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Rochon v. Gonzales

United States Court of Appeals for the District of Columbia Circuit

September 13, 2005, Argued ; February 28, 2006, Decided

No. 04-5278


 [**76]   [*1213]  GINSBURG, Chief Judge: Donald Rochon sued the Attorney General of the United States in his official capacity, claiming the Federal Bureau of Investigation had discriminated and retaliated against him, in violation both of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (2000), and of a 1990 agreement settling his earlier Title VII suit against the Bureau. The alleged discrimination and retaliation took the form of the FBI's refusal, contrary to policy, to investigate [***2]  death threats a federal prisoner made against Rochon and his wife. The district court dismissed Rochon's complaint on the grounds that Rochon had neither pled facts demonstrating the FBI had taken an adverse employment action against him nor shown a causal link between his protected activity and the FBI's alleged retaliation.

The district court should not have dismissed Rochon's Title VII claim because Rochon was not required to demonstrate his employer's retaliatory act was related to his employment. Further, it is unclear whether the district court had direct jurisdiction over the claim arising out of the settlement agreement. See Brown v. United States, 363 U.S. App. D.C. 464, 389 F.3d 1296, 1297 (D.C. Cir. 2004) (per curiam). Therefore, we reverse the judgment of the district court and remand the case for further proceedings.

I. Background

In 1981 Donald Rochon began working as a Special Agent in the Omaha office of the FBI, where he became the target of a campaign of racial harassment. Rochon filed a formal complaint with his Equal Employment Opportunity Counselor in 1984. In 1987 the Department of Justice concluded the Bureau had discriminated against Rochon [***3]  and then retaliated against him for complaining about the discrimination. Rochon sued the FBI and in 1990 the parties entered into a settlement agreement as part of which the Bureau agreed "not to take any retaliatory action" against Rochon in the future.

Soon thereafter, however, Ronald Kessler authored a book entitled The FBI, in which he attributed to FBI agents certain statements describing Rochon's performance at the Bureau as substandard. Rochon brought a second Title VII suit and in 1994 the parties entered into a second settlement agreement. This time the FBI agreed to issue a corrective statement, to refrain from interfering "with Mr. Rochon's future employment opportunities," and to pay him $ 40,000 in damages. The 1994 agreement expressly provided that it did not "in any way replace, diminish, or modify the terms or relief," such as the bar against retaliation, in the 1990 agreement.

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438 F.3d 1211 *; 370 U.S. App. D.C. 74 **; 2006 U.S. App. LEXIS 5028 ***; 97 Fair Empl. Prac. Cas. (BNA) 944; 87 Empl. Prac. Dec. (CCH) P42,281


Subsequent History: Rehearing, en banc, denied by Rochon v. Gonzales, 2006 U.S. App. LEXIS 17531 (D.C. Cir., July 11, 2006)

Rehearing denied by Rochon v. Gonzales, 2006 U.S. App. LEXIS 17535 (D.C. Cir., July 11, 2006)

Prior History:  [***1]  Appeal from the United States District Court for the District of Columbia. (No. 03cv00958).

Rochon v. Ashcroft, 319 F. Supp. 2d 23, 2004 U.S. Dist. LEXIS 9382 (D.D.C., 2004)


retaliation, district court, retaliatory, sovereign immunity, discriminate, settlement agreement, protected activity, personnel action, adverse action, investigate, employees, damages, threats, adverse employment action, jurisdiction of a court, employment practice, contract claim, antiretaliation, engaging

Civil Procedure, Subject Matter Jurisdiction, Jurisdiction Over Actions, General Overview, Governments, Courts, Courts of Claims, Exclusive Jurisdiction, Labor & Employment Law, Title VII Discrimination, Remedies, Contracts Law, Breach, Breach of Contract Actions, Affirmative & Equitable Relief, Torts, Liability, Federal Tort Claims Act, Jurisdiction, Supplemental Jurisdiction, Ancillary Jurisdiction, Discrimination, Retaliation, Federal Government, Claims By & Against, Appeals, Standards of Review, De Novo Review, Defenses, Demurrers & Objections, Motions to Dismiss, Failure to State Claim, Evidence, Inferences & Presumptions, Presumptions, Legislation, Interpretation, Elements, Causation