United States Court of Appeals, District of Columbia Circuit
December 8, 2016
from the United States District Court for the District of
Columbia (No. 1:12-cv-01352) Nathaniel D. Johnson
argued the cause and filed the briefs for appellant.
S. Simon, 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: Henderson, Tatel and Millett, Circuit Judges.
Millett, Circuit Judge
Coleman is an African-American who worked for the Department
of Homeland Security. He alleges that the Department's
decision to give a promotion for which he was qualified to a
Caucasian female employee just four weeks after he had
complained of race and age discrimination was unlawful
retaliation. The district court dismissed the retaliation
claim for failure to exhaust administrative remedies. Because
Coleman expressly raised the non-promotion retaliation claim
in his equal employment opportunity complaint, we reverse.
VII protects employees from "discrimination based on
race, color, religion, sex, or national origin." 42
U.S.C. § 2000e-16(a). The Age Discrimination in
Employment Act ("ADEA") likewise prohibits
discrimination in employment on the basis of age (40 years of
age or older). 29 U.S.C. §§ 623(a)(1), 631(a).
Title VII's and the ADEA's protections extend to
federal employees. 42 U.S.C. § 2000e-16(a); 29 U.S.C.
§ 633a(a). Of most relevance here, Title VII and the
ADEA both prohibit retaliation against a person who files a
claim under or otherwise opposes practices made unlawful by
those statutes. 42 U.S.C. § 2000e-3(a); 29 U.S.C. §
bringing Title VII and ADEA claims to court, federal
employees must administratively exhaust their claims. See
Niskey v. Kelly, 859 F.3d 1, 7 (D.C. Cir. 2017);
Bowden v. United States, 106 F.3d 433, 437 (D.C.
Cir. 1997). The same administrative exhaustion process
governs both Title VII and ADEA retaliation claims.
See 29 C.F.R. § 1614.103(a).
start the administrative process, an employee must contact an
equal employment opportunity ("EEO") Counselor at
his employing agency within 45 days of the alleged
discriminatory conduct. 29 C.F.R. §
1614.105(a)(1). The Counselor
then must investigate the claim. Id. §
1614.105(d). If the claims are not resolved to the
employee's satisfaction, the Counselor must notify the
employee of the right to file a formal discrimination
receipt of that written notice, the employee has fifteen days
to file a formal complaint with the employing agency's
EEO office. 29 C.F.R. § 1614.106(b). The agency then has
180 days to complete its investigation of the complaint and
to attempt to resolve it. See id. §
1614.108(e). During that 180-day period, agencies are
supposed to acknowledge receipt of the complaint in writing.
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
Directive"). In addition, "[w]ithin a reasonable
time" after obtaining a report from the Counselor, the
agency "should send the complainant a second letter
(commonly known as an 'acceptance' letter), stating
the claim(s) asserted and to be investigated."
employing agency fails to timely resolve the employee's
claims, the employee may bring his claims to federal court.
29 C.F.R. § 1614.407(b); see also Wilson v.
Peña, 79 F.3d 154, 166 (D.C. Cir. 1996).
Coleman worked for the Department of Homeland Security as a
Production Specialist on the Secretary's Briefing Staff.
In June 2010, the Department posted a job vacancy
announcement for a Supervisory Production Specialist. Coleman
applied and was selected to interview for the position.
However, Coleman did not get the job. He was told that he was
not promoted because he had weak briefing skills. The
position was not filled.
Fall of 2010, the Department posted a job vacancy
announcement for two Supervisory Production Specialist
positions. The vacancy announcement included the following
Directs the preparation of daily operations and intelligence
briefings for the Secretary ensuring that the submissions are
of the highest quality and are anticipatory of any questions
the Secretary may ask.
Screens, evaluates, and analyzes a large quantity of
all-source information from various sources and ensures that
information presented meets the specific needs of the
Secretary of Homeland Security.
Assists Production Specialists by prioritizing work,
organizing materials, developing and applying basic
analytical techniques and preparing final products for the
Trains and mentors the briefers to ensure that they are
equipped and prepared to deliver accurate, articulate, and
Ensure[s] proper coordination and vetting is completed and
requests for additional information or taskings issued on
behalf of the Secretary are tasked appropriately and tracked
J.A. 111. The announcement also stated that applicants were
required to have at least one year of specialized experience
"in the federal service or equivalent including the
• Preparing in-depth briefings for national and/or
• Developing written products for senior level
management officials to include writing, editing, and
coordinating briefing presentations.
•Analyzing information from various sources and
prepar[ing] briefings and final products for senior level
• Working with groups and committees at senior agency
levels to coordinate the exchange of information.
who had previously received an "exceeds
expectations" performance evaluation, applied for the
position. The supervisory position would have given him a
grade-level promotion with increased pay and professional
status. The Human Resources Department determined that
Coleman was "qualified" for the position, and
Coleman was one of the qualified applicants selected to be
interviewed. Coleman v. Johnson, 19 F.Supp.3d 126,
130 (D.D.C. 2014).
October 29, 2010, the selection board offered the positions
to John Destry and Alan Eckersley, both of whom were
Caucasian men. Coleman was not
selected. While Destry accepted the position, Eckersley
declined it the next week, leaving one position still
unfilled. Coleman was told that he was not selected because
he failed "to greet the Deputy, Associate Executive
Secretariat on a regular basis." J.A. 127.
December 11, 2010, Coleman contacted the Department's EEO
office alleging both race discrimination in the denial of his
promotion and unlawful harassment by his co-workers. Eighteen
days later, Coleman's supervisor, Boyden Rohner, issued
Coleman a "Letter of Counseling" admonishing
Coleman for failing to respond to an email inquiry.
January 16, 2011, Rohner filled the open supervisory position
by laterally transferring into the position Kara Millhench, a
GS-14 detailee on assignment to the Secretary's Briefing
Staff. Millhench is a Caucasian woman and was under the age
of 40. On January 28, 2011, Rohner issued a "Letter of
Reprimand" to Coleman allegedly for twice failing to
complete a checklist at the end of his shift.
continued to pursue his discrimination claims with the EEO
office and added claims of retaliation. On February 17, 2011,
Coleman filed a formal discrimination complaint with the
Department. The complaint listed January 28, 2011, as the
"date of [the] most recent discriminatory event, "
and sought attorney's fees, promotion to a GS-14
position, reassignment, and to "have both [the] letters
of counseling and reprimand rescinded." J.A. 188.
Attached to Coleman's complaint were his responses to an
EEO questionnaire. In that questionnaire, Coleman explicitly
referred to Millhench's hiring, stating that
In January[, ] Boyden Rohner announced that Kara Millhench
was given the Production Supervisor position although she
previously implied I would be selected for the position. * *
* Kara Millhench informed me that she did not apply for the
Production Supervisor position; she stated that Boyden Rohner
came to her and asked her if she wanted the Production
again referred to Millhench's hiring, and specifically
asserted that he had more relevant briefing experience than
she did, in an EEO declaration that is a formal component of
the EEO complaint record. See J.A. 156; see also
id. at 147 (establishing that the EEO declaration
"will be used as a part of the record in an equal
employment discrimination complaint").
13, 2011, the Department's EEO office sent Coleman a
letter "accepting [Coleman's] * * * claims for
processing[.]" J.A. 127. The claims accepted by the EEO
for its handling were Coleman's allegations "that he
ha[d] been discriminated against and subjected to harassment
and a hostile work environment on the bases of his race
(African American), age * * *, and reprisal (filing instant
complaint)." Id. The acceptance letter then
listed "examples" of incidents that Coleman had
identified to support his "claims":
1. In June 2010, Complainant's * * * non-selection for
the (first) Supervisory Production Specialist position * * *
[which his supervisor said] was due to his weak briefing
2. In early December 2010, * * * Complainant['s] * * *
non-selection for the (second) Supervisory Production
Specialist position, * * * [which his supervisor said] was
due to his failure to greet the Deputy, Associate Executive
Secretariat on a regular basis;
3. On December 13, 2010, the [supervisor] interrogated
Complainant regarding a false statement a female co-worker
made about Complainant;
4. On December 30, 2010, the [supervisor] gave Complainant a
letter of counseling; After contacting the HQ EEO Office on
December 11, 2010, your client alleges the following
incidents took place in reprisal for his protected EEO
5. On January 28, 2011, the [supervisor] gave Complainant a
letter of reprimand.
J.A. 127-128. The letter advised Coleman that, if he believed
the "accepted claims ha[d] not been identified
correctly, " he should notify the EEO office within
seven days. J.A. 128. Coleman did not advise the EEO office
of any errors.
year passed without any decision from the Department's
EEO office, Coleman withdrew his administrative complaint and
filed suit in the United States District Court for the
District of Columbia. As relevant here, Coleman's
complaint alleged that he was denied the promotion because of
his race ...