Lawrence Niskey v. John F. Kelly

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 26, 2016 Decided June 9, 2017

No. 14-5285

LAWRENCE NISKEY,

APPELLANT

v.

JOHN F. KELLY, U.S. DEPARTMENT OF HOMELAND SECURITY,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:13-cv-01269)

Matt Rosenthal, Student Counsel, argued the cause as

amicus curiae in support of appellant. With him on the briefs

were Thomas Burch, appointed by the court, Aaron Parks and

Rachel Zisek, Student Counsel.

Lawrence Niskey, pro se, filed the briefs for appellant.

John C. Truong, Assistant U.S. Attorney, argued the cause

for appellee. On the brief were R. Craig Lawrence and Peter

R. Maier, Assistant U.S. Attorneys.

Before: MILLETT and PILLARD, Circuit Judges, and

WILLIAMS, Senior Circuit Judge.

2

Opinion for the Court filed by Circuit Judge MILLETT.

MILLETT, Circuit Judge: Before federal employees can

bring a claim of employment discrimination to court, they must

first present the claim to their employing agency so that the

agency can attempt to resolve the matter internally. While

Lawrence Niskey initiated this administrative exhaustion

process for his claims of race discrimination and retaliation, he

did not see it through to the end. Accordingly, we hold that the

district court properly dismissed his claims against the

Department of Homeland Security for failure to exhaust his

administrative remedies.

I

Lawrence Niskey is an African American male who was

employed by the Department of Defense as an Information

Technology Specialist, a job that involved classified material.

According to the allegations in his district court complaint, in

April 2002, Niskey noticed that his supervisors were not

granting leave to employees evenhandedly. After Niskey

complained about this problem to his supervisors, John

O’Connor and Fred Herr, his work came under increased

scrutiny, and he was warned by other employees that trouble

was headed his way. Then, on the morning of September 11,

2002, Niskey spoke to Carl Law—his next-in-line

supervisor—to request three to four hours of emergency leave

because he thought his car had been stolen. Law denied

Niskey’s leave request and told Niskey that he would be

considered absent without leave. After Niskey obtained a

replacement vehicle, he called a different supervisor—John

O’Connor—to report that he was coming into work. But

O’Connor told Niskey to stay home for the rest of the day.

3

The next day, Niskey’s access to classified information

was suspended, and Niskey himself was suspended from his

job, albeit with pay. That same day, Niskey contacted Defense

Department Equal Employment Opportunity Counselor

Allison Stafford to complain that his security clearance

suspension was based on discriminatory animus and retaliation

for his previous complaints to his supervisors about inequalities

in the leave-approval process. According to Niskey, Stafford

told him not to file a formal discrimination or retaliation

complaint until the agency took final action on his security

clearance.

On October 28, 2002, Niskey was suspended without pay.

A letter notifying Niskey of the suspension also informed him

that if he felt that the decision was made for discriminatory

reasons, he should contact the Equal Employment and Cultural

Diversity Office at the Department of Defense. On an

unspecified date in October 2002, Niskey sent a letter instead

to the headquarters of the United States Equal Employment

Opportunity Commission complaining about the Defense

Department’s discrimination and retaliation. Niskey never

received a response to that letter.

In 2003, Niskey’s job, as well as his equal employment

opportunity complaints to Stafford, were transferred from the

Department of Defense to the Department of Homeland

Security, along with his personnel files. For nearly three years,

no action was taken by the agency on Niskey’s security

clearance suspension or his discrimination and retaliation

claims.

On March 30, 2006, Niskey’s security clearance was

permanently revoked. Niskey filed an appeal of the revocation

with officials in the Department of Homeland Security charged

with handling security-clearance disputes and requested a

4

formal hearing. In November 2006, Niskey, now represented

by counsel, sent a formal request to appear at the hearing.

That hearing was scheduled for April 25, 2007. However,

the day before the hearing, Niskey’s attorney informed him that

she would no longer represent him. Because Niskey was

unable to obtain information about the location or time of the

hearing, he did not appear. On May 11, 2007, the Chief

Security Officer affirmed the revocation of Niskey’s security

clearance.

As a result of the security clearance revocation, the

Department notified Niskey of his proposed removal on August

10, 2007. Although Niskey protested the decision, he was

notified on September 4, 2007, that the decision to remove him

had been finalized. That notice also advised Niskey to contact

the Department’s equal employment opportunity office if he

believed that the removal was the result of discrimination.

Niskey then sent a letter challenging his removal to an

Attorney-Advisor for Labor and Employment in the

Department’s Office of General Counsel. Niskey’s removal

became effective on September 12, 2007.

With the aid of new counsel, on October 12, 2007, Niskey

appealed his termination to the Merit Systems Protection

Board. However, Niskey’s appeal documents and hearing

testimony before the Board’s administrative law judge (“ALJ”)

made no mention of racial discrimination or retaliation,

focusing instead on alleged procedural errors in the security

revocation and termination process. A Board ALJ affirmed

Niskey’s termination, finding no material error in the

procedures that led to his security clearance revocation or his

removal.

5

Niskey filed pro se a petition for review of the ALJ’s

decision with the Board. In his petition for review, Niskey

alleged that race discrimination played a part in his initial

temporary suspension for being “absent without leave,” which

led to his security clearance suspension and, ultimately, to his

termination. The Board affirmed the decision of the ALJ,

ruling that Niskey did not present any new or previously

unavailable evidence, and did not demonstrate that the ALJ

committed any material legal error. The Board issued its final

decision on July 9, 2008.

Over a year later, in November 2009, Niskey contacted the

Equal Employment Opportunity Commission’s Washington

Field Office about his termination, and was advised to file a

formal complaint with the Department of Homeland Security’s

Equal Employment Opportunity (“EEO”) office. Niskey

claims that he was told that his time limit for filing his

complaint would be equitably tolled. In August 2010, Niskey

contacted a counselor in the Department’s EEO office, and in

September 2010, Niskey filed a formal complaint with that

office. The complaint alleged that race discrimination and

retaliation stemming from the 2002 discriminatory leave policy

led to the suspension of his security clearance and his eventual

termination.

The Department’s EEO office found that Niskey had failed

to initiate contact with a Department EEO counselor within 45

days of the unlawful termination or other discriminatory act, as

required by regulation. Niskey appealed to the Equal

Employment Opportunity Commission, which affirmed the

Department’s decision.

On August 20, 2013, Niskey filed suit under Title VII, 42

U.S.C. § 2000e-2, in the United States District Court for the

District of Columbia, again asserting that race discrimination

6

and retaliation led to his termination. The district court

subsequently dismissed Niskey’s complaint for failure to

exhaust his administrative remedies. See Niskey v. Johnson, 69

F. Supp. 3d 270, 271 (D.D.C. 2014). The district court

concluded that Niskey failed to seek timely administrative

review of his final security clearance revocation, and continued

for years thereafter to allow fatal time gaps in his exhaustion

efforts. Id. at 273–275.

II

We review de novo the district court’s dismissal of the

complaint for failure to state a claim. See Harris v. District of

Columbia Water & Sewer Auth., 791 F.3d 65, 68 (D.C. Cir.

2015). In doing so, we assume the truth of the complaint’s

factual allegations and all reasonable inferences to be drawn

from them. See, e.g., Erickson v. Pardus, 551 U.S. 89, 94

(2007); Kassem v. Washington Hosp. Ctr., 513 F.3d 251, 253

(D.C. Cir. 2008).

A

Title VII broadly prohibits discrimination in employment

on the basis of race, color, religion, sex, or national origin. 42

U.S.C. § 2000e-2. That protection extends to employees of

federal agencies, including the Departments of Defense and

Homeland Security. Id. § 2000e-16(a) (“All personnel actions

affecting employees or applicants for employment * * * in

executive agencies as defined in section 105 of Title 5

* * * shall be made free from any discrimination based on race,

color, religion, sex, or national origin.”); see generally Gomez-

Perez v. Potter, 553 U.S. 474, 487 (2008).

While Title VII’s protection against discrimination is quite

straightforward, the process for enforcing that right is

7

labyrinthine. Federal employees, most of whom are

proceeding on their own without legal counsel, have to

navigate a maze of administrative processes before they can

bring a claim to federal court. See generally 42 U.S.C.

§ 2000e-16(c).

First, if subjected to discriminatory action, the federal

employee must within 45 days contact a counselor in the

employing agency’s equal employment opportunity office. 29

C.F.R. § 1614.105(a)(1). At that initial meeting, the EEO

counselor is required to provide the employee with a written

document that outlines his rights and responsibilities in the

employing agency’s EEO process. Id. § 1614.105(b)(1). The

counselor is supposed to investigate the claim and, within 30

days of that initial meeting, conduct a final interview with the

employee. Id. § 1614.105(d). If the issue has not been resolved

by the time of the final interview, the EEO counselor is

required to provide the employee with a written document

informing him that he has the right to file a formal

discrimination complaint with the employing agency. Id. The

counselor is prohibited from “attempt[ing] in any way to

restrain the [employee] from filing a complaint.” Id.

§ 1614.105(g).

After receipt of that written notice, the employee has

fifteen days to file a formal complaint with his employing

agency. 29 C.F.R. § 1614.106(b). The agency then has 180

days to complete its investigation of the complaint and to

attempt to resolve it. See id. § 1614.108(e).

At this juncture, the employee’s procedural path forward

divides depending on whether the employing agency decides

the claim or fails to act within the designated 180-day

timeframe.

8

Option 1: If the employing agency issues a decision with

which the employee is dissatisfied, the employee can file suit

in federal court, 29 C.F.R. § 1614.407(a), or appeal to an Equal

Employment Opportunity Commission (“EEOC”) ALJ, who

has 180 days to render a decision, id. § 1614.109(i). The EEOC

ALJ’s decision binds the agency if the agency either accepts

the decision or fails to object to it within 40 days. Id.

§§ 1614.109(i), 1614.110(a).

Once there is a final EEOC ALJ decision, the employee

may either go directly to court within 90 days, or may first

appeal within 30 days to the full Equal Employment

Opportunity Commission. 29 C.F.R.

§§ 1614.407(a), 1614.402(a). If the employee elects to appeal

to the EEOC, he will have 90 days after the EEOC’s final

decision to bring his claims to federal district court. Id.

§ 1614.407(c). If the Commission fails to act within 180 days

of the filing of an appeal, the employee may also bring his case

to federal court at that time, id. § 1614.407(d), or may choose

just to wait for the EEOC’s decision.

Option 2: If the employing agency has failed to issue a

decision within the 180-day time period, the employee can

request an immediate final decision from the agency. 29 C.F.R.

§§ 1614.108(f), 1614.110(b). That decision must be issued

within 60 days of the employee’s request. Id. § 1614.110(b).

Once the agency decides, the employee has the same options

for filing suit in federal district court or proceeding before the

EEOC outlined in Option 1.

As an alternative to demanding an immediate agency

decision, an employee confronted with tardy decisionmaking

by the employing agency can request a hearing before an

EEOC ALJ, just as he could have done if a timely decision had

issued. Or he can forgo obtaining an agency decision

9

altogether and proceed directly to federal district court. 29

C.F.R. §§ 1614.407(b), 1614.106(e)(2). If the employee

chooses to pursue an EEOC ALJ hearing, the matter proceeds

along the track described in Option 1.

But wait—there is more: Niskey claims that he was

pressing what is known as a “mixed case”—a case in which the

asserted claim (or claims) both arises under a federal

employment discrimination law (such as Title VII) and also

relates to or stems from an action that is within the jurisdiction

of the Merit Systems Protection Board (“Board”) (here,

Niskey’s challenge to the revocation of his security clearance

and his resultant removal). See 5 U.S.C. § 7702; see also 29

C.F.R. § 1614.302(a) (defining “mixed case complaints” and

“mixed case appeals”); Kloeckner v. Solis, 133 S. Ct. 596, 600

(2012) (“A federal employee subjected to an adverse personnel

action such as a discharge or demotion may appeal her

agency’s decision to the Merit Systems Protection Board[.]

* * * In that challenge, the employee may claim, among other

things, that the agency discriminated against her in violation of

a federal statute.”). Such cases are deemed “mixed” because

unlike employment discrimination claims, which can

eventually proceed to federal district court, claims alleging

only violations of civil service rules must be litigated before

the Board, and appealed from there to the United States Court

of Appeals for the Federal Circuit. See 5 U.S.C. § 7703; see

generally Kloeckner, 133 S. Ct. at 600–607.

The long and the short of all this is that a federal employee

complaining that an adverse action was taken against him for

discriminatory reasons has yet another available administrative

avenue through which to pursue his claim. Specifically, the

employee can forgo the internal agency exhaustion process and

take his claim directly to the Board. See 5 U.S.C. § 7702; 5

C.F.R. §§ 1201.154, 1614.302(a)(2), (b); Kloeckner, 133 S. Ct.

10

at 601. Alternatively, the employee may file a mixed case

complaint with the agency and then appeal to the Board after

the agency disposes of (or fails to timely act on) the mixed-case

complaint. See 5 U.S.C. § 7702; 5 C.F.R. § 1201.154; 29

C.F.R. § 1614.302(a), (b), (d). If the Board upholds the agency

action, the employee may press the complaint before the EEOC

or may seek judicial review. See 5 U.S.C. §§ 7702, 7703(b);

see also 5 C.F.R. §§ 1201.120, 1201.175; 29 C.F.R.

§ 1614.303(a).

B

Congress required federal employees to exhaust

discrimination claims “to give federal agencies an opportunity

to handle matters internally whenever possible,” and to impose

on employing agencies “the opportunity as well as the

responsibility to right any wrong that it might have done.”

Brown v. Marsh, 777 F.2d 8, 14 (D.C. Cir. 1985) (quoting

President v. Vance, 627 F.2d 353, 362 (D.C. Cir. 1980)); see

also id. (exhaustion “ensure[s] that the federal courts are

burdened only when reasonably necessary”).

Unfortunately, as the Supreme Court has understated, “the

intersection of federal civil rights statutes and civil service law

has produced a complicated, at times confusing, process for

resolving claims of discrimination in the federal workplace.”

Kloeckner, 133 S. Ct. at 603. Yet if an employee fails to meet

any of those statutory or regulatory deadlines, the employee’s

federal court action may be dismissed for failure to

administratively exhaust the claim. See, e.g., Hernandez v.

Pritzker, 741 F.3d 129, 134 (D.C. Cir. 2013).

Because administrative exhaustion requirements are not

jurisdictional, however, an employee who missteps in the

process may avoid dismissal if he qualifies for equitable relief

11

from the deadline by demonstrating good cause for the

procedural failure. See Zipes v. Trans World Airlines, Inc., 455

U.S. 385, 393 (1982) (“[F]iling a timely charge of

discrimination with the EEOC is not a jurisdictional

prerequisite to suit in federal court, but a requirement that, like

a statute of limitations, is subject to waiver, estoppel, and

equitable tolling.”); see also Doak v. Johnson, 798 F.3d 1096,

1104 (D.C. Cir. 2015). An employee is entitled to equitable

tolling if he demonstrates “(1) that he has been pursuing his

rights diligently, and (2) that some extraordinary circumstance

stood in his way.” Holland v. Florida, 560 U.S. 631, 649

(2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418

(2005)).

III

Niskey alleges that he was first discriminated against on

the basis of his race and retaliated against for challenging racial

discrimination when his supervisors denied him leave in 2002.

But Niskey did not file a formal complaint with the Department

of Homeland Security’s EEO office until 2010. That is a

yawning time gap for Niskey to bridge. While timely

exhaustion steps and equitable tolling get Niskey part of the

way there, they do not bring him home.

A

To start, Niskey timely made initial contact with the EEO

Counselor of his predecessor employer, the Defense

Department, within 45 days of both his security clearance

suspension and his suspension from employment with pay.

The district court refused to credit that initiation of the

informal EEO process, reasoning that the mere suspension of a

security clearance and suspension from work with pay are not

12

sufficiently adverse personnel actions to support triggering the

EEO process. See Niskey, 69 F. Supp. 3d at 273. That was

error because a security clearance was necessary to perform

Niskey’s job, and so the suspension resulted in a complete

inability to perform all of his job responsibilities.

The prohibition on discrimination applies to “materially

adverse” employment actions. See, e.g., Chambers v. Burwell,

824 F.3d 141, 144 (D.C. Cir. 2016). Actions are “materially

adverse” if they affect the “terms, conditions, or privileges of

employment or future employment opportunities” in such a

way that a reasonable trier of fact could find “objectively

tangible harm.” Czekalski v. LaHood, 589 F.3d 449, 454 (D.C.

Cir. 2009) (quoting Forkkio v. Powell, 306 F.3d 1127, 1131

(D.C. Cir. 2002)).

Prohibited discrimination, in other words, is not rigidly

confined to “hirings, firings, promotions, or other discrete

incidents.” Holcomb v. Powell, 433 F.3d 889, 902 (D.C. Cir.

2006); see Forkkio, 306 F.3d at 1130 (“Actions short of an

outright firing can be adverse within the meaning of Title VII,

but not all lesser actions by employers count.”). Instead, when

“objectively tangible harm” results, actionable employment

actions can include such events as (i) an unchanged

performance rating if the employee claims that he was

discriminatorily denied an improved performance rating, see

Walker v. Johnson, 798 F.3d 1085, 1095 (D.C. Cir. 2015); (ii)

a law enforcement agency’s discriminatory refusal to

investigate a death threat made against its agent by a federal

prison inmate, Rochon v. Gonzales, 438 F.3d 1211, 1219–1220

(D.C. Cir. 2006); and (iii) an agency’s discriminatory denial of

a bonus or payment of a reduced bonus, Russell v. Principi, 257

F.3d 815, 818–820 (D.C. Cir. 2001).

13

Under the circumstances of this case, a reasonable trier of

fact could find that the suspension of Niskey’s security

clearance, even though initially with pay, was materially

adverse. That is because the nature of Niskey’s job was such

that, without a security clearance, he could not perform any

aspects of his job. A reasonable trier of fact could conclude

that a total loss of ability to function as an employee amounted

to “objectively tangible harm,” Czekalski, 589 F.3d at 454.

Indeed, such employment paralysis seems to be far more than

the type of “purely subjective harm[ ]” for which suit might not

stand. Forkkio, 306 F.3d at 1131 (reassigning an employee to

a job with significantly different responsibilities can constitute

an adverse employment action); see also Douglas v. Donovan,

559 F.3d 549, 553–556 (D.C. Cir. 2009).

The district court’s reliance on Forkkio, supra, was

misplaced. There, this court held that a federal employee’s loss

of his job title as “Section Chief” during an agency

reorganization was not a materially adverse employment

action. Forkkio, 306 F.3d at 1129. For good reason. In

Forkkio, the employee retained the accoutrements of his

position and continued to perform nearly all of the

responsibilities of his job. See id. at 1130–1131. The

reorganization also had no effect on his pay or benefits. Quite

the opposite—Forkkio received a pay increase shortly after the

reorganization. Id. at 1131. 1 In other words, Forkkio lost little

more than his job title; the substance of his work, pay, and

1

In addition to losing his “Section Chief” title, Forkkio also no

longer attended weekly meetings with the other section chiefs, no

longer received certain communications sent to management

officials, and reported to a colleague who was previously his peer in

the agency. Forkkio, 306 F.3d at 1129. Those changes bear little

resemblance to the complete loss of job responsibilities that Niskey

suffered.

14

benefits did not materially change for the worse. Id. Niskey,

by contrast, alleges that he lost almost everything.

B

Niskey contends that he undertook sufficient efforts to

exhaust his claims, and that inadequate agency responses merit

equitable tolling of the ensuing time gaps in exhausting his

claims. Niskey notes that, at his initial meeting with an EEO

counselor in September 2002, the EEO counselor failed to

begin the informal EEO process and instead instructed Niskey

to wait until his security clearance was formally revoked to file

a complaint. After that, the EEO counselor apparently did

nothing more with Niskey’s claim.

We agree that Niskey could not have been expected to file

a formal EEO complaint during the four-year time period

preceding his security clearance revocation. That is because

the EEO counselor completely dropped the ball on processing

his informal claim. By telling Niskey to delay filing a formal

complaint until the security clearance was actually revoked, the

counselor ignored her obligation under the regulations to begin

the EEO process immediately and to inform Niskey of his

rights in the process. See 29 C.F.R. § 1614.105(b)(1). Most

relevantly, the counselor failed to apprise Niskey of the

“administrative and court time frames” to which his claim was

subject. Id.

Aggrieved employees, especially those proceeding pro se,

justifiably rely on the instructions of EEO counselors in

processing their claims. Bowden v. United States, 106 F.3d

433, 438 (D.C. Cir. 1997) (“Like other courts, we have excused

parties who were misled about the running of a limitations

period, whether by an adversary’s actions, by a government

official’s advice upon which they reasonably relied, or by

15

inaccurate or ineffective notice from a government agency

required to provide notice of the limitations period[.]”)

(citations omitted); cf. Jarrell v. United States Postal Serv., 753

F.2d 1088, 1091–1092 (D.C. Cir. 1985) (“The failure to contact

an EEO Counselor within thirty days of the alleged

discriminatory event may be excused if it is the result of

justifiable reliance on the advice of another government

officer.”). Niskey, therefore, satisfied his obligation to initiate

contact with the EEO Counselor within 45 days of his adverse

personnel action, 29 C.F.R. § 1614.105(a)(1), and he is entitled

to equitable tolling for the period that elapsed leading up to the

final revocation of his security clearance.

Crediting Niskey’s informal EEO claim only gets him so

far though. The formal revocation of Niskey’s security

clearance in March 2006, the denial of his appeal of that

revocation in May 2007, and his termination in August 2007,

were new adverse employment actions that ended the period of

equitable tolling. Once his security clearance was formally

revoked, however, Niskey failed to follow the instruction he

did receive: to file a formal complaint after his security

clearance was permanently revoked. See Dyson v. District of

Columbia, 710 F.3d 415, 422 (D.C. Cir. 2013) (“A ‘petitioner

is entitled to equitable tolling only if she shows * * * that she

has been pursuing her rights diligently[.]’”) (quoting Holland,

560 U.S. at 649) (alterations omitted).

To demonstrate timely exhaustion of those claims, Niskey

points to his efforts to appeal the security clearance revocation,

letters he submitted to agency officials challenging the various

adverse personnel decisions, and his proceedings before the

Merit Systems Protection Board. See Br. of Amicus Curiae in

Supp. of Appellant at 8–10. None of those efforts suffices.

16

Niskey did not raise his racial discrimination and

retaliation allegations in his security revocation proceedings.

Instead, he chose to rely exclusively on procedural arguments.

In addition, Niskey was specifically advised in his final notice

of removal that, if he believed the decision was infected by

racial discrimination or retaliation, he had to either contact the

Department of Homeland Security EEO office or raise the

allegation in his appeal to the Board ALJ. Niskey did neither.

After the Board ALJ ruled, Niskey did mention in his

petition for review of the ALJ’s decision to the Board that race

discrimination was the reason he did not receive leave one day

in September 2002. It seems unlikely, however, that having

failed to allege race discrimination or retaliation before the

ALJ, Niskey could raise a new discrimination claim for the first

time in his petition for review to the Board, and thereby convert

his claim to a mixed-case appeal. See 5 C.F.R. § 1201.115(d)

(noting that one permissible rationale for granting a petition for

review is if “[n]ew and material evidence or legal argument”

becomes available that, “despite the petitioner’s due diligence,

was not available when the record closed”). What is less clear

is whether, faced only with an unpreserved discrimination

claim submitted to the Board, the employing agency should

have notified him of the procedural rights that apply to the

prosecution of mixed cases. 2

We need not decide those questions here because, even if

Niskey’s failure to file a formal EEO complaint after his

employer revoked his security clearance or immediately after

2

Multiple provisions in 29 C.F.R. § 1614.302(b) describe an

employing agency’s notification duties related to mixed-case

appeals. We have not yet had occasion to decide whether the

untimely presentation of a discrimination claim to the Board that was

not litigated before the ALJ triggers an obligation for the employing

agency to provide the notice required by Section 1614.302(b).

17

the Board proceedings could be excused, Niskey still failed to

diligently pursue his claims. He waited until November 2009,

more than a year after the Board’s final decision in 2008, to

contact the EEOC’s Washington Field Office. See Niskey v.

Department of Homeland Security, No. DC-0752-08-0036-I-1,

2008 WL 3850801 (M.S.P.B. July 9, 2008). Then, after he was

advised by the EEOC to file a formal complaint with the

Department of Homeland Security’s EEO office and was told

that his previous delay would be excused, Niskey waited more

than nine additional months—until September 2010—to file an

EEO complaint with the Department.

That lengthy and unexplained delay in filing his formal

complaint with the Department of Homeland Security does not

evidence the diligent pursuit of Title VII rights that is required

for equitable tolling. See Dyson, 710 F.3d at 422 (declining to

apply equitable tolling to a complainant’s seven-month delay

in submitting her Intake Questionnaire to the EEOC).

Accordingly, the district court properly dismissed Niskey’s

complaint for failure to administratively exhaust his racial

discrimination and retaliation claims. The judgment of the

district court is therefore affirmed.

So ordered.