James Crawford v. Elaine C. Duke , 867 F.3d 103 ( 2017 )


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  •  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.
    2
    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
    3
    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
    4
    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.
    5
    Consistent with the directions, Crawford attached a three-
    page 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
    6
    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-cv-
    00436-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
    .
    7
    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.
    8
    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
    9
    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 non-
    adversarial 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
    10
    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.
    11
    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).
    12
    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.
    13
    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
    14
    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.