James Crawford v. Jeh Johnson

Filing

OPINION [1688318] filed (Pages: 14) for the Court by Judge Millett. [16-5063]

USCA Case #16-5063

Document #1688318

Filed: 08/11/2017

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 4, 2017

Decided August 11, 2017
No. 16-5063
JAMES CRAWFORD,
APPELLANT
v.

ELAINE C. DUKE, ACTING SECRETARY, DEPARTMENT OF
HOMELAND SECURITY,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 1:14-cv-00436)

Morris E. Fischer argued the cause and filed the brief for
appellant.
Benton G. Peterson, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Channing D.
Phillips, United States Attorney at the time the brief was filed,
and R. Craig Lawrence, Assistant U.S. Attorney.
Before: ROGERS, MILLETT, and PILLARD, Circuit Judges.
Opinion for the Court filed by Circuit Judge MILLETT.

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MILLETT, Circuit Judge: James Crawford, an AfricanAmerican employed by the Department of Homeland Security,
filed suit alleging race discrimination, retaliation, and a hostile
work environment. The district court dismissed his case for
failure to exhaust his administrative remedies. Because
attachments to Crawford’s administrative complaint
adequately identified his claims alleging a discriminatory
performance review and a later suspension, we hold that those
two claims were exhausted and reverse in part.
I
A
Under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq., the federal government is prohibited from
discriminating in employment on the basis of race, color,
religion, sex, or national origin, id. § 2000e-16(a).
Before a federal employee can file suit against a federal
agency for violation of Title VII, the employee must run a
gauntlet of agency procedures and deadlines to
administratively exhaust his or her claims. See Niskey v. Kelly,
859 F.3d 1, 5–6 (D.C. Cir. 2017) (describing the administrative
process). As relevant here, an employee first must contact the
agency’s Equal Employment Opportunity (“EEO”) Counselor
within 45 days of an alleged discriminatory action. 29 C.F.R.
§ 1614.105(a). The Counselor is required to inform the
aggrieved employee at an initial counseling session of her or
his rights and responsibilities with respect to the claim(s). Id.
§ 1614.105(b). The Counselor will then attempt to resolve the
claim(s).
If that informal counseling process does not satisfactorily
resolve the employee’s concern, the Counselor must, within 30

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days of the employee’s initial EEO contact, provide written
notification of the employee’s right to file an administrative
discrimination complaint with the agency.
29 C.F.R.
§ 1614.105(d). The employee then has 15 days to file a formal
complaint with the agency. Id. § 1614.106(b). That complaint
must “describe generally the action(s) or practice(s) that form
the basis of the complaint.” Id. § 1614.106(c).
The agency is required to acknowledge receipt of a formal
complaint in writing. 29 C.F.R. § 1614.106(e). Additionally,
the agency must advise the EEO Counselor that a complaint
has been filed, and the Counselor must provide a report to the
agency and the employee within fifteen days.
Id.
§ 1614.105(c). “Within a reasonable time after receipt” of the
Counselor’s report, the agency should send a second letter
(commonly referred to as an “acceptance” letter) that “stat[es]
the claim(s) asserted and to be investigated.” UNITED STATES
EQUAL EMP. OPPORTUNITY COMM’N, EEO-MD-110, EQUAL
EMP. OPPORTUNITY MGMT. DIRECTIVE FOR 29 C.F.R. PART
1614, at 5-1 (Rev. Aug. 5, 2015) (“EEOC Management
Directive”). If the agency’s list of asserted claims differs from
the employee’s, the letter must “explain the reasons for the
difference, including whether the agency is dismissing a
portion of the complaint.” Id.
The agency is then required to “conduct an impartial and
appropriate investigation of the complaint within 180 days” of
the complaint’s filing. 29 C.F.R. § 1614.106(e)(2). The
agency may dismiss any complaint that has not complied with
the timing requirements for initially contacting a Counselor or
for filing a formal EEO complaint. Id. § 1614.107(a)(2).
After those internal processes have been completed, an
aggrieved party may bring a civil suit within 90 days of receipt
of the agency’s final action, or after 180 days of filing the initial

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complaint if the agency has not timely issued a decision. 42
U.S.C. § 2000e-16(c). Alternatively, upon receipt of the final
decision of the agency, an employee may choose instead to
appeal the agency’s decision to the EEOC for review before
proceeding to court. 29 C.F.R. § 1614.401(a).
B
In 2011, James Crawford was employed by the
Department of Homeland Security as a Special Security Officer
in the Special Security Programs Division. On a previous
performance review, Crawford had received the maximum
score of “five.” However, on October 21, 2011, a new
supervisor, into whose section Crawford had been moved, gave
him a “zero” on his annual performance review. He received
that score even though he received a 1.92 rating on
“Performance Goals” and a 0.689 rating on “Competencies.”
On October 25, 2011, Crawford contacted the Department’s
EEO Counselor alleging race discrimination in the review
process. A few weeks later, on November 15, 2011, Crawford
was notified of a proposed five-day suspension.
Informal efforts to resolve his claims proved unsuccessful
and, on February 7, 2012, Crawford, proceeding pro se, filed a
formal EEO complaint with the Department. He alleged that
he had been subjected to discrimination and a hostile work
environment because of his race, and retaliation for asserting
his EEO rights. In filing his complaint, Crawford used the
formal complaint form provided by the Department. That form
requests specific information from the employee, including
details about the alleged discriminatory actions. The form
further advises that claimants “may, but are not required to,
attach extra sheets.” J.A. 25.

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Consistent with the directions, Crawford attached a threepage document to his formal complaint form that detailed
several instances of allegedly discriminatory incidents at work
occurring in 2010 and 2011. Along with that statement,
Crawford attached copies of three additional documents: his
October 21st performance review with a rating of “zero,” a
November 15th notice of proposed suspension, and a
December 9th memorandum finalizing and effectuating his
five-day suspension.
On June 26, 2012, Oscar Toledo, the Acting Formal
Complaints Manager in the Department’s EEO office, emailed
Crawford regarding his complaint. Toledo’s email included a
list of eight allegedly discriminatory incidents and requested
further information from Crawford about them. The email
concluded that the complaint as written was “not sufficiently
precise to properly determine [the] claims of discrimination[,]”
and it advised Crawford that a failure to submit the requested
information could lead to dismissal of his complaint. J.A. 62.
The email failed to address the performance review and
suspension, and it did not state that the list of eight incidents
was a final, binding list of matters to be investigated.
Crawford responded to the email on July 11, 2012,
providing additional factual information about all eight
incidents and several relevant dates. He also advised Toledo
that he was “working on additional information * * * to add
[to] and clarify [his] complaint.” J.A. 61. Toledo claims that
he never received any further information from Crawford.
The Department dismissed Crawford’s complaint on
August 7, 2012, for a purported failure to contact an EEO
Counselor within 45 days of the alleged discriminatory events.
Crawford took the optional step of appealing that decision to

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the EEOC. The EEOC affirmed the dismissal on December 13,
2013.
C
Three months later, Crawford filed a pro se complaint in
the United States District Court for the District of Columbia
alleging race discrimination, retaliation, and a hostile work
environment in his employment by the Department.
Crawford’s complaint asserted the following racially
discriminatory actions: his October 2011 annual performance
rating of “zero,” his five-day suspension finalized in December
2011, and his denial of promotion in November 2011. The
complaint also raised the eight incidents identified in Toledo’s
email.
On the Department’s motion, the district court first
dismissed under Federal Rule of Civil Procedure 12(b)(6) the
eight claims identified in Toledo’s email for failure to exhaust
administrative remedies. See Crawford v. Johnson, No. 14-cv00436-KBJ (D.D.C. Feb. 9, 2015), J.A. 41–42. Crawford does
not challenge the dismissal of those claims here.
With respect to the performance review, suspension, and
failure-to-promote claims, the district court then granted the
Department summary judgment, also on failure-to-exhaust
grounds. Crawford v. Johnson, 166 F. Supp. 3d 1, 4 (D.D.C.
2016). The district court reasoned that Crawford “did not
specifically reference” those three instances “in the body of his
formal EEO complaint,” id at 9, nor did he “reference or
specifically incorporate those exhibits into the body of his EEO
complaint,” id. at 10. The district court ruled that “information
revealed only in exhibits attached to an EEO complaint” is not
considered “incorporated into the final complaint” for purposes
of the exhaustion requirement. Id. at 9.

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Crawford appeals the grant of summary judgment to the
Department on those three claims.
II
We review the district court’s grant of summary judgment
de novo, taking all of the complaint’s allegations and any
reasonable inferences they support in the light most favorable
to the plaintiff. Al–Saffy v. Vilsack, 827 F.3d 85, 89, 92 (D.C.
Cir. 2016). We can affirm only if the district court committed
no material error of law and there are no genuinely disputed
issues of material fact. Id. at 92.
A
The district court’s starting premise—that information
contained in attachments to a formal EEO complaint cannot
support exhaustion—was incorrect. See Crawford, 166 F.
Supp. 3d at 9. Attachments to a formal EEO complaint are an
integral part of the complaint and can independently identify
claims for resolution regardless of whether the attachment is
also referenced in the body of the complaint itself.
Indeed, the official EEO complaint form used by the
Department is explicit that employees “may * * * attach extra
sheets” to identify and explicate the claims asserted in
“[d]escrib[ing] the action taken against [them] that [they]
believe was discriminatory[.]” J.A. 25. To hold, then, that
attachments do not suffice to present a claim would pull the rug
out from under claimants.
Our case law and that of our sister circuits have treated
attachments to an EEO complaint as part of the complaint itself
and a basis for articulating claims. See Brooks v. District Hosp.

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Partners, 606 F.3d 800, 808 (D.C. Cir. 2010) (individuals
included in a list attached to a complaint were included within
the complainant’s reference to similarly situated individuals);
accord Asebedo v. Kansas State Univ., 559 F. App’x 668, 672
(10th Cir. 2014) (holding plaintiff exhausted discrimination
claim because he had raised it in an attached narrative); Agolli
v. Office Depot, Inc., 548 F. App’x 871, 876 (4th Cir. 2013)
(holding plaintiff exhausted administrative remedies based on
additional sheets attached to EEO complaint); Fantini v. Salem
State Coll., 557 F.3d 22, 27 (1st Cir. 2009) (holding plaintiff
had exhausted sex discrimination claim because, inter alia, she
had identified an instance of disparate treatment in an
attachment to her EEO complaint); Dixon v. Ashcroft, 392 F.3d
212, 217–218 (6th Cir. 2004) (holding plaintiff had exhausted
claim because his attachment to his EEO complaint set forth
sufficient factual details); cf. Federal Express Corp. v.
Holowecki, 552 U.S. 389, 405–406 (2008) (holding that
plaintiff’s filing with the EEOC constituted a formal charge
because the plaintiff attached a statement to the filed intake
questionnaire that included a request for the agency to act).
That approach is consistent with how attachments to
complaints are treated even in the more formal setting of
federal court proceedings. We generally “permit[] courts to
consider supplemental material filed by a pro se litigant in
order to clarify the precise claims being urged” in her
complaint. Greenhill v. Spellings, 482 F.3d 569, 572 (D.C. Cir.
2007). Indeed, the ordinary practice when considering whether
a complaint adequately states a claim is to “consider
attachments to the complaint as well as the allegations
contained in the complaint itself.” English v. District of
Columbia, 717 F.3d 968, 971 (D.C. Cir. 2013); see also
Atherton v. District of Columbia Office of Mayor, 567 F.3d
672, 677 (D.C. Cir. 2009) (drawing on the complaint and
“additional materials submitted by [the plaintiff], including

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affidavits and exhibits incorporated therein,” in resolving a
motion to dismiss); Stewart v. National Educ. Ass’n, 471 F.3d
169, 173 (D.C. Cir. 2006) (“In determining whether a
complaint states a claim, the court may consider the facts
alleged in the complaint, documents attached thereto or
incorporated therein, and matters of which it may take judicial
notice.”). After all, the Federal Rules of Civil Procedure
themselves provide that “[a] copy of a written instrument that
is an exhibit to a pleading is a part of the pleading for all
purposes.” FED. R. CIV. P. 10(c); see also Davoodi v. Austin
Indep. School Dist., 755 F.3d 307, 310 (5th Cir. 2014) (copy of
EEO complaint attached to the district court complaint
“became a part of [plaintiff’s] complaint for all purposes”).
That rule makes even more sense when applied to an
informal process of administrative resolution in which many
claimants proceed pro se. See, e.g., Shehadeh v. Chesapeake
& Potomac Tel. Co. of Md., 595 F.2d 711, 727 (D.C. Cir. 1978)
(“[C]omplaints to the [EEO] Commission are to be construed
liberally since very commonly they are framed by persons
unschooled in technical pleading.”).
During the nonadversarial EEO process, “the purposes of counseling and
mediation are not to compile a record for judicial review but
instead simply to afford the employee and the employing office
an opportunity to explore and possibly resolve the employee’s
claims informally.” Artis v. Bernanke, 630 F.3d 1031, 1035
(D.C. Cir. 2011) (quoting Blackmon-Malloy v. United States
Capitol Police Bd., 575 F.3d 669, 711–712 (D.C. Cir. 2009));
see EEOC Management Directive, supra, at 6-IV
(administrative process is non-adversarial).
The Department also faults Crawford for failing to flag the
three claims at issue here in his response to Toledo’s email.
But the Department’s email did not provide Crawford fair
notice that only the eight incidents would be investigated, nor

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did it otherwise make clear that Crawford had to speak now or
forever forfeit other claims included within his filed complaint.
Nor did the Department follow the regulatory procedures for
dismissing any of the claims initially raised in the complaint.
See 29 C.F.R. § 1614.107. Without providing plain notice and
following the required procedures, the Department cannot shift
the burden to the complainant to assert again claims his
complaint has already laid before the agency.
Finally, the Department’s reliance on Hamilton v.
Geithner, 666 F.3d 1344 (D.C. Cir. 2012), and Park v. Howard
University, 71 F.3d 904 (D.C. Cir. 1995), is misplaced. Both
of those cases involved documents that were filed prior to and
separate from the formal complaint. See Hamilton, 666 F.3d at
1350 (claim mentioned only during the informal complaint
process); Park, 71 F.3d at 908–909 (no evidence that the
relevant document was provided to the agency).
B
When the complaint and attachments are read as a whole,
they show that Crawford adequately exhausted his claims of
racial discrimination, retaliation, and a hostile work
environment arising out of the October 2011 performance
evaluation and the December 2011 five-day suspension. He
did not, however, properly exhaust his claimed denial of a
promotion.
The Department does not dispute that Crawford timely
made an initial contact with an EEO Counselor or that he timely
filed his formal EEO complaint. The only remaining question
is whether the complaint encompassed the three claims that
Crawford raises here. “Naturally every detail of the eventual
complaint need not be presaged in the EEO[] filing.” Marshall
v. Federal Express Corp., 130 F.3d 1095, 1098 (D.C. Cir.

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1997). Rather, the central question is whether the employee’s
complaint contained “sufficient information” to put the agency
on notice of the claim and to “enable the agency to investigate”
it. Artis, 630 F.3d at 1034 (citations omitted); see Brown v.
Marsh, 777 F.2d 8, 16 (D.C. Cir. 1985) (plaintiff exhausted
claim because the agency had “sufficient notice” of the
plaintiff’s allegation of “a continuing pattern of discriminatory
nonpromotion”). 1
1.

October 2011 Performance Review

Crawford exhausted his claim that his adverse
performance rating in October 2011 was the product of racial
discrimination and a racially hostile work atmosphere. He
attached a copy of the performance review to his complaint,
which put the Department on notice that it was of concern and
merited scrutiny. In addition, Crawford’s enclosed three-page
summary of events casting relevant light on his claims of racial
discrimination expressly mentioned that (i) his supervisors
were “setting [him up] to fail,” J.A. 28, (ii) the set-up included
the performance-review process in that one of those same
supervisors had made false statements during his previous
performance review, and (iii) all of his supervisors denied him
the support needed to perform his job successfully.
1

See also Wilson v. Peña, 79 F.3d 154, 164 (D.C. Cir. 1996)
(suit will be “barred for failure to exhaust administrative remedies”
when the plaintiff “fail[s] to provide sufficient information to enable
the agency to investigate the claim”); accord, e.g., Khader v. Aspin,
1 F.3d 968, 971 (10th Cir. 1993) (“[W]hen a complainant refuses or
fails to provide the agency information sufficient to evaluate the
merits of the claim, he or she ‘cannot be deemed to have exhausted
administrative remedies.’”) (citation omitted); cf. Shehadeh, 595
F.2d at 728–729 (finding exhaustion requirement met because the
information in the EEOC complaint “afforded the Commission
ample opportunity to investigate the violations” alleged).

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On top of that, the content of the performance review itself
raises questions of material fact. Although his prior review had
given him a perfect “five” rating, this time Crawford was given
the shockingly low score of “zero” for his work performance,
and he received a zero even though the components of that
rating included a weighted score of 1.92 in the “Performance
Goals” section and 0.689 in the “Competencies” section. At
oral argument, counsel for the Department was unable to
explain how the total score ended up as a “zero.” See Oral Arg.
at 45:37–46:05. 2
Together, Crawford’s enclosure of the performance
review, his reference to performance reviews as part of a
targeted effort to make him fail, and the facial oddity of
Crawford’s “zero” performance rating provided sufficient
information for the agency to investigate Crawford’s claim that
the performance review is part of the racial discrimination he
alleges he suffered.
2. December 2011 Suspension
Crawford also adequately exhausted his claim that his
five-day suspension in December of 2011 was the product of
racial discrimination and a hostile work environment. To begin
with, Crawford attached to his complaint both the
memorandum proposing his suspension and the memorandum
finalizing and implementing it—again evidencing that they
2

The Department stated at oral argument that this performance
review has now been withdrawn. Oral Arg. at 45:41–50 (Department
counsel: “That particular performance evaluation has been rescinded
and taken out of his performance file because of errors.”). The
evidentiary relevance of that mathematically crabbed original
evaluation nonetheless remains relevant to Crawford’s
discrimination claim.

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should be probed by investigators as part of his Title VII
claims.
In addition, the memorandum implementing the
suspension expressly referenced Crawford’s allegations of a
hostile work environment and racial discrimination, and quoted
Crawford’s claim that the events underlying the suspension
were “a continuation of the hostile environment [he had] been
receiving[.]” J.A. 37. The Department’s memorandum further
conveyed Crawford’s statements about “harassment, bullying,
false [allegations] made by [his] supervisors and the attempt to
set [him] up to fail by [his supervisor] by assigning [him] to
support [the Science and Technology division] without any
additional staff members to assist [him].” J.A. 38. The author
of the memorandum expressly recognized Crawford’s claim
that the suspension was part of his “being subjected to working
in a hostile working environment.” J.A. 38.
The memoranda thus put the Department on adequate
notice that Crawford viewed the suspension as both driven by
racial discrimination itself and as an aspect of a hostile work
environment claim.
3.

November 2011 Denial of Promotion

Crawford, however, failed to properly exhaust his claim
that he was discriminatorily denied a promotion in November
2011 in favor of another candidate. Crawford included no
documentation with his complaint that pertained to this claim.
Nor does his complaint or his three-page summary of relevant
events mention the hiring of another individual for a position
to which Crawford had sought advancement. The closest
Crawford comes is a vague allegation about a supervisor
interfering in his application for an unidentified promotion.
But Crawford acknowledged that his application was

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ultimately submitted by another supervisor. And he nowhere
alleges anything about the ultimate outcome of that promotion
application or any other sought-after advancement. For that
reason, his fleeting and skeletal reference to temporary
interference with the promotion process could not reasonably
be expected to alert the Department to investigate the claim that
Crawford was denied an unidentified promotion in favor of
another unidentified individual.
***
We hold that Crawford adequately exhausted his
administrative remedies with respect to the October 2011
performance review and the December 2011 suspension, but
not as to the November 2011 denial of promotion.
Accordingly, the judgment of the district court is affirmed in
part and reversed in part.
So ordered.

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