United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 13, 2005 Decided February 28, 2006
No. 04-5278
DONALD ROCHON,
APPELLANT
v.
ALBERTO GONZALES, ATTORNEY GENERAL OF THE UNITED
STATES OF AMERICA,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 03cv00958)
Michael A. Rubin argued the cause for appellant. With him
on the briefs were Steven G. Reade and Emily N. Glatfelter.
Lisa S. Goldfluss, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief were Kenneth L. Wainstein,
U.S. Attorney, and Michael J. Ryan, Assistant U.S. Attorney.
R. Craig Lawrence, Assistant U.S. Attorney, entered an
appearance.
2
Before: GINSBURG, Chief Judge, TATEL, Circuit Judge, and
EDWARDS,* Senior Circuit Judge.
Opinion for the Court filed by Chief Judge GINSBURG.
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 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, 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
*
Senior Circuit Judge Edwards was in regular active service
at the time of oral argument.
3
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 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.
In his complaint in the present case, Rochon alleges that in
1993 and 1994 the Philadelphia field office of the FBI received
“credible notice and evidence of death threats directed at [him]
and his wife” by an inmate in a federal prison. Rochon
maintains that, contrary to “its policies, duties, and usual
practices in such circumstances,” the FBI neither investigated
the threats nor took any steps to protect the Rochons, even after
the Bureau had indicated it would do so. In 2002, when Rochon
learned the FBI had failed to investigate the threats, he filed an
administrative complaint.
In 2003 Rochon brought this suit in the district court,
alleging the FBI’s failure to investigate was discriminatory and
4
retaliatory, in violation both of the 1990 settlement agreement
and of Title VII. The district court granted the Government’s
motion, pursuant to Federal Rule of Civil Procedure 12(b)(6), to
dismiss the complaint, and Rochon appealed.
II. Analysis
Rochon challenges the district court’s analyses both of Title
VII and of Rule 12(b)(6). The Government maintains the
district court properly dismissed Rochon’s claims on the merits
or, alternatively, did not have subject matter jurisdiction over the
claim arising out of the settlement agreement. We begin, as we
must, with the issue of jurisdiction. See Steel Co. v. Citizens for
a Better Env’t, 523 U.S. 83, 94-95 (1998).
A. Jurisdiction
The Government argues that pursuant to the Tucker Act, the
district court lacked jurisdiction over Rochon’s claim that the
Bureau breached their 1990 settlement agreement. The Tucker
Act provides that the “United States Court of Federal Claims
shall have jurisdiction to render judgment upon any claim
against the United States founded ... upon any express or
implied contract with the United States.” 28 U.S.C. §
1491(a)(1) (2000). When the contract claim is for damages in
excess of $10,000, as it is in this case, the jurisdiction of the
Court of Federal Claims is exclusive. Id. § 1346(a)(2) (2000).
In two decisions of this court, issued after the district court’s
ruling in this case, we have made clear that “a claim for breach
of a Title VII settlement agreement is a contract claim within the
meaning of the Tucker Act” and, therefore, for claims exceeding
$10,000 jurisdiction belongs with the Court of Federal Claims.
Hansson v. Norton, 411 F.3d 231, 232 (D.C. Cir. 2005) (citing
Brown, 389 F.3d at 1297).
5
Rochon maintains the district court had jurisdiction over his
contract claim pursuant to this court’s decision in Hansson, 411
F.3d 231. In Hansson, we held the district court lacked
jurisdiction after noting the plaintiff did not seek, along with her
claim for damages within the jurisdiction of the Court of Federal
Claims, equitable relief, which ordinarily only the district court
could grant. Id. at 232, 236. Because Rochon has requested, in
addition to damages, declaratory and injunctive relief, he argues
the Court of Federal Claims lacks jurisdiction to hear his claims.
On the contrary, the combination of a claim for equitable relief
brought under Title VII and a related claim for breach of
contract does not give the district court jurisdiction over the
contract claim that, if brought separately, would be exclusively
in the Court of Federal Claims under 28 U.S.C. §§ 1346(a)(2),
1491(a)(1). Brown, 389 F.3d at 1297; see also Brown v. United
States, 271 F. Supp. 2d 225, 227-28 (D.D.C. 2003) (describing
claims).
In the present case, however, it is not immediately clear
whether Rochon’s claim, if brought separately, would fall within
the jurisdiction of the Court of Federal Claims. That court does
not have jurisdiction over claims for damages in cases
“sounding in tort.” 28 U.S.C. § 1491(a). Rochon has requested
compensatory damages of up to $300,000 “for the emotional
distress and other harms” alleged in the complaint. Although his
claim for “emotional distress” may sound in tort, that does not
end the analysis. The Federal Circuit has held that where “the
primary thrust of [a] complaint is breach of contract, even if a
[claim sounding in tort] would lie, the Claims Court would
retain jurisdiction over the suit.” Wood v. United States, 961
F.2d 195, 198 (Fed. Cir. 1992); see also Awad v. United States,
301 F.3d 1367 (Fed. Cir. 2002) (it is “well established that
where a tort claim stems from a breach of contract, the cause of
action is ultimately one arising in contract, and thus is properly
within the ... jurisdiction of the Court of Federal Claims”).
6
This case was decided on Rochon’s complaint and the
Government’s motion to dismiss under Rules 12(b)(1) and
12(b)(6). Because the Government has not yet filed an answer,
Rochon may amend his complaint as of right, see Fed. R. Civ.
P. 15(a) (“A party may amend the party’s pleading once as a
matter of course at any time before a responsive pleading is
served”), and take the opportunity to clarify whether the
“primary thrust” of his claim is, in fact, breach of contract and
thus within the jurisdiction of the Court of Federal Claims.
Even if the district court concludes the gravamen of
Rochon’s claim lies in contract, however, it does not necessarily
follow that the district court is barred from exercising
jurisdiction over that claim. As explained in Part II.C below, we
are reinstating Rochon’s statutory claim. On remand, therefore,
the district court may determine it has ancillary jurisdiction over
his contract claim. See Shaffer v. Veneman, 325 F.3d 370, 373
(D.C. Cir. 2003) (quoting Kokkonen v. Guardian Life Ins. Co. of
Am., 511 U.S. 375, 379 (1994)) (court may exercise ancillary
jurisdiction “to permit disposition by a single court of claims
that are, in varying respects and degrees, factually
interdependent”).
B. Sovereign Immunity
Under 42 U.S.C. § 2000e-3(a), a private employer may not
“discriminate against any [employee] ... because he has made a
charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under [Title VII].” Several
circuits have held this ban on retaliation applies to the
Government through § 2000e-16, which prohibits the Executive
Branch from engaging in “any discrimination based on race,
color, religion, sex, or national origin” in any “personnel
action[].” See Bd. of County Comm’rs, Fremont County, Colo.
v. EEOC, 405 F.3d 840, 845 (10th Cir. 2005) (describing the
7
issue as “well-settled” and collecting cases from the Fifth,
Seventh, and Ninth Circuits). Although we have not directly
confronted the issue, we have recognized the cogency of this
reasoning. See Forman v. Small, 271 F.3d 285, 297 (2001)
(citing Porter v. Adams, 639 F.2d 273, 277-78 (5th Cir. 1981)).
The Government now contends, however, as it did not in those
cases, that the Congress has not waived sovereign immunity
from claims of retaliation.
Although the Government conceded in its brief that it “has
indeed waived sovereign immunity for retaliation claims,” at
oral argument, counsel maintained it has not done so because
there is in § 2000e-16 no specific and unequivocal waiver of
sovereign immunity with respect to claims of retaliation, and the
court will not hold the United States has waived its sovereign
immunity unless the waiver is “unequivocally expressed” in an
Act of Congress. Hubbard v. EPA, 982 F.2d 531, 532 (D.C. Cir.
1992) (internal quotation marks omitted). Sovereign immunity,
moreover, being jurisdictional, see Tri-State Hosp. Supply Corp.
v. United States, 341 F.3d 571, 575 (D.C. Cir. 2003) (because
“sovereign immunity is jurisdictional in nature ... the terms of
[the Government’s] consent to be sued in any court define that
court's jurisdiction to entertain the suit”), we must now consider,
notwithstanding the belatedness of the Government’s volte face,
whether the Congress has unequivocally exposed the United
States to damage claims based upon retaliation in violation of
Title VII.
We conclude the Congress clearly has waived sovereign
immunity from claims of retaliation. Section 2000e-16(a)
prohibits the executive departments from discriminating in
personnel actions. A civil action alleging a violation of § 2000e-
16(a) is, per § 2000e-16(d), governed by “[t]he provisions of
section 2000e-5(f) through (k)”; those provisions are applicable
to actions against all employers subject to Title VII, public and
8
private alike. One such provision, § 2000e-5(g)(1), expressly
allows a court to award equitable relief, including back pay, to
any claimant with respect to whom the defendant employer
“intentionally engaged ... in an unlawful employment practice,”
and § 2000e-3(a), in turn, clearly makes retaliation “an unlawful
employment practice.” It is clear, therefore, the Congress has
made the United States amenable to suits seeking equitable
relief and back pay for retaliation. The district court,
consequently, had jurisdiction over Rochon’s statutory claim.
C. The Motion to Dismiss
The next question is whether the district court correctly
dismissed Rochon’s complaint for failure to state a claim upon
which relief can be granted, per Rule 12(b)(6). This court
reviews de novo a district court order granting a motion to
dismiss. Covad Commc’ns Co. v. Bell Atl. Corp., 398 F.3d 666,
670-71 (D.C. Cir. 2005).
A complaint should not be dismissed for failure to state a
claim unless, taking as true the facts alleged in the complaint, “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 v. Gibson, 355 U.S. 41, 45-46 (1957). This is the
standard because “the issue presented by a motion to dismiss is
not whether a plaintiff will ultimately prevail but whether the
claimant is entitled to offer evidence to support the claims.”
Caribbean Broad. Sys. Ltd. v. Cable & Wireless PLC, 148 F.3d
1080, 1086 (D.C. Cir. 1998) (internal quotation marks omitted).
1. Adverse Action
The district court concluded that, because Rochon did not
suffer a “diminution in pay or benefits,” he did not experience
an “adverse personnel action” and was therefore not the victim
9
of any retaliation cognizable under Title VII. Rochon argues §
2000e-3(a), although referenced in § 2000e-16(a), which deals
with “personnel actions,” does not require that the employer’s
act of retaliation be related to the plaintiff’s employment: The
“plain and unambiguous terms” of § 2000e-3(a) itself, he points
out, “contain no employment-related limitation.” Here Rochon
contrasts § 2000e-2(a)(1), which prohibits discrimination more
narrowly “with respect to ... compensation, terms, conditions, or
privileges of employment,” and refers us to the Supreme Court’s
instruction in Russello v. United States: “[W]here Congress
includes particular language in one section of a statute but omits
it in another section of the same Act, it is generally presumed
that Congress acts intentionally and purposely in the disparate
inclusion or exclusion.” 464 U.S. 16, 23 (1983) (quoting United
States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972))
(alteration in original).
The Government urges us to reject Rochon’s “plain
language” argument on the undoubtedly solid ground that “the
meaning of statutory language, plain or not, depends on
context.” Holloway v. United States, 526 U.S. 1, 7 (1999)
(internal quotation marks omitted). The anti-retaliation
provision is part of a statute that prohibits discriminatory
employment practices. Therefore, the Government argues, “[t]o
suggest that the scope of liability for discrimination based on
race should be narrower than the scope of liability for
discriminating against someone complaining about race
discrimination makes no sense in the context of the statute.”
Furthermore, the Government asserts, Rochon’s interpretation
would have “extremely problematic” consequences because it
would allow government employees to sue the Government
claiming retaliation based upon the exercise of quotidian
governmental functions adverse to their interests, such as a tax
audit by the Internal Revenue Service.
10
We begin, of course, with the text of the statute. In Title
VII the Congress prohibited employers from retaliating against
employees for having engaged in activity protected by Title VII:
It shall be an unlawful employment practice for an
employer to discriminate against any of his employees ...
because he has opposed any practice made an unlawful
employment practice by this subchapter, or because he has
made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing under
this subchapter.
42 U.S.C. § 2000e-3(a). Although this court has, as the
Government points out, described the prima facie case for
retaliation as requiring an adverse “personnel” or adverse
“employment” action, e.g., Stewart v. Evans, 275 F.3d 1126,
1134 (2002), we have also, as Rochon notes, spoken more
generally of an employer’s “conduct having an adverse impact
on the plaintiff.” Berger v. Iron Workers Reinforced Rodmen
Local 201, 843 F.2d 1395, 1423 (1988). Phrases used in passing
notwithstanding, the fact is we have yet to determine whether
the adverse action alleged must be an adverse personnel action,
or otherwise related to the plaintiff’s employment, in order to
state a claim under Title VII.
In Passer v. American Chemical Society, 935 F.2d 322, 330
(D.C. Cir. 1991), we confronted the question whether a plaintiff
claiming retaliation under the Age Discrimination in
Employment Act must allege an adverse employment action.
There the plaintiff alleged that, after he had charged his
employer with violating the ADEA, the defendant unlawfully
retaliated by cancelling a symposium that was to have been held
in his honor. The anti-retaliation provision of the ADEA, 29
U.S.C. § 623(d), which closely tracks the cognate provision of
Title VII, makes it “unlawful ... to discriminate against any
11
[employee] ... because such individual ... has opposed any
practice made unlawful by this section.” We concluded: “The
statute itself proscribes ‘discriminat[ion]’ against those who
invoke the Act’s protections; the statute does not limit its reach
only to acts of retaliation that take the form of cognizable
employment actions such as discharge, transfer or demotion.”
Passer, 935 F.2d at 331. The court in Passer thus determined
the concept of retaliation encompasses more than just adverse
employment actions.
Carrying our approach in Passer over to the closely related
context of Title VII accords with the decisions of the four other
circuits that do not require that a retaliatory action be
employment-related in order to state a claim under Title VII.
See Ray v. Henderson, 217 F.3d 1234, 1243 (9th Cir. 2000)
(retaliation includes “any adverse treatment that is based on a
retaliatory motive”); Aviles v. Cornell Forge Co., 183 F.3d 598,
606 (7th Cir. 1999) (§ 2000e-3(a) is broad enough to prohibit
retaliatory actions “that are not ostensibly employment related”);
Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1456 (11th
Cir. 1998) (holding “Title VII's protection against retaliatory
discrimination extends to adverse actions which fall short of
ultimate employment decisions”); Berry v. Stevinson Chevrolet,
74 F.3d 980, 986 (10th Cir. 1996) (noting “[i]t would be
illogical to define a section [2000e-3(a)] employee liberally to
include former employees and to simultaneously define an
adverse employment action narrowly by limiting it to those
formal practices linked to an existing employee/employer
relationship”); see also White v. Burlington N. & Santa Fe Ry.
Co., 364 F.3d 789, 798 (6th Cir. 2004) (dictum describing
Passer, 935 F.2d 322, as a “well-reasoned opinion[] that
conclude[s] that ... an employer is prohibited [by the ADEA]
from retaliating in materially adverse ways, regardless of
whether the retaliatory acts affect employment”). But see
Nelson v. Upsala College, 51 F.3d 383, 388 (3d Cir. 1995)
12
(requirement that plaintiff obtain prior approval before visiting
employer’s campus did not constitute retaliation prohibited by
§ 2000e-3(a), which “requires a harm which impedes plaintiff’s
employment situation”); cf. Manning v. Metro. Life Ins. Co., 127
F.3d 686, 692 (8th Cir. 1997) (requirement that plaintiff
demonstrate “materially adverse employment action” inferred
from § 2000e-2(a)(1)-(2)).
Our decision in Passer is also consistent with the
understanding of the EEOC: “The statutory retaliation clauses
[including that of Title VII] prohibit any adverse treatment that
is based on a retaliatory motive and is reasonably likely to deter
the charging party or others from engaging in protected
activity.” EEOC Compliance Manual, Section 8-II.D.3 (1998).
The EEOC appears to have based its broad reading of retaliation
upon the Supreme Court’s functional approach in Robinson v.
Shell Oil Co., where the Court adopted the agency’s position
that “employee” as used in § 2000e-3(a) comprises former as
well as current employees because that interpretation is more
“consisten[t] with a primary purpose of antiretaliation
provisions: Maintaining unfettered access to statutory remedial
mechanisms.” 519 U.S. 337, 346 (1997). As the Court
explained, “[I]t would be destructive of this purpose of the
antiretaliation provision for an employer to be able to retaliate
with impunity against an entire class of acts under Title VII --
for example, complaints regarding discriminatory termination.”
Id.
Considering the Supreme Court’s reasoning and its
description of “a primary purpose” of § 2000e-3(a), we reject
the Government’s contextual argument that it is illogical to
interpret § 2000e-16(a) as reaching an employer’s retaliatory
acts outside the realm of employment. The Government’s
suggested limitation, like that of the respondent in Robinson,
would allow “an employer ... to retaliate with impunity” against
13
an employee who engages in protected activity as long as the
employer takes an action unrelated to the plaintiff’s
employment. To take the Government’s own example, the IRS
could retaliate against a complaining employee by subjecting
him to a tax audit. Or an employer could falsely accuse an
employee of engaging in criminal activity, as was alleged in
Aviles, 183 F.3d at 606. Thus is it clear the Government’s
reading of § 2000e-3(a) “would be destructive of this purpose of
the antiretaliation provision,” namely, “[m]aintaining unfettered
access to statutory remedial mechanisms.” Robinson, 519 U.S.
at 346.
We recognize the plaintiffs in Passer and Robinson each
challenged as retaliatory the actions of a private employer. Here
we must determine whether the Government is similarly liable
under § 2000e-3(a) for retaliation that does not come in the form
of a personnel action. In other words, we must consider
whether, when referenced in § 2000e-16(d) via § 2000e-5(g)(1)-
(2)(A), the general ban on retaliation in § 2000e-3(a) is limited
by the requirement in § 2000e-16(a) that “[a]ll [Government]
personnel actions” be made free from discrimination. We do not
believe the prohibition is so qualified. Nothing in § 2000e-16(d)
or § 2000e-5(g) suggests § 2000e-3(a) is to be read differently
when applied to the Government. Nor did the Supreme Court in
any way qualify its observation in Morton v. Mancari, 417 U.S.
535, 547 (1974), that “the substantive anti-discrimination law
embraced in Title VII was carried over and applied to the
Federal Government” through the addition of § 2000e-16 in
1972. See also Dothard v. Rawlinson, 433 U.S. 321, 331 n.14
(1977) (noting “Congress expressly indicated the intent that the
same Title VII principles be applied to governmental and private
employers alike” (citing H.R. REP. NO. 92-238, at 17 (1971); S.
REP. NO. 92-415, at 10 (1971))). In light of the Congress’s
recognized intent in 1972 to apply to the Government the
principles it had in 1964 applied to private employers, we now
14
hold that an alleged act of retaliation by the Government need
not be related to the plaintiff’s employment in order to state a
claim of discrimination under Title VII.
We are not indifferent to the Government’s concern that too
broad a reading of § 2000e-3(a) could lead to a barrage of
lawsuits against it based upon trivial actions, such as the
“misdelivery of a letter” by the Postal Service. On the contrary,
we think making actionable insignificant disparities in the
treatment of employees of different races, or religions, et cetera,
is too absurd to be attributed to the Congress. Such suits are
properly precluded, however, not by the court creating an
atextual loophole for forms of retaliation unrelated to the
plaintiff’s employment, but by our requiring that the alleged
retaliation be “material” or “significant.” Indeed, we have
already held that materiality is implicit in the term
“discriminate” as it is used in Title VII. See Brown v. Brody,
199 F.3d 446, 457 (1999) (plaintiff must demonstrate
“materially adverse consequences ... such that a reasonable trier
of fact could conclude that the plaintiff has suffered objectively
tangible harm”). In the framework of Title VII, a claim of
retaliation is necessarily a claim of discrimination and the
requirement of materiality therefore inheres in it as well.
We therefore agree with several other circuits that in order
to support a claim of retaliation a plaintiff must demonstrate the
“employer’s challenged action would have been material to a
reasonable employee,” which in this context means it well might
have “dissuaded a reasonable worker from making or supporting
a charge of discrimination.” Washington v. Ill. Dep’t of
Revenue, 420 F.3d 658, 662 (7th Cir. 2005); see, e.g., Manning,
127 F.3d at 692 (“not everything that makes an employee
unhappy is an actionable adverse action”); Randlett v. Shalala,
118 F.3d 857, 862 (1st Cir. 1997) (dictum noting “there is room
for a de minimis threshold” in claims of retaliatory conduct).
15
And this is so regardless whether the alleged retaliatory act is
related to the plaintiff’s employment.
The retaliatory conduct Rochon alleges, to wit, the FBI’s
refusal to investigate, as it would ordinarily do for any member
of the public, a death threat made against him by a federal prison
inmate, meets this threshold of significance. In other words, a
reasonable FBI agent well might be dissuaded from engaging in
activity protected by Title VII if he knew that doing so would
leave him unprotected by the FBI in the face of threats against
him or his family.
2. Causation
The district court also concluded Rochon had failed to state
a claim because “[t]here is no support to show that the [FBI’s]
adverse action would not have occurred ‘but for’ [Rochon’s]
protected activity.” Rochon is not required, however, in order
to state a claim of retaliation, to allege facts sufficient to negate
the FBI’s alternative explanations for its actions -- whatever
they may turn out to be. See Sparrow v. United Air Lines, Inc.,
216 F.3d 1111, 1114 (D.C. Cir. 2000). On the contrary, in order
to survive a motion to dismiss, “all [the] complaint has to say,”
id. at 1115, is “the Government retaliated against me because I
engaged in protected activity.” Rochon’s complaint meets this
liberal pleading standard.
Rochon unquestionably engaged in statutorily protected
activity when he filed Title VII complaints against the FBI. And
we have long held a “causal connection ... may be established by
showing that the employer had knowledge of the employee's
protected activity, and that the adverse ... action took place
shortly after that activity.” Mitchell v. Baldrige, 759 F.2d 80, 86
(1985). Here, Rochon claims the FBI refused to investigate
threats against him around the time he and the Bureau settled his
16
Title VII suit concerning the statements in Kessler’s book. The
district court erred, therefore, in concluding that Rochon failed
“to [allege sufficient] facts to support a reasonable inference that
the FBI acted with retaliatory or discriminatory motives.”
III. Conclusion
We hold Title VII makes unlawful any act of retaliation by
an employer that well might dissuade a reasonable employee
from making or supporting a charge of discrimination pursuant
to Title VII. The district court therefore erred in dismissing
Rochon’s statutory claim. Furthermore, it is unclear whether the
district court could exercise jurisdiction directly over Rochon’s
claim based upon the agreement into which he and the FBI had
entered to settle his prior lawsuit. The case is accordingly
remanded to the district court for further proceedings consistent
with this opinion.
So ordered.