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Niskey v. Johnson

United States District Court, D. Columbia.

September 29, 2014

LAWRENCE NISKEY, Plaintiff,
v.
JEH JOHNSON, Secretary, Department of Homeland Security, Defendant

For LAWRENCE NISKEY, Plaintiff: Gerald L. Gilliard , LEAD ATTORNEY, LAW OFFICE OF GERALD L. GILLIARD, ESQ., LLC, Washington, DC.

For JANET A. NAPOLITANO, U.S. Department of Homeland Security, Defendant: John Cuong Truong, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.

Page 271

MEMORANDUM OPINION

JOHN D. BATES, United States District Judge.

Back in 2002, Lawrence Niskey allegedly experienced unfair treatment at his job. Eight years and several incidents later, Niskey finally filed a formal complaint with the Equal Employment Opportunity Commission. The EEOC denied his claim because Niskey had failed to exhaust his administrative remedies. This Title VII case followed, and the Court will grant [15] the government's motion to dismiss for the same reason.

BACKGROUND

For purposes of defendant's motion to dismiss, the Court accepts as true all facts as pleaded in Niskey's complaint. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 572, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Niskey's travails began in April 2002, when he " realized" that employees in his division of the Department of Defense received different treatment--as to race--regarding leave from work. Pl.'s 1st Am. Compl. [ECF No. 12] at 2. Four months later, he brought that complaint to his supervisors. The issue became personal on September 11, 2002, when Niskey requested a few hours of emergency leave to handle a transportation issue. His request was denied, and he was deemed AWOL. The very next day, the agency suspended Niskey's access to classified information as a result of his unauthorized absence.

That same day, Niskey contacted an EEO counselor to complain that the suspension of his access to classified information was rooted in discrimination and retaliation. The counselor allegedly informed Niskey that he should not file a formal complaint until the agency took further action on his security clearance--information quite contradictory to federal regulations governing such counseling sessions. Niskey apparently took her advice.[1]

Things progressed slowly. On October 17, 2002, Niskey was suspended without pay, but his security clearance was not revoked until March 2006--and that revocation was not finalized until July 2007. Shortly thereafter, the Department of Homeland Security--by this time responsible for Niskey's old division at the Department of Defense--proposed removing him. Niskey wrote to the director of his division in protest, but was removed from his position anyway on August 31, 2007. On September 4, 2007, DHS wrote to Niskey, informing him that his termination would be effective on the 12th of that month. In the intervening days, Niskey wrote to DHS's General Counsel for Labor and

Page 272

Employment, but to no avail. His termination became effective, and his appeal to the Merit Systems Protection Board was unsuccessful. The decision became final in February 2008.

Twenty-one months later, in November 2009, Niskey contacted the EEOC field office in the District of Columbia, which told him to file a formal complaint. But he waited another nine months--until August 2010--to even contact an EEO counselor at DHS. Several weeks after that, on September 28, 2010, Niskey finally filed his formal complaint. DHS found against him, noting that he had failed to contact an EEO counselor in a timely fashion. The EEOC denied Niskey's request for reconsideration.

Over a decade after Niskey first noticed allegedly disparate treatment in his workplace, he filed the Title VII case now before this Court, claiming discrimination, retaliation, and failure to comply with agency regulations.[2] The government has moved to dismiss[3] for ...


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