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 AfricanAmerican 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 coworkers. 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 * * * nonselection 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, nondiscriminatory 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 nonselection 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 coworker 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 nonselection 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, email 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.