392 F.3d 212 (6th Cir. 2004), 03-1542, Dixon v. Ashcroft

Docket Nº:03-1542.
Citation:392 F.3d 212
Party Name:James DIXON, Jr., Plaintiff-Appellant, v. John ASHCROFT, in his capacity as Attorney General of the United States of America; Robert S. Mueller, Director of the Federal Bureau of Investigation, Defendants-Appellees.
Case Date:December 16, 2004
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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392 F.3d 212 (6th Cir. 2004)

James DIXON, Jr., Plaintiff-Appellant,


John ASHCROFT, in his capacity as Attorney General of the United States of America; Robert S. Mueller, Director of the Federal Bureau of Investigation, Defendants-Appellees.

No. 03-1542.

United States Court of Appeals, Sixth Circuit

December 16, 2004

Argued and Submitted: Aug. 12, 2004

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Sheila H. Gaskell, United States Attorney, Detroit, Michigan, for Appellees.


Benjamin Whitfield, Jr., Benjamin Whitfield, Jr. & Associates, Detroit, Michigan, for Appellant.

Before: MOORE and COLE, Circuit Judges; MARBLEY, District Judge. [*]


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 objecting and Dixon's Memorandum in Support of the decision, the ALJ reversed her decision and found

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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.


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,

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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...

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