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ROCHON v. AG OF THE UNITED STATES

April 16, 1990

Donald Rochon, et al., Plaintiffs,
v.
Attorney General of the United States, et al., Defendants



The opinion of the court was delivered by: RICHEY

 I. Introduction

 Plaintiffs, Donald Rochon, a black Federal Bureau of Investigation ("FBI") agent, and Susan Rochon, his wife, allege that they have been the victims of an ongoing conspiracy and campaign of racial discrimination, harassment, and retaliation that began when plaintiff Donald Rochon was assigned to the Omaha Office of the FBI in January, 1983 and that continued through his reassignment to FBI offices in Chicago and Philadelphia.

 The specific allegations that plaintiffs make in their complaint defy all notions of human decency. Plaintiffs allege that for more than three years FBI agents and supervisors committed or condoned frequent acts of racial harassment against them. This harassment allegedly included hate mail, obscene phone calls, death threats as well as threats of mutilation, castration, sodomy, and rape, and the use of defaced pictures and photographs in what plaintiffs allege amounted to a campaign of ostracization and intimidation. 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. In addition, plaintiffs allege that FBI supervisors condoned these acts of harassment and refused to take appropriate corrective action. *fn1"

 Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions of file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." However, "summary judgment will not lie if the dispute about a material fact is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Upon careful consideration of the Attorney General's three motions for summary judgment on plaintiff's Title VII claim, the supporting and opposing legal memoranda, the accompanying exhibits, and the underlying law, the Court finds that there are disputes as to genuine issues of material fact on each of these motions. Accordingly, the Court will deny each of them.

 II. Title VII Violations in Chicago

 The Attorney General advances two reasons as to why he is entitled to summary judgment on plaintiff's Title VII claim arising out of his employment in Chicago. First, the Attorney General argues that plaintiff has failed to exhaust his administrative remedies with respect to the Title VII violations which allegedly took place in Chicago. In addition, the Attorney General maintains that he did not violate Title VII because he took reasonable and appropriate steps to put an end to any harassment that plaintiff experienced in Chicago. Finally, the Attorney General contends that even if the Court finds that he is not entitled to summary judgment on plaintiff's Title VII claim arising out of his employment in Chicago, he is entitled to have the scope of that claim narrowed because plaintiff's EEO complaint was untimely as to a portion of the Title VII violations alleged in plaintiff's judicial complaint. The Court will address the Attorney General's arguments in turn.

 A. Plaintiff has exhausted his administrative remedies.

 There are certain administrative remedies that an employee must exhaust prior to filing a Title VII suit in federal district court. For federal employees, a prerequisite to filing a Title VII suit is the filing of an administrative complaint with the agency's EEO counselor. 29 C.F.R. § 1613.214(a)(1) (1989). "The principle functions of the administrative charge are to enable the Commission to provide notice to the alleged wrongdoer and to undertake conciliation." Shehadeh v. Chesapeake & Potomac Tel. Co., 193 U.S. App. D.C. 326, 595 F.2d 711, 727 (D.C.Cir. 1978). In evaluating the sufficiency of an EEO complaint, "the relevant inquiry is not whether the complainant has filed a detailed statement spelling out precisely his objections but whether the actions he did take were 'adequate to put the [agency] on notice.'" Brown v. Marsh, 250 U.S. App. D.C. 8, 777 F.2d 8, 13 (D.C.Cir. 1985) (quoting President v. Vance, 200 U.S. App. D.C. 300, 627 F.2d 353, 361 (D.C.Cir. 1980)); see also McRae v. Librarian of Congress, 269 U.S. App. D.C. 166, 843 F.2d 1494, 1496 (D.C.Cir. 1988) (per curiam) ("By requiring exhaustion before the agency in the first instance Congress did not intend to 'erect a massive procedural roadblock to access to the courts.' Rather, the exhaustion requirement is intended to give the agency the opportunity to right any wrong it may have committed."); 29 C.F.R. § 1601.12(b) (1989) ("[A] charge is sufficient when the Commission receives from the person making the charge a written statement sufficiently precise to identify the parties, and to describe generally the action or practices complained of."). *fn3"

 The Attorney General contends that plaintiff's administrative complaint, which was filed on January 8, 1986, is inadequate because it would not put a reasonable EEO Counselor on notice of the Title VII violations alleged in plaintiff's judicial complaint. The Attorney General characterizes the crux of plaintiff's judicial complaint as the failure of plaintiff's supervisors and managers to investigate the complaints of harassment which he had made. *fn4" According to the Attorney General, plaintiff's EEO complaint "has quite a different focus. The gravamen of [the administrative complaint] is that, because SA Rochon had undergone a campaign of harassment at the hands of the 'unique Omaha and Chicago office clique,' the FBI had violated his rights by failing to respond in more than an 'ambiguous' fashion to his request for a transfer away from Chicago." *fn5" After comparing what he perceives to be the heart of plaintiff's administrative complaint with that of his judicial complaint, the Attorney General concludes that "a 'reasonably diligent EEO counselor' would not have been put on notice that the [administrative] complaint challenged the alleged failure of the FBI's 'supervisors and managers' to conduct suitable investigations in response to the complaints of harassment that SA Rochon had submitted." *fn6"

 The Court disagrees with how the Attorney General has chosen to characterize plaintiff's administrative complaint. One does not have to unravel or dissect the language of plaintiff's administrative complaint to find notice of a claim that plaintiff's supervisors failed to take appropriate investigative and corrective measures in response to his complaints of racial harassment. The plain language of the complaint, and in particular its opening paragraph, furnishes such notice.

 In the first paragraph to his administrative complaint, plaintiff states:

 
This complaint of discrimination is based on the FEDERAL BUREAU OF INVESTIGATION'S (FBI) failure to provide a dignified working and living environment free of racially motivated harassment and death threats against me and my family by fellow employees. *fn7"

 In his administrative complaint, plaintiff also alleges that he brought to his superiors' attention specific acts of racial harassment which he experienced and the persons he believed to have committed the acts. In addition, plaintiff alleges that his superiors did not take the appropriate corrective action of transferring him to another office because of his pending EEO complaint concerning events in Omaha. Plaintiff's mention of his superiors' failing to transfer him to another office is by no means the focus of his ...


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