* The Honorable Algenon L. Marbley, United States District J udge for the Southern District of Ohio, sitting by designation. RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206

File Name: 04a0435p.06


### UNITED STATES COURTS OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

J AMES D IXON
, J R
., Plaintiff-Appellant,

v.

J OHN A SHCROFT , in his capacity as Attorney General of the United States of America; R OBERT S. M UELLER
, Director of the Federal Bureau of Investigation, Defendants-Appellees. X - - - -

> , - - - - - N No. 03-1542

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 02-74476—John Feikens, District Judge.

Argued and Submitted: August 12, 2004

Decided and Filed: December 16, 2004

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

_________________ COUNSEL

ARGUED: Sheila H. Gaskell, UNITED STATES A TTORNEY, Detroit, Michigan, for Appellees. ON BRIEF: Benjamin Whitfield, Jr., BENJAMIN WHITFI ELD, JR. & ASSOCIATES, Detroit, Michigan, for Appellant. Sheila H. Gaskell, UNITED STA TES ATTORNEY, Detroit, Michigan, for Appellees.

_________________ OPINION

_________________ ALGENON L. MARBLEY, District Judge. Plain tiff-Appellant, James Dixon, Jr. (“PlaintiffAppellant” or “Dixon”) was a ten-year employee of th e 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

1No. 03-1542 Dixon v. Ashcroft, et al. Page 2

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 FB I 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 wifewas able to manage the business on her own, Dixon applied for reinstatement with the FBI.

It is undisputed that during his ten-year tenur e 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 Serv ices Division (“ASD”) determined that PlaintiffAppellant 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 em ployment references provided by Dixon as “friends or acquaintances employed by the FBI,” which incl uded Carey Thornton (“Thornton”), John Anthony (“Anthony”), and Larry Kuhl (“Kuhl”) . The Bureau also solicited eval uations 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 An thony 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 Reutte r. Apparently, a formal report of the incidentNo. 03-1542 Dixon v. Ashcroft, et al. Page 3

was never made, as evidenced by the fact that Di xon’s personnel file with the Agency contained no derogatory information. In Nelson’s opinion, the FBI would make a “grave mist ake” by rehiring PlaintiffAppellant because Nelson believed Dixon lacked in tegrity 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 wo rk habits, poor work ethic, and little enthusiasm for his job during his early years with th e FBI – Reutter described Dixon’s efforts as mediocre at best – Reutter recommended against reinstating Plaintiff-Appellant.

Another of Dixon’s former supervisors, SA Davi d 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 dedi cation 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 Di xon 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 Di xon’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 backgr ound investigation, specifically the comments of former supervisors and co-workers.” Her report was forwarde d 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 re instatement 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 Wel don Kennedy made the final determination to deny Plaintiff-Appellant reinstatement.

On April 14, 1992, Deputy Assistant Director, Pers onnel Officer in the ASD, Steven Pomerantz, wrote to Plaintiff-Appellant informing him that, “we are unable to rein state 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 hi s 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 gavehim 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 differen tly than non-African-Americans, about which Dixon complained to one of Reutter’s superiors. As a cons equence, 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.No. 03-1542 Dixon v. Ashcroft, et al. Page 4

B. Procedural History

Dixon first contacted an EEO counselor within th e FBI in July 1997. After receiving a Notice of Right to File a Discrimination Complaint, Plaintiff- Appellant, without the assistance of counsel, filed a formal EEO administrative complaint in August 1997. Plaintiff-Appellant’s administrative complaint consisted of two parts: 1) the “Complaint of Di scrimination,” the form pr ovided by the EEOC that Dixon was required to fill out; and 2) a statement that Dixon wrote and attached thereto, describing what he believed to be the bases of the FBI’s alleged discrimination (hereinafter “Attached Statement”) (together with the Complaint of Discrimination, the “EEOC Comp laint”). On the Complaint of Discrimination, Dixon checked only the box for “Race” and stated afterwards, “Black.”

A hearing was held and the ALJ made findings of fact and conclusions of law that, “the Agency discriminated against [Plaintiff-Appellant] because of his race when it denied him reinstatement in March 1992.” That determination, however, was rejected by th e United States Department of Justice, Complaint Adjudication Office (“CAO”), and an appeal was taken to the EEOC’s O ffice of Federal Operations. The EEOC’s Office of Federal Operations upheld the CAO’s determination that the record did not support the ALJ’s finding of discrimination.

Hence, on November 12, 2002, Dixon filed a Complaint in the Eastern District of Michigan, asserting four causes of action: 1) Title VII - Retaliation; 2) 42 U.S.C. § 1983 - Violation of Due Process; 3) Defamation; and 4) Injurious Falsehood. The Agen cy moved for dismissal pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), or alternativ ely for summary judgment pursuant to Rule 56. The district court granted the FBI’s motion, dismissing Dixon’ s complaint for lack of subject matter jurisdiction.

Plaintiff-Appellant now appeals from that judgment.

II. STANDARD OF REVIEW

This Court reviews a district’s court decision todismiss for lack of subject matter jurisdiction de

novo

. Joelson v. United States , 86 F.3d 1413, 1416 (6th Cir. 1996). Factual findings made by the district court in deciding a motion to dismiss, however, are reviewed for clear error only. See Jones v. City of Lakeland , 175 F.3d 410, 413 (6th Cir. 1999) (abrogated on other grounds) (quoting Gafford v. Gen. Elec. Co. , 997 F.2d 150, 161 (6th Cir. 1993)).

III. ANALYSIS

On appeal, Dixon does not challenge the district court’s dismissal of his claim under the Fourteenth Amendment and his claims for defamation and injurious falsehood. Those claims are deemed abandoned. See Boyd v. Ford Motor Co. , 948 F.2d 283, 284 (6th Cir. 1991) (concluding that any issues not raised by the appellant with respect to the district court’s ruling are considered abandoned on appeal and not reviewable by this Court). Pending for review is Di xon’s Title VII retaliation claim. The district court found that the FBI made the decision not to reinst ate Plaintiff-Appellant before he filed his EEOC Complaint; therefore, he was required to include alle gations of retaliation in the EEOC Complaint in order to exhaust his administrative remedies. Because the district court determined that Dixon did not do so, it dismissed the claim for lack of subject matter jurisdiction.

Undoubtedly, federal employees who allege that th ey have been victims of discrimination must exhaust their administrative remedies. Benford v. Frank , 943 F.2d 609, 612 (6th Cir. 1991) (stating “[t]he right to bring an action under Title VII regarding equal employment in the federal government is predicated upon the timely exhaustion of administrative remedies . . .”); see also Hall v. U.S. Postal Serv. , 857 F.2d 1073, 1078 n.4 (6th Cir. 1988). The purpose of the requireme nt is to trigger an investigation, which gives notice to the alleged wrongdoer of its potential lia bility and enables the EEOC to initiate conciliation procedures in an attempt to avoid litigation. Davis v. Sodexho, Cumberland College Cafeteria , 157 F.3d 460, 463 (6th Cir. 1998) (citing EEOC v. Bailey , 563 F.2d 439, 447 (6th Cir. 1977)). Plaintiff-AppellantNo. 03-1542 Dixon v. Ashcroft, et al. Page 5

concedes that he did not check the “Reprisal” box on the Complaint of Discrimination; however, in this Circuit, that failure is not dispositive of whether Dixon exhausted his administrative remedies.

In Weigel v. Baptist Hosp. of East Tennessee , 302 F.3d 367 (6th Cir. 2002), we reiterated, “the general rule in this circuit . . . that the judicialcomplaint must be limite d to the scope of the EEOC investigation reasonably expected to grow out of the charge of discrimination.” Id . at 380 (internal citation omitted); see also Bray v. Palm Beach Co. , 907 F.2d 150, 1990 WL 92672, at *2 (6th Cir. June 29, 1990) (finding “the facts alleged in the body of the EEOC charge, rather than merely the boxes that are marked on the charge, are the major determinants of the scope of the charge”). We explained in Weigel that, “[p]ursuant to this rule, we have recognized that ‘w here facts related with re spect to the charged claim would prompt the EEOC to investigate a different, unc harged claim, the plaintiff is not precluded from bringing suit on that claim.’” 302 F.3d at 380 (quoting Davis , 157 F.3d at 463). Th is principle became known as the “expected scope of investigation test.” Weigel , 302 F.3d at 380.

The determinative inquiry in this case, therefore, is whether Dixon alleged sufficient facts in his EEOC Complaint to put the EEOC on notice of his reta liation claim, despite that he did not check the appropriate box on the EEOC’s Complaint of Discrimination form.

A review of Dixon’s EEOC Complaint, specificall y, the Attached Statement, reveals that Dixon alleged:

I contend that Bob Reutter discriminated agains t me, causing the Bureau to do the same, because of Race, fictitious information he received from two other agents and because the Applicant Program was removed from his direct supervision because of continued harassment

. (emphasis added). Plaintiff-Appellant goes on to de scribe how, when he was under Reutter’s supervision, he complained to SAC Wayne Davis (“Davis”) because Reutter had required him and another agent, the “two Black agents handling the Applicant Program,” to report to Reutter weekly, which Dixon and his coworker resented. Dixon stated, “Mr. Davis took over the [Applicant] program after [redacted name] and I complained about Reutter’s continued harassment.”

Applying the expected scope of investigation test to this case, we find that the factual allegations were sufficient to put the EEOC on notice that Dixon perceived himself to be a victim of retaliation, in addition to race discrimination. See Sharabura v. Taylor , No. 03-CV-1866(JG), 2003 WL 22170601, at *2- 3 (E.D.N.Y. Sept. 16, 2003) ( citing Deravin v. Kerik , 335 F.3d 195, 201 (2d Cir. 2003) (where the district court did as the Second Circuit instructed and looked to the “factual allegations ma de in the [EEOC] charge itself, describing the discrimination conduct about which a plaintiff is grieving,” the court held that the plaintiff’s race and color claims were reasonably relate d to her national origin claim because in “the twopage statement [plaintiff] submitted with her EEOC charge. . . her description of the alleged discriminatory conduct . . . would no doubt alert th e EEOC of the potential for race and color discrimination claims”)). Plaintiff-Appellant’s case is unlike others where courts have determined that the plaintiffs did not allege facts in their EEOC complaints to meet the expected scope of investigation test. See

, e.g. , Pearison v. Pinkertons, Inc. , No. 1:02-CV-142, 2002 WL 32060142 at *4- 5 (E.D. Tenn. Sept. 16, 2002) (citing Weigel and finding that the plaintiff had not met the expectedscope of investigation test where, in his EEOC complaint, he presented “no factual allegations” that would have prompted the EEOC to investigate the plaintiff’s unrelated claim, raised for the first time in his judicial complaint).

In Doan v. NSK Corp. , 266 F. Supp. 2d 629, 633 (E.D. Mich. 2003), for example, the court discussed the narrow scope of the EEOC charge, in which the plai ntiff detailed only one specif ic factual basis for her charge of sex discrimination. Id . In the case sub judice, however, it is clear from the Attached Statement that Dixon discussed the alleged factual bases of his re taliation claim and also explicitly stated, “I contend that Bob Reutter discriminated against me, causing the Bureau to do the same, because of Race . . . .” (emphasis added).No. 03-1542 Dixon v. Ashcroft, et al. Page 6

1 The letter stated, “[t]he issue accepted for investigation is as follows: Whether you were discriminated against based on race (Black) when you were denied reinstatement with the FBI on or about June 3, 1997.” In Doan , moreover, the plaintiff referenced only one specific time period for her charge of sex discrimination – the spring of 1997 – but then later sought , in her judicial complaint, to include allegations of harassment occurring in 1997 and 1998. Id . at 633-34. Dixon, in contrast, talked about his high performance appraisals as far back as 1980 in the Att ached Statement, to contradict Reutter’s assessment of his suitability for reinstatement. It seems reasonable that, even in investigating Dixon’s claim of race discrimination, the EEOC would have inquired into Plaintiff-Appellant’s ten-year work performance and the allegations about Dixon making false reports in th e interview process to see if the former undermined the FBI’s decision not to reinstate orthe latter was credible, such that it was a legitimate, nondiscriminatory reason for refusing to reinstate Plaintiff-Appellant. Evidence of a stellar work history, along with mixed comments and recommendations in interviews with Dixon’ s peers and superiors, may suggest pretext, for example. The Court is not prepared to penalize Dixon because the EEOC investigation should have been broader in scope. As the Third Circuit reasoned, “if th e EEOC investigation is too narrow, a plaintiff should not be barred from raising additional claims in district court.” Robinson v. Dalton , 107 F.3d 1018, 1026 (3d Cir. 1997).

The Attorney General makes much of a letter to Plaintiff-Appellant fr om the EEOC in which an Equal Employment Opportunity Officer (“Officer”) ch aracterized the issue accepted for investigation as being denied reinstatement based on race. 1 The letter advised Dixon to notify the Officer within fifteen days if the issue had not been id entified properly. While Plaintiff-A ppellant never notified the Officer of any disagreement with the Officer’s characterization of the issue, we find that Dixon’s failure to do so is not fatal to his claim. Based on the Attached Statement, Dixon perceived Reutter’s harassment to be racially-motivated; thus, Dixon, as a lay person, would not have understood the need to modify the Officer’s formulation of his claim. Dixon perceived Reutter’s harassment to be racially-motivated, such that Dixon would not have understood the need to correct the Officer’s formulation of his claim.

Indeed, as this Court recognized long ago, the rationale for the expected scope of investigation test is that charges of discrimination filed with the EEOC often will be prepared by aggrieved laypersons without the assistance of counsel. Tipler v. E. I. duPont deNemours & Co. , 443 F.2d 125, 131 (6th Cir. 1971); see also Davis , 157 F.3d at 463 (explaining “[o] ne reason for the [expected scope of investigation test] is that charges are frequently filed by lay co mplainants, and the courts recognize that subsequent actions should not be restricted by th e failure of a complainant to attachthe correct legal conclusion to the EEOC claim, conform to procedural technicalities, or include the exact wording which might be required in a judicial pleading”) (internal citation omitted); see also Pearison , 2002 WL 32060142, at *5 (holding “Pearison need not attach the correct legal conclusions to his factual allegations, conform to legal technicalities, or use the precise wo rding that might be re quired in a formal pleading . . . A claimant’s written charge to . . . [the] EEOC must be sufficiently precise to identify the parties and describe generally the discriminatory acts or prac tices by the employer leading to the administrative complaint”) (emphasis added).

Where, as here, Dixon was not represented or aided by counsel in filing his EEOC Complaint, he will not be punished for not correcti ng the Officer, when, based upon the Attached Statement, it is clear that the EEOC was put on notice that Plaintiff-Appellant asserted claims both for race discrimination and retaliation.No. 03-1542 Dixon v. Ashcroft, et al. Page 7

IV. CONCLUSION

Plaintiff-Appellant put the EEOC on notice of his claim for retaliation. Therefore, the judgment of the district court is REVERSED , and the case is REMANDED for further proceedings in accordance with this Opinion.