UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) DONALD ROCHON , ) ) Plaintiff s ) ) v. ) Civil Action No. 1 3

- cv - 00 131 (KBJ) ) LORETTA LYNCH, in h er 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 i dentification c ard that would permit him to carry a conceale d 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 cri minal 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

cou rt order requiring the FBI to provide him with the card . ( See Compl., ECF No. 1 , at2

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 persist s nevertheless in pursuing his legal claims; he maintains that, as a result of the FB I’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
ret aliating 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. t o Dismiss o r[] i n t he Alternative f or Summ. J. (“Def.’s Mot.”), ECF No. 21, 1

– 2; Mem. o f Law i n Supp. o f Def.’s Mot. (“Def.’s Mem.”), ECF No. 21, 9

– 27.) This Court referred Defendant’s motion, along with the entire case, to a m agistrate j udge for full case management on Sep tember 2, 2014 ( s ee ECF No. 34) , and the m agistrate j udge permitted Plaintiff to take limited discovery . T hen, 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 .) T his Memorandum Opinion explains the reaso ns for that order. In sum, after a thorough review of the Repor t and Recommendation, the parties’ briefs, the record, and established case law, th is 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 c itations 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 Defend ant’s motion as one for summary judgment, and so construed, the motion has been GRANT ED

.
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 wit h 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. , i d. 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 , 43 8 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. i n 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

. ( S ee also Ex. 3 to Def.’s Mot., ECF No. 21

- 1, 7

– 13, at 8.) To4

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 itse lf 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 a n HR

- 218 card, retired FBI agents must satisfy a li st 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 O pinion 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 ( s ee 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 th at person ha s been charged with, or convicted of, a criminal offense. (McQueen Decl.
at ¶ 8). 3 If 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. ( S ee 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 o f 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. 2d5

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 CJI S 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; s ee , 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 .) A ccording 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 neg ative 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 (expl aining this protocol works to ensure applications are evaluated “in a standardized manner”) .) Defendants maintain that such was the case here. Rochon submitted an appli cation 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 Human6

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 Divi sion

. ( Id. at 20.) 6 I n 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 establishe d 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 c harges” 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 “stoppe d 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 m aterial 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 perfo rmed 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 hi mself 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 from7

Rochon subsequently challenged th is 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 resp onse, 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 h is HR

- 21 8 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 hist ory of protected activity by denying him the HR

- 21 8 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 alleg ed

hand writing 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 ul timate 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 e lse 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 t o carry a concealed weapon across state lines for a three

- year period , which had caus ed him to fear that he would be unable to protect his family and had also injured him mental ly and emotional ly 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

. A s 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 ( s ee Report & Recommendation, ECF 43)

. Defendant timely filed with this Court an objection to the Rep ort and Recommendation on June 15, 2015 ( s ee 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 parti es’ 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 STANDARD S Defendant has moved for dismissal of Rochon’s one

- count retaliation complaint because, in Defendant’s view, the complaint fail s 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. a t 9

– 10

. ) Where, as here, a defendant maintains that the case should be terminated either for defective pleadings or because9

there is no genuine issue of material fact to be presented to a jury, the court may review the parties’ arguments w ith respect to bo th 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 termina ting 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.”); Vio P harma, Inc. v. Hamburg , 916 F. Supp. 2d 76, 77, 83 (D.D.C. 2013) (granting summary judgment to defen dants 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 assume d ( 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 , th is10

Court concludes nevertheless that Defendant is entitled to summary judgment on Rochon’s retaliation claim because, based on the Court’s examination of the reco rd 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 judgmen t 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 r easonable 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 wi th 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) (em phasis 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 t he 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 mot ion 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 de termine 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 ha s 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, alt hough 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

i d. Accordingly, the c ourt 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 allegation s or denials and must be supported by affidavits, declarations, or other competent evi dence, 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, b ecause 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 retaliat i on 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 ac tivity t hat Title VII protects ; ( 2) his employer took a materially adverse action against him ; and (3) the employer took the action because of the12

protected activity. See McGrath v. Clinton , 666 F.3d 1377, 1380 (D.C. Cir. 2012); Jones v. Bernanke , 557 F.3d 670, 6 77 (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. S w . Med. v. Nassar , 133 S. Ct. 2517, 2532 (2013) (emphas izing 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 co mplaint 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 discr iminatory and retaliatory act s 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 law suits of yesteryear are sufficient support for the retaliation claim he brings today. See Carlson v. CSX Tra nsp., Inc. , 758 F.3d 819, 828 (7th Cir. 2014) (“If the best a plaintiff can do is allege that he engage d 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 mo re, Defendant argue s that “the temporary denial of the HR

- 218 card [does not] constitute[] a mate rially adverse action because the denial would not have dissuaded a reasonable worker from making or supporting a charge of discrimination [,] ” and thus , Defend ant suggest s that , even if taken as true, the13

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

- claim element as a matter of law

. ( Def. ’s M em . at 19. ) But t his Court finds that it need not decide whether the complaint’s assertion s 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 den ied an HR

- 21 8 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 t he aforementioned elements of a Title VII retaliation claim can be quite difficult for a n employee when , as is often the case , the employee lack s 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 gui delines to aid judicial analysis of the strength of a Title VII case that is based on circumstantial evidence. Th e se guidelines grew out of the seminal Supreme Court case of McDonnell Douglas14

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] . . . bur dens 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 circumsta ntial evidence”). Generally speaking, in retaliation cases, t he 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 provid e “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, i f 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 o n 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

. S ee Morgan v. Fed. Home Lo a n Mortg. Corp. , 328 F.3d 647, 654 (D.C. Cir. 2003) ; cf. Ajisefinni v. KPMG LLP , 17 F. Supp. 3d15

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 e lements of a Title VII discrimination or retaliation claim , s ee 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 t hat, 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 a t Arms , 520 F.3d 490, 49 3

– 9 4 (D.C. Cir. 2009). Thus, at the summary

judgment stage , if “the defendant has done everything that would be re quired 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” becau se “[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 a sserted 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 ci tation 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 orde r to prevail on a discrimination or retaliation claim

. That is, w hat “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 non

discriminatory or non

- retaliatory justification

. See McGrath , 666 F.3d at 1380 & n.3. What is m ore, the plaintiff’s ultimate burden once the employer has asserted its non

discriminatory 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

mu st 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 retalia ted] against the employee[]” (internal quotation marks and citation omitted) (first and second alterations in original) (emphasis added) ) . Th is 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 discr imination 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, t he evidence before the court “must be such that a reasonable jury coul d 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 , 7 94 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 e mployee’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 reason s that this case must proceed to trial simply a nd 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 m otion 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
. F or the reasons explained below, when the appropriate legal standar ds are applied, this Court reaches the opposite conclusion.18

B. No Reasonable Jury Could Find That The FBI Denied The Requested ID Car d Because Of Rochon’s Protected Activity The FBI has provided a legitimate , non - retaliatory reason for its initial den ial of Rochon’s request for an HR

- 21 8 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 fail ed 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 ch eck did not actually reveal any past charges against Rochon , or that , in contrast to Bladen’s testimony, there reall y was no report from CJIS that recommend ed to Bladen that he dis approv e 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

- 21 8 card when CJIS recommended t hat 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 ev idence; i nstead, h is 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

- 21 8 card to someone who has only been char ged with a19

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 a n applicant’s request for an HR

- 218 card be granted s o long as the applicant ha s 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 Blade n 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 permissibl e 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 r eport 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 ( se e 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

. Th us, th is Court finds that , however vigorous, Rochon’ s lines of attack are largely, if not entirely, irrelevant to the task at hand. As expl ained, 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 state d 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 h onor the CJIS recommendation or that no negative CJIS report really issued in connection with Rochon’s name check (circumstances that reasonably c ould 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 intenti onal retaliation when he rejected Rochon’s HR

- 21 8 application. The smoke and mirrors of Rochon’s various attempts to highlight standard agency policy regarding the is suance of HR

- 21 8 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

- 21 8 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, noth ing more need be f ound for the d efendant 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 the21

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 a s provided in the O rder 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 Judg e