that having
failed to allege race discrimination or retaliation before the
ALJ, Niskey could raise a new discrimination claim for the first
time in his petition for review to the Board, and thereby convert
his claim to a mixed-case appeal. See 5 C.F.R. § 1201.115(d)
(noting that one permissible rationale for granting a petition for
review is if “[n]ew and material evidence or legal argument”
becomes available that, “despite the petitioner’s due diligence,
was not available when the record closed”). What is less clear
is whether, faced only with an unpreserved discrimination
claim submitted to the Board, the employing agency should
have notified him of the procedural rights that apply to the
prosecution of mixed cases. 2
We need not decide those questions here because, even if
Niskey’s failure to file a formal EEO complaint after his
employer revoked his security clearance or immediately after
2
Multiple provisions in 29 C.F.R. § 1614.302(b) describe an
employing agency’s notification duties related to mixed-case
appeals. We have not yet had occasion to decide whether the
untimely presentation of a discrimination claim to the Board that was
not litigated before the ALJ triggers an obligation for the employing
agency to provide the notice required by Section 1614.302(b).
17
the Board proceedings could be excused, Niskey still failed to
diligently pursue his claims. He waited until November 2009,
more than a year after the Board’s final decision in 2008, to
contact the EEOC’s Washington Field Office. See Niskey v.
Department of Homeland Security, No. DC-0752-08-0036-I-1,
2008 WL 3850801 (M.S.P.B. July 9, 2008). Then, after he was
advised by the EEOC to file a formal complaint with the
Department of Homeland Security’s EEO office and was told
that his previous delay would be excused, Niskey waited more
than nine additional months—until September 2010—to file an
EEO complaint with the Department.
That lengthy and unexplained delay in filing his formal
complaint with the Department of Homeland Security does not
evidence the diligent pursuit of Title VII rights that is required
for equitable tolling. See Dyson, 710 F.3d at 422 (declining to
apply equitable tolling to a complainant’s seven-month delay
in submitting her Intake Questionnaire to the EEOC).
Accordingly, the district court properly dismissed Niskey’s
complaint for failure to administratively exhaust his racial
discrimination and retaliation claims. The judgment of the
district court is therefore affirmed.
So ordered.