Dixon v. Ashcroft

• Citation: 392 F.3d 212
• Decision Date: 16 December 2004
• Docket Number: No. 03-1542.,03-1542.
• Parties: 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.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

392 F.3d 212

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.

No. 03-1542.

United States Court of Appeals, Sixth Circuit.

Argued and Submitted: August 12, 2004.

Decided and Filed: December 16, 2004.

ARGUED: Sheila H. Gaskell, United States Attorney, Detroit, Michigan, for Appellees. ON BRIEF: Benjamin Whitfield, Jr., Benjamin Whitfield, Jr. & Associates, Detroit, Michigan, for Appellant.

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

OPINION

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 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.

I. FACTUAL AND PROCEDURAL BACKGROUND

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 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 from Anthony, although Nelson added that, when it happened, he reported Dixon's conduct to then-ASAC Reutter. Apparently, a formal report of the incident was never made, as evidenced by the fact that Dixon's personnel file with the Agency contained no derogatory information. In Nelson's opinion, the FBI would make a "grave mistake" by rehiring Plaintiff-Appellant because Nelson believed Dixon lacked integrity and fidelity, and could not be trusted.

ASAC Reutter responded to the background inquiry while he was serving as the Special Agent in Charge ("SAC") of the FBI's Philadelphia Division. Reutter recalled that two agents had accused Dixon of changing an applicant's score, and he recalled that Dixon had admitted doing so. Based upon this incident and Reutter's recollection that Plaintiff-Appellant had poor work habits, poor work ethic, and little enthusiasm for his job during his early years with the FBI — Reutter described Dixon's efforts as mediocre at best — Reutter recommended against reinstating Plaintiff-Appellant.

Another of Dixon's former supervisors, SA David Ries ("Ries"), supervised him in 1987 and 1988, and Ries' opinion was that Plaintiff-Appellant demonstrated a lack of commitment, although Ries believed Dixon was capable of performing his duties. Ries also questioned Dixon's dedication and would make no recommendation concerning reinstatement. Kuhl, a former supervisor and one of the referrals provided by Dixon, described Plaintiff-Appellant as competent and articulate and commented favorably on his character, abilities, reputation and loyalty. He recommended Dixon for reinstatement, although he commented that he would have liked to interview Plaintiff-Appellant to discern Dixon's motivations for seeking reinstatement. Finally, Thornton, the last of Dixon's referrals and one of his former co-workers, recommended reinstating him. Thornton opined that Dixon was an effective investigator, "who conducted his business in an appropriate manner."

Based on the results of the background investigation, ASD Personnel Analyst Wendy Strickland ("Strickland") prepared a report, in which she recommended that, "DIXON'S request for reinstatement ... be denied based on the results of his updated background investigation, specifically the comments of former supervisors and co-workers." Her report was forwarded to ASD Supervisory SA Peter Gulotta ("Gulotta"), who had initial decision-making authority. Gulotta reviewed Strickland's report, including the investigation results, Dixon's personnel file and reinstatement application, and, based on his review, accepted Strickland's recommendation. Gulotta did not speak directly with either Anthony or Nelson prior to making his decision, but he did consider the reports made from their interviews. Gulotta then forwarded his recommendation on to ASD Section Chief Faustino Pino ("Pino"), who concurred in the recommendation. Finally, ASD Assistant Director Weldon Kennedy made the final determination to deny Plaintiff-Appellant reinstatement.

On April 14, 1992, Deputy Assistant Director, Personnel Officer in the ASD, Steven Pomerantz, wrote to Plaintiff-Appellant informing him that, "we are unable to reinstate you at this time and it does not appear likely that we will be able to do so in the future." Dixon claims, however, that he never received this letter and alleges that he did not learn of the Bureau's decision until a 1994 telephone conversation with Gulotta. Thereafter, Plaintiff-Appellant requested his personnel file under the Freedom of Information Act and received it in May of 1997. Upon review of the file, Dixon contacted an Equal Employment Opportunity (EEO) counselor at the FBI's Detroit Division.

Plaintiff-Appellant contends that Reutter gave him a negative recommendation because of Reutter's "bias against African Americans and in retaliation for his (Reutter's) removal as supervisor over the Applicant Program." According to Dixon, while working under Reutter in the early 1980s, Reutter treated him and his African-American co-worker differently than non-African-Americans, about which Dixon complained to one of Reutter's superiors. As a consequence, Plaintiff-Appellant claims that Reutter was removed as supervisor of the Applicant Program. Dixon alleges that the negative comments Reutter made in his background investigation were retaliatory and for the purpose of thwarting his efforts at reinstatement.

B. Procedural History

Dixon first contacted an EEO counselor within the FBI in July 1997. After receiving a Notice of Right to File a Discrimination Complaint, Plaintiff-Appellant, without the assistance of counsel, filed a...