United States District Court for the District of Columbia
May 25, 2004.
DONALD ROCHON, Plaintiff,
JOHN ASHCROFT, in his capacity as Attorney General of the United States Department of Justice Defendant
The opinion of the court was delivered by: ROYCE LAMBERTH, District Judge
This matter comes before the Court on defendant's motion to dismiss.
Defendant moves to dismiss this action pursuant to Rule 12(b)(1) and
12(b)(6) of the Federal Rules of Civil Procedure on grounds that the
Court lacks subject matter jurisdiction and that the plaintiff has failed
to state a claim upon which relief can be granted. Plaintiff submitted a
memorandum in opposition, and the defendant subsequently filed a reply to
plaintiff's opposition. Upon consideration of the parties' filings, the
applicable law and the facts of this case, this Court finds that the
defendant's motion to dismiss should be GRANTED in accordance with this
Plaintiff Donald Rochon,*fn1 an African-American male, alleges that he
and his wife have been victims of discriminatory retaliation by the
Federal Bureau of Investigation ("FBI"). Comp. ¶ 1 (Apr. 30, 2003).
Throughout his assignments as a special agent through the Omaha, Chicago and Philadelphia Offices of the FBI, plaintiff complained of
racial discrimination and retaliation. Id. He argued that the hostile
work environment interfered with his official duties. Id. After several
attempts to reconcile matters with supervisors, plaintiff filed
complaints. Id. His racial discrimination, harassment and retaliation
claims were settled in a 1990 settlement agreement. Subsequent to this
agreement, he ceased to be actively employed at the FBI. Id. at ¶ 9(b).
In 1994, plaintiff raised a second retaliation claim. He alleged that
FBI officials had made false statements about his employment in "The
FBI," which was authored independently by Ronald Kessler. PL's Mem. Opp'n
7 (Feb. 24, 2004). Kessler's book quoted FBI agents characterizing the
plaintiff as a "less than satisfactory agent." Id. In a 1994 settlement
agreement, the FBI agreed to issue a retraction of these statements and
to pay plaintiff $40,000 in damages. Id.
Now before this Court, plaintiff contends that the Philadelphia office
of the FBI acted in retaliatory discrimination. In 1993 and 1994,
plaintiff assisted the FBI in gaining the cooperation of the ex-wife of a
recently convicted organized crime figure, Ronald Tabas.*fn2 Pl's Comp.
¶¶ 5. When Tabas learned that his ex-wife was cooperating with the FBI to
seize his assets, Tabas issued verbal and written death threats against
plaintiff and plaintiff's wife. Id. The plaintiff, who was aware of these
threats, alerted the FBI. PL's Comp. ¶¶ 3, 7. In 2002 after the plaintiff
learned that the FBI had not taken any measures to respond to these death
threats, which he perceived as a "new betrayal," plaintiff suffered emotional distress. PL
Mem. Opp'n at 9. The plaintiff alleges that the FBI's failure to
"investigate, monitor or take protective action" in response to the death
threats indicate that he and his wife were victims of "an ongoing
conspiracy and campaign of racial discrimination, harassment, and
retaliation." Comp. ¶¶ 3, 7. Moreover in the FBI's failure to abide by
these "duties," the plaintiff contends that the FBI engaged in a
"substantial and material breach and violation of the settlement
agreement of 1990." Comp. ¶¶ 2, 14. Plaintiff further alleges that this
additional emotional distress has caused his employment status to change
from temporarily to permanently disabled. Pl. Mem. Opp'n at 9.
A. Subject Matter Jurisdiction
1. Jurisdictional Dilemma
Pursuant to Federal Rule of Civil Procedure 12(b)(1), the Court must
dismiss if it lacks subject matter jurisdiction to hear and decide a
dispute. Fed.R.Civ.Pro. 12(b)(1). The Tucker Act grants jurisdiction to
the Court of Federal Claims for damages regarding settlement agreements
for $10,000 or more. 28 U.S.C. § 1491. Upon first blush, the plaintiff's
complaint appears to raise a breach of settlement agreement issue which
would fall under the auspices Tucker Act. However, the Court of Federal
Claims cannot exercise jurisdiction over settlement agreements which rely
on a substantive interpretation of Title VII terms. See Fausto v. United
States, 16 Fed. Cl. 750, 753 (Fed.Cl. 1989); Lee v. United States,
33 Fed. Cl. 374, 378 (Fed.Cl. 1995).
In addressing this "unfortunate Jurisdictional dilemma, the Court of
Federal Claims has "strictly adhere[d] to the statutory limitations"
imposed by the Tucker Act. 28 U.S.C. § 1491(a)(1); Mitchell v. U.S.,
44 Fed. Cl. 438, 438-39. (Fed.C1.1999). "The presence of a comprehensive,
precisely-drawn statutory scheme providing for judicial review in another
forum will pre-empt Tucker Act jurisdiction in this Court." Lee, 33 Fed. Cl. at
378. Since Congress established "a system of procedural mechanisms by
which employees may pursue discrimination claims as pursuant to
42 U.S.C. § 2000e-2000e-17," the jurisdiction properly belongs to the
District Courts. United States v. Fausto, 484 U.S. 439, 454-55 (1988).
The Court of Federal Claims has refused to even entertain a basic Title
VII race discrimination issue. See Mitchell, 44 Fed. Cl. At 438-39; Lee,
33 Fed. Cl. at 378. Since Title VII settlement agreements would not exist
but for the existence of the Title VII statutory scheme, "an action to
enforce a Title VII settlement is [essentially] an action brought under
Title VII itself." Robles v. United States, No. 84-3635, 1990 WL 155545,
at *7 (D.D.C. July 20, 1990) (emphases added) (since the settlement claim
issue was founded upon a Title VII claim, District Court concluded that
jurisdiction lies properly within the District Courts); See also Fausto,
484 U.S. at 454-55.
Title VII issues are properly within the subject matter jurisdiction of
District Courts. Since plaintiffs alleged breach of his 1990 and 1994
settlement agreements cannot be addressed without examining that which
defines a retaliatory claim under 42 U.S.C. § 2000e-3, jurisdiction lies
properly within this Court. See Fausto, 484 U.S. at 454-55; Bd. of
Trustees of Hotel and Restaurant Employees Local 25 v. Madison Hotel,
97 F.3d 1479, 1485 (D.C. Cir. 1966).
2. No Sovereign Immunity
The defendant's sovereign immunity contention is not relevant in this
case. Although the government is immune from suit except as it consents
to be sued, this is not applicable in the Title VII context. Congress
waived sovereign immunity for claims under Title VII, which implicitly
includes a claim for retaliation. See Ethnic Employees of the Library of
Congress v. Boorstin, 751 F.2d 1405, 1415 & n.13 (D.C. Cir. 1985)
(citing Porter v. Adams, 639 F.2d 273, 277-78 (5th Cir. 1981)). Although § 2000e-16 is distinct from §§ 2000e-3
and 2000e-4, which are specifically tailored to certain forms of
discrimination, § 2000e-16 is drafted more generally to prohibit "any
discrimination based on race, color, religion, sex, or national origin."
42 U.S.C. § 2000e-16; see Porter, 639 F.2d at 277-78. The court reasoned
that "by drafting [§ 2000e-16] to prohibit `any discrimination,' Congress
intended to bar the federal government from engaging in all those forms
of discrimination identified in [§§ 2000e-3 and 2000e-4], and others as
well." Porter, 639 F.2d at 278. Accordingly, the government's sovereign
immunity claim is rejected. This Court has subject matter jurisdiction to
decide plaintiffs claims.
A. Failure to State a Claim upon Which Relief May Be Granted
A motion to dismiss under Rule 12(b)(6) tests not whether the plaintiff
will prevail on the merits, but whether the plaintiff has properly stated
a claim. See Fed.R.Civ.P. 12(b)(6); Scheuer v. Rhodes, 416 U.S. 232, 236
(1974). The Federal Rules only require that a complaint include a "short
and plain statement of the claim showing that the pleader is entitled to
relief," Fed.R.Civ.P. 8(a)(2), because the purpose of the complaint is to
simply "give the defendant fair notice of what the plaintiffs claim is
and the grounds upon which it rests." Swierkiewicz v. Sorema N.A.,
534 U.S. 506 (2002) (quoting Conley v. Gibson, 355 U.S. 41, 78 (1957)).
In deciding a 12(b)(6) motion to dismiss the Court will consider the
facts alleged in the pleadings, documents attached as exhibits or
incorporated by reference in the pleadings, and matters which the Court
may take judicial notice as the Court has done in the instant case. EEOC
v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624-25 (D.C. Cir.
1997); Chandamuri v. Georgetown University, 274 F. Supp.2d 71, 76-77
(D.D.C. 2003); see also Carter v. Rubin 14 F. Supp.2d 22 (D.D.C. 1998)
The plaintiff is not required to set forth the prima facie elements at
the initial stage, but the courts will not accept overly broad inferences which "are unsupported
by the facts set out in the complaint." See Sparrow v. United Air Lines
Inc., 216 F.3d 1111, 1114 (D.C. Cir. 2001); Chandamuri, 274 F. Supp.2d at
77-78 (Lamberth, J.) (court refused to accept inferences of national
origin discrimination when unsupported by the facts set out in the
complaint). See also Browning v. Clinton, 292 F.3d 235 (D.C. Cir. 2002);
Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994)
(investors failed to state claim for securities fraud based on company's
alleged misstatements and omission in making projections and statements
of optimism). Although the plaintiff is not obliged to allege all that he
must eventually prove, the plaintiff in this case fails to articulate a
concrete act or circumstance in which the defendant acted in
The Court must accept as true all well-pleaded factual allegations and
grant plaintiff the benefit of all reasonable inferences that can be
derived from the alleged facts. Conley, 355 U.S. at 45-46; Kowal., 16
F.3d at 1276; see Judicial Watch, Inc. v. Clinton, 880 F. Supp. 1, 7
(D.D.C. 1995) (Lamberth, J.). The plaintiff fails to provide facts to
support a reasonable inference that the FBI acted with retaliatory or
discriminatory motives. See Swierkiewicz, 534 U.S. at 511-12; Alden v.
Georgetown University, 734 A.2s 1103, 1109 (D.C. 1999) (court refused to
second guess a university's applications of its own standards and
procedures unless the plaintiff could "provide some evidence from which a
fact finder could conclude that there was no rational basis for the
decision or that it was motivated by bad faith or ill will"). The
plaintiff only provides a far-reaching inference of discriminatory
retaliation through the defendant's alleged wrongful omission to act.
C.f. Atchinson v. District of Columbia, 73 F.3d 418, 421-22 (D.C. Cir.
1996) (motion to dismiss was reversed because Circuit Court ruled that it
was enough that the police officer shot the plaintiff). The plaintiff
claims that the FBI chose not to act to and this omission to respond to the death threats was motivated by an "established pattern
of FBI retaliation." Pl.'s Mem. Opp'n at 10. No inference of
discriminatory retaliation reasonably flows from these allegations. See
Haynesworth v. Miller, 820 F.2d 1245, 1254 (D.C. Cir. 1987). The
plaintiff's sweeping and unwarranted averments of fact should therefore
not be deemed admitted for purposes of a motion to dismiss. See id.
The suit may be dismissed for failure to state a claim only if "it
appears beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief." Conley, 355
U.S. at 45-46; see also Chandamuri, 274 F. Supp.2d at 76-77 (Lamberth,
J.). The D.C. Circuit has promulgated a liberal pleading standard for
discrimination allegations because discrimination claims are those upon
which relief can be granted. See Sparrow., 216 F.3d at 1115. In order to
survive a motion to dismiss, all that is required is for a plaintiff to
complain that "I was turned down for a job because of my race." See
Sparrow 216 F.3d at 1115 (citing Bennett v. Schmidt, 153 F.3d 516, 518
(7th Cir. 1998). The plaintiff in this case fails to even state such a
The plaintiff's claim should be dismissed because it is clear that no
relief can be granted under any set of facts that can be proved
consistent with the allegations. See Hishon v. King & Spalding,
467 U.S. 69, 73 (1984). Accordingly, the plaintiff does not provide any
set of facts which would entitle him to relief even if he successfully
asserts the validity of these facts. See Hishon, 467 U.S. at 73 (citing
Conley, 355 U.S. at 45-6). In cases, when the facts alleged, if proven,
will not justify recovery, an order of dismissal under Rule 12(b)(6) is
appropriate. See Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996). B. Prima Facie Case
The premise that the prima facie case is not a pleading requirement
does not preclude courts from exploring the plaintiff's prima facie
case. See Bennett, 153 F.3d 519. Since litigants may plead themselves out
of court by alleging facts that establish defendants' entitlement to
prevail, this Court should examine the plaintiff's prima facie case to
inquire whether the FBI is entitled to victory. See Swierkiewicz 534
U.S. at 510-11. Through this avenue, this Court canalso probe whether the
plaintiff can ever meet his initial burden to establish & prima facie
case. See id.
Prima facie elements in retaliatory discrimination produce "proof of
actions taken by the employer from which [the Court] can reasonably infer
a discriminatory animus." Bundy v. Jackson, 641 F.2d 934, 951 (D.C. Cir.
1981). In the absence of a prima facie claim, the plaintiff lacks direct
evidence of discriminatory intent. See Simens v. Reno, 960 F. Supp. 6, 9
& n.4 (D.D.C. 1997) ("A plaintiff cannot just shoot into a barrel of
fish that would invariably open the door to the filing of frivolous and
vexatious Title VII complaints"). If the courts do not impose a minimum
threshold requirement upon which to rest a claim in the form of a prima
facie claim the defendant would suffer "wide-reaching consequences for
that defendant's reputation and resources." Id.
Complainants under Title VII have the burden of providing evidence of a
prima facie case of discrimination by a preponderance of the evidence.
See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See also Texas
Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). If
the plaintiff succeeds in proving the prima facie case, the burden shifts
to the defendant "to articulate some legitimate, nondiscriminatory reason
for the employee's rejection." McDonnell, 411 U.S. at 802. Should the
defendant carry this burden, the plaintiff must then have an opportunity
to prove by a preponderance of the evidence that the legitimate reasons
offered by the defendant were not its true reasons, but were a pretext for
discrimination. McDonnell, 411 U.S. at 804. The Supreme Court has
ascertained this test's applicability to cases involving the federal
government. See Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir. 1999)
(citing United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711
For retaliation claims, the plaintiff must establish that (1) he
engaged in a statutorily protected activity; (2) that the employer took
an adverse personnel action; and (3) that a causal connection existed
between the two. Brown, 199 F.3d at 452 (citing Mitchell v. Baldridge,
759 F.2d 80, 86 (D.C. Cir. 1985). This initial burden is not substantial
because the plaintiff "merely needs to establish facts adequate to permit
an inference of retaliatory motive." McKenna v. Weinberger, 729 F.2d 783,
790 (D.C. Cir. 1999).
1. Statutorily Protected Activity
In the instant case, the plaintiff argues that Title VII does not
require retaliation to be employment related to be actionable and
suggests that the FBI had a duty to take affirmative measures in response
to death threats. Although the plaintiff is not required to use "magic
words" to notify defendant of statutorily protected activity, the
defendant must nevertheless have been notified of the extended scope of
the statutorily protected activity in question. See Chandamuri, 274 F.
Supp.2d at 84. The FBI could not have been expected to assume that the
duty to warn was in fact a statutorily protected activity under the
guises of Title VII. See Chandamuri, 274 F. Supp.2d at 84; c.f. Russ v.
Van Scoyoc, 122 F. Supp.2d 29, 33 (D.D.C. 2000) (Lamberth, J.) (reporting
employer's misconduct and plaintiff's meeting with attorney to discuss
Title VII violations were two distinct instances of protected activity).
The scope of the plaintiffs employment with the FBI was unquestionably a
statutorily protected activity, but this Court remains unconvinced that
the defendant's duties were so expansive as to include a duty to take affirmative action against potential death threats. See Brown, 199 F.3d
at 452; Chandamuri, 274 F. Supp.2d at 84.
2. Adverse Personnel Action Requirement
To satisfy the second step of the McDonnell Douglas test, the plaintiff
must show that he has been subjected to some sort of adverse personnel or
employment action. Brown v. Brody, 199 F.3d 446 at 452. "A common element
required for discrimination and retaliation claims against federal
employers, and private employers, is thus some form of legally cognizable
adverse action by the employer." Brown, 199 F.3d 446 at 453 (citing Doe
v. Dekalb County School Dist, 145 F.3d 1441, 1448 & n.10 (11th Cir.
1998)). An "employment decision does not rise to the level of an
actionable adverse action unless there is a tangible change in the duties
or working conditions constituting a material employment disadvantage."
Stewart v. Evans, 275 F.3d 1126, 1134-35 (D.C. Cir. 2002). "A tangible
employment action constitutes a significant change in employment status,
such as hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing a
significant change in benefits." Walker v. Washington Metro Area Transit
Authority, 102 F. Supp.2d 24, 29 (D.D.C. 2000). See also Brown, 199 F.3d
at 452 (employee's lateral transfer and letter of admonishment did not
constitute an adverse personnel action); Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742, 759 (1998); c.f. Carter-Obayuwana v. Howard
University, 764 A.2d 779 (D.C. Cir. 2000) (salary reduction was "adverse
action" for purposes of retaliation claims).
The plaintiff has not suffered a tangible detriment resulting from the
defendant's alleged retaliation. Since the plaintiff suffered no
diminution in pay or benefits, he does not have a legally cognizable
adverse personnel action. See Stewart, 275 F.3d at 1134-35; Brown, 199
F.3d at 452. Despite the plaintiff's claims that he has suffered
emotional distress, which has exacerbated his condition from temporarily to permanently disabled, he
has endured no materially adverse consequences which "affect the terms,
conditions, or privileges of his employment." See Brown 199 F.3d 446 at
457. Based on the presentation of his case, a reasonable trier of fact
would not be able to "to conclude that the plaintiff has suffered
objectively tangible harm." See id. The FBI's alleged failure to
investigate, monitor or take protective actions, these actions, or lack
thereof, alone do not constitute a tangible, affirmative legally
cognizable adverse action by the FBI.
The plaintiff argues that the Courts have not imposed a requirement
that the action be employment related nor that an adverse personnel
requirement exists with respect to retaliation claims. The plaintiff
mistakenly relies on Passer v. American Chemical Society, in which the
court found in favor of the employee, because the plaintiff in Passer
presented more substantial evidence of employment related discrimination
than the plaintiff in this case is able to provide. 935 F.2d 322, 331-32
(D.C. Cir. 1991) (employer indefinitely postponed a public symposium in
an employee's honor which humiliated him before his colleagues and made
it more difficult for him to procure future employment). Moreover, in
Passer, the employer freely admitted that he had postponed the symposium
after the employee had filed an Age Discrimination in Employment Act
("ADEA") claim. Id. Contrary to the plaintiff's contentions, the D.C.
Circuit has explicitly imposed an adverse personnel action requirement in
order to establish a prima facie case under the McDonnell Douglas
framework. See Brown, 199 F.3d at 455.
Moreover, the plaintiff mistakenly alleges that this case raises an
established pattern of retaliation. The plaintiffs claim is an individual
disparate treatment claim, rather than a pattern or practice claim as
exemplified by Palmer v. Shultz, 815 F.2d 84, 97-98 (D.C. Cir. 1987). In
Palmer the complainant presented statistical evidence to show that the
State Department may have discriminated against women in certain types of personnel
decisions. Brown 199 F.3d at 454 (citing Palmer, 815 F.2d at 97-98). In
this case however, the plaintiff fails to even present such general
statistical evidence. Brown 199 F.3d at 455.
3. Causal Connection
"The causal connection component of the prima facie case may be
established by showing that the employer had knowledge of the employee's
protected activity, and that the adverse personnel action took place
shortly after that activity." Wiggins v. Philip Morris, 853 F. Supp. 470,
474 (D.D.C. 1994) (citing Mitchell, 759 F.2d at 86). There is no support
to show that the adverse action would not have occurred "but for" the
protected activity. See Chandamuri, 274 F. Supp.2d at 84-5 (citing Gregg
v. Hay-Adams Hotel, 942 F. Supp. 1, 8 (D.D.C. 1996)). Since the FBI was
not necessarily aware of this alleged statutorily protected duty and the
FBI did not engage in a tangible form of retaliatory discrimination, the
plaintiff cannot produce a valid causal connection. See Chandamuri 274 F.
Supp.2d at 84-85 (citing Gleklen v. Democratic Cong. Campaign Comm.,
199 F.3d 1365, 1368 (D.C. Cir. 1985)).
For the foregoing reasons, the Court concludes that the plaintiff has
failed to state a claim upon which relief can be granted with respect to
a retaliatory discrimination claim under Title VII. Accordingly
defendant's motion to dismiss pursuant to 12(b)(6) of the Federal Rules
of Civil Procedure is hereby GRANTED. A separate order accompanies this
Memorandum Opinion. ORDER
In accordance with the Memorandum Opinion issued this date and upon
consideration of the parties' filings and the applicable law: the Court
hereby grants the defendant's motion to dismiss.
It is hereby ORDERED that defendant's motion be GRANTED with respect to
its 12(b)(6) motion to dismiss, and it is further
ORDERED that this action is hereby dismissed for failure to state a
claim upon which relief can be granted.