James Coleman v. Elaine C. Duke , 867 F.3d 204 ( 2017 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 8, 2016 Decided August 15, 2017
No. 15-5258
JAMES COLEMAN,
APPELLANT
v.
ELAINE C. DUKE, ACTING SECRETARY OF THE UNITED STATES
DEPARTMENT OF HOMELAND SECURITY,
APPELLEE
Appeal 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.
Jeremy 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.
2
Opinion for the Court filed by Circuit Judge MILLETT.
Dissenting opinion filed by Circuit Judge HENDERSON.
MILLETT, Circuit Judge: James 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.
I
A
Title 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. § 623(d).
Before 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
3
administrative exhaustion process governs both Title VII and
ADEA retaliation claims. See 29 C.F.R. § 1614.103(a).
To 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). 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 complaint. Id.
After 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.” Id. 2
1
Non-employees claiming discrimination or retaliation in
hiring decisions must file their claims with the agency with which
they sought employment. See 29 C.F.R. § 1614.106(a); Scott v.
Johanns, 409 F.3d 466, 468 (D.C. Cir. 2005).
2
The Commission issued Management Directive 110 to advise
federal agencies about Commission “policies, procedures, and
guidance relating to the processing of employment discrimination
4
If the 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).
B
James 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.
In the Fall of 2010, the Department posted a job vacancy
announcement for two Supervisory Production Specialist
positions. The vacancy announcement included the following
“Major Duties”:
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
complaints[.]” Department of Air Force, 436th Airlift Wing, Dover
Air Force Base v. Federal Labor Relations Auth., 316 F.3d 280, 282
(D.C. Cir. 2003).
5
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 Secretary’s
briefings.
Trains and mentors the briefers to ensure that
they are equipped and prepared to deliver
accurate, articulate, and meaningful briefs.
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
to completion.
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 following:”
• Preparing in-depth briefings for national
and/or global events.
• 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 management.
6
• Working with groups and committees at
senior agency levels to coordinate the
exchange of information.
J.A. 112
Coleman, 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).
Around October 29, 2010, the selection board offered the
positions to John Destry and Alan Eckersley, both of whom
were Caucasian men. 3 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.
On 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.
On January 16, 2011, Rohner filled the open supervisory
position by laterally transferring into the position Kara
3
According to Boyden Rohner, Destry was under the age of 40
at the time of selection and Eckersley was over 40.
7
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.
Coleman 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 Supervisor position.
J.A. 190–191.
Coleman 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
8
used as a part of the record in an equal employment
discrimination complaint”).
On May 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 skills;
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;
9
After contacting the HQ EEO Office on
December 11, 2010, your client alleges the
following incidents took place in reprisal for
his protected EEO activity:
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.
After a 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 and age and in retaliation for his filing of
Title VII and ADEA claims with the EEO office.
The Department moved to dismiss the complaint or, in the
alternative, for summary judgment. Coleman v. Johnson, 19 F.
Supp. 3d 126, 129 (D.D.C. 2014). With respect to the claim of
retaliation in the denial of promotion, the district court ruled
that the decision not to promote Coleman had already occurred
by October 29, 2010, so it could not possibly have been made
in retaliation for an EEO claim made almost two months later.
Id. at 135. With respect to Coleman’s argument that the
decision to laterally transfer Kara Millhench into the vacant
position rather than offer the still-open position to him was a
separate retaliatory act, the court ruled that Coleman had failed
to exhaust that claim. Id. at 136-137. The district court pointed
to the lack of any response by Coleman to the EEO acceptance
10
letter that did not specifically mention the Millhench transfer.
Id.
With respect to Coleman’s claims that the Letter of
Counseling and Letter of Reprimand were racially
discriminatory and retaliatory, the district court ruled that
neither was an actionable adverse employment action.
Coleman, 19 F. Supp. 3d 134–135.
After allowing discovery on the claim alleging race
discrimination in the denial of promotion, the district court
entered summary judgment for the Department. Coleman v.
Johnson, No. 12-1352, 2015 WL 4751022, *10 (D.D.C. Aug.
11, 2015). The court accepted as a legitimate, non-
discriminatory reason for not hiring Coleman that he was less
qualified than Destry and Eckersley, and concluded that none
of Coleman’s challenges to the evidence or decisional process
had merit. Id. at *7–*10.
After Coleman appealed, a panel of this court summarily
affirmed the grant of summary judgment on all of Coleman’s
race discrimination claims, but denied summary affirmance of
the dismissal of his retaliation claims. See Coleman v.
Johnson, No. 15-5258, 2016 WL 3040902, at *1 (D.C. Cir.
May 18, 2016). Accordingly, our review is limited to
Coleman’s claims of retaliation. Compl. ¶¶ 50–59.
II
We review de novo both the dismissal for failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6) and the
grant of summary judgment. See Harris v. District of
Columbia Water & Sewer Auth., 791 F.3d 65, 68 (D.C. Cir.
2015); Morris v. McCarthy, 825 F.3d 658, 667 (D.C. Cir.
2016). In analyzing the district court’s dismissal for failure to
11
state a claim, we accept as true all factual allegations in the
complaint. Kassem v. Washington Hosp. Ctr., 513 F.3d 251,
253 (D.C. Cir. 2008).
A party is entitled to summary judgment “only if ‘there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.’” Johnson v. Perez,
823 F.3d 701, 705 (D.C. Cir. 2016) (quoting FED. R. CIV. P.
56(a)). Because the district court entered summary judgment
in favor of the Department, “we take ‘the facts in the record
and all reasonable inferences derived therefrom in a light most
favorable to’” Coleman. Al–Saffy v. Vilsack, 827 F.3d 85, 89
(D.C. Cir. 2016) (quoting DeGraff v. District of Columbia, 120
F.3d 298, 300 (D.C. Cir. 1997)).
A
Contrary to the judgment of the district court, we hold that
Coleman properly exhausted his retaliation claim pertaining to
the denial of a promotion.
To administratively exhaust his retaliation claim, Coleman
had to timely provide the Department with “sufficient
information to enable the agency to investigate the claim[s].”
Artis v. Bernanke, 630 F.3d 1031, 1034–1035 (D.C. Cir. 2011);
see also Hamilton v. Geithner, 666 F.3d 1344, 1350 (D.C. Cir.
2012).
There is no dispute that Coleman timely contacted an EEO
counselor at the Department of Homeland Security within 45
days of the denial of promotion in late October 2010. After the
transfer of Kara Millhench in mid-January 2011, he added
retaliation to his EEO claim. Coleman, 19 F. Supp. 3d at 130–
131.
12
Coleman also timely filed his formal administrative EEO
complaint with the Department, which included the retaliation
claim. Coleman checked the boxes on the form to indicate that
his claims were based on both retaliation for protected EEO
activity and race and age discrimination. In addition, the
administrative complaint states that the most recent
discriminatory event occurred on January 28, 2011, covering
the entire time period from the October promotion denial
through the Millhench transfer. Even more clearly, Coleman
made his responses to a detailed questionnaire a formal part of
his administrative complaint, specifically including his
discussion of the procedurally unusual hiring of Kara
Millhench for the supervisor position for which Rohner had
“previously implied [Coleman] would be selected.” J.A. 190.4
Finally, Coleman provided a signed declaration to the
Department that the Department expressly confirmed would
“be used as a part of the record in [his] equal employment
opportunity discrimination complaint,” J.A. 147. That
declaration included the following question and response:
31) Question: Who was selected for the
position? Do you know the selectee/s? If yes,
4
Coleman’s detailed questionnaire was attached to his formal
EEO Complaint. Accordingly, we treat that attachment as a part of
the complaint itself. See, e.g., Brooks v. District Hosp. Partners,
L.P., 606 F.3d 800, 808 (D.C. Cir. 2010) (concluding that individuals
listed in attachments to a formal EEO complaint exhausted their
administrative remedies, where the complainant filed the complaint
on behalf of herself and similarly situated individuals, including
individuals listed in the attachments); Addison v. Woodward &
Lothrop, 976 F.2d 45, 45 (D.C. Cir. 1992) (unpublished disposition)
(remanding to the district court to address whether the formal EEO
“complaint and attachment” provided sufficient notice of the
complainant’s claim).
13
compare your qualifications to those of the
selectee/s. Do you believe that you are better
qualified? Explain your answers. Be specific.
Answer: John Destry (white male under 35)
and Kara Millhench (white female under 35). I
had never met Mr. Destry; however, I worked
with Ms. Millhench because she was a briefer.
I had successfully performed the job for over
20 months. Neither of the selectees had
previous Production Supervisor experience.
J.A. 156 (emphasis omitted). 5
Coleman’s formal complaint gave the Department
adequate notice that he was challenging the Millhench transfer
as retaliatory by (i) listing the date of the last discriminatory
event to cover the time of Kara Millhench’s transfer, (ii)
attaching to the formal complaint a document explicitly
referencing Millhench’s transfer for a job that in Coleman’s
view had been implicitly slated for him and for which he was
allegedly more qualified, and (iii) putting into the record a
signed declaration that discussed Millhench’s transfer as part
of his EEO retaliation and discrimination claims. See Artis,
630 F.3d at 1034–1035 (a complainant must provide “sufficient
information to enable the agency to investigate the claim[s]”).
The informal EEO process, which is commonly pursued pro se,
does not require more elaborate argumentation by claimants.
See, e.g., Adams v. Rice, 531 F.3d 936, 952–953 (D.C. Cir.
2008) (rejecting the government’s argument that an employee
failed to administratively exhaust her disability claim even
5
Why, in light of this paragraph, the dissenting opinion
suggests that Coleman did not mention the Millhench event in his
sworn EEO declaration is indiscernible. See Dissenting Op. at 10.
14
though her EEO complaint did not explain how her disability
substantially limited a major life activity); cf. Artis, 630 F.3d at
1035 (“An agency risks misusing the counseling requirement
when it demands excessively detailed support” for an EEO
claim.).
The district court ruled that Coleman failed to timely
exhaust his retaliation claim because the only potentially
retaliatory act—Coleman’s non-promotion to the supervisory
position—occurred in late October 2010 when the supervisory
positions were first offered to Destry and Eckersley. And that
was prior to Coleman’s contact with the Department’s EEO
office in December 2010. See Coleman, 19 F. Supp. 3d at 135–
137. But the district court overlooked that Eckersley declined
the promotion, and so the opening for which Coleman had
applied, had been deemed “qualified,” id. at 130, and had been
interviewed remained unfilled until January 2011—a month
after Coleman filed his EEO claim, id. at 130–131. The
continuation of the hiring process thereby provided a plausible
chronological and factual predicate for Coleman’s claim of
retaliation.
The Department points to the acceptance letter sent by the
EEO office after Coleman filed his complaint. The purpose of
the letter was to identify the “claim(s)” asserted and “to be
investigated.” EEOC Directive at 5-1. The EEO letter
explained that the Department was “accepting the following
claims for processing: Your client alleges he has been
discriminated against and subjected to * * * reprisal (filing
instant complaint).” J.A. 127.
That supports Coleman not the Department. The EEO
letter expressly confirms that (i) Coleman was pressing a
retaliation claim, and (ii) the timeframe for that alleged
15
retaliation went up to the time of filing the “instant complaint,”
which includes the Millhench hiring.
The Department emphasizes that the letter went on to list
“examples of incidents” that Coleman provided “in support of
his claims[.]” J.A. 127. That list of examples does not
reference Millhench’s transfer into the supervisory position.
Coleman, the Department stresses, did not dispute the letter’s
list of his claims, and the district court cited that as evidence of
the failure to exhaust. See Coleman, 19 F. Supp. 3d at 136–
137.
That misreads the letter. For whatever reason, the letter’s
plain text drew a distinction between “claims” to be processed
and “examples” of evidence to support those claims. Cf.
National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110
(2002) (“We have repeatedly interpreted the term ‘[unlawful
employment] practice’ to apply to a discrete act or single
‘occurrence.’”). There can be no dispute that “reprisal” for
filing with the EEO was expressly identified as one of the
“claims” to be “process[ed].” J.A. 127. And, given the letter’s
choice to describe the discrete acts of retaliation or
discrimination as mere “examples” of factual incidents that
might support Coleman’s claims, Coleman was not given fair
notice that he had to object to or disagree with the EEO’s
identification of the “accepted claims,” J.A. 128.
If the Department’s EEO office had intended to narrow the
scope of the complaint, it could not do so elliptically or
confusingly through its list of evidentiary “examples.”
Because so many claimants are proceeding pro se, EEOC
Management Directive 110 provides that, if the acceptance
letter’s “statement of the claim(s) asserted and claim(s) for
investigation differs” from the formal complaint, the letter
“shall explain the reasons for the difference, including whether
16
the agency is dismissing a portion of the complaint.” EEOC
Directive at 5-1. Moreover, any such partial dismissal would
have triggered additional regulatory notice requirements, such
as alerting the employee in writing that the agency intends to
partially dismiss claims rather than investigate them, and
providing an explanation for their dismissal. See 29 C.F.R.
§ 1614.107. None of that happened here.
In holding that Coleman failed to exhaust his retaliation
claim as to the Millhench transfer, the district court and the
dissenting opinion (at 7–8) rely on our decision in Hamilton v.
Geithner, supra. See Coleman, 19 F. Supp. 3d at 135–138. But
Hamilton was very different. There we held that a federal
employee failed to administratively exhaust a claim of race and
gender discrimination in awarding an agency detail in 2002
because “Hamilton’s formal EEO complaint ma[de] no
mention of the 2002 detail” at all. Hamilton, 666 F.3d at 1350.
In addition, when the EEO office’s acceptance letter expressly
confined his discrimination claim to only a separate denial of
“promotion” “on August 11, 2003,” Hamilton ignored the
agency’s invitation to correct the statement of his claims to
include denial of the detail or even to indicate that the claim
was not confined to that single August day in 2003. Id.
(emphasis added).
Unlike Coleman’s case, which turns on the content of his
complaint, Hamilton’s argument was that he adequately
exhausted the claim by presenting it in an informal EEO
counseling session. Hamilton, 666 F.3d at 1350. But as this
court explained, “[f]iling a formal complaint is a prerequisite
to exhaustion,” and so a complainant “cannot rely on the EEO
counseling report to establish exhaustion of a claim that he
failed to include in his formal complaint.” Id.
17
Coleman made none of Hamilton’s mistakes. His formal
complaint, including its attachments, raised the Millhench
reprisal claim, and his supplementary declaration as part of the
EEO record itself reconfirmed his inclusion of that claim. In
addition, the EEO acceptance letter expressly included
“reprisal” as one of his claims, without any temporal or content
limitations. J.A. 127. Under Hamilton, that suffices for
exhaustion.
The dissenting opinion notes that Coleman’s “addendum
is hardly a model of clarity.” Dissenting Op. at 2. Fair enough.
But because complainants are often pro se, our precedent does
not demand “a model of clarity” in EEO complaints. We
require only that the complainant provide “sufficient
information to enable the [Department] to investigate the
claims.” Artis, 630 F.3d at 1035. Coleman did that, and “[t]o
hold otherwise would turn the informal” EEO process “into a
trap for unwary counselees rather than a step toward
remediation[.]” Id. But, the dissenting opinion objects,
Coleman raised the Millhench transfer in response to question
“15. B.” of Coleman’s complaint attachment, instead of
question “15. A.” Dissenting Op. at 2–4; see id. at 8. It is hard
to think of a more obvious “trap for unwary [complainants]”
than a hyperformalistic rule like that. Artis, 630 F.3d at 1035.
The dissenting opinion also says we should adopt a whole
new standard for exhaustion here because Coleman was
represented by counsel when he filed his EEO complaint.
Dissenting Op. at 2 n.2. Circuit precedent says doing that
would be “perverse.” Wilson, 79 F.3d at 163–164 (“[I]t would
be perverse to deprive Wilson of the benefit of the new
limitations period simply because he is represented by counsel,
whose assistance he sought in an effort to protect his rights
under Title VII.”).
18
The other difficulty with the dissenting opinion’s approach
is that it fails to answer the most fundamental question
concerning the acceptance letter: where did the Millhench
transfer issue go? The dissenting opinion does not dispute that
the complaint encompassed it. Reliance on the acceptance
letter as erasing the claim, without any clear notice and
explanation of that specific consequence to Coleman—as the
dissenting opinion proposes—would license agency
circumvention of those settled rules while effectively shifting
the burden from the expert EEO office to the complaining
employee to assert again claims already asserted once before
within the original complaint. That is not how the EEO process
works. See President v. Vance, 627 F.2d 353, 362 (D.C. Cir.
1980) (“Exhaustion under Title VII, like other procedural
devices, should never be allowed to become so formidable a
demand that it obscures the clear congressional purpose of
‘rooting out * * * every vestige of employment discrimination
within the federal government.’”) (quoting Hackley v.
Roudebush, 520 F.2d 108, 136 (D.C. Cir. 1975)). 6
Our decision in Hamilton held that the complaint is the
operative document, 666 F.3d at 1350, as the Department
agreed at oral argument, Oral Arg. Tr. at 11:13–16 (“Well, your
Honor, first the operative document is his formal complaint,
and that identifies, it says describe the actions taken against you
that you believe were discriminatory, so that is the list.”). So
to the extent there is a conflict between the acceptance letter
and Coleman’s EEO complaint documents, our precedent, the
Management Directive, and the Department all agree that the
complaint takes precedence.
6
Contrary to the dissenting opinion’s view, we do not “elide[]
the distinction between an event and a claim.” Dissenting Op. at 8
n.6. What matters is that the Millhench transfer is a complained-of
event in the complaint and its attachments.
19
Finally, the dissenting opinion says (at 8–9 n.6) that EEO
counselors must be able to “separate the wheat from the chaff.”
But there is no question that they can do that already if they just
follow the rules. See 29 C.F.R. § 1614.107 (explaining the
notice requirements for partial dismissal of claims in an EEO
complaint); EEOC Directive at 5-1 (requiring the Department’s
EEO office to “explain the reasons for the difference [between
the acceptance letter and the EEO complaint], including
whether the agency is dismissing a portion of the complaint”).
Here, the agency EEO did not follow those established rules
for disposing of claims raised in the complaint. In that regard,
we agree with the dissenting opinion that this case is about the
“importance of * * * following instructions.” Dissenting Op.
at 1. 7
B
The Department contends that, even if Coleman exhausted
his Millhench retaliation claim, it is entitled to summary
judgment because Coleman failed to rebut the Department’s
7
Because Coleman exhausted his retaliation claim with respect
to the Millhench transfer, we need not decide whether the Millhench
retaliation claim was also exhausted under the “like or reasonably
related to” doctrine. See Park v. Howard Univ., 71 F.3d 904, 907
(D.C. Cir. 1995) (“A Title VII lawsuit following the EEOC charge is
limited in scope to claims that are ‘like or reasonably related to the
allegations of the charge and growing out of such allegations.’ At a
minimum, the Title VII claims must arise from ‘the administrative
investigation that can reasonably be expected to follow the charge of
discrimination.’”) (citations omitted); see also Payne v. Salazar, 619
F.3d 56, 65 (D.C. Cir. 2010) (declining to decide the viability of the
“like or reasonably related to” doctrine after Morgan, 536 U.S. 101).
We note though, that a claim that is actually exhausted is, perforce,
“like” an exhausted claim.
20
legitimate, non-retaliatory reason for the transfer. Department
Br. 30. The record is insufficient to support the Department’s
argument.
The Department has identified two reasons for transferring
Millhench into the vacant supervisory position: (i) it was more
convenient and efficient to transfer Millhench into the position
than to re-advertise it, and (ii) Millhench had “relevant
experience” that Coleman lacked, Department Br. 31, because
she was already performing briefing duties, which purportedly
was the most “critical” requirement for the new position,
Coleman, 2015 WL 4751022, at *8 (“[Coleman] did not
perform any briefing.”). Neither of those rationales are
inherently legitimate or non-pretextual. Nor does either rely
upon undisputed facts. The failure to advertise a position
competitively itself can support a Title VII claim and can be
considered an adverse action. Cones v. Shalala, 199 F.3d 512,
521 (D.C. Cir. 2000). And Coleman disputes Millhench’s
comparative qualifications for the position, an allegation that is
plausibly grounded in the record evidence showing that
Coleman was deemed “qualified” for the position when he was
interviewed.
The Department is correct that there is nothing in the
record to rebut its proffered reasons for transferring Millhench
into the vacant role. But that is because the district court
entered summary judgment against Coleman on exhaustion
grounds without permitting any discovery pertaining to the
Millhench transfer or to Coleman’s and Millhench’s relative
qualifications. Neither have the parties identified anything in
the record that addresses Millhench’s and Coleman’s relative
qualifications. The record thus is at best silent as to whether
Coleman had acquired equivalent briefing experience to
Millhench, or was otherwise at least equally qualified for the
promotion by January 2011.
21
Viewed in the light most favorable to Coleman, the record
shows that Coleman was qualified for the position, and he was
one of only a select number of qualified applicants to be
interviewed. It is also telling that, after Coleman’s non-
selection in October 2010, no one told him that it was due to a
lack of briefing experience, as they had when he first applied
in June 2010. A reasonable inference thus is that Coleman had
cured any deficiency before he applied the second time and was
found to be qualified. Indeed, Coleman was told that he did
not get the position on the second round for the rather cryptic
reason that he failed “to greet the Deputy, Associate Executive
Secretariat on a regular basis”—a requirement that appeared
out of the blue, having never previously been mentioned in the
job requirements or description and that was not discussed at
all with respect to Millhench. J.A. 127. Then, within a month
of Coleman’s EEO contact, Rohner chose not to reopen the
position to competitive hiring and instead laterally transferred
into the position someone who never applied for the job. Id. at
131. That sudden change in the hiring process is the type of
action that a reasonable jury could find supports a finding of
retaliatory animus. See Cones, 199 F.3d at 521. Especially
since Rohner made that lateral transfer even though she
(allegedly) had previously indicated to Coleman that he would
be selected for the position. J.A. 190.
Accordingly, taken as a whole and in the light most
favorable to Coleman, the record at this early procedural
juncture shows that he came forth with sufficient factual
allegations and inferences to require, at a minimum, that he be
afforded discovery before summary judgment proceedings.
To be sure, the district court has already made a key
finding, which we have summarily affirmed, in the context of
Coleman’s discrimination claim—that briefing skills were a
22
“critical job component.” Coleman, 2015 WL 4751022, at *8.
That means that Coleman’s retaliation argument must take
account of his and Millhench’s comparative briefing skills, or
offer a theory of retaliation that does not turn on Coleman’s
comparative qualifications for the position. Notably, while
Millhench had some briefing experience, Coleman alleged that
she had no production experience. J.A. 151. 8
Accordingly, the record contains a number of plausible
factual disputes pertaining to Coleman’s claims of retaliation
that could not be resolved on a motion for summary judgment.
Finally, Coleman alleged that he was retaliated against by
his supervisor through the issuance of Letters of Counseling
and Reprimand. Compl. ¶¶ 54–56. The district court applied
the wrong legal standard to Coleman’s allegation that those
disciplinary actions were retaliatory. Coleman, 19 F. Supp. 3d
at 134–135. Specifically, the district court asked whether those
letters were materially “adverse employment actions.” See
Coleman, 19 F. Supp. 3d at 134; see also Niskey, 859 F.3d at 8–
9. But to sustain a retaliation claim, the employee need only
“demonstrate [that] the ‘employer’s challenged action would
have been material to a reasonable employee,’ which in this
context means it well might have ‘dissuaded a reasonable
worker from making or supporting a charge of
discrimination,’” Rochon v. Gonzales, 438 F.3d 1211, 1219
(D.C. Cir. 2006) (quoting Washington v. Illinois Dep’t of
Revenue, 420 F.3d 658, 662 (7th Cir. 2005)); see also Baloch
v. Kempthorne, 550 F.3d 1191, 1199 (D.C. Cir. 2008)
(acknowledging that some disciplinary actions can constitute
8
The district court finding that Coleman was not as qualified
as the candidates selected for the position extended only to Destry
and Eckersley, not to Millhench. Coleman, 2015 WL 4751022, at
*7–*8 (defining “Selected Candidates”).
23
adverse retaliatory actions if connected to tangible harm).
Coleman’s retaliation claim based on the disciplinary letters
must therefore be remanded for the district court to apply the
correct legal standard.
Accordingly, we reverse the decision of the district court
as to Coleman’s retaliation claims and remand those claims to
the district court for further proceedings consistent with this
opinion.
So ordered.
KAREN LECRAFT HENDERSON, Circuit Judge, dissenting:
This case is a parable about the importance of reading and
following instructions. Believing himself the victim of
unlawful discrimination and retaliation, James Coleman filed a
formal complaint with DHS’s EEO office. In response, that
office sent Coleman and his counsel a letter identifying the
actions it believed underlay Coleman’s retaliation claim.
Coleman’s counsel was instructed to respond if any actions had
been misidentified. He never did. But now, Coleman contends
his complaint, in fact, asserts a claim not included in the EEO
letter. Unlike my colleagues, I believe his protest comes too
late. In addition, my colleagues reinstate two other retaliation
claims because they believe the district court “applied the
wrong legal standard.” Maj. Op. 22. I do not and therefore
must dissent.
I.
I begin with the administrative-exhaustion issue. As the
majority recounts, Coleman was required to exhaust his
administrative remedies before suing under Title VII or the
ADEA. See Niskey v. Kelly, 859 F.3d 1, 7 (D.C. Cir. 2017); 29
C.F.R. § 1614.103(a). As part of the exhaustion process, a
prospective plaintiff must file a complaint with the agency that
allegedly discriminated against him. See 29 C.F.R.
§ 1614.106(a). That complaint must be “sufficiently
precise . . . to describe generally the action(s) or practice(s) that
form the basis of the complaint.” Id. § 1614.106(c). A
complainant may also amend his complaint throughout the
investigation to include other issues and claims. Id.
§ 1614.106(d).
With his counsel’s assistance, Coleman completed a DHS
“Individual Complaint of Employment Discrimination” form.
The form is a two-page document with twenty-five numbered
instructions. It solicits information about the complainant, his
employment and the alleged discriminatory actions.
2
Instruction 15 focuses on the conduct at issue. In pertinent part,
it reads:
15. A. Describe the action taken against you that
you believe was discriminatory.
B. Give the date when the action occurred, and
the name of each person responsible for the
action.
C. Describe how you were treated differently
from other employees, applicants, or members
for any of the reasons listed in Item 16.[1]
D. Indicate what harm, if any, came to you in
your work situation as a result of this action.
(You may, but are not required to, attach extra
sheets.)
Joint Appendix (JA) 188. In response, Coleman wrote “see
attachment” and appended a three-page narrative with four
headings corresponding to instruction 15’s four parts.
Coleman’s addendum is hardly a model of clarity.2 In
response to instruction 15.A, which directs him to “[d]escribe
1
The listed reasons are “race,” “color,” “religion,” “national
origin,” “sex,” “age,” “physical or mental disability,”
“retaliation/reprisal,” “sexual orientation,” “parental status” and
“protected genetic information.” JA 188.
2
The majority rejoins that “our precedent does not demand a
‘model of clarity’ from often-pro se EEO complainants.” Maj. Op.
17. But Coleman had counsel, which fact makes the cited precedent
irrelevant. The majority nonetheless persists in its attempt to fold a
party represented by counsel into a pro se party together with the
leniency given the latter, citing Artis v. Bernanke, 630 F.3d 1031,
3
the action . . . you believe was discriminatory,” he includes just
two paragraphs, only one centering on retaliation.3 It reads:
Additionally, I experienced retaliation after I
informed Donald Swain (white-male/over 40),
Deputy Executive Secretary, via email on
Saturday, December 11, 2010 that I initiated
contact with the EEO and was contemplating
filing a claim. Consequently, I was not selected
for the Production Supervisor position and
subsequently received a letter of counseling on
December 30, 2010 and a formal letter of
reprimand on January 28, 2011.
Id. at 189. His answer to instruction 15.B, which, as set forth
supra, tells him to tie the action described in 15.A to the date(s)
and the person(s) responsible for the action, is far longer,
totaling eleven paragraphs. Like his response to 15.A, it
1034–35 (D.C. Cir. 2011). But its reliance is plainly misplaced.
There, we addressed the fact-bound question of whether the putative
plaintiff class satisfactorily engaged in EEO counseling regarding
claims of systematic racial discrimination, see id. at 1032, 1035; it
had nothing to do with the construction of a pro se complaint.
Likewise, Wilson v. Peña, 79 F.3d 154, 163–64 (D.C. Cir. 1996), is
inapposite as it concluded, in pertinent part, that a Title VII
limitations period did not begin to run when the agency misinformed
the complainant, represented by counsel, of his time to file suit—
again, it had nothing to do with the construction of a complaint,
whether drafted with or without counsel. See id. at 163–64.
3
The other described an allegedly discriminatory (but, based
on chronology, not retaliatory) action taken by his supervisor in not
promoting him earlier in 2010 to one of two production supervisor
positions because of his deficient “briefing skills.” That position was
eventually filled by John Destry.
4
mentions letters of counseling and reprimand (collectively, the
disciplinary letters). But it also mentions a host of other events.
For example, Coleman describes a “mysterious message”
directing him to go to a Washington, D.C. Starbucks where
someone affixed an “envelope contain[ing] a ‘secret’
document” to his vehicle’s windshield. Id. at 190. Coleman
then tells of being “interrogated” about his “scar[ing]” a co-
worker by sitting in his vehicle while it idled in his assigned
parking space. Id. He also describes an “astonish[ing]” email
asking him to resume his morning shift team lead duties. Id. at
191. Also included in his rambling factual recitation is a brief
description4 of how Millhench was transferred to the
production supervisor position which remained vacant after
Alan Eckersley turned it down and for which Coleman was
rejected because he failed to meet regularly with the “Deputy
Associate Executive Secretariat.” Id. at 189.
Understandably, the EEO sought to clarify the scope of
Coleman’s complaint in a May 2011 letter to Coleman’s
lawyer. In pertinent part, it reads:
[DHS’s EEO Office] has carefully reviewed the
complaint . . . and the EEO Counselor’s Report.
4
Specifically, Coleman says:
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 Supervisor position . . . .
JA 191–92.
5
Based upon that review and the criteria
established by the Equal Employment
Opportunity Commission (EEOC) regulations
at 29 CFR § 1614.107, I am accepting the
following claims for processing:
Your client alleges he has been discriminated
against and subjected to harassment and a
hostile work environment on the bases of his
race (African American), age (DOB
[redacted]/61), and reprisal (filing instant
complaint). The following are examples of
incidents your client provides in support of his
claims:
1. In June 2010, Complainant’s
supervisor, Director of Secretary
Briefing Staff (DSBS), informed
Complainant that his non-
selection for the (first)
Supervisory Production
Specialist position . . . was due
to his weak briefing skills;
2. In early December 2010, the
DSBS informed Complainant
that his non-selection for the
(second) Supervisory
Production Specialist position
. . . was due to his failure to greet
[sic] the Deputy, Associate
Executive Secretariat on a
regular basis;
6
3. On December 13, 2010, the
DSBS interrogated Complainant
regarding a false statement a
female co-worker made about
Complainant;
4. On December 30, 2010, the
DSBS 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 activity:
5. On January 28, 2011, the
DSBS gave Complainant a letter
of reprimand.
***
If you believe the above accepted claims have
not been identified correctly, please notify our
office in writing within seven (7) calendar days
after your receipt of this letter, specifying why
you believe your client’s claims were
incorrectly identified. If you fail to contact our
office, I will conclude that you agree with the
claims as stated.
Id. at 127–28 (emphasis in original). Despite the letter’s notice,
Coleman’s counsel did not respond. Nor did Coleman ever
amend his administrative complaint. See 29 C.F.R.
§ 1614.106(d).
7
On these facts, I believe Coleman failed to exhaust the
Millhench transfer claim. My conclusion flows naturally from
our decision in Hamilton v. Geithner, 666 F.3d 1344 (D.C. Cir.
2012). There, a federal employee (Hamilton) brought a
discrimination suit based on, inter alia, his agency’s 2002
decision to grant a work detail to another employee. Id. at
1348. We noted that, in a follow-up letter to Hamilton, the
relevant EEO office identified the claim to be investigated as
Hamilton’s 2003 non-promotion. Id. at 1350. We emphasized
the letter told him to notify the office in writing if he
“disagree[d] with the claim[.]” Id. If he did not respond, the
letter said, the office would conclude “that [Hamilton] agree[d]
with the claim(s) and [would] proceed with the investigation.”
Id. Hamilton neither responded nor amended his complaint.
Id. Accordingly, we found his claim unexhausted. Id. at 1351.
To me, the lesson is clear. If an EEO letter requests
confirmation of a complaint’s scope and the complainant does
not respond or amend his complaint, only those claims listed in
the letter are treated as exhausted. That makes sense.
Exhaustion serves important purposes. It “give[s] federal
agencies an opportunity to handle matters internally whenever
possible” and “impose[s] on employing agencies the
opportunity as well as the responsibility to right any wrong that
it might have done.” Niskey, 859 F.3d at 7 (internal quotation
marks omitted). Those goals are frustrated if the agency is
unsure what conduct to investigate. I see nothing unfair in
requiring the complainant to dispel any uncertainty. Cf.
Woodford v. Ngo, 548 U.S. 81, 90 (2006) (“[E]xhaustion
requirements are designed to deal with parties who do not want
to exhaust . . . .”).
My colleagues attempt to salvage the transfer claim by
distinguishing Hamilton. They stress that Hamilton, unlike
Coleman, “made no mention” of the unexhausted claim in his
8
complaint. Maj. Op. 16 (brackets and internal quotation marks
omitted). I believe this distinction is without effect. The law
demands more from a complaint than some reference to the
relevant events. Cf. 29 C.F.R. § 1614.106(c) (The complaint
“must be sufficiently precise . . . to describe generally the
action(s) or practice(s) that form the basis of the complaint.”).
And Coleman’s garbled discussion is of little value. His 15.A
response makes no reference to the Millhench transfer.5 Worse
for him, it suggests that the Millhench transfer was not part of
his retaliation claim. Coleman complains that he “was not
selected for the Production Supervisor position and
subsequently received a letter of counseling on December 30,
2010.” JA 189 (emphasis added). But Millhench’s transfer
occurred on January 16, 2011. December 30, 2010 would not
be “subsequent[]” to the complained-of action if he were
describing the Millhench transfer. Coleman’s reference to the
Millhench transfer in 15.B hardly clarifies matters, as his
answer describes events that plainly could not be considered
retaliatory. For example, he describes a February 2, 2011, e-
mail from his supervisor “ask[ing] . . . if she could reinstate
[him] as the morning shift team lead.” Id. at 191. This is hardly
the stuff of retaliation. And Coleman’s complaint confirms as
much by identifying January 28, 2011—several days earlier—
as the date of the final challenged action, i.e., the reprimand
letter.6
5
Again, that question asked Coleman to “[d]escribe the action
taken against [him] that [he] believe[d] was discriminatory.” JA 188.
6
The majority contends that I “do[] not dispute that the
complaint encompassed” “the Millhench transfer issue.” Maj. Op.
18. My colleagues therefore believe (apparently) that I regard the
acceptance letter as “erasing the claim.” Id. (emphasis added). But
that elides the distinction between an event and a claim. Plainly not
every event mentioned in a complaint is automatically its own claim.
9
Perhaps aware of the limitations of his complaint, my
colleagues contend the EEO letter accepts Coleman’s
retaliation claim “without any temporal or content limitations.”
Maj. Op. 17. To reach this conclusion, they read the EEO
letter’s “plain text” as drawing “a distinction between ‘claims’
to be processed and ‘examples’ of evidence to support those
claims.” Id. at 15. In their view, the letter chooses to “describe
the discrete acts of retaliation . . . as mere ‘examples’ of factual
incidents that might support Coleman’s claim[.]” Id. But the
majority misreads the EEO letter. Although the EEO letter lists
four “examples of incidents [Coleman] provide[d] in support
of his claims[,]” JA 127, it identifies just one action that
Coleman “allege[d] . . . took place in reprisal for his protected
EEO activity[,]” that is, the January 28 letter of reprimand. Id.
at 128. Nowhere does the letter say that one action is simply
an “example.” Fairly read, the EEO letter does not suggest that
So recognizing, the majority emphasizes that “[w]hat matters is that
the Millhench transfer is a complained-of event.” Maj. Op. 18 n.6.
But how? Nothing in Coleman’s description of the transfer suggests
he thought it retaliatory. See supra n.4. And why consider only this
a “complained-of” event and not Rohner’s “astonish[ing]” email or
her interrogation of him regarding the parking lot incident? When
faced with a complaint of this opacity, an EEO office needs some
way to separate the wheat from the chaff. What matters, I submit, is
that the administrative steps of a Title VII claim be followed as
required by, inter alia, our precedent. A sensible solution—one
sanctioned by Hamilton—is for the EEO office to clarify the
complaint’s scope. That is what the EEO office did here. But under
the majority’s reading, such efforts have no effect and, instead, the
initial complaint, deficient though it may be, sets the matter in amber.
In this case, the amber more accurately resembles sand. If this is
indeed the import of our exhaustion precedent, including,
specifically, Hamilton, exhaustion has become a dead letter.
10
office acknowledged a reprisal claim based on the Millhench
transfer.
Coleman’s subsequent actions confirm my view. As the
majority notes, see Maj. Op. 7–8, Coleman completed a sworn
EEO declaration in July 2011. The declaration belies the
majority’s reading of the EEO letter. The declaration’s first
page identifies “[t]he accepted issue in this complaint” as
“[w]hether DHS discriminated against Complainant and
subjected him to a hostile work environment on the bases of
race . . . , age . . . , and reprisal” based on five enumerated
actions.7 JA 147. The five actions—which are not labeled
“examples”—contain no mention of the Millhench transfer.
Accordingly, I would hold Coleman failed to exhaust the
Millhench transfer claim. My conclusion is hardly stinting.
Coleman had plenty of opportunities to alert the EEO office to
his claim. He could have done so when instructed to
“[d]escribe the action taken against [him] that [he] believe[d]
was [retaliatory].” Id. at 188. He could have done so when
further instructed to “notify [the EEO] office” “[i]f . . . the . . .
accepted claims [were] not identified correctly[.]” Id. at 128.
He could have done so in his sworn EEO declaration which
identified five events—none the Millhench transfer—that
underlay his claims. Or he could have amended his complaint
during the EEO investigation. See 29 C.F.R. § 1614.106(d).
Instead, he did nothing. More compelling still, he declared
under penalty of perjury that the “accepted issue in [his]
complaint” included five challenged actions, none including
the Millhench transfer. JA 147. At some point, a party—
especially one represented by counsel—must live with his
7
Those five actions mirror the EEO letter’s four “examples of
incidents” and one act of reprisal.
11
choices. I believe that moment came and went for Coleman
long ago.8
II.
My colleagues also conclude the district court erred in
rejecting Coleman’s retaliation claim based on the DHS
disciplinary letters.9 In their view, the district court applied the
wrong standard because it examined whether those letters were
“adverse employment actions” and not whether the
“‘employer’s challenged action . . . well might have dissuaded
a reasonable worker from making or supporting a charge of
discrimination.’” Maj. Op. 22 (quoting Rochon v. Gonzales,
438 F.3d 1211, 1219 (D.C. Cir. 2006)). I see little, if any,
inconsistency. “To prove retaliation, the plaintiff generally
must establish that he or she suffered . . . a materially adverse
action . . . .” Baloch v. Kempthorne, 550 F.3d 1191, 1198
(D.C. Cir. 2008). An action is materially adverse if it would
“dissuade a reasonable worker from making or supporting a
charge of discrimination.” Burlington N. & Santa Fe Ry. Co.
v. White, 548 U.S. 53, 57 (2006). In other words, I believe the
district court applied the very standard—by necessary
implication, at least—that my colleagues suggest it overlooked.
8
The majority tries to equate Coleman’s failure to follow
instructions with the EEO office’s alleged failure to “follow the
rules” governing claim dismissals. Maj. Op. 19. The cited rules
require the EEO office to, inter alia, give notice of and explain partial
dismissals. The majority does not explain how that office could be
blamed for not explaining dismissal of a claim not made.
9
Again, those letters were the December 30, 2010, and January
28, 2011, letters of counseling and reprimand, respectively.
12
The majority may fault the district court for referring to an
“adverse employment action.” Coleman v. Johnson, 19 F.
Supp. 3d 126, 134 (D.D.C. 2014) (emphasis added). Granted,
the challenged retaliatory action need not “relate[] to the
plaintiff’s employment,” Rochon, 438 F.3d at 1219, and
retaliatory adverse action “encompass[es] a broader sweep of
actions than those in a pure discrimination claim[,]” Baloch,
550 F.3d at 1198 n.4. Nevertheless, I do not think this
distinction was lost on the district court. The court determined
the disciplinary letters did not “qualify as adverse employment
actions . . . for either discrimination claims or retaliation
claims.” Coleman, 19 F. Supp. 3d at 134 (emphases added).
And it based its conclusion on our retaliation precedent. See
id. (citing, inter alia, Baloch, 550 F.3d at 1199). That
precedent teaches that a letter of counseling or reprimand that
provides “job-related constructive criticism” generally does
not constitute the “materially adverse action” needed “[t]o
prove retaliation” unless it contains “abusive language” or
portends further—more tangible—harms. See Baloch, 550
F.3d at 1198–99 (internal quotation marks omitted).10 Neither
caveat exists in Coleman’s case. Perhaps “adverse
employment action” is inartful phrasing.11 If so, it is a
peccadillo we, too, have committed. E.g., Allen v. Johnson,
795 F.3d 34, 39 (D.C. Cir. 2015) (“[A] retaliation plaintiff need
only show that she engaged in protected activity, that she
suffered an adverse employment action, and that there was a
10
Incidentally, the majority—like the district court—relies on
Baloch. See Maj. Op. 22.
11
I find it noteworthy that my colleagues swallow the camel
(bumbling complaint) but choke on the gnat (district court nit).
13
causal link between the former and the latter.” (emphasis
added)). But it does not require reversal.
Accordingly, I respectfully dissent.