377 F.3d 879 (8th Cir. 2004), 03-2927, Tolen v. Ashcroft

Docket Nº:03-2927
Citation:377 F.3d 879
Party Name:Tolen v. Ashcroft
Case Date:July 28, 2004
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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377 F.3d 879 (8th Cir. 2004)

Eric T. TOLEN, Plaintiff--Appellant,

v.

John ASHCROFT, Attorney General for the Department of Justice, Defendant--Appellee.

No. 03-2927.

United States Court of Appeals, Eighth Circuit.

July 28, 2004

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Eric T. Tolen, argued, pro se, Clayton, MO, for appellant.

Thomas M. Larson, argued, Asst. U.S. Attorney, Kansas City, MO, for appellee.

Before MORRIS SHEPPARD ARNOLD, MCMILLIAN, and MELLOY, Circuit Judges.

MELLOY, Circuit Judge.

Eric Tolen ("Tolen") was employed by the Department of Justice as an Assistant United States Attorney from 1987 until his termination in 1999. His termination followed allegations of, inter alia: perjury in connection with his brother's bank robbery trial, the unauthorized outside practice of law, making false statements to investigating officers, using government time, clerical assistance, and space for personal reasons, and misusing his position as an Assistant United States Attorney for personal gain. Pursuant to Department of Justice policy, Tolen was placed on administrative leave while the Executive Office for United States Attorneys ("EOUSA") completed an investigation into the allegations and ultimately recommended Tolen's dismissal.

After being terminated, Tolen brought numerous claims of racial discrimination and retaliation against various defendants, including Attorney General Ashcroft, FBI Special Agent Gary Fuhr, and former Department of Justice attorney Joseph Gontram, under Title VII and Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The defendants moved to dismiss Counts IV through IX of Tolen's First Amended Complaint, and Tolen conceded that some of the counts were precluded by remedies under the Civil Service Reform Act. The district court1 granted the Motion to Dismiss. Consequently, Counts I, II, and III, which alleged race discrimination and retaliation against Attorney General Ashcroft (Counts

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I and II) and Special Agent Fuhr (Count III), remained. The district court then granted Tolen leave to amend his complaint. In a four-count Second Amended Complaint, Tolen solely named Attorney General Ashcroft as a defendant and sought to hold him liable for race discrimination and retaliation under Title VII.

Attorney General Ashcroft subsequently moved for summary judgment, arguing that Tolen failed to present a prima facie case of discrimination or retaliation. The district court agreed and entered summary judgment in Ashcroft's favor. Tolen appeals.2 Having reviewed de novo the record and carefully considered the parties' briefs, see Forrest v. Kraft Foods, Inc., 285 F.3d...

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