Mohamed Al-Saffy v. Thomas Vilsack

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.