Dixon v. Ashcroft

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 04a0435p.06

UNITED STATES COURTS OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

X
Plaintiff-Appellant, -
JAMES DIXON, JR.,
-
-
-
No. 03-1542
v.
,
>
JOHN ASHCROFT, in his capacity as Attorney General of -
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the United States of America; ROBERT S. MUELLER,

Defendants-Appellees. -
Director of the Federal Bureau of Investigation,

-
N
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 02-74476—John Feikens, District Judge.
Argued and Submitted: August 12, 2004
Decided and Filed: December 16, 2004
Before: MOORE and COLE, Circuit Judges; MARBLEY, District Judge.*
_________________
COUNSEL
ARGUED: Sheila H. Gaskell, UNITED STATES ATTORNEY, Detroit, Michigan, for Appellees.
ON BRIEF: Benjamin Whitfield, Jr., BENJAMIN WHITFIELD, JR. & ASSOCIATES, Detroit, Michigan,
for Appellant. Sheila H. Gaskell, UNITED STATES ATTORNEY, Detroit, Michigan, for Appellees.
_________________
OPINION
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ALGENON L. MARBLEY, District Judge. Plaintiff-Appellant, James Dixon, Jr. (“Plaintiff-
Appellant” or “Dixon”) was a ten-year employee of the Federal Bureau of Investigation (“FBI” or the
“Agency”) until he resigned in 1988 for personal reasons. Later, in 1991, he sought reinstatement but was
denied. Believing the denial was the result of racial discrimination and in retaliation for complaints he had
made against a former supervisor, Dixon filed an action with the Equal Employment Opportunity
Commission (“EEOC”). A hearing was held and the Administrative Law Judge (“ALJ”) determined that
Dixon was discriminated against by the FBI. The FBI objected, and after review of the FBI’s bases for

*
The Honorable Algenon L. Marbley, United States District Judge for the Southern District of Ohio, sitting by designation.

1
No. 03-1542 Dixon v. Ashcroft, et al. Page 2

objecting and Dixon’s Memorandum in Support of the decision, the ALJ reversed her decision and found
that the FBI did not engage in discriminatory conduct towards Dixon.
Subsequently, Dixon filed his complaint with the district court, alleging, inter alia, a claim for
retaliation under Title VII. The FBI moved for dismissal on grounds that Dixon had failed to exhaust his
administrative remedies. The district court agreed and dismissed for lack of subject matter jurisdiction.
Dixon now appeals from that order, arguing that the district court erred in finding that he did not exhaust
his administrative remedies for his retaliation claim. The district court properly exercised jurisdiction over
this matter pursuant to 28 U.S.C. §§ 1331, and this Court’s appellate jurisdiction is proper under 28 U.S.C.
§ 1291.
For the reasons discussed below, this Court finds that the district court erred in its determination that
Plaintiff-Appellant had failed to exhaust the administrative remedies, and, therefore, REVERSES the
judgment of the district court, and REMANDS the case for further proceedings.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual History
Dixon is an African-American male who was employed in the Detroit, Michigan Division of the FBI
from 1978 to 1988. During that time, Plaintiff-Appellant worked in various positions, including Applicant
Recruiter and Applicant Coordinator. In 1988, Dixon voluntarily resigned to pursue an entrepreneurial
venture with his wife. In May 1991, when his wife was able to manage the business on her own, Dixon
applied for reinstatement with the FBI.
It is undisputed that during his ten-year tenure Dixon had a good employment record with the FBI.
His performance appraisals were either “excellent,” “superior,” or “fully successful” from 1980-1988. It is
unsurprising, then, that the FBI’s Administrative Services Division (“ASD”) determined that Plaintiff-
Appellant met the preliminary requirements for reinstatement consideration and authorized further
processing of his application. Next, Dixon submitted an employment application and was interviewed, and
the FBI began conducting its updated background investigation. In the course of the background
investigation, Agency investigators interviewed employment references provided by Dixon as “friends or
acquaintances employed by the FBI,” which included Carey Thornton (“Thornton”), John Anthony
(“Anthony”), and Larry Kuhl (“Kuhl”). The Bureau also solicited evaluations from Plaintiff-Appellant’s
former supervisors, including Assistant Special Agent in Charge (“ASAC”) Robert Reutter (“Reutter”),
regarding whether Dixon was suitable for reinstatement. Reutter was the ASAC in Detroit from November
1981, until October 1986, and his initial responsibilities included the Applicant Program to which Dixon
was assigned during the corresponding time frame.
Anthony was interviewed and recommended against reinstating Plaintiff-Appellant. Anthony’s
negative review was based upon an alleged incident that occurred in the early 1980s, when Dixon was
assigned to applicant recruitment in Detroit, and Anthony was the principal FBI-Detroit legal advisor. The
two men, along with Special Agent (“SA”) Robert Nelson (“Nelson”), sat on an interview panel together,
where Dixon was the lead interviewer and responsible for submitting the panel’s opinion of the interviewee.
As Anthony recalled the incident, the panel voted to reject a minority applicant, but then Dixon
changed the results to a favorable determination without Nelson or Anthony’s permission or knowledge.
According to Anthony, he confronted Dixon, and Dixon acknowledged that he had changed the rating, and
apologized. Because of the incident, however, Anthony questioned Plaintiff-Appellant’s integrity and
honesty, opining that Dixon was not sufficiently trustworthy to work for the FBI.
Given the incident relayed by Anthony, Bureau investigators also interviewed Nelson. Nelson
essentially conveyed to investigators what they heard from Anthony, although Nelson added that, when it
happened, he reported Dixon’s conduct to then-ASAC Reutter. Apparently, a formal report of the incident
No. 03-1542 Dixon v. Ashcroft, et al. Page 3

was never made, as evidenced by the fact that Dixon’s personnel file with the Agency contained no
derogatory information. In Nelson’s opinion, the FBI would make a “grave mistake” by rehiring Plaintiff-
Appellant because Nelson believed Dixon lacked integrity and fidelity, and could not be trusted.
ASAC Reutter responded to the background inquiry while he was serving as the Special Agent in
Charge (“SAC”) of the FBI’s Philadelphia Division. Reutter recalled that two agents had accused Dixon
of changing an applicant’s score, and he recalled that Dixon had admitted doing so. Based upon this
incident and Reutter’s recollection that Plaintiff-Appellant had poor work habits, poor work ethic, and little
enthusiasm for his job during his early years with the FBI – Reutter described Dixon’s efforts as mediocre
at best – Reutter recommended against reinstating Plaintiff-Appellant.
Another of Dixon’s former supervisors, SA David Ries (“Ries”), supervised him in 1987 and 1988,
and Ries’ opinion was that Plaintiff-Appellant demonstrated a lack of commitment, although Ries believed
Dixon was capable of performing his duties. Ries also questioned Dixon’s dedication and would make no
recommendation concerning reinstatement. Kuhl, a former supervisor and one of the referrals provided by
Dixon, described Plaintiff-Appellant as competent and articulate and commented favorably on his character,
abilities, reputation and loyalty. He recommended Dixon for reinstatement, although he commented that
he would have liked to interview Plaintiff-Appellant to discern Dixon’s motivations for seeking
reinstatement. Finally, Thornton, the last of Dixon’s referrals and one of his former co-workers,
recommended reinstating him. Thornton opined that Dixon was an effective investigator, “who conducted
his business in an appropriate manner.”
Based on the results of the background investigation, ASD Personnel Analyst Wendy Strickland
(“Strickland”) prepared a report, in which she recommended that, “DIXON’S request for reinstatement . . .
be denied based on the results of his updated background investigation, specifically the comments of former
supervisors and co-workers.” Her report was forwarded to ASD Supervisory SA Peter Gulotta (“Gulotta”),
who had initial decision-making authority. Gulotta reviewed Strickland’s report, including the
investigation results, Dixon’s personnel file and reinstatement application, and, based on his review,
accepted Strickland’s recommendation. Gulotta did not speak directly with either Anthony or Nelson prior
to making his decision, but he did consider the reports made from their interviews. Gulotta then forwarded
his recommendation on to ASD Section Chief Faustino Pino (“Pino”), who concurred in the
recommendation. Finally, ASD Assistant Director Weldon Kennedy made the final determination to deny
Plaintiff-Appellant reinstatement.
On April 14, 1992, Deputy Assistant Director, Personnel Officer in the ASD, Steven Pomerantz,
wrote to Plaintiff-Appellant informing him that, “we are unable to reinstate you at this time and it does not
appear likely that we will be able to do so in the future.” Dixon claims, however, that he never received this
letter and alleges that he did not learn of the Bureau’s decision until a 1994 telephone conversation with
Gulotta. Thereafter, Plaintiff-Appellant requested his personnel file under the Freedom of Information Act
and received it in May of 1997. Upon review of the file, Dixon contacted an Equal Employment
Opportunity (EEO) counselor at the FBI’s Detroit Division.
Plaintiff-Appellant contends that Reutter gave him a negative recommendation because of Reutter’s
“bias against African Americans and in retaliation for his (Reutter’s) removal as supervisor over the
Applicant Program.” According to Dixon, while working under Reutter in the early 1980s, Reutter treated
him and his African-American co-worker differently than non-African-Americans, about which Dixon
complained to one of Reutter’s superiors. As a consequence, Plaintiff-Appellant claims that Reutter was
removed as supervisor of the Applicant Program. Dixon alleges that the negative comments Reutter made
in his background investigation were retaliatory and for the purpose of thwarting his efforts at reinstatement.
No. 03-1542 Dixon v. Ashcroft, et al. Page 4

B. Procedural History
Dixon first contacted an EEO counselor within the FBI in July 1997. After receiving a Notice of
Right to File a Discrimination Complaint, Plaintiff-Appellant, without the assistance of counsel, filed a
formal EEO administrative complaint in August 1997. Plaintiff-Appellant’s administrative complaint
consisted of two parts: 1) the “Complaint of Discrimination,” the form provided by the EEOC that Dixon
was required to fill out; and 2) a statement that Dixon wrote and attached thereto, describing what he
believed to be the bases of the FBI’s alleged discrimination (hereinafter “Attached Statement”) (together
with the Complaint of Discrimination, the “EEOC Complaint”). On the Complaint of Discrimination, Dixon
checked only the box for “Race” and stated afterwards, “Black.”
A hearing was held and the ALJ made findings of fact and conclusions of law that, “the Agency
discriminated against [Plaintiff-Appellant] because of his race when it denied him reinstatement in March
1992.” That determination, however, was rejected by the United States Department of Justice, Complaint
Adjudication Office (“CAO”), and an appeal was taken to the EEOC’s Office of Federal Operations. The
EEOC’s Office of Federal Operations upheld the CAO’s determination that the record did not support the
ALJ’s finding of discrimination.
Hence, on November 12, 2002, Dixon filed a Complaint in the Eastern District of Michigan,
asserting four causes of action: 1) Title VII - Retaliation; 2) 42 U.S.C. § 1983 - Violation of Due Process;
3) Defamation; and 4) Injurious Falsehood. The Agency moved for dismissal pursuant to Federal Rules of
Civil Procedure 12(b)(1) and 12(b)(6), or alternatively for summary judgment pursuant to Rule 56. The
district court granted the FBI’s motion, dismissing Dixon’s complaint for lack of subject matter jurisdiction.
Plaintiff-Appellant now appeals from that judgment.
II. STANDARD OF REVIEW
This Court reviews a district’s court decision to dismiss for lack of subject matter jurisdiction de
novo. Joelson v. United States, 86 F.3d 1413, 1416 (6th Cir. 1996). Factual findings made by the district
court in deciding a motion to dismiss, however, are reviewed for clear error only. See Jones v. City of
Lakeland, 175 F.3d 410, 413 (6th Cir. 1999) (abrogated on other grounds) (quoting Gafford v. Gen. Elec.
Co., 997 F.2d 150, 161 (6th Cir. 1993)).
III. ANALYSIS
On appeal, Dixon does not challenge the district court’s dismissal of his claim under the Fourteenth
Amendment and his claims for defamation and injurious falsehood. Those claims are deemed abandoned.
See Boyd v. Ford Motor Co., 948 F.2d 283, 284 (6th Cir. 1991) (concluding that any issues not raised by
the appellant with respect to the district court’s ruling are considered abandoned on appeal and not
reviewable by this Court). Pending for review is Dixon’s Title VII retaliation claim. The district court
found that the FBI made the decision not to reinstate Plaintiff-Appellant before he filed his EEOC
Complaint; therefore, he was required to include allegations of retaliation in the EEOC Complaint in order
to exhaust his administrative remedies. Because the district court determined that Dixon did not do so, it
dismissed the claim for lack of subject matter jurisdiction.
Undoubtedly, federal employees who allege that they have been victims of discrimination must
exhaust their administrative remedies. Benford v. Frank, 943 F.2d 609, 612 (6th Cir. 1991) (stating “[t]he
right to bring an action under Title VII regarding equal employment in the federal government is predicated
upon the timely exhaustion of administrative remedies . . .”); see also Hall v. U.S. Postal Serv., 857 F.2d
1073, 1078 n.4 (6th Cir. 1988). The purpose of the requirement is to trigger an investigation, which gives
notice to the alleged wrongdoer of its potential liability and enables the EEOC to initiate conciliation
procedures in an attempt to avoid litigation. Davis v. Sodexho, Cumberland College Cafeteria, 157 F.3d
460, 463 (6th Cir. 1998) (citing EEOC v. Bailey, 563 F.2d 439, 447 (6th Cir. 1977)). Plaintiff-Appellant
No. 03-1542 Dixon v. Ashcroft, et al. Page 5

concedes that he did not check the “Reprisal” box on the Complaint of Discrimination; however, in this
Circuit, that failure is not dispositive of whether Dixon exhausted his administrative remedies.
In Weigel v. Baptist Hosp. of East Tennessee, 302 F.3d 367 (6th Cir. 2002), we reiterated, “the
general rule in this circuit . . . that the judicial complaint must be limited to the scope of the EEOC
investigation reasonably expected to grow out of the charge of discrimination.” Id. at 380 (internal citation
omitted); see also Bray v. Palm Beach Co., 907 F.2d 150, 1990 WL 92672, at *2 (6th Cir. June 29, 1990)
(finding “the facts alleged in the body of the EEOC charge, rather than merely the boxes that are marked
on the charge, are the major determinants of the scope of the charge”). We explained in Weigel that,
“[p]ursuant to this rule, we have recognized that ‘where facts related with respect to the charged claim
would prompt the EEOC to investigate a different, uncharged claim, the plaintiff is not precluded from
bringing suit on that claim.’” 302 F.3d at 380 (quoting Davis, 157 F.3d at 463). This principle became
known as the “expected scope of investigation test.” Weigel, 302 F.3d at 380.
The determinative inquiry in this case, therefore, is whether Dixon alleged sufficient facts in his
EEOC Complaint to put the EEOC on notice of his retaliation claim, despite that he did not check the
appropriate box on the EEOC’s Complaint of Discrimination form.
A review of Dixon’s EEOC Complaint, specifically, the Attached Statement, reveals that Dixon
alleged:
I contend that Bob Reutter discriminated against me, causing the Bureau to do the same, because
of Race, fictitious information he received from two other agents and because the Applicant
Program was removed from his direct supervision because of continued harassment.
(emphasis added). Plaintiff-Appellant goes on to describe how, when he was under Reutter’s supervision,
he complained to SAC Wayne Davis (“Davis”) because Reutter had required him and another agent, the
“two Black agents handling the Applicant Program,” to report to Reutter weekly, which Dixon and his co-
worker resented. Dixon stated, “Mr. Davis took over the [Applicant] program after [redacted name] and
I complained about Reutter’s continued harassment.”
Applying the expected scope of investigation test to this case, we find that the factual allegations
were sufficient to put the EEOC on notice that Dixon perceived himself to be a victim of retaliation, in
addition to race discrimination. See Sharabura v. Taylor, No. 03-CV-1866(JG), 2003 WL 22170601, at *2-
3 (E.D.N.Y. Sept. 16, 2003) (citing Deravin v. Kerik, 335 F.3d 195, 201 (2d Cir. 2003) (where the district
court did as the Second Circuit instructed and looked to the “factual allegations made in the [EEOC] charge
itself, describing the discrimination conduct about which a plaintiff is grieving,” the court held that the
plaintiff’s race and color claims were reasonably related to her national origin claim because in “the two-
page statement [plaintiff] submitted with her EEOC charge . . . her description of the alleged discriminatory
conduct . . . would no doubt alert the EEOC of the potential for race and color discrimination claims”)).
Plaintiff-Appellant’s case is unlike others where courts have determined that the plaintiffs did not allege
facts in their EEOC complaints to meet the expected scope of investigation test. See, e.g., Pearison v.
Pinkertons, Inc., No. 1:02-CV-142, 2002 WL 32060142 at *4-5 (E.D. Tenn. Sept. 16, 2002) (citing Weigel
and finding that the plaintiff had not met the expected scope of investigation test where, in his EEOC
complaint, he presented “no factual allegations” that would have prompted the EEOC to investigate the
plaintiff’s unrelated claim, raised for the first time in his judicial complaint).
In Doan v. NSK Corp., 266 F. Supp. 2d 629, 633 (E.D. Mich. 2003), for example, the court discussed
the narrow scope of the EEOC charge, in which the plaintiff detailed only one specific factual basis for her
charge of sex discrimination. Id. In the case sub judice, however, it is clear from the Attached Statement
that Dixon discussed the alleged factual bases of his retaliation claim and also explicitly stated, “I contend
that Bob Reutter discriminated against me, causing the Bureau to do the same, because of Race . . . .”
(emphasis added).
No. 03-1542 Dixon v. Ashcroft, et al. Page 6

In Doan, moreover, the plaintiff referenced only one specific time period for her charge of sex
discrimination – the spring of 1997 – but then later sought, in her judicial complaint, to include allegations
of harassment occurring in 1997 and 1998. Id. at 633-34. Dixon, in contrast, talked about his high
performance appraisals as far back as 1980 in the Attached Statement, to contradict Reutter’s assessment
of his suitability for reinstatement. It seems reasonable that, even in investigating Dixon’s claim of race
discrimination, the EEOC would have inquired into Plaintiff-Appellant’s ten-year work performance and
the allegations about Dixon making false reports in the interview process to see if the former undermined
the FBI’s decision not to reinstate or the latter was credible, such that it was a legitimate, nondiscriminatory
reason for refusing to reinstate Plaintiff-Appellant. Evidence of a stellar work history, along with mixed
comments and recommendations in interviews with Dixon’s peers and superiors, may suggest pretext, for
example. The Court is not prepared to penalize Dixon because the EEOC investigation should have been
broader in scope. As the Third Circuit reasoned, “if the EEOC investigation is too narrow, a plaintiff should
not be barred from raising additional claims in district court.” Robinson v. Dalton, 107 F.3d 1018, 1026 (3d
Cir. 1997).
The Attorney General makes much of a letter to Plaintiff-Appellant from the EEOC in which an
Equal Employment Opportunity Officer (“Officer”) characterized the issue accepted for investigation as
being denied reinstatement based on race.1 The letter advised Dixon to notify the Officer within fifteen
days if the issue had not been identified properly. While Plaintiff-Appellant never notified the Officer of
any disagreement with the Officer’s characterization of the issue, we find that Dixon’s failure to do so is
not fatal to his claim. Based on the Attached Statement, Dixon perceived Reutter’s harassment to be
racially-motivated; thus, Dixon, as a lay person, would not have understood the need to modify the Officer’s
formulation of his claim. Dixon perceived Reutter’s harassment to be racially-motivated, such that Dixon
would not have understood the need to correct the Officer’s formulation of his claim.
Indeed, as this Court recognized long ago, the rationale for the expected scope of investigation test
is that charges of discrimination filed with the EEOC often will be prepared by aggrieved laypersons
without the assistance of counsel. Tipler v. E. I. duPont deNemours & Co., 443 F.2d 125, 131 (6th Cir.
1971); see also Davis, 157 F.3d at 463 (explaining “[o]ne reason for the [expected scope of investigation
test] is that charges are frequently filed by lay complainants, and the courts recognize that subsequent
actions should not be restricted by the failure of a complainant to attach the correct legal conclusion to the
EEOC claim, conform to procedural technicalities, or include the exact wording which might be required
in a judicial pleading”) (internal citation omitted); see also Pearison, 2002 WL 32060142, at *5 (holding
“Pearison need not attach the correct legal conclusions to his factual allegations, conform to legal
technicalities, or use the precise wording that might be required in a formal pleading . . . A claimant’s
written charge to . . . [the] EEOC must be sufficiently precise to identify the parties and describe generally
the discriminatory acts or practices by the employer leading to the administrative complaint”) (emphasis
added).
Where, as here, Dixon was not represented or aided by counsel in filing his EEOC Complaint, he
will not be punished for not correcting the Officer, when, based upon the Attached Statement, it is clear that
the EEOC was put on notice that Plaintiff-Appellant asserted claims both for race discrimination and
retaliation.

1
The letter stated, “[t]he issue accepted for investigation is as follows: Whether you were discriminated against based on
race (Black) when you were denied reinstatement with the FBI on or about June 3, 1997.”
No. 03-1542 Dixon v. Ashcroft, et al. Page 7

IV. CONCLUSION
Plaintiff-Appellant put the EEOC on notice of his claim for retaliation. Therefore, the judgment of
the district court is REVERSED, and the case is REMANDED for further proceedings in accordance with
this Opinion.