Retaliation Includes Activities not Employment Related

In reversing a lower court’s dismissal of the claim, the appellate court agreed with several other circuits’ opinions that, in order to qualify as retaliation, an employer’s act would have “dissuaded a reasonable worker from making or supporting a charge of discrimination.”   In the present case the court determined that “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.”

In its opinion, the appellate court also rejected the FBI’s argument that the plaintiff failed to state a claim because there was no evidence that the FBI’s adverse action would not have occurred except for his protected activity under Title VII of the Civil Rights Act of 1964.   The court said the employee was not required to show facts to negate the FBI’s alternative explanations for its actions.

According to the court document, Donald Rochon began working for the FBI in 1981 as a Special Agent.   In 1984 Rochon filed a formal complaint with the Equal Employment Opportunity Commission (EEOC) that he was the target of a campaign of racial harassment.   In 1987 the Department of Justice agreed with Rochon that he had been discriminated against and then retaliated against for his complaint.   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 afterward, though, in a book about the FBI, the author attributed to several agents certain statements indicating Rochon’s performance was substandard.   Rochon again sued, and he and the FBI entered into another settlement agreement in 1994.

In the current case, Rochon alleged that the FBI received evidence of death threats directed at him and his wife by an inmate in a federal prison.   Rochon said the FBI, against their policy, neither investigated the threats nor offered protection to his wife and him.   In 1993, Rochon again sued saying the FBI’s actions were discriminatory and retaliatory in violation of both Title VII and the 1990 settlement agreement.

The district court dismissed the case 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 appellate court reversed the district court’s opinion and remanded the case for further proceedings saying,    “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.”

The opinion in Rochon v. Gonzales is  here .