United States Court of Appeals, District of Columbia Circuit
May 4, 2017
from the United States District Court for the District of
Columbia (No. 1:14-cv-00436)
E. Fischer argued the cause and filed the brief for
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.
Millett, Circuit Judge
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.
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. §
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).
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).
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.
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).
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. §
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