Al-Saffy v. Vilsack

• Decision Date: 01 July 2016
• Docket Number: No. 15-5025,15-5025
• Citation: 827 F.3d 85
• Parties: 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.
• Court: U.S. Court of Appeals — District of Columbia Circuit

827 F.3d 85

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.

No. 15-5025

United States Court of Appeals, District of Columbia Circuit.

Argued January 11, 2016

Decided July 1, 2016

Susan Laiken Kruger argued the cause for appellant. On the briefs was Alan Lescht, Washington, DC.

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.

Millett

, Circuit Judge:

Mohamed Tawhid 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” 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 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 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 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 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...