UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

DONALD ROCHON, )

)

Plaintiffs )

)

v. ) Civil Action No. 13-cv-00131 (KBJ)

)

LORETTA LYNCH, in her official 

capacity as Attorney General of the 

United States,

)

)

)

Defendant. )

)

MEMORANDUM OPINION

Plaintiff Donald Rochon, a retired special agent of the Federal Bureau of 

Investigation (“FBI”), recently spent the better part of three years trying to secure from 

his former employer a certain identification card that would permit him to carry a 

concealed weapon when he travels. First, Rochon contacted the FBI to get information 

about applying for the card and submitted an application to the agency, but the FBI

denied his request (according to Defendant, Rochon’s application was rejected after an 

old criminal charge surfaced during the prerequisite name check). Then, Rochon filed 

the instant lawsuit against the United States Attorney General, alleging that the FBI had 

actually refused to give him this post-employment benefit in retaliation for his 

previously having engaged in protected activity in violation of Title VII, and seeking a 

court order requiring the FBI to provide him with the card. (See Compl., ECF No. 1, at 
2

22.)1 Rochon also undertook to have his record expunged, after which he re-filed his

application for a card and, at long last, the FBI issued one to him. But Rochon persists

nevertheless in pursuing his legal claims; he maintains that, as a result of the FBI’s 

alleged undue delay in getting the card to him and its improper suggestion of past 

criminality, he is now entitled to $300,000 in compensatory damages and a court order 

that, among other things, generally enjoins the FBI “from discriminating and/or 

retaliating against [him] in the future.” (Am. Compl. (“Compl.”), ECF No. 20, at 16.)

Before this Court at present is Defendant’s motion to dismiss the complaint, or in 

the alternative, for summary judgment. (Ren[e]wed Mot. to Dismiss or[] in the 

Alternative for Summ. J. (“Def.’s Mot.”), ECF No. 21, 1–2; Mem. of Law in Supp. of 

Def.’s Mot. (“Def.’s Mem.”), ECF No. 21, 9–27.) This Court referred Defendant’s 

motion, along with the entire case, to a magistrate judge for full case management on 

September 2, 2014 (see ECF No. 34), and the magistrate judge permitted Plaintiff to take 

limited discovery. Then, on May 14, 2015, that judge issued a Report and 

Recommendation that recommended Defendant’s motion be denied. (See Report & 

Recommendation, ECF No. 43.) 

On September 30, 2015, this Court issued an Order that declined to accept the 

recommendation of the magistrate judge. (See ECF No. 49.) This Memorandum 

Opinion explains the reasons for that order. In sum, after a thorough review of the 

Report and Recommendation, the parties’ briefs, the record, and established case law, 

this Court finds that Plaintiff has failed to provide any evidence from which a jury could 

reasonably infer that he was temporarily denied the requested card because of his 

 

1 Page-number citations to the documents the parties have filed refer to the page numbers that the 

Court’s electronic filing system automatically assigns.
3

lengthy history of employment-related litigation against the FBI, and thus, the Court 

concludes that no reasonable jury could find in Plaintiff’s favor on the retaliation claim. 

Accordingly, and as explained fully below, this Court has treated Defendant’s motion as 

one for summary judgment, and so construed, the motion has been GRANTED. 

I. BACKGROUND

The FBI hired Rochon as an agent in 1981. (See Compl. ¶ 6.) To put it mildly, 

the primary distinguishing feature of Rochon’s employment relationship with the 

agency over the past 30-plus years has been the series of discrimination and retaliation 

claims that Rochon has made and the litigation that has resulted. (See, e.g., id. at ¶¶ 6–

14). Rochon’s numerous lawsuits—many, if not all, of which concluded in 

settlement—are well-documented in prior opinions, see, e.g., Rochon v. Gonzales, 438 

F.3d 1211 (D.C. Cir. 2006), and this Court need not recount that history here. It 

suffices to note that the first settlement was finalized in 1990, and it entitled Roc hon to 

“front pay” as if he was continuing his work as an FBI Special Agent through May of 

2007, which is the time when he would have reached the FBI’s mandatory retirement 

age. (See Pl.’s Mem. in Opp’n to Def.’s Mot. (“Pl.’s Opp’n”), ECF No. 27, at 5.) Other 

settlements resolved allegations of retaliation stemming from later contacts with the 

FBI, and most importantly for present purposes, the parties finalized the most recent 

settlement agreement on January 5, 2010. (See Compl. at ¶ 14.) 

Rochon alleges that, after this last settlement agreement was executed, he wished 

to take advantage of a federal law that exempts certain retired law enforcement officers 

from state laws that prohibit the carrying of concealed weapons across state lines. See

18 U.S.C. § 926C. (See also Ex. 3 to Def.’s Mot., ECF No. 21-1, 7–13, at 8.) To 
4

access that benefit, retired officers must request a specific identification card from their 

former agency or employer—which is known as an “HR-218 card”—and the FBI itself 

has issued a policy document that addresses the circumstances under which HR-218 

cards “may be issued[.]” (Ex. C to Def.’s Mot., ECF No. 21-3, 15–22, at 16–17.) The 

document states that, to be issued an HR-218 card, retired FBI agents must satisfy a list 

of criteria, including the requirement that “no issues are revealed in an NCIC III check 

for Agents who retired prior to the implementation date.” (Id. at 17; see also id. at 16 

(explaining that the agency created the document to provide “status of ava ilability of

. . . identification (ID) cards for retired/retiring Special Agents”).) 2 

An NCIC III check (which is referred to in the parties’ briefs and this Opinion as 

a “name check”) is part of the background review that is a standard component of the 

FBI’s process for considering an HR-218 card application. (See id. at 18; Pl.’s 

Statement of Genuine Issues, ECF No. 27-29, at 4.) A division of the FBI that is known 

as the Criminal Justice Information Services (“CJIS”) performs the NCIC III check (see 

Decl. of Joseph McQueen (“McQueen Decl.”), ECF No. 21-4, at ¶¶ 7–10 (identifying 

CJIS as a division of the FBI and describing its role)), and when such a name check is 

requested, CJIS runs the applicant’s name through its database to determine whether 

that person has been charged with, or convicted of, a criminal offense. (McQueen Decl. 

at ¶ 8).3If the check reveals a criminal charge, a verification is “conducted to ensure 

 

2 The record indicates that the “implementation date” referenced in the FBI policy document was April 

15, 2005. (See Ex. B to Def.’s Mot., ECF No. 21-3, 5–14, at 6–7.) 

3 Rochon states several times that McQueen’s declaration is “hearsay” and thus cannot be considered at 

summary judgment under Federal Rule of Civil Procedure 56(c)(2). ( See, e.g., Pl.’s Statement of 

Genuine Issues at 3.) But he provides no elaboration either for this characterization of the testimony or 

the proposition that the Court cannot rely upon McQueen’s uncontested representations when 

evaluating the summary-judgment motion, and “perfunctory and undeveloped arguments, and arguments 

that are unsupported by pertinent authority, are deemed waived.” Johnson v. Panetta, 953 F. Supp. 2d 
5

that the charge was actually associated with the HR-218 applicant[.]” (Id.) And, upon 

verification, CJIS generates “a communication stating that the applicant . . . [i]s not 

approved to proceed.” (Id.; see also Ex. 6 to Def.’s Mot., ECF 21-1, 19–24, at 20 (the 

non-approval notification in this case).) This communication from CJIS is in writing; 

with respect to an application for an HR-218 card, the CJIS “recommendation for the 

disposition of the request[]” is attached to the candidate’s records and “forwarded” to 

the FBI’s Human Resources Division. (Sworn Statement of Anthony Bladen (“Bladen 

Statement”), Ex. 9 to Def.’s Mot., ECF No. 21-1, 29–35, at 32; see, e.g., Ex. 6 to Def.’s 

Mot. at 20.)

The Assistant Director of the FBI’s Human Resources Division makes the final 

determination regarding whether or not to issue an HR-218 card. (See Bladen 

Statement at 32.) According to Anthony Bladen, who was the Assistant Director of the 

Human Resources Division at all relevant times, he invariably denied applications for 

an HR-218 card if CJIS generated a negative name check report. (See id. (“Every time I 

have received a recommendation from CJIS to discontinue a candidate’s identification 

card processing, I have acted in the same manner and have denied the candidate an 

identification card.”); id. at 33 (explaining this protocol works to ensure applications 

are evaluated “in a standardized manner”).)

Defendants maintain that such was the case here. Rochon submitted an 

application for an HR-218 card on or about April 19, 2010.4 There is no genuine 

 

244, 250 (D.D.C. 2013). In any event, Rochon does not contest Defendant’s description of the nuts and 

bolts of the CJIS name check process. 

4 Rochon’s actual application is not in the record, and its date is not material to any issue of 

consequence, but it is clear that he applied for the HR-218 card no later than April 19, 2010, since the 

name check request was generated on that date. (See Ex. 5 to Def.’s Mot, ECF No. 21-1, 16–18, at 17.) 

Moreover, although Rochon asserts that he “applied” on March 20, when he wrote to the FBI’s Human 
6

dispute that the CJIS name check revealed two domestic-violence charges arising from 

a single incident that purportedly took place in 1997—charges that had been brought 

against Rochon in 1998 in Utah’s Kane County. (See Ex. 6 to Def.’s Mot. at 20, 23.)5 

Given this result, and purportedly in accordance with standard procedure, CJIS 

generated a report stating that Rochon was “not approved to proceed with the 

Identification Card Process[,]” and sent that report to the Human Resources Division. 

(Id. at 20.) 6 In a letter dated June 30, 2010, Bladen informed Rochon that his request 

for an ID card had been denied “based on a criminal name check by [CJIS][,]” which , 

according to Bladen, demonstrated that Rochon “d[id] not meet the established 

requirements necessary to receive an [HR-218] card.” (Ex. 7 to Def.’s Mot., ECF 21-1, 

25–26, at 26.)7 

 

Resources division to inquire about “the protocol for obtaining an FBI retir ement credential” (Ex. 13 to 

Def.’s Mot., ECF 21-1, 49–50, at 50), the Court finds it plain that the March 20 letter was not an 

application but an inquiry about the process attendant to application. 

5 This Court will describe these charges as “the 1998 charges” because, although they relate to an arrest 

that occurred on December 25, 1997 (see Ex. 6 at 23), the record contains a letter from the state county 

attorney informing Rochon’s attorney that his client was being charged, and that letter is dated Mar ch 

5, 1998 (see Ex. 11 to Def’s Mot., ECF 21-1, at 39). 

6

In light of the “implementation date” for the NCIC III name check policy (see supra n. 2), and the 

parties’ dispute over the specific date on which Rochon “retired” ( compare Pl.’s Statement of Genuine 

Issues at 1–2 (asserting, and pointing to documents reflecting, that Rochon’s “employment history” 

terminated on May 31, 2007), with Def.’s Mem. at 10 (asserting and pointing to document purportedly 

reflecting that Rochon “stopped working at the FBI on May 31, 1991”)), there is at least a colorable 

question about the propriety of the agency’s determination to run a name check with respect to 

Rochon’s application. But as it turns out, the parties’ date-of-retirement fight is not material under the 

circumstances presented here because, even if Rochon retired after April 15, 2005, and even if that 

meant he should not have been subjected to a CJIS NCIC III check in the first place, it is undisputed 

that such a check was actually performed in his case, and Rochon has not claimed that this 

employment-related action was a discriminatory or retaliatory act in and of itself, nor could the record 

evidence support any such finding. Indeed, quite to the contrary, Rochon concedes that the FBI “uses a 

standard process to review all [HR-218] applications” (Pl.’s Statement of Genuine Issues at 4), and that 

the NCIC III name check is a part of the agency’s standard process of reviewing these applications 

(id.).

7 Defendants maintain that Bladen himself sent the rejection letter to Rochon to explain why his 

application had been denied (see Def.’s Mem. at 13), but Rochon claims to have evidence that the 

signature on the letter was forged. (See Ex. 26 to Pl’s. Opp’n, ECF 27-26, at 1 (report from 
7

Rochon subsequently challenged this denial determination in multiple letters to 

Bladen, asserting that there had been a mistake and that any 1998 charges had been 

dismissed. (See Ex. 14 to Def.’s Mot., ECF No. 21-1, 51–60, at 52; Ex. 10 to Def.’s 

Mot., ECF No. 21-1, 36–37, at 37.) In response, Bladen stated that, “[i]n accordance 

with Bureau policy,” his decision to deny the card was only appealable “to the extent 

that the . . . decision [was] based upon a record error or a record that does not actually 

belong to the individual requesting the HR-218 Card[]” (Ex. 8 to Def.’s Mot., ECF No. 

21-1, 27–28, at 28), and that, in Bladen’s estimation, Rochon’s letters had not 

demonstrated either of these flaws (see id.). Rochon then pursued an entirely different 

avenue to address the rejection of his HR-218 card application: on November 22, 2010, 

he initiated proceedings with the Kane County court to have the charges expunged. ( See 

Ex. 12 to Def.’s Mot., ECF 21-1, 40–48, at 48.) A Kane County official agreed to the 

expungement on December 7, 2010 (see id. at 47), and a state judge signed the petition 

expunging the charges on January 28, 2011 (see id. at 43, 45). 

Rochon filed a complaint against the FBI in this Court on January 31, 2013, 

alleging that the FBI had retaliated against him for his history of protected activity by 

denying him the HR-218 card. In late 2013—while the instant lawsuit was pending—

Rochon reapplied for the card, and the FBI granted his request. (See Compl. ¶ 42.) 

Rochon then amended his complaint to request compensatory and injunctive relief 

notwithstanding the fact that Defendant had issued him the requested card; he alleged

 

handwriting expert opining that Bladen’s signature is “not genuine” (emphasis in original)).) Although 

Rochon apparently believes this is a smoking gun, this Court is at a loss to see how the proffered 

handwriting analysis has any bearing whatsoever on the ultimate issue in this case, which is whether 

the ID card in question was temporarily denied in retaliation for Rochon’s protected activity. As 

explained below, Rochon bears the burden of proof on that question, and whether or not it was Bladen 

or someone else within the FBI who generated the initial denial letter does nothing to help Rochon 

surmount that hurdle. 
8

that, regardless, the FBI’s prior denial was a retaliatory act that had exposed him to 

harm because it had needlessly delayed the requested permission to carry a concealed 

weapon across state lines for a three-year period, which had caused him to fear that he 

would be unable to protect his family and had also injured him mentally and 

emotionally in various ways. (See Compl. ¶¶ 28, 44–45.) Defendant filed a motion to 

dismiss, or in the alternative, a motion for summary judgment on March 31, 2014. As 

mentioned above, after this Court referred the entire case for full case management to a 

magistrate judge, a period of discovery commenced (see Minute Entry for Proceedings 

dated October 31, 2014), and, ultimately, the magistrate judge recommended that 

Defendant’s motion be denied (see Report & Recommendation, ECF 43). 

Defendant timely filed with this Court an objection to the Report and 

Recommendation on June 15, 2015 (see Def.’s Objections to Report & 

Recommendation, ECF 46), to which Rochon responded (see Pl.’s Resp. to Def.’s 

Objections, ECF 48). In addition to the magistrate judge’s Report and 

Recommendation, all of the parties’ filings related to Defendant’s motion are now 

before this Court, and the Court has reviewed the matter de novo. Means v. District of 

Columbia, 999 F. Supp. 2d 128, 132 (D.D.C. 2013). 

II. LEGAL STANDARDS

Defendant has moved for dismissal of Rochon’s one-count retaliation complaint 

because, in Defendant’s view, the complaint fails to state a claim upon which relief can 

be granted, or in the alternative, because the record evidence is such that Defendant is 

entitled to summary judgment. (See Def.’s Mem. at 9–10.) Where, as here, a defendant 

maintains that the case should be terminated either for defective pleadings or because 
9

there is no genuine issue of material fact to be presented to a jury, the court may review 

the parties’ arguments with respect to both of those grounds to determine the extent to 

which the motion can be sustained. See, e.g., Smith v. United States, No. 12-cv-1679, 

2015 WL 4880891, at *3–4 (D.D.C. Aug. 14, 2015) (evaluating certain arguments under 

Federal Rule of Civil Procedure 12(b)(6) and others under Federal Rule of Civil 

Procedure 56 where defendants filed motion seeking either dismissal for failure to state 

a claim or summary judgment). However, because such a motion presents these alleged 

defects as alternative bases for terminating the action, the court may also opt to 

evaluate one basis for termination of the action and not the other. See, e.g., Jones v. 

Nat’l Council on Disability, 66 F. Supp. 3d 94, 104 n.8 (D.D.C. 2014) (“Because the 

Court has decided the issues pursuant to the standards set forth in Rules 12(b)(1) and 

(6), it does not address Defendants’ alternative argument that they are entitled to 

summary judgment.”); VioPharma, Inc. v. Hamburg, 916 F. Supp. 2d 76, 77, 83 (D.D.C. 

2013) (granting summary judgment to defendants who had filed a motion to dismiss, or, 

in the alternative, for summary judgment, without analyzing the motion under Rule 12); 

cf. PDK Labs., Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., 

concurring) (stating where there “is a sufficient ground for deciding th[e] case,” the 

“cardinal principle of judicial restraint—if it is not necessary to decide more, it is 

necessary not to decide more—counsels us to go no further”).

Here, as explained below, this Court has assumed (without deciding) that Rochon 

engaged in protected activity and that the FBI’s temporary denial of an ID card 

qualifies as an adverse action under Title VII, and thus, that his complaint states a claim 

for the purpose of Defendant’s motion to dismiss. (See infra Part III.) However, this 
10

Court concludes nevertheless that Defendant is entitled to summary judgment on 

Rochon’s retaliation claim because, based on the Court’s examination of the record 

evidence that the parties have submitted in conjunction with Defendant’s request for 

summary judgment, no reasonable jury could find that Rochon was denied the ID card 

because of his prior protected activity. Thus, what follows is a brief recitation of the 

legal standards applicable to motions for summary judgment. 8

Summary judgment will be granted under Federal Rule of Civil Procedure 56 if 

“the movant shows that there is no genuine dispute as to any material fact and the 

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Material 

facts are those “capable of affecting the substantive outcome of the litigation[,]” Blue v. 

Perciasepe, 970 F. Supp. 2d 34, 41 (D.D.C. 2013), and a dispute is genuine if the 

evidence is such that a reasonable jury could return a verdict for the nonmoving party, 

 

8 To the extent that the Report and Recommendation suggests that there are two motions at issue in this 

case that require distinct determinations (see, e.g., Report and Recommendation at 14–15), and/or that 

the court “has no alternative” other than to treat a dispositive motion that is presented along with 

evidence as a motion for summary judgment (see id.), the Court here notes its disagreement with that 

procedural analysis. Federal Rule of Civil Procedure 12(d) states that a dispositive motion must be 

treated as one for summary judgment if “matters outside the pleadings are presented to and not 

excluded by the court[.]” Fed. R. Civ. P. 12(d) (emphasis added). Courts and commentators have 

consistently interpreted this rule to require summary judgment treatment of a Rule 12 motion only if the 

court actually relies on matters outside the pleadings in ruling on the motion, and this is so even when 

the defendant requests such reliance “in the alternative” to dismissing the case under Rule 12. See, 

e.g., Robinson v. District of Columbia, 736 F. Supp. 2d 254, 263 (D.D.C. 2010) (“Whether to consider 

matters outside the pleadings in connection with a motion to dismiss is a matter wholly within the 

discretion of the Court.”); Dial a Car, Inc. v. Transp., Inc., No. 93-cv-2170, 1994 WL 902774, at *1 

(D.D.C. Sept. 8, 1994) (noting courts have discretion to reject extra -pleading material submitted in 

connection with a motion to dismiss and resolve the motion solely on the basis of the complaint under 

Rule 12); 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1366 (3d ed. 

2004) (“[F]ederal courts have complete discretion to determine whether or not to accept the submission 

of any material beyond the pleadings that is offered in conjunction with a Rule 12(b)(6) motion and 

rely on it, thereby converting the motion, or to reject it or simply not consider it.”). Here, Defendant 

has requested dismissal for failure to state a claim or summary judgment (not both), and both parties 

have relied on matters outside the pleadings as an alternative to resting on their arguments related to 

the sufficiency of Plaintiff’s complaint. Thus, although it is by no means obligated to do so, this Court 

has accepted Defendant’s invitation to treat the motion as one for summary judgment.
11

id. Accordingly, the court draws “all reasonable inferences in favor of the nonmoving 

party,” and will not “make credibility determinations or weigh the evidence.” Reeves v. 

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). However, the nonmovant

must rely on evidence—i.e., its opposition “must consist of more than mere unsupported 

allegations or denials and must be supported by affidavits, declarations, or other 

competent evidence, setting forth specific facts showing that there is a genuine issue for 

trial.” Blue, 970 F. Supp. 2d at 42; cf. Potter v. District of Columbia, 558 F.3d 542, 549 

(D.C. Cir. 2009) (directing that the court should give “credence to uncontradicted and 

unimpeached evidence supporting the moving party”). Moreover, because the 

nonmovant’s evidence must allow a reasonable jury to find in its favor, “merely 

colorable” or “not significantly probative” evidence will not preclude summary 

judgment. Potter, 558 F.3d at 549. In other words, a plaintiff who offers only “a 

scintilla of evidence” in support of its position will not survive summary judgment. 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

III. DISCUSSION

Title VII prohibits retaliation against an employee “because [the employee] has 

opposed any practice made an unlawful practice by [Title VII], or because he has made 

a charge, testified, assisted, or participated in any manner in an investigation, 

proceeding, or hearing under [Title VII].” 42 U.S.C. § 2000e-3(a). Based on the text of 

the statute, courts have identified three requirements for a plaintiff who seeks to prove 

that he has been subjected to unlawful retaliation: such an employee must show that (1) 

he engaged in an activity that Title VII protects; (2) his employer took a materially 

adverse action against him; and (3) the employer took the action because of the 
12

protected activity. See McGrath v. Clinton, 666 F.3d 1377, 1380 (D.C. Cir. 2012); 

Jones v. Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009); see also McGrath, 666 F.3d at 

1380 n.3 (explaining these are “the elements that a plaintiff must ultimately prove in 

order to win his case”). Notably, although each of these elements is required, the 

ultimate question of liability for retaliation often hinges on causation, since Title VII 

does not permit past protected activity to be used as a permanent shield against any and 

all unpleasant employment outcomes. Cf. Univ. of Tex. Sw. Med. v. Nassar, 133 S. Ct. 

2517, 2532 (2013) (emphasizing that the “structure and operation of Title VII” indicates 

that Congress did not intend to foist the costs associated with trial “on an employer 

whose actions were not in fact the result of any discriminatory or retaliatory intent”).

Here, Rochon’s complaint is somewhat vague about what he considers his 

protected activity to have been—i.e., rather than pinpointing a particular past act, he 

recounts the litany of allegedly discriminatory and retaliatory acts the FBI has 

purportedly taken against him over the past thirty years and the “series of cases” he 

brought against the agency as a result (Compl. ¶ 7)—and it is not at all clear that his 

lawsuits of yesteryear are sufficient support for the retaliation claim he brings today. 

See Carlson v. CSX Transp., Inc., 758 F.3d 819, 828 (7th Cir. 2014) (“If the best a 

plaintiff can do is allege that he engaged in protected activity and then, years later, the 

employer took an adverse action against him, the claim may not be permitted to 

proceed.”). What is more, Defendant argues that “the temporary denial of the HR-218

card [does not] constitute[] a materially adverse action because the denial would not 

have dissuaded a reasonable worker from making or supporting a charge of 

discrimination[,]” and thus, Defendant suggests that, even if taken as true, the 
13

allegations of Rochon’s complaint fail to establish the second retaliation-claim element

as a matter of law. (Def.’s Mem. at 19.) But this Court finds that it need not decide 

whether the complaint’s assertions of protected activity and adverse action would be 

sufficient to establish retaliation on their face, because, regardless, Rochon has failed to 

point to sufficient evidence from which one could infer causation (the third element of a 

retaliation claim). In other words, even assuming arguendo that the allegations in 

Rochon’s complaint would be sufficient to withstand a Rule 12(b) motion, this Court 

concludes that, based on its review of the record evidence, no reasonable jury could 

find that Rochon was denied an HR-218 card because of his protected activity, and thus, 

that summary judgment in favor of Defendant is warranted. 

To understand the basis for this Court’s conclusion—and also why it cannot 

accept the legal analysis in the Report and Recommendation—one must first keep 

firmly in mind the well-established evidentiary burdens that a plaintiff must bear when 

he or she claims retaliation or discrimination in violation of Title VII. 

A. The McDonnell Douglas Framework And The Plaintiff’s Burden Of 

Proof In Title VII Cases 

It has long been recognized that proving the aforementioned elements of a Title 

VII retaliation claim can be quite difficult for an employee when, as is often the case,

the employee lacks direct evidence of retaliation (or discrimination). See, e.g., Trans 

World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985). Of course, it is also clear 

beyond cavil that relying on circumstantial evidence is another permissible method of 

establishing one’s case, and the Supreme Court has adopted guidelines to aid judicial 

analysis of the strength of a Title VII case that is based on circumstantial evidence.

These guidelines grew out of the seminal Supreme Court case of McDonnell Douglas 
14

Corp. v. Green, 411 U.S. 792 (1973). See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 

511 (2002) (noting that McDonnell Douglas established an “evidentiary standard” 

governing “the employee’s burden of presenting evidence of presenting evidence that 

raises an inference of discrimination” by “allocat[ing] . . . burdens and order of 

presentation of proof”); Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007) 

(explaining that the McDonnell Douglas burden-shifting framework applies where “the 

plaintiff’s claim of discrimination is principally supported by circumstantial evidence”). 

Generally speaking, in retaliation cases, the McDonnell Douglas burden-shifting 

framework requires that the plaintiff must, first, point to evidence of a “prima facie 

case”—i.e., “(1) that he engaged in statutorily protected activity; (2) that he suffered a 

materially adverse action by his employer; and (3) that a causal link connects the two.” 

Jones, 557 F.3d at 677. If a plaintiff identifies such evidence, the burden of 

production—but not persuasion—shifts to the defendant to provide “a legitimate, 

nondiscriminatory reason[]” for its actions. Reeves, 530 U.S. at 142 (explaining the 

defendant’s burden here “can involve no credibility assessment”). Then, if the 

defendant provides a nondiscriminatory or nonretaliatory reason for the challenged 

employment action, “the McDonnell Douglas framework—with its presumptions and 

burdens—disappear[s],” leaving only the ultimate question of “discrimination vel 

non[.]” Id. at 142–43 (internal quotation marks and citations omitted). And on that

question, the burden of showing that a reasonable jury could find that defendant’s 

reasons are pretextual and that the real reason for the adverse action was discriminatory 

or retaliatory animus falls on the plaintiff. See Morgan v. Fed. Home Loan Mortg. 

Corp., 328 F.3d 647, 654 (D.C. Cir. 2003); cf. Ajisefinni v. KPMG LLP, 17 F. Supp. 3d 
15

28, 38 (D.D.C. 2014) (noting that, when facing a motion for summary judgment, the 

non-movant must respond with “specific facts in the record that reveal a genuine issue 

that is suitable for trial” (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986))). 

Perhaps because the requirements of the first step of the McDonnell Douglas

framework (i.e., the “prima facie” case stage) track the three essential elements of a

Title VII discrimination or retaliation claim, see McGrath, 666 F.3d at 1380 n.3 (noting 

the overlap), confusion has occasionally arisen regarding what the law actually requires 

of the parties. In recent years, however, the D.C. Circuit has clarified that the need to 

“make out a prima facie case” is not the be-all-and-end-all of claim brought under Title 

VII; rather, it is merely a tool that, when used appropriately, helps to guide judges’ 

consideration of the evidence that the parties have presented regarding the ultimate 

question of whether discrimination or retaliation occurred. See Brady v. Office of 

Sergeant at Arms, 520 F.3d 490, 493–94 (D.C. Cir. 2009). Thus, at the summaryjudgment stage, if “the defendant has done everything that would be required of him if 

the plaintiff had properly made out a prima facie case[]”—i.e., if the defendant has 

proffered a non-discriminatory reason for its challenged decision—“whether the 

plaintiff really [made out a prima facie case] is no longer relevant” because “[t]he 

district court has before it all the evidence it needs to decide whether the defendant 

intentionally discriminated against the plaintiff.” Id. at 494 (internal quotation marks 

and citation omitted). At that point, in effect, “the burden-shifting framework [of 

McDonnell Douglas] falls away,” and the court returns its focus to “the central 

question” of the case: whether the plaintiff has “produced sufficient evidence for a 

reasonable jury to find that the employer’s asserted non-discriminatory [or non-
16

retaliatory] reason was not the actual reason and that the employer intentionally 

discriminated [or retaliated] against the [plaintiff].” Allen v. Johnson, 795 F.3d 34, 39 

(D.C. Cir. 2015) (internal quotation marks and citation omitted; second and third 

alterations in original). 

Notably, nothing in the D.C. Circuit cases that discuss the parties’ relative 

evidentiary burdens in Title VII cases purports to diminish in any way what a plaintiff 

must ultimately prove in order to prevail on a discrimination or retaliation claim. That 

is, what “falls away” is the burden-shifting framework itself, and not the substantive 

requirements of Title VII—the plaintiff must still offer evidence that is sufficient to 

establish that his employer intentionally discriminated or retaliated against him in 

violation of that statute, notwithstanding the fact that the defendant has provided a nondiscriminatory or non-retaliatory justification. See McGrath, 666 F.3d at 1380 & n.3.

What is more, the plaintiff’s ultimate burden once the employer has asserted its nondiscriminatory or non-retaliatory reason is consistently expressed in the D.C. Circuit’s 

precedents in the conjunctive. See, e.g., Allen, 795 F.3d at 39 (holding that the court 

must determine “whether the employee produced sufficient evidence for a reasonable 

jury to find that the employer’s asserted nondiscriminatory [or non-retaliatory] reason 

was not the actual reason and that the employer intentionally discriminated [or 

retaliated] against the employee[]” (internal quotation marks and citation omitted) (first 

and second alterations in original) (emphasis added)). This means that summary 

judgment will sometimes be proper even when a plaintiff “set[s] forth sufficient 

evidence to reject the defendant’s explanation,” if it is nevertheless impossible for a 

rational factfinder to conclude the action was discriminatory. Giles v. Transit Emps.
17

Fed. Credit Union, 794 F.3d 1, 9 (D.C. Cir. 2015) (explaining the ultimate question of 

discrimination is a holistic inquiry). In other words, after the defendant provides its 

reason and the court focuses on whether the evidence is sufficient to support the 

plaintiff’s claim, the evidence before the court “must be such that a reasonable jury 

could not only disbelieve the employer’s reasons, but [also] conclude that the real 

reason the employer took a challenged action was a prohibited one.” Walker v. 

Johnson, 798 F.3d 1085, 1093 (D.C. Cir. 2015); see also Giles, 794 F.3d at 9–10 

(holding in the analogous disability-discrimination context, that notwithstanding 

possibility that a jury could reasonably disbelieve the employer’s proffered reason, no 

reasonable jury could conclude the employer took the adverse employment action 

because of the employee’s disability). 

This all means that the Report and Recommendation here—which suggests that a 

plaintiff bears no burden of proof whatsoever once a defendant articulates its legitimate

reason and reasons that this case must proceed to trial simply and solely because 

Rochon has challenged the proffered justification and attacked the sworn testimony of 

Defendant’s witnesses (see Report and Recommendation at 14–15 & n.9)—failed to

consider the full scope of Rochon’s obligations in opposing Defendant’s motion for 

summary judgment, and thus, mistakenly concluded that Rochon had done enough to 

demonstrate that there is a genuine issue of material fact for the jury to decide in this 

matter. For the reasons explained below, when the appropriate legal standards are 

applied, this Court reaches the opposite conclusion.
18

B. No Reasonable Jury Could Find That The FBI Denied The Requested 

ID Card Because Of Rochon’s Protected Activity

The FBI has provided a legitimate, non-retaliatory reason for its initial denial of 

Rochon’s request for an HR-218 card: due to the results of the name check, the CJIS

report recommended against allowing the applicant to proceed, and Bladen accepted the 

CJIS recommendation, in accordance with his ordinary practice. (See Def.’s Mem. at 

24; Bladen Statement at 32.) Therefore, to survive the motion for summary judgment in 

accordance with the proper legal standards, Rochon must now point to record evidence

that is sufficient for a reasonable jury to “not only disbelieve the employer’s reasons, 

but conclude that the real reason the employer took a challenged action was a prohibited 

one.” Walker, 798 F.3d at 1093.

Rochon has utterly failed to identify any such evidence. For example, a

successful discrediting of the FBI’s proffered reason for initially denying him the card 

might have involved evidence that the CJIS name check did not actually reveal any past 

charges against Rochon, or that, in contrast to Bladen’s testimony, there really was no 

report from CJIS that recommended to Bladen that he disapprove Rochon’s application.

Similarly, Rochon could have undertaken to establish that it was not Bladen’s ordinary 

practice to deny an application for an HR-218 card when CJIS recommended that he do 

so, which, if coupled with evidence that Bladen knew about Rochon’s litigation history, 

could give rise to a reasonable inference that Bladen had a retaliatory motive when he 

denied the card in Rochon’s case. But Rochon has pointed to no such evidence; instead, 

his argument in opposition to Defendant’s motion appears to rest exclusively on several 

unfounded assertions regarding what Rochon perceives to be the illegitimacy of the 

practice of denying an HR-218 card to someone who has only been charged with a 
19

crime in the past as opposed to someone who has been convicted of such a crime. (See, 

e.g., Pl.’s Opp’n at 18, 25.)

Specifically, Rochon maintains that the FBI’s policies require that an applicant’s

request for an HR-218 card be granted so long as the applicant has not been convicted

of a disqualifying crime (see id. at 18) and that, because Bladen based his decision in 

Rochon’s case on the mere fact of Rochon’s past charges (see id. at 25), a jury could 

infer retaliatory motive. But Bladen did not testify to having reached the denial 

decision with respect to Rochon’s application based on his consideration of Rochon’s 

past charges; instead, he stated that he based his conclusion on CJIS’s recommendation, 

and nothing in the record indicates otherwise. Moreover, even if Rochon has correctly 

interpreted FBI policy and can establish that Bladen actually considered Rochon’s 

charges in contravention of that policy, such a demonstration would only show that 

Bladen was mistaken about the permissible bases for denying a card, which, alone, may 

not be sufficient to give rise to an inference of intentional discrimination. See George 

v. Leavitt, 407 F.3d at 415 (“[P]roving that an employer’s reason is false will not 

always be sufficient to demonstrate pretext . . . . because an employer’s action may be 

justified by a reasonable belief in the validity of the reason given[.]”). Similarly, not 

once does Rochon dispute that a CJIS report recommending denial of his card was 

actually generated, or that the report was accurate in that it reflected the status—justly 

or not—of his 1998 charges. To the contrary, the record demonstrates that Rochon took 

steps to have those past charges expunged so that they would not surface again in any 

subsequent name check (see Ex. 12 to Def.’s Mot., ECF No. 21-1, 40–48, at 41–46), 
20

and this action on his part demonstrates clearly that such charges had, in fact, appeared 

on his record when the CJIS name check was first run.

Thus, this Court finds that, however vigorous, Rochon’s lines of attack are 

largely, if not entirely, irrelevant to the task at hand. As explained, to survive 

Defendant’s motion for summary judgment, the law requires Rochon to provide 

sufficient evidence from which a reasonable jury could conclude that the FBI’s stated

reasons for denying him the card were not the real reason for the denial and that, in 

fact, the real reason was unlawful retaliation. None of Rochon’s assertions even come 

close to demonstrating that it was not Bladen’s ordinary practice to honor the CJIS 

recommendation or that no negative CJIS report really issued in connection with 

Rochon’s name check (circumstances that reasonably could give rise to an inference 

that the FBI’s stated reason is objectively false), and Rochon has not pointed to 

anything else that even remotely suggests that Bladen was actually engaging in 

intentional retaliation when he rejected Rochon’s HR-218 application. The smoke and 

mirrors of Rochon’s various attempts to highlight standard agency policy regarding the 

issuance of HR-218 cards and to undermine the credibility of the FBI’s witnesses do not 

obscure the obvious: there is simply no evidence that, when Rochon’s application came 

across his desk, Bladen deviated from his usual practice of denying the HR-218 card 

based on a CJIS recommendation for non-approval or otherwise intentionally rejected 

Rochon’s application in order to punish Rochon for suing the agency in the past. And 

when the law governing Title VII claims is properly understood, nothing more need be 

found for the defendant to be entitled to judgment in its favor. See, e.g., Walker, 798 

F.3d at 1093–94, 96 (affirming a grant of summary judgment to defendant where the 
21

plaintiff’s failure to undermine employer’s proffered reasons barred any inference tha t 

the reasons given were a pretext for discrimination); McGrath, 666 F.3d at 1383–85 

(affirming summary judgment grant where no rational juror could conclude that the 

nondiscriminatory reasons given for termination hid a forbidden motive).

IV. CONCLUSION

For the reasons stated above, and as provided in the Order this Court issued on 

September 30, 2015, Defendant’s motion for summary judgment has been GRANTED. 

DATE: October 9, 2015 Ketanji Brown Jackson

KETANJI BROWN JACKSON

United States District Judge