Coleman v. Duke, 15-5258

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtMillett, Circuit Judge
Citation867 F.3d 204
Parties James COLEMAN, Appellant v. Elaine C. DUKE, Acting Secretary of the United States Department of Homeland Security, Appellee
Docket NumberNo. 15-5258,15-5258
Decision Date15 August 2017

867 F.3d 204

James COLEMAN, Appellant
Elaine C. DUKE, Acting Secretary of the United States Department of Homeland Security, Appellee

No. 15-5258

United States Court of Appeals, District of Columbia Circuit.

Argued December 8, 2016
Decided August 15, 2017

Nathaniel D. Johnson, Waldorf, MD, 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.

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.



Title VII protects employees from "discrimination based on race, color, religion,

867 F.3d 206

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 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

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).


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.

867 F.3d 207

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 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.

• 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 Millhench, a GS–14 detailee on assignment to

867 F.3d 208

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 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...

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