The D.C. Circuit Court of Appeals in a decision written by Chief Judge Ginsburg has now joined several other circuits in holding that a federal employee’s claim of discrimination based on retaliation under Title VII does not have to demonstrate that the agency’s retaliatory act came in the form of a personnel action. (Rochon v. Gonzales, U.S.C.A.D.C. No. 04-5278, 2/28/06 (appeal from the U.S.D.C.D.C. No. 03CV00958))
In this case the alleged retaliation came in the form of the FBI failing to investigate death threats made against an agent and his wife by an inmate in a federal prison, contrary to its normal policy and practice to investigate such threats. (Opinion p. 3)
This particular FBI agent, Mr. Rochon, had been successful in an administrative complaint of race discrimination brought against the Omaha office of the FBI. In 1987 the Department of Justice concluded that the Bureau had discriminated against Mr. Rochon and then retaliated against him for complaining about the discrimination. He sued and the parties signed a settlement agreement, part of which was a pledge by the Bureau not to retaliate against him in the future. However, in 1994, he brought a second Title VII suit claiming retaliation by the Bureau, and this one too was settled with payment of damages and other commitments.
When he found out that the Bureau did not investigate the death threats after indicating to him that it would do so, Mr. Rochon alleged this inaction was discriminatory retaliation in violation of the settlement agreements and Title VII.
The lower court granted the government’s motion to dismiss the complaint. The appeals court has now overturned that decision and remanded the case: “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.” (Opinion, p. 16)
Indicating that it was not “indifferent to” the government’s argument that this broad reading of retaliation would open the door to a flood of litigation, the court responded: “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.’” (Opinion, p. 14)