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ROCHON v. FBI

August 10, 1988

Donald Rochon, et al., Plaintiffs,
v.
Federal Bureau of Investigation, et al., Defendants



The opinion of the court was delivered by: RICHEY

CHARLES R. RICHEY, UNITED STATES DISTRICT JUDGE.

 Introduction

 The allegations in this complaint are repugnant and chilling. Plaintiffs, a black Federal Bureau of Investigation ("FBI") agent and his wife, charge that FBI field agents and supervisors for more than three years committed or condoned frequent acts of racial harassment against them. This harassment allegedly included hate mail, obscene phone calls, assault and battery, death threats as well as threats of castration, mutilation, sodomy, and rape, and the use of pictures and defaced photographs (including a photograph of plaintiffs' children) in what plaintiffs allege amounted to a campaign of ostracization and intimidation. *fn1" It also included a campaign of forging plaintiff Donald Rochon's name to an insurance policy against death and dismemberment and to requests for more than $ 1000 of mail-order merchandise. *fn2" Amended Complaint, paras. 9-11, 14-73.

 Plaintiffs allege that FBI supervisors condoned these incidents and refused to investigate Donald Rochon's complaints of discrimination. Id. at paras. 17-18, 29, 36, 41, 43-44, 48-49. Instead, they claim, FBI field supervisors and Headquarters personnel retaliated against him by transferring him against his will from Omaha to Chicago and formally censuring him for failing to report suspicions that he had been the victim of a crime. Id. at paras. 30-33.

 Plaintiff Donald Rochon has pursued these claims administratively. Both the EEOC and the Department of Justice found in his favor on his Title VII complaint about treatment in the Omaha office. Complaint, Exhibits A and B. Donald Rochon has filed two other EEO charges, which have been stayed at the request of the Department of Justice. Amended Complaint, para. 62. Plaintiffs claim that high-ranking officials at the Department of Justice deliberately stymied these EEOC investigations by falsely stating that the Department of Justice was conducting a criminal investigation of the same events. Id. at paras. 55-58.

 Plaintiffs are suing the individual field agents, their supervisors, the personnel at FBI headquarters who played a role in Mr. Rochon's transfer and censure, and, in their official capacities only, Attorney General Meese, FBI Director Sessions, and Assistant Attorney General William Bradford Reynolds. *fn3" More precisely, plaintiffs allege that defendants' conduct violated Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e et. seg., 42 U.S.C. § 1985, and the First, Fourth, and Fifth Amendments to the Constitution. Plaintiffs also charge defendants with intentional infliction of emotional distress, outrageous conduct *fn4" , invasion of privacy, assault and battery, negligence, negligent supervision, gross negligence, and negligent hiring. *fn5"

 Specifically, the Court has concluded that it must deny the motion to dismiss the Title VII claim against the head of plaintiff Donald Rochon's agency. *fn6" It must also, given the complaint now before the Court, dismiss the counts seeking relief under the Constitution and 42 U.S.C. § 1985, but will do this without prejudice. In addition, the Court must dismiss the common law claims against all but defendants Miller, Veach, and Dillon. Most of these dismissals are similarly without prejudice; the exceptions are the statute of limitations-based dismissals of the common law claims against defendants Kempf, McGee, and Webb, and the assault and battery claim against defendant Veach, which will all be dismissed with prejudice.

 Finally, the Court will defer ruling on whether venue is proper in this jurisdiction and will ask for additional briefs on that subject. The Court will allow plaintiffs to conduct discovery on whether this Court has personal jurisdiction over the remaining individually named defendants, but it will defer such discovery until it resolves the venue question. The Court expects that this limited discovery will require no more than thirty to sixty days.

 THE COURT WILL NOT DISMISS PLAINTIFF DONALD ROCHON'S TITLE VII CLAIM.

 In this suit, plaintiff Donald Rochon seeks an Order enforcing the administrative decision upholding his complaint of discrimination in the Omaha FBI office. In addition, he seeks other remedies to which he may be entitled for race discrimination in violation of Title VII. Over plaintiffs' opposition, the agency defendants have moved to dismiss Donald Rochon's Title VII claim. This motion must be denied.

 First, defendants argue that Mr. Rochon has received all the relief ordered in the final decision in his favor, and, as a result, the claim is moot. This is not so.

 For one, despite defendants' contrary arguments, plaintiff may be entitled not merely to the relief he obtained at the administrative level but to other remedies, such as an injunction against further acts of discrimination. This is a typical, but not mandatory, remedy for a victim of unlawful employment discrimination. See, e.g., Johnson v. Brock, 258 App. D.C. 100, 810 F.2d 219, 225 (D.C. Cir. 1987).

 The Court is empowered to enjoin defendants from further discriminatory acts if, on the facts of the case, there is "reason to believe that the discriminatory conduct could recur." Id. If so, an injunction would be fully in keeping with the Court's "duty to render a decree which will so far as possible eliminate the discriminatory effects of the past . . . [and] bar like discrimination in the future." Albemarle Paper Co. v. Moody, 422 U.S. 405, 418, 45 L. Ed. 2d 280, 95 S. Ct. 2362 (1975) (quoting Louisiana v. United States, 380 U.S. 145, 154, 13 L. Ed. 2d 709, 85 S. Ct. 817 (1965)).

 At this preliminary juncture, the Court cannot tell whether an injunction would be an appropriate remedy should plaintiff prevail on his Title VII claim. On a motion to dismiss, however, the Court may only consider whether plaintiff could prove a set of facts that would justify imposing an injunction. 5 C.A. Wright & A. Miller, Federal Practice and Procedure: Civil § 1357. Given the allegations detailed in the complaint, the Court cannot conclude that an injunction is outside the relief potentially available to this plaintiff. As such, plaintiff's Title VII claim is not moot. *fn7"

 Defendants also claim that Mr. Rochon must exhaust administrative remedies before he may ask the Court to enforce the agency's administrative decision in his favor. The Court must reject defendants' argument.

 Defendants rely on new EEOC regulations that for the first time provide an administrative remedy for plaintiffs who challenge agency implementation of EEOC relief. Those regulations provide in pertinent part that "[a] complainant may petition the Commission for enforcement of a decision under the Commission's appellate jurisdiction. " 29 C.F.R. § 1613.238(a), reprinted at 52 Fed. Reg. 41,928 (Oct. 30, 1987). Defendants maintain that, despite the apparently permissive nature of this administrative enforcement, the regulations mandate that a complainant pursue administrative relief before going to court. Regardless of whether the new administrative procedure is mandatory or permissive, it does not foreclose plaintiff's Title VII claim.

 The regulations were made effective on November 30, 1987, which was more than three weeks after this suit was filed. Thus, on their face the exhaustion requirement appears inapplicable to the instant case. Defendants assert, however, that these regulations were intended to apply even to suits filed before the regulations went into effect.

 They base this argument on an implication that allegedly flows from an exception to the effective date. Under that exception, certain specified sections of the regulations "shall apply where the civil action was filed after the effective date of these regulations." Id. at 41,920. As the regulations concerning enforcement of final EEOC decisions were not among those that apply only to lawsuits filed after the regulations take effect, defendants maintain that the new administrative procedures apply regardless of when a complainant files suit.

 Indeed, defendants' argument, taken to extremes, would mean that a litigant who has diligently pursued judicial enforcement of an administrative decision must regard the lawsuit as a dead loss and return to the administrative process, even if the suit has gone to trial and a decision is imminent. As neither logic nor equity supports this contention, and as the regulations were specifically made effective after the date on which this suit was filed, the Court will not adopt defendants' suggestion. Instead, the Court finds that Donald Rochon may in this suit seek enforcement of the favorable administrative decision on his complaint of discrimination in the Omaha office of the FBI.

 In short, defendants' arguments are unavailing. The Court will deny, without prejudice, the "official defendants'" motion to dismiss plaintiff Donald Rochon's Title VII claim.

 ON THE BASIS OF THIS COMPLAINT, THE COURT MUST DISMISS PLAINTIFF DONALD ROCHON'S CONSTITUTIONAL AND CONSPIRACY CLAIMS AS PREEMPTED BY TITLE VII.

 All defendants argue that Title VII is the exclusive remedy for the actions of which plaintiffs complain. For support, they point to Brown v. General Services Administration, where the Supreme Court stated that Title VII was the "exclusive remedy" for a federal employee's claim of race discrimination in employment. 425 U.S. 820, 825, 48 L. Ed. 2d 402, 96 S. Ct. 1961 (1976).

 This apparently broad command of preemption is not, however, the precise holding of the case. Instead, Brown held that Title VII preempted a federal employee's § 1981 challenge to the government's failure to promote him. Accordingly, Brown stands for the proposition that Title VII preempts other remedies for discrimination in federal employment only when the federal employee is challenging action directly and singularly related to discrimination in the terms and conditions of his or her employment. See, e.g., Lawrence v. Staats, 214 App. D.C. 438, 665 F.2d 1256 (D.C. Cir. 1981) (per curiam) (evaluations and other employment practices); Richardson v. Wiley, 186 App. D.C. 309, 569 F.2d 140 (D.C. Cir. 1977) (promotions); see also, e.g., White v. General Services Administration, 652 F.2d 913, 917 (9th Cir. 1981).

 Put more precisely, where a plaintiff alleges facts that are actionable under Title VII and for which Title VII provides a remedy, Title VII preempts virtually all other federal causes of action *fn8" that provide consistent theories of relief. *fn9" See, e.g., see, e.g., Kizas v. Webster, 707 F.2d 524 (D.C. Cir. 1983), cert. denied, 464 U.S. 1042, 79 L. Ed. 2d 173, 104 S. Ct. 709 (1984) (preempting due process challenge to non-promotions) Gissen v. Tackman, 537 F.2d 784 (3d Cir. 1976) (en banc) (preempting suit under §§ 1981, 1983, 1985, and 1986 for discrimination in promotions) DiMaggio v. United States Postal Service, 643 F. Supp. 1 (D. Conn. 1984) (preempting retaliation suit under § 1985); DuVall v. Postmaster General, 585 F. Supp. 1374, 13 (D.D.C. 1984), aff'd, 774 F.2d 510 (D.C. Cir. 1985) (preempting fifth amendment claim for retaliation).

 In other cases, however, courts have held that Title VII does not preempt independent bases for suit. Most obviously, where a claim under the Constitution, another federal statute, or state law could not be remedied under Title VII, there is no preemption problem. See, e.g., Ethnic Employees of the Library of Congress v. Boorstin, 243 App. D.C. 186, 751 F.2d 1405, 1415 & n.15 (D.C. Cir. 1985) (no preemption of charge EEOC could not investigate). Similarly, where a Title VII claim is based on a completely different occurrence or set of facts from those on which the other claim is based, and the claims are joined for convenience only, Title VII has no preemptive effect. See, e.g., Langster v. Schweiker, 565 F. Supp. 407 (N.D. Ill. 1983). Finally, Title VII does not preempt "additional relief under common-law tort theory to compensate for harms above and beyond discrimination which Title VII does not seek to remedy." Stewart v. Thomas, 538 F. Supp. 891 (D.D.C. 1982). *fn10"

 These principles determine the decision on defendants' preemption argument. Because the complaint states that every fact alleged is the basis of both Donald Rochon's Title VII claim and his claims under § 1985 and the Constitution, the Court cannot segregate the factual predicate for the Title VII action from the factual predicate for these other claims. See Amended Complaint, paras. 68, 70, and 72. As such, the Court must at this time conclude that Donald Rochon's claims arising under Title VII (Count II of the Amended Complaint), the Constitution (Count I of the Amended Complaint) and 42 U.S.C. § 1985 (Count III of the Amended Complaint) are not based on distinct wrongs but are all based upon conduct actionable under Title VII. See, e.g. Jarrell v. Tisch, 656 F. Supp. 237 (D. D.C. 1987); Rottman v. United States Coast Guard Academy, 630 F. Supp. 1123, 1125 (D. Conn. 1986). Accordingly, the Court will dismiss these claims raised by plaintiff Donald Rochon, without prejudice.

 The remaining count of the Amended Complaint, which charges the individually sued defendants with a variety of common law torts, is not completely insulated from this same defect. From the imprecisely pleaded complaint, it is difficult to discern the discrete basis of plaintiff Donald Rochon's common law tort claims. Unlike the Bivens and § 1985 claims, though, the particular common law torts alleged appear to be based not on plaintiff's right to be free from discriminatory treatment with respect to the terms and conditions of his employment but on his "right to be free from bodily or emotional injury caused by another person." Stewart v. Thomas, 538 F. Supp. at 895; see also, e.g., Otto v. Heckler, 781 F.2d 754, 756 (9th Cir.), amended on other grounds, 802 F.2d 337 (9th Cir. 1986). Accordingly, the Court will deny, without prejudice, defendants' motion to dismiss Donald Rochon's common law claims on the grounds of preemption.

 PLAINTIFF SUSAN ROCHON HAS STANDING TO SUE FOR INJURIES SHE ALLEGEDLY EXPERIENCED.

 Defendants maintain that Susan Rochon's claims must be dismissed because either she has not suffered any injury or her injury does not rise to a compensable level. *fn11" In this, however, defendants are wrong, and their motion to dismiss plaintiff Susan Rochon from this suit will be denied.

 Consistent with Article III's command that the federal judiciary adjudicate only "actual cases or controversies," plaintiff Susan Rochon has standing to sue only if she has suffered "some threatened or actual injury resulting from the [defendants'] putatively illegal action." Linda R.S. v. Richard D., 410 U.S. 614, 617, 35 L. Ed. 2d 536, 93 S. Ct. 1146 (1973). Specifically, plaintiff must allege that defendants' conduct led to or threatens some injury that the Court is capable of redressing. E.g., American Association of Travel Agents, Inc. v. Blumenthal, 184 App. D.C. 253, 566 F.2d 145, 155 (D.C. Cir. 1977), cert. denied, 435 U.S. 947, 55 L. Ed. 2d 546, 98 S. Ct. 1533 (1978).

 The complaint alleges that defendants Dillon, Kempf, McGee, Webb, and Miller made harassing phone calls to plaintiffs' home. Amended Complaint, at paras. 15c, 35b. *fn12" Regardless of whether Susan or Donald Rochon was the direct target of those calls, there can be no question but that Susan Rochon has alleged an "injury in fact" from those calls. Similarly, Susan Rochon has alleged an actual injury from the insurance policy and mail orders for merchandise allegedly forged by defendant Miller, id. at para. 38, and from the anonymous rape threats allegedly made by defendants Miller, Dillon, and Veach, id. at paras. 35d, 42. On the basis of these and other allegations in the Complaint, there can be no doubt that defendants' conduct allegedly caused a concrete injury to Susan Rochon's constitutional, statutory, and common law rights, and it is an injury that the Court is capable of redressing. Accordingly, ...


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