United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 11, 2016 Decided July 1, 2016
No. 15-5025
MOHAMED TAWHID AL-SAFFY,
APPELLANT
v.
THOMAS J. VILSACK, IN HIS OFFICIAL CAPACITY AS SECRETARY,
U.S. DEPT. OF AGRICULTURE AND JOHN F. KERRY, IN HIS
OFFICIAL CAPACITY AS SECRETARY OF STATE,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:13-cv-01562)
Susan Laiken Kruger argued the cause for appellant. On
the briefs was Alan Lescht.
Damon W. Taaffe, Assistant U.S. Attorney, argued the
cause for appellees. With him on the brief were Vincent H.
Cohen Jr., Acting U.S. Attorney at the time the brief was filed,
and R. Craig Lawrence, Assistant U.S. Attorney.
Before: TATEL and MILLETT, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
2
Opinion for the Court filed by Circuit Judge MILLETT.
MILLETT, Circuit Judge: Mohamed Tawid Al-Saffy filed
complaints with both the Department of Agriculture and the
Department of State alleging employment discrimination on
the basis of religion and national origin, and retaliation for
asserting those discrimination claims. Dissatisfied with the
agencies’ processes, he filed suit under Title VII, 42 U.S.C.
§ 2000e et seq. Determining whether Al-Saffy’s lawsuit was
properly brought requires us to navigate a quagmire of
procedural rules. Fortunately for Al-Saffy, his claims emerge
intact (at least for summary judgment purposes), and the
district court’s order of dismissal must be reversed.
I
A
Title VII broadly protects “employees or applicants for
employment” from “discrimination based on race, color,
religion, sex, or national origin.” 42 U.S.C. § 2000e-16(a).
The statute’s protections extend to employees of the federal
government. Id.
The Equal Employment Opportunity Commission has
“broad authority to enforce [Title VII’s] antidiscrimination
mandate within the federal government.” Bowden v. United
States, 106 F.3d 433, 437 (D.C. Cir. 1997). To that end, the
Commission has put into place “detailed procedures for the
administrative resolution of discrimination complaints,”
including time limits for “seeking informal adjustment of
complaints, filing formal charges, and appealing agency
decisions to the Commission.” Id.
To begin with, a federal government employee who
alleges unlawful discrimination must “initiate contact with a[n]
[Equal Employment Opportunity] Counselor within 45 days”
3
of a discriminatory event. 29 C.F.R. § 1614.105(a)(1). 1 The
Counselor will attempt an informal resolution of the claim. If
informal counseling does not resolve the employee’s claim,
however, the employee may file a formal complaint with the
employing agency itself, usually through that agency’s Equal
Employment Opportunity (“EEO”) office. See generally id.
§ 1614.106. The agency then has 180 days from the filing of
the complaint in which to conduct “an impartial and
appropriate investigation of the complaint[.]” Id.
§ 1614.106(e)(2).
Once the agency has completed the investigation and
provided the employee with its investigative report, the
employee has a variety of options. For starters, if the
employee requests an immediate decision from the agency,
then “[t]he agency shall issue [a] final decision within 60 days
of receiving” that request. 29 C.F.R. § 1614.110(b). But if
the employee fails to respond to the investigative report within
thirty days, the agency must issue a final decision within sixty
days of the end of that thirty-day window for the employee’s
response. Id. Either way, the agency decision “shall consist
of findings by the agency on the merits of each issue in the
complaint, * * * and, when discrimination is found,
appropriate remedies and relief[.]” Id. In addition, the
agency decision must “contain notice of the right to appeal the
final action to the Equal Employment Opportunity
Commission, the right to file a civil action in federal district
court, the name of the proper defendant in any such lawsuit and
the applicable time limits for appeals and lawsuits.” Id.
As an alternative to those routes for obtaining a decision
by the employing agency, the employee may instead request a
1
Like the Title VII statute, the governing regulations apply to
employees, former employees, and applicants for employment. See
42 U.S.C. § 2000e-16; 29 C.F.R. § 1614.103(c). For ease of
reference, this opinion uses “employee” to cover all of those groups.
4
hearing by an Equal Employment Opportunity Commission
administrative law judge (“ALJ”) within thirty days of
receiving the agency’s investigative report. 29 C.F.R.
§§ 1614.106(e)(2), 1614.109(a). The Commission will then
“appoint an administrative judge to conduct a hearing,” and
that ALJ will “assume full responsibility for the adjudication
of the complaint.” Id. § 1614.109(a). After reviewing the
administrative complaint, the ALJ may dismiss the “entire
complaint,” id. § 1614.107(a), or may determine whether a
hearing is necessary to resolve the dispute, id. § 1614.109(g). 2
Ultimately, if the complaint is not dismissed, the ALJ “shall
issue a decision on the complaint, and shall order appropriate
remedies and relief where discrimination is found” within “180
days of receipt by the administrative judge of the complaint file
from the agency.” Id. § 1614.109(i).
Once the ALJ issues a decision, the agency must enter a
final order within forty days. 29 C.F.R. § 1614.110(a). That
final order “shall notify the complainant whether or not the
agency will fully implement the decision of the administrative
judge,” and “shall contain notice of the complainant’s right to
appeal to the Equal Employment Opportunity Commission, the
2
The regulations list nine grounds for dismissal of the “entire
complaint”: (1) failure to state a claim; (2) failure to comply with
applicable time limits; (3) a pending or completed civil action in a
United States District Court that shares the same basis as the
complaint and to which the employee was a party; (4) the
employee’s pursuit of the matter in a negotiated grievance
procedure, or in an appeal to the Merit Systems Protection Board; (5)
the complaint is moot or challenges a preliminary step to taking a
discriminatory action, unless the preliminary step is retaliatory; (6)
the employee cannot be located; (7) failure to respond adequately to
the agency’s written request for relevant information, provided that
the request included a notice of the proposed dismissal; (8) the
complaint asserts dissatisfaction with the processing of a previously
filed complaint; or (9) the complaint is part of a clear pattern of
misuse of the EEO process. 29 C.F.R. § 1614.107(a)(1)–(9).
5
right to file a civil action in federal district court, the name of
the proper defendant in any such lawsuit and the applicable
time limits for appeals and lawsuits.” Id. If the agency fails
to issue such an order within forty days, the ALJ’s decision
“shall become the final action of the agency.” Id.
§ 1614.109(i).
An employee may appeal any final agency action to the
Equal Employment Opportunity Commission “within 30 days
of receipt of the final decision of the agency.” 29 C.F.R.
§§ 1614.401(a), 1614.402(a). Alternatively, the employee
may file suit in federal district court within ninety days of
receiving the final agency action. 42 U.S.C. § 2000e-16(c)
(“Within 90 days of receipt of notice of final action taken by a
department, agency, or unit * * * an employee or applicant for
employment, if aggrieved by the final disposition of his
complaint, or by the failure to take final action on his
complaint, may file a civil action[.]”); 29 C.F.R.
§ 1614.407(a), (c).
Finally, if no final agency action is taken and no appeal to
the Commission has been filed, the employee may file suit in
federal district court any time “[a]fter 180 days from the date
of filing” the administrative complaint with the employing
agency. 29 C.F.R. § 1614.407(b).
B
Because the district court granted summary judgment in
favor of the government, we take “the facts in the record and
all reasonable inferences derived therefrom in a light most
favorable to” Al-Saffy. DeGraff v. District of Columbia, 120
F.3d 298, 300 (D.C. Cir. 1997) (quoting Wardlaw v. Pickett, 1
F.3d 1297, 1299 (D.C. Cir. 1993)).
Al-Saffy is an Egyptian-American Muslim who has been
employed by the Foreign Agricultural Service, a component of
6
the United States Department of Agriculture, since December
2001. In 2008, Al-Saffy was named the Director of the Saudi
Arabia and Yemen Agricultural Trade Offices. Just before
Al-Saffy was scheduled to depart for Saudi Arabia, Susan
Schayes, the Assistant Deputy Administrator for the Office of
Foreign Service Operations for the Agriculture Department,
placed Al-Saffy’s travel on hold. Al-Saffy filed an EEO
complaint against the Agriculture Department, challenging
that action and alleging discrimination based on religion and
national origin, as well as retaliation. He later withdrew his
complaint when Schayes permitted him to travel to Saudi
Arabia to begin his assignment.
Al-Saffy alleges that, while he was abroad, he was
harassed by Roland McKay, a State Department
Economic/Commercial Officer in the United States Embassy
in Yemen. Between October 2009 and August 2010, McKay
allegedly obstructed Al-Saffy’s management of his
subordinates, purported to suspend Al-Saffy’s visits to Yemen,
interfered with the allocation of funds for which Al-Saffy was
responsible, and communicated with Al-Saffy’s supervisor
about matters within Al-Saffy’s purview.
Later, when Al-Saffy traveled back to Washington, D.C.,
to rest and recuperate, his supervisor—Kim Svec, Area
Director of the Africa and Middle East Division—scheduled
back-to-back meetings for him, contrary to the normal practice
of including scheduled breaks. Also, when Svec traveled to
the Middle East, she did not allow Al-Saffy to travel with her
from Saudi Arabia to Yemen, although the normal practice is
for a Trade Office Director to accompany an Area Director to
other countries that they both cover.
Additionally, during a meeting in D.C., Schayes allegedly
asked Al-Saffy if he was Muslim. After Al-Saffy returned to
Saudi Arabia, Schayes repeatedly “yelled at him for no reason”
during phone conversations. J.A. 11 (Compl. ¶ 29). When
7
James Higgiston replaced Schayes on August 17, 2010, he
immediately informed Al-Saffy that he would no longer be the
Trade Office Director in Yemen.
Based on those events, Al-Saffy contacted the Agriculture
Department’s EEO office on September 7, 2010. On March
4, 2011, Al-Saffy filed a formal EEO complaint against the
Agriculture Department (“2011 Complaint”), alleging
discrimination based on national origin and religion, and
reprisal for exercising his rights against employment
discrimination. Following the agency’s investigation,
Al-Saffy requested a hearing before an ALJ on his complaint.
Meanwhile, in August 2011, Al-Saffy filed a request for a
one-year extension of his position as Director of the Saudi
Arabia Trade Office. Though such extensions usually are
routinely approved, Al-Saffy’s was denied. Higgiston also
modified the position so that Al-Saffy would no longer be
eligible for it. Al-Saffy further alleges that Schayes, Svec,
and Higgiston ensured that Al-Saffy received substandard
housing in Saudi Arabia. Finally, in November 2011,
Higgiston and Svec refused to allow Al-Saffy to attend a
work-related conference in Atlanta.
Based on those events, Al-Saffy timely contacted the
Agriculture Department’s EEO office, and filed another formal
EEO complaint against the Department on March 27, 2012
(“2012 Complaint”), also alleging discrimination on the basis
of religion and national origin, and reprisal for his prior EEO
activity.
After Al-Saffy returned to the United States in June 2012,
he was assigned to a subordinate position as International
Agriculture Development Specialist. J.A. 14 (Compl. ¶ 50).
Al-Saffy later amended the 2012 Complaint to identify that
assignment as an additional instance of discrimination. As he
had with the 2011 Complaint, Al-Saffy requested an ALJ
8
hearing on the 2012 Complaint following the agency’s
investigation.
On March 29, 2013, Al-Saffy sent the Equal Employment
Opportunity Commission two identical letters stating that he
was “withdraw[ing] his request for a hearing” before the ALJs
on his 2011 Complaint and his 2012 Complaint, and advising
that he would instead be filing a complaint in federal court.
J.A. 94, 96.
On April 3, 2013, the ALJ presiding over the 2012
Complaint issued an order stating:
Notice is hereby given that the above captioned case
is DISMISSED pursuant to the attached letter from
Complainant’s Attorney withdrawing his request for
a hearing, indicating that he will be filing a complaint
in federal district court.
J.A. 93.
On April 30, 2013, the ALJ presiding over the 2011
Complaint issued a differently worded order stating:
Pursuant to the Complainant’s attached Notice of
Withdrawal dated March 29, 2013, the hearing
request for the captioned matter is hereby
DISMISSED. Absent notice that a civil action has
been filed in this matter, the Agency shall issue a final
decision in accordance with the procedures set forth
at 29 C.F.R. § 1614.110(b) (2012).
J.A. 97. Neither order detailed Al-Saffy’s appeal rights or
provided any additional information about time limits for
further review.
9
Meanwhile, on February 21, 2013, Al-Saffy received the
Agriculture Department’s administrative motion for summary
judgment on the 2011 Complaint. Attached to that motion
were affidavits of two State Department officials describing
their roles in having Al-Saffy removed from his position as
Director of the Yemen Trade Office. Angie Bryan, then the
Deputy Chief of Mission in Yemen, stated that she expressed
concerns about Al-Saffy to Svec and advocated for Al-Saffy’s
removal. Stephen Seche, then the United States Ambassador
to Yemen, stated that he was concerned that Al-Saffy’s
interpersonal style was so disruptive as to necessitate his
removal. Bryan’s affidavit also showed that she and Seche
relied on allegedly false information from Roland McKay in
advocating for Al-Saffy’s removal.
After receiving those affidavits, Al-Saffy contacted the
State Department’s EEO office on April 7, 2013. He later
filed a formal EEO complaint against the State Department in
July 2013, alleging discrimination based on race, national
origin, and religion, and reprisal for prior EEO activity. On
October 1, 2013, the State Department dismissed the complaint
“in its entirety” for two reasons. J.A. 86. First, the State
Department said the complaint was redundant of the 2011
Complaint against the Agriculture Department. Second, the
State Department ruled that the complaint was untimely
because Al-Saffy had failed to contact an EEO counselor
within forty-five days of learning about the State Department’s
allegedly discriminatory participation in his removal as the
Yemen Trade Office Director. The State Department
reasoned that the Bryan and Seche affidavits were
“[p]resumably” included in the Agriculture Department’s
investigative report on the 2011 Complaint, and on that basis
“[a]ssum[ed]” that Al-Saffy was “aware of the affidavits”
before February 21, 2013—which was more than forty-five
days before he contacted an EEO counselor. J.A. 87.
10
C
Al-Saffy subsequently filed suit in the United States
District Court for the District of Columbia, alleging that the
Agriculture and State Departments each discriminated against
him based on religion and national origin, and retaliated
against him for filing an EEO complaint, all in violation of
Title VII. The government moved to dismiss the complaint as
untimely, arguing that Al-Saffy failed to file suit within ninety
days of final agency action on his 2011 and 2012
administrative complaints. The government also argued that
the State Department was not a proper defendant and that, even
if it were, Al-Saffy waited too long to contact the State
Department’s EEO office.
The district court granted summary judgment for the
government. The court concluded that the Agriculture
Department’s inaction for the forty days following the ALJ
orders dismissing Al-Saffy’s 2011 and 2012 Complaints
rendered those orders “final agency action” and triggered Title
VII’s ninety-day clocks—ending on July 29, 2013, and July 2,
2013, respectively—for Al-Saffy to file suit in federal court.
J.A. 119. Because Al-Saffy did not file his court complaint
until October 10, 2013, the court found the claims against the
Agriculture Department to be untimely.
With respect to the State Department, the district court
ruled that the Department was not a proper defendant because
Al-Saffy never alleged that he was an employee or applicant
for employment with the State Department. The court also
held that, because Al-Saffy delayed more than forty-five days
before contacting an EEO Counselor after learning of the State
Department’s allegedly discriminatory role in his removal
from his Yemen position, the complaint was barred.
11
II
We review de novo the district court’s grant of summary
judgment, and can affirm only if there is no material error of
law in the district court’s analysis and there are no genuinely
disputed issues of material fact. See Tao v. Freeh, 27 F.3d
635, 638 (D.C. Cir. 1994). If, on the other hand, any material
facts are at issue or, though undisputed, are susceptible to
divergent inferences, summary judgment must be denied. Id.
A
The district court held that the ALJ order dismissing
Al-Saffy’s hearing request for his 2011 Complaint was the
type of ruling that, after forty days of inaction by the
Agriculture Department, automatically became “final agency
action” and triggered Title VII’s ninety-day time limit for
Al-Saffy to file suit in court. That was error.
1
Title VII and the implementing regulations impose a
ninety-day limitations period for a federal employee or
applicant for employment to file suit in federal court that starts
to run upon the employee’s “notice of final action taken by”
the employing agency. 42 U.S.C. § 2000e-16(c); see 29
C.F.R. § 1614.407(a) & (c). But by its plain text, the ALJ
order on Al-Saffy’s 2011 Complaint did not finally terminate
the agency proceedings or in any way dispose of the merits of
the complaint in a manner that could transmogrify the ALJ
order into “final [agency] action” or a “final [agency]
decision,” 29 C.F.R. § 1614.407(a). Quite the opposite: all
the order did was dismiss Al-Saffy’s “hearing request” before
the ALJ, and send the 2011 Complaint back to the Agriculture
Department, specifically instructing that “the Agency”—that
is, the Department of Agriculture—“shall issue a final decision
in accordance with the procedures set forth at 29 C.F.R.
12
§ 1614.110(b)[],” unless Al-Saffy filed suit in the interim.
J.A. 97. In other words, all that the order did was return the
complaint to the same status—pending before the
agency—that it had prior to Al-Saffy’s request for an ALJ
hearing. See Hunter v. Keisler, No. 06-5908, 2007 WL
3171223, at *4 (D.N.J. Oct. 27, 2007) (By withdrawing a
hearing request, the employee “effectively requested an
‘immediate final decision’ requiring the Agency to issue a final
decision with findings on the merits of each issue in the
complaint.”) (citing 29 C.F.R. § 1614.110(b)).
That, in fact, is why the ALJ invoked Section 1614.110(b)
in returning the complaint to the agency. That Section
provides a mechanism for the agency itself to take final agency
action on a complaint—sans an ALJ decision or
hearing—within a defined time period. 29 C.F.R.
§ 1614.110(b). To constitute final agency action under that
Section, the decision “shall” include “findings by the agency
on the merits of each issue in the complaint, or, as appropriate,
the rationale for dismissing any claims in the complaint and,
when discrimination is found, appropriate remedies and
relief[.]” Id. In addition, the agency decision must “contain
notice of the right to appeal to the Equal Employment
Opportunity Commission, the right to file a civil action in
federal district court, the name of the proper defendant in any
such lawsuit and the applicable time limits for appeals and
lawsuits.” Id.
There is no dispute that the Agriculture Department never
issued any decision containing those required components
prior to Al-Saffy filing suit in federal court. And importantly,
Section 1614.110(b) makes no provision for any ALJ ruling to
metamorphose into a time-limit-triggering “final [agency]
action” if the agency itself fails to act.
That means that the ALJ order dismissing the 2011
Complaint put the ball in the Agriculture Department’s court,
13
and there it stayed, awaiting final agency action, without
triggering any limitations period for Al-Saffy to file suit.
Further proof of that procedural posture comes straight from
the agency’s mouth. On February 12, 2014 (four months after
Al-Saffy had filed suit), the Agriculture Department issued a
“Final Agency Decision” on the 2011 Complaint. That
decision acknowledged that the ALJ order dismissed only the
hearing request and “remand[ed] the complaint to the Agency
to issue a Final Agency Decision.” J.A. 100. The decision
further identifies itself as final agency action “[i]n accordance
with the [Equal Employment Opportunity Commission]
regulations at * * * § 1614.110(b),” J.A. 99, and dismisses
Al-Saffy’s complaint “in its entirety,” id. at 100 (citing 29
C.F.R. § 1614.307(a)(3) (authorizing dismissal where there is
a pending civil action by the employee)). Finally, that agency
decision provides the required notice of Al-Saffy’s rights to
appeal to the Commission or to file a civil action in federal
district court. J.A. 100–103.
In sum, because the ALJ order dismissing Al-Saffy’s
hearing request on his 2011 Complaint and remanding for
agency action under Section 1614.110(b) was not and could
not become final agency action, Al-Saffy never became subject
to the ninety-day clock for filing suit on which the district court
relied to dismiss this case. Instead, the only relevant timing
provision for Al-Saffy was Section 1614.407(b), which, when
the Agriculture Department failed to act, gave Al-Saffy the
option to file suit in court any time “[a]fter 180 days from the
date of filing” the administrative complaint with that agency.
29 C.F.R. § 1614.407(b). There is no dispute that Al-Saffy’s
federal court complaint was timely filed under that provision.
14
2
Rather than accept the ALJ order on its own express terms,
the district court treated the order as implicating 29 C.F.R.
§§ 1614.109 and 1614.110(a). But neither provision applies.
Section 1614.109 governs ALJ “hearings” and
corresponding ALJ decisions, and it authorizes ALJs to
“dismiss complaints pursuant to § 1614.107.” 29 C.F.R.
§ 1614.109(b). Section 1614.109 also provides that, once an
ALJ issues a “decision on the complaint” and “order[s]
appropriate remedies and relief where discrimination is
found,” then that ALJ decision will become “final [agency]
action” forty days later as long as the agency does not, in the
interim, issue its own final order responding to the ALJ
decision. Id. § 1614.109(i); see id. § 1614.110(a) (ALJ
decisions under Sections 1614.109(b), (g), or (i) require final
agency action within forty days.). On that basis, the district
court concluded that the order dismissing the 2011 Complaint
became final agency action forty days after the order issued,
which then started the ninety-day clock for filing suit.
The problem is that the ALJ order dismissing the 2011
Complaint bears no resemblance to a Section 1614.109
decision by an ALJ. The order certainly was not a dismissal
“pursuant to § 1614.107,” as Section 1614.109(b) requires.
Section 1614.107(a) lists nine grounds for dismissing the
“entire complaint.” 29 C.F.R. § 1614.107(a). But the ALJ
order plainly did not dismiss the “entire complaint.” It
dismissed only the “hearing request,” and sent the entire
complaint back to the agency for further proceedings. J.A. 97
(“Pursuant to the Complainant’s attached Notice of
Withdrawal dated March 29, 2013, the hearing request for the
captioned matter is hereby DISMISSED.”) (emphasis added).
Moreover, the dismissal was not for any of the grounds
enumerated in 29 C.F.R. § 1614.107(a)(1)–(9). The ALJ did
not find that the complaint failed to state a claim, failed to
15
comply with applicable time limits, was the basis of a
then-pending civil action, was the subject of a negotiated
grievance procedure, was moot or premature, challenged the
processing of a previous complaint, or reflected “a clear
pattern of misuse of the EEO process.” Id. at
§ 1614.107(a)(1)–(5), (8), (9). Nor did the ALJ find that
Al-Saffy could not be located or had failed to respond to
agency requests for necessary information. Id.
§ 1614.107(a)(6) & (7).
Neither did the ALJ order fall within any other part of
Section 1614.109. The ALJ did not grant summary judgment
on the merits or find that “some or all facts are not in genuine
dispute.” 29 C.F.R. § 1614.109(g). Nor did the order qualify
as a decision under Section 1614.109(i). That subsection
requires a substantive “decision on the complaint”—one that
“order[s] appropriate remedies and relief where discrimination
is found.” Id. § 1614.109(i). Subsection 1614.109(i) also
presupposes that an actual hearing was conducted because it
directs the ALJ to “send copies of the hearing record, including
the transcript, and the decision to the parties.” Id. The ALJ
order did none of those things.
The district court likewise erred in relying on
Section 1614.110(a), and its parallel provision transforming an
ALJ decision into “[f]inal action by an agency” after forty days
of agency inaction. Section 1614.110(a) only applies to ALJ
orders that “issue[] a decision under § 1614.109(b), (g) or (i).”
29 C.F.R. § 1614.110(a). As noted, there was no Section
1614.109(b), (g), or (i) decision in this case.
In sum, the ALJ order was not the result of a “hearing,” a
dismissal of the “entire complaint,” a determination on
summary judgment, or a “decision on the complaint.” 29
C.F.R. §§ 1614.109(b), (g), (i). Instead, the ALJ order
forwent a hearing, eschewed deciding anything, and told the
agency to make a decision on the complaint. Such inaction
16
and non-decision does not create final agency action, and thus
is incapable of triggering Title VII’s ninety-day time limit for
filing suit, see 42 U.S.C. § 2000e-16(c); 29 C.F.R.
§ 1614.407(a).
B
The ALJ order dismissing the 2012 Complaint poses a
closer question. While the order on the earlier complaint only
dismissed the hearing request, this ALJ order directed that the
“case is DISMISSED,” but then added that it was “pursuant to
the attached letter from Complainant’s Attorney withdrawing
his request for a hearing[.]” J.A. 93 (emphasis added).
The district court again concluded that the ALJ order
became final agency action after forty days. But, as with the
order on the 2011 Complaint, this ALJ order does not fit well
into the categories of ALJ decisions that are covered by
Section 1614.110(a)’s provisions for ripening into final agency
action. The order did not purport to grant summary judgment,
see 29 C.F.R. § 1614.109(g), or to issue a substantive decision
after a hearing, see id. § 1614.109(i). Nor did it “dismiss [the]
complaint[] pursuant to § 1614.107,” id. § 1614.109(b),
because none of those categories of dismissal applied, id.
§ 1614.107(a).
Having said that, it cannot be overlooked that the ALJ
order on the 2012 Complaint dismissed the “case,” and not just
the hearing request, J.A. 93, so it differs in that respect from the
order on the 2011 Complaint. Perhaps the signification of that
language dismissing “the case” is undermined by the order’s
immediate reference to Al-Saffy’s “attached letter
withdrawing his request for a hearing.” J.A. 93. After all,
the ALJ order did not purport to resolve the dispute between
the employee and the agency, and therefore did not dismiss the
“complaint” as contemplated by Section 1614.109(b).
17
We need not try to untie that Gordian knot and definitively
determine whether the order on the 2012 Complaint could have
potentially ripened into the type of final agency action that
would trip the ninety-day filing limit. That is because the
order indisputably did not provide Al-Saffy the required notice
of his rights to further review.
Title VII itself expressly conditions the start of the
ninety-day time limit for filing suit on the employee’s “receipt
of notice of final action taken by a department, agency, or
unit[.]” 42 U.S.C. § 2000e-16(c). This court has held,
moreover, that notice of final agency action alone does not
start that ninety-day clock running if unaccompanied by
“notice (1) of [the employee’s] right to file a civil action and
(2) of the * * * time limit on filing such action.” Williams v.
Hidalgo, 663 F.2d 183, 186 (D.C. Cir. 1980). We held in
Williams that Title VII “itself required that notice of final
agency action include notice of the right to sue and of the
[then] thirty-day limitation.” Id. at 187 (citing Coles v.
Penny, 531 F.2d 609, 614 (D.C. Cir. 1976)) (emphasis in
Williams). Accordingly here, just as in Williams, “to start the
running of the time limitation of the statute, [the Department]
was required by regulation, statute and by court decision to
notify [the employee] of [the] right to sue in federal court and
of the [time] limit for bringing such an action,” 663 F.2d at
187.
On its face, the ALJ order dismissing Al-Saffy’s 2012
Complaint omitted that statutorily required notice. That alone
bars application of the ninety-day limitation period. Indeed, it
would be perverse if this cursory ALJ order entirely omitting
any form of notice, could—through agency inaction no
less—replace the final agency action that should otherwise
have provided notice to the employee. We thus agree that
“[i]t would frustrate the very purpose of the notice regulations
to hold that ALJ decisions may automatically trigger the
statute of limitations without providing notices equivalent to
18
those required by § 1614.110.” Staropoli v. Donahoe, 786 F.
Supp. 2d 384, 390 (D.D.C. 2011); see Moncus v. Johanns, No.
2:03-cv-416, 2006 WL 163309, at *8 (M.D. Ala. 2006)
(“Construing § 1614.109(i) to start a complainant’s appeal
clock without notice from the agency or the administrative
judge regarding the claimant’s right to appeal to the EEOC or
file a civil action and the applicable time limits would be
contrary to the purpose of the regulation, which clearly
contemplates formal notice to the complainant of appeal
procedures.”).
Because Title VII requires final agency action to notify the
employee of his right to appeal and the governing time
limitation, the order dismissing the 2012 Complaint did not
trigger the ninety-day deadline for Al-Saffy to file suit.
Instead, given the lack of timely final action by the agency,
Al-Saffy could have and did file a civil action more than 180
days after the filing of the 2012 Complaint with the agency
(that is, any time after September 23, 2012). See 29 C.F.R.
§ 1614.107(b). Al-Saffy’s October 10, 2013 filing in district
court thus preserved his claims from the 2012 Complaint.
C
Al-Saffy’s claims against the State Department lack the
procedural complexity of his claims against the Department of
Agriculture. Nevertheless, the district court also erred in
granting summary judgment for the government on those
claims because there are genuine issues of material fact
regarding whether Al-Saffy had an employment relationship
with the State Department within the meaning of Title VII, and
whether Al-Saffy knew about the State Department’s alleged
role in discrimination against him prior to 2013.
19
1
To invoke Title VII’s protection against the State
Department, Al-Saffy had to establish, among other things,
that he was an “employee[]” of that agency. 42 U.S.C.
§ 2000e-16(a) (covering “personnel actions affecting
employees or applicants for employment” with a federal
department or agency) (emphasis added). That is because, as
applied to the federal government, Title VII “cover[s] only
those individuals in a direct employment relationship with a
government employer.” Spirides v. Reinhardt, 613 F.2d 826,
829 (D.C. Cir. 1979). Unfortunately, Title VII includes only a
“completely circular” definition of the term “employee.”
Clackamas Gastroenterology Associates v. Wells, 538 U.S.
440, 444 (2003) (further describing the statutory definition as
“nominal” and “explain[ing] nothing”) (citations and internal
quotation marks omitted); see 42 U.S.C. § 2000e(f) (defining
“employee” as “an individual employed by an employer”).
Accordingly, we must consult “traditional agency law
principles” to determine whether Al-Saffy was an employee of
the State Department. See Nationwide Mutual Insurance Co.
v. Darden, 503 U.S. 318, 323 (1992). In analyzing
employment status, the “common-law element of control is the
principal guidepost[.]” See Clackamas, 538 U.S. at 448
(analyzing employment status under the Americans with
Disabilities Act).
Hewing to common-law principles, we have recognized
that an individual may be jointly employed by two or more
entities. See Redd v. Summers, 232 F.3d 933, 938–939 (D.C.
Cir. 2000). Indeed, “at common law, one could be a dual
servant acting for two masters simultaneously or a borrowed
servant who by virtue of being directed or permitted by his
master to perform services for another may become the servant
of such other.” Faush v. Tuesday Morning, Inc., 808 F.3d
208, 215 (3d Cir. 2015) (internal quotation marks omitted); see
20
also, e.g., Butler v. Drive Automotive Industries of America,
793 F.3d 404, 409 (4th Cir. 2015) (“The joint employment
doctrine captures instances in which multiple entities control
an employee.”).
We have recognized two largely overlapping articulations
of the test for identifying joint-employer status. See Redd,
232 F.3d at 938–939. The first, taken from Spirides v.
Reinhardt, speaks in terms of the “‘economic realities’ of the
work relationship,” emphasizing whether the “employer has
the right to control and direct the work of an individual, not
only as to the result to be achieved, but also as to the details by
which that result is achieved.” 613 F.2d at 831–832. A
second articulation borrows language from NLRB v.
Browning-Ferris Industries of Pennsylvania, 691 F.2d 1117
(3d Cir. 1982), asking whether the employer, “while
contracting in good faith with an otherwise independent
company, has retained for itself sufficient control of the terms
and conditions of employment of the employees who are
employed by the other employer,” id. at 1123. See Redd, 232
F.3d at 938.
As their language indicates, in both cases the touchstone is
control. And because Al-Saffy came forward with evidence
creating a genuine dispute concerning the State Department’s
control over his work and employment, the district court
should not have granted summary judgment.
Specifically, Al-Saffy put forth evidence showing that,
“although [he] was not officially employed by State, he
reported directly to the Ambassadors of Saudi Arabia and
Yemen, who are State employees.” Pet. Br. 22; see also
Al-Saffy v. Vilsack, 54 F. Supp. 3d 79 (D.D.C. 2014) (No.
13-01562), ECF No. 14, Pl.’s Opp. to Def.’s Mot. to Dismiss at
9. In addition, the record includes identical letters sent by
Secretary Vilsack to the American Chargé d’Affaires in Saudi
Arabia and the American Ambassador in Yemen on the
21
occasion of Al-Saffy’s appointment as Trade Office Director,
in which Secretary Vilsack wrote: “[Al-Saffy] will report
directly to you, so that you will be fully informed of his
activities in Saudi Arabia. I know that Dr. Al-Saffy will be a
valuable addition to your staff and a good team player.” J.A.
107, 109. Those letters are relevant evidence that Al-Saffy’s
work abroad was controlled at least in part by the State
Department.
In addition, the affidavits of Angie Bryan, the Deputy
Chief of Mission in Yemen, and Stephen Seche, Ambassador
to Yemen, offer further corroborative evidence for Al-Saffy.
Bryan described how Al-Saffy’s allegedly unprofessional
behavior and “accusational style of communication” caused
“disruption in the embassy, negatively impacted morale and
disproportionately consumed [the Deputy Chief of Mission’s]
and the Ambassador’s time.” J.A. 54 (Bryan Decl. ¶ 22).
That conduct would have directly implicated Bryan’s
managerial responsibilities. See id. at 50 (Bryan Decl. ¶ 4)
(“As [Deputy Chief of Mission], I was responsible for the
day-to-day oversight of the embassy, including personnel
issues, morale issues, and other management concerns.”).
Indeed, Bryan and Seche both had recommended Al-Saffy’s
removal from his Yemen post shortly before it occurred. See
id. at 54–55 (Bryan Decl. ¶ 26) (“[T]he Ambassador sent three
email messages to USDA * * * express[ing] his growing
conviction, which I shared, that a reassignment of coverage
needed to be made for the Yemen ATO. Although USDA had
requested that we allow Dr. Al-Saffy time to mend relations
with embassy staff, and we had hoped that such could occur,
by August 2010 the Ambassador and I were of the opinion that
a reassignment needed to occur.”); Id. at 49 (Seche Decl. ¶ 9)
(“I became convinced that Dr. Al-Saffy’s style and manner of
interacting with our * * * [s]taff and embassy personnel had
become so disruptive and unhelpful that a reassignment of the
ATO to another post was the best outcome for all involved.”).
22
Notably, the federal chief of mission statute further
supports Al-Saffy’s account of his relationship with the
Department of State. The statute grants the United States
ambassador in a foreign country plenary authority over other
executive branch employees in that country. See 22 U.S.C.
§ 3927(a)(1) (“[T]he chief of mission to a foreign country * * *
shall have full responsibility for the direction, coordination,
and supervision of all Government executive branch
employees in that country (except for Voice of America
correspondents on official assignment and employees under
the command of a United States area military
commander)[.]”); see also id. § 3902(3) (The chief of mission
is “the principal officer in charge of a diplomatic mission of the
United States or of a United States office abroad which is
designated by the Secretary of State as diplomatic in nature.”).
The statute also requires other agencies “having employees in
a foreign country” to “keep the chief of mission to that country
fully and currently informed with respect to all activities and
operations of its employees in that country, and [to] insure that
all of its employees in that country * * * comply fully with all
applicable directives of the chief of mission.” Id. § 3927(b).
Taken in the light most favorable to Al-Saffy, the
summary judgment record, including the letters to the
embassies and the affidavits of Bryan and Seche, reinforced by
the chief of mission statute, discloses genuine questions of
material fact about whether the State Department exercised
sufficient control over Al-Saffy’s employment in Yemen to be
his joint employer.
2
The district court also grounded dismissal in Al-Saffy’s
purported failure to timely exhaust administrative remedies
before filing suit. Regulations require “[a]n aggrieved person
[to] initiate contact with a Counselor within 45 days of the date
of the matter alleged to be discriminatory or, in the case of
23
personnel action, within 45 days of the effective date of the
action.” 29 C.F.R. § 1614.105. But “if an employee did not
at the time [of the alleged discriminatory action] know or have
reason to know that an employment decision was
discriminatory in nature, the time limits for filing an
administrative complaint may be tolled.” Stoller v. Marsh,
682 F.2d 971, 974 (D.C. Cir. 1982). “The time within which
EEO counseling must be sought is likewise tolled until the
claimant knows or has reason to know the facts that would
support a charge of discrimination.” Loe v. Heckler, 768 F.2d
409, 418–419 (D.C. Cir. 1985).
Al-Saffy alleges that he was unaware that the State
Department had participated in the decision to remove him as
Director of the Yemen Trade Office until February 2013.
That was when the Department of Agriculture filed a motion
for summary judgment in district court on the 2011 Complaint,
and attached the affidavits of Bryan and Seche. Both
described their concerns about Al-Saffy’s work style, and their
role in recommending his dismissal close in time to his actual
termination from the Trade Office post. See J.A. 54–55
(Bryan Decl. ¶ 22–26); Id. at 49 (Seche Decl. ¶ 9). In
particular, Bryan described multiple conversations and emails
between Seche and the Agriculture Department, in which
Seche described problems with Al-Saffy and expressed his
opinion, which Bryan shared, that “a reassignment [of the
Yemen Trade Office Director responsibilities] needed to
occur.” Id. at 55 (Bryan Decl. ¶ 26).
Al-Saffy also alleges that Bryan’s affidavit revealed for
the first time that Bryan and Seche relied on information
received from Roland McKay, the State Department
Economic/Commercial Officer in the Yemen embassy, in
advocating for Al-Saffy’s removal. J.A. 18 (Compl. ¶ 66).
Indeed, Bryan’s affidavit demonstrates that her negative
impressions of Al-Saffy stemmed in large part from McKay’s
reports. See, e.g., id. at 53–54 (Bryan Decl. ¶ 21) (“I came to
24
learn from Mr. McKay * * * that Dr. Al-Saffy regularly treated
[other embassy employees] rudely and dismissively and
viewed Mr. McKay’s role—limited as it was—as
inappropriately interfering with Dr. Al-Saffy’s work in
Yemen.”). Al-Saffy explained in his EEO complaint to the
State Department: “I believe that Mr. McKay provided false
information about me to Ms. Bryan and Mr. Seche based on
my race, national origin and religion.” Id. at 91. He added
that “Ms. Bryan and Mr. Seche accepted the false information
provided by Mr. McKay as true because of my race, national
origin and religion.” Id.
Taken in the light most favorable to Al-Saffy, his receipt
of those affidavits in 2013 marked the first time that he learned
that senior State Department officials had specifically
recommended his removal from his Yemen post. Al-Saffy
also discovered at that same time that senior State Department
officials relied on allegedly false information provided by
another State Department employee in making that
recommendation. Those newly discovered facts provided
Al-Saffy with the basis for his claims that State Department
officials discriminated against him by sharing false
information, crediting that false information, and then
recommending his removal.
The government counters that Al-Saffy knew of his claim
against the State Department in 2010 because his complaint
alleges that McKay repeatedly interfered with his work in 2009
and 2010. See J.A. 9–10 (Compl. ¶¶ 21, 22). The complaint
also alleges that, in 2010, Al-Saffy emailed Bryan, “stating that
he was considering filing an EEO complaint” regarding
McKay’s conduct. Id. at 16–17 (Compl. ¶ 58).
That argument misunderstands the basis for Al-Saffy’s
complaint against the State Department, which was that he was
“removed from [his] assignment as Director for the Yemen
[Trade Office].” J.A. 86. Al-Saffy’s apparent knowledge of
25
troubling conduct by a State Department official that was not
(at that time at least) connected to his termination from the
Yemen position does nothing to establish that he was aware of
the involvement by State Department higher-ups in the alleged
discriminatory reassignment of his Yemen responsibilities.
As to the latter event, it was the Bryan and Seche affidavits that
first disclosed the State Department’s direct role.
The government also points to the 2011 Complaint, the
scope of which covered the Agriculture Department’s decision
to remove him from the Yemen Trade Office position. See
J.A. 12 (Compl. ¶ 36). That too misses the point. Neither
Al-Saffy’s awareness that the Agriculture Department
removed him nor his invocation of the EEO process put him on
notice that an entirely different agency—the State
Department—played an allegedly critical role in his
termination from his position in Yemen. 3
In short, Al-Saffy has created a genuine issue of material
fact concerning whether he learned of the State Department’s
involvement in his removal prior to receipt of the Bryan and
Seche affidavits on February 21, 2013. Because Al-Saffy
contacted the State Department’s EEO office within forty-five
days of receiving those affidavits, his claim of timely
administrative exhaustion should have survived summary
judgment.
3
In dismissing Al-Saffy’s administrative complaint, the State
Department deemed Al-Saffy’s claims untimely, “[p]resum[ing]”
that the Bryan and Seche affidavits were included in the
investigatory report on the 2011 Complaint, which would have been
delivered to Al-Saffy long before 2013. J.A. 87. That defies
chronological time: the Seche and Bryan affidavits were executed
in 2013, so could not possibly have been included in the report that
Al-Saffy received two years earlier on November 20, 2011.
26
III
Al-Saffy properly filed EEO complaints against the
Agriculture and State Departments alleging discrimination on
the basis of national origin, religion, and retaliation. Because
no final agency action ever issued as to his 2011 Complaint, he
timely filed this civil action on October 10, 2013, and properly
preserved the claims in that complaint. Because any final
agency action on his 2012 Complaint failed to notify him of his
right to appeal and the process for doing so, his lawsuit also
timely raised those claims. Finally, because Al-Saffy created
genuine issues of material fact as to whether he was an
“employee” of the State Department within the meaning of
Title VII, and whether he timely initiated contact with an EEO
counselor at the State Department, his claims against that
Department also should have survived summary judgment.
We accordingly reverse the district court’s judgment and
remand for further proceedings consistent with this opinion.
So ordered.