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July 1 — An Egyptian-American employee challenging his treatment as director of two U.S. agricultural trade offices abroad may pursue bias and retaliation claims against both the Agriculture and State departments, a federal appeals court decided ( Al-Saffy v. Vilsack, D.C. Cir., 2016 BL 212630, No. 15-5025, 7/1/16 ).
Mohamed Tahwid Al-Saffy raised genuine factual issues about whether Agriculture and State were his joint employers when he directed the trade offices in Saudi Arabia and Yemen, the U.S. Court of Appeals for the District of Columbia Circuit said in reviving his lawsuit. Although Al-Saffy wasn't “officially employed” by the State Department, he reported directly to the ambassadors of Saudi Arabia and Yemen, who are State employees, the court said.
Whether two entities may be considered a worker's joint employer is an issue that usually arises in the private sector.
But the D.C. Circuit said its articulated standards for deciding joint-employer status—an “economic realities” test and one that asks if a putative employer has “retained for itself sufficient control” of a worker's terms and conditions of employment—apply to public sector workers, too.
The “touchstone” of either test is “control” over the worker, Judge Patricia A. Millett wrote. Al-Saffy produced sufficient evidence that State supervisors both directed his work and recommended his removal to allow a jury to find he was employed both by State and Agriculture, the court said.
The district court also erred by dismissing Al-Saffy's claims against the Department of Agriculture because of his alleged failure to satisfy procedural rules for federal employee bias claims under Title VII of the 1964 Civil Rights Act, the D.C. Circuit said.
Al-Saffy filed two formal administrative complaints against Agriculture in 2011 and 2012, each alleging national origin and religious discrimination as well as retaliation. An Equal Employment Opportunity Commission administrative judge dismissed Al-Saffy's request for an EEOC hearing on the 2011 complaint, remanding it to Agriculture for a “final decision,” the appeals court said.
The district court reasoned the EEOC judge's dismissal was “final agency action” that triggered a 90-day deadline for Al-Saffy to sue.
But the Agriculture Department never rendered a final decision on Al-Saffy's claims, the D.C. Circuit said. Also, neither the EEOC notice nor any Agriculture decision included notification to Al-Saffy about his option to sue and the applicable deadlines, the court said.
An EEOC order that omits that required information can't trigger the 90-day deadline, the court said. Al-Saffy therefore retained the option to sue at any time after 180 days had elapsed from his filing of the original administrative complaint, the court said.
Because there's no dispute Al-Saffy filed a timely lawsuit under that provision, the district court erred in dismissing his claims, the D.C. Circuit said.
Judges David S. Tatel and Harry T. Edwards joined in the decision.
Alan Lescht & Associates P.C. represented Al-Saffy. The U.S. attorney's office in Washington represented the State and Agriculture departments.
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Text of the opinion is available at http://www.bloomberglaw.com/public/document/MOHAMED_TAWHID_ALSAFFY_APPELLANT_v_THOMAS_J_VILSACK_IN_HIS_OFFICI.
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