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Crawford v. Duke

United States Court of Appeals, District of Columbia Circuit

August 11, 2017

James Crawford, Appellant
v.
Elaine C. Duke, Acting Secretary, Department of Homeland Security, Appellee

          Argued May 4, 2017

         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

          Millett, Circuit Judge

         James Crawford, an African-American 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 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 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 ...


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