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ROCHON v. DILLON

May 8, 1989

DONALD ROCHON, et al., Plaintiffs,
v.
THOMAS DILLON, et al., Defendants


Milton I. Shadur, United States District Judge.


The opinion of the court was delivered by: SHADUR

MILTON I. SHADUR, UNITED STATES DISTRICT JUDGE:

 Federal Bureau of Investigation agent Donald Rochon ("Rochon") and his wife Susan ("Susan") have sued FBI agents Gary Miller ("Miller"), Kenneth Veach, Terry Keiser ("Keiser"), David Hempen ("Hempen") and William Lueckenhoff ("Lueckenhoff") (collectively "Chicago Defendants") and Thomas Dillon ("Dillon"), all in their individual capacities, for damages arising out of a series of incidents occurring while Rochon was an FBI agent in Omaha and Chicago. Plaintiffs' Second Amended Complaint ("Complaint") charges those incidents involved violations of:

 
1. 42 U.S.C. § 1981 *fn1" by systematic racial harassment, discrimination and retaliation against plaintiffs (Count II);
 
(a) prevent Rochon from performing his duties and induce him to leave his assigned work location (Section 1985(1));
 
(b) hinder and obstruct justice with intent to deprive plaintiffs of equal protection of the laws (Section 1985(2)); and
 
(c) deprive plaintiffs of their rights and privileges on the basis of race (Section 1985(3));
 
3. plaintiffs' rights of privacy, personal integrity, liberty, equal protection of the laws, freedom of speech and freedom of association -- all under color of federal law -- in contravention of the First, Fourth and Fifth Amendments (the " Bivens claims") (Count III); and
 
4. state common law via intentional infliction of emotional distress, invasion of privacy, gross negligence and negligence (Count IV).

 Defendants now move under Fed. R. Civ. P. ("Rules") 12(b)(6) and 8(a) to dismiss the entire Complaint except for Rochon's individual state law claims for invasion of privacy and intentional infliction of emotional distress. For the reasons stated in this memorandum opinion and order, the motion is granted in part and denied in part.

 Facts2

 Rochon began working as an FBI special agent in November 1981 and was assigned to the Omaha branch in January 1983. Rochon is black and Susan, whom he married in 1978, is white.

 All defendants are also FBI special agents. Dillon, the first to come into contact with Rochon, was assigned to Omaha when Rochon arrived there. Then Dillon was transferred to the Chicago office in December 1983.

 Beginning immediately upon Rochon's arrival in Omaha and continuing through the time Rochon and Dillon were both there, Rochon was subjected to repeated incidents of racial harassment. It would prolong this opinion unduly (and unnecessarily) to repeat the Complaint's detailed recital of those numerous and appalling incidents (paras. 15-22). They included harassing phone calls at home and work; pictures of beaten black men placed in Rochon's mail slot; a series of objects derogatory to blacks; numerous false stories playing on black stereotypes; and the maintenance of a racially hostile atmosphere through remarks ranging from ethnic slurs to Klan sympathy. Though the authors of many of these incidents are unknown, Dillon was involved in many of them. In one instance Dillon and another agent engaged in a "fart contest" at a party in front of (and directed at) Susan (para. 15(g)).

 Rochon reported all the incidents to his supervisor, but no investigation was ever undertaken. When Rochon became due for a transfer (in accordance with standard FBI practice), he requested a California location. Although white agents being transferred from Omaha were sent to their requested areas, Rochon was not. Instead he was transferred in June 1984 to Chicago, where Dillon was already in place. That transfer was effected despite Rochon's requests and pleas that he feared further harassment in Chicago. When Rochon met with FBI officials to discuss the discriminatory transfer, they initiated an investigation against him for failing to report a housing discrimination incident that had occurred when Rochons had moved to Omaha a year earlier. Eventually a censure of Rochon was recommended and issued on that ground, while no action was taken on his discrimination claim.

 Upon Rochon's move to Chicago, it soon became apparent that it was business as usual. Dillon and the Chicago Defendants (all special agents in Chicago during Rochon's tenure there) embarked on a harassment campaign that had been mapped out before Rochon's arrival and put the Omaha harassment to shame.

 Defendants' Chicago campaign utilized a similar modus operandi: harassing phone calls at home and work, use of the mails and circulating false stories. But that was only the beginning. Rochon's mail included death threats, death and dismemberment policies taken out in his name by forging his signature, unrequested materials sent him because of forged orders in his name, bills for unrequested materials and other ominous materials. Rochon was billed for an ad in the Chicago Tribune (one he never placed) that referred to a confidential EEOC proceeding he had initiated.

 All those incidents were the work of the defendants or such nonparty co-conspirators as Rochon's supervisors, Special Agent in Charge Edward Hegarty ("Hegarty") and Assistant Special Agents in Charge Michael Wilson and Milt Ahlerich. Actions by the supervisors included repeated failures to investigate the harassment incidents and the seizure of a tape of a letter to the Department of Justice ("DOJ") dictated by Rochon asking for help in investigating the incidents.

 Rochon's stint in Chicago drew to a close after Hegarty sent a memorandum to FBI headquarters about Rochon, in which Hegarty identified both Miller's confession to many of the incidents and Rochon's "vivid attitudinal problem" and concluded that Rochon should be transferred. As a result of the memorandum Miller was given a two-week suspension and Rochon was mandatorily and involuntarily transferred to Philadelphia in June 1986. *fn3"

 Prior Actions Involving EEOC and DOJ

 Rochon has filed four formal complaints with EEOC charging FBI harassment and discrimination. Rochon's first complaint dealt with the Omaha incidents up to and including his transfer to Chicago. On that score both EEOC and DOJ ultimately found Rochon had been harassed and discriminatorily transferred and granted a "full range of remedies" (para. 12(a) and Exs. A and B).

 Rochon's second and third complaints concern the Chicago incidents and are being held in abeyance pending a criminal investigation being conducted by DOJ's Civil Rights Division under the direction of Assistant Attorney General William Bradford Reynolds (para. 12(b) and Exs. C and D). That investigation has proceeded slowly with the intent of hindering the processing of his claims (paras. 80-87), apparently as part of a conspiracy (para. 84).

 Rochon's final complaint involves a discriminatory denial of housing expenses after plaintiffs left Chicago and relocated in Philadelphia (para. 12(c)). No action has as yet been taken in that respect.

 Bivens Claims

 In part plaintiffs assert violations of their First, Fourth and Fifth Amendment rights -- what has become known as a Bivens action after Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971). To succeed in recovering damages on that theory, plaintiffs must show defendants acted "under color of federal law" (see, e.g., Reuber v. United States, 242 U.S. App. D.C. 370, 750 F.2d 1039, 1054 (D.C. Cir. 1984)).

 Screws v. United States, 325 U.S. 91, 111, 89 L. Ed. 1495, 65 S. Ct. 1031 (1945) provided the seminal definition of the "color of law" concept:

 
It is clear that under "color" of law means under "pretense" of law. Thus acts of officers in the ambit of their personal pursuits are plainly excluded. Acts of officers who undertake to perform their official duties are included whether they hew to the line of their authority or overstep it.

 That element is not present if the acts are not related to the performance of authorized duties: the actor's conduct must be related to the authority conferred upon him or her by the government (see Murphy v. Chicago Transit Authority, 638 F. Supp. 464, 467 (N.D. Ill. 1986)). *fn4"

 It is obvious from a mere recital of defendants' actions that, reprehensible though they are, they were not done under color or pretense of federal law. Their phone calls, threatening letters, false stories and other harassing actions did not in any sense require federal authority for their accomplishment. To be sure, the fact that defendants shared the same federal workplace as Rochon *fn5" enabled or facilitated the commission of those acts -- but it is merely the shared nature of the employment that did so, not the federal nature of the employment or even the employment itself. There was nothing governmental about the activities, nor was there anything about the governmental status of defendants that enabled the activities to take place. Exactly the same things could have occurred equally well had the FBI offices been those of a private employer. *fn6"

 Only one area of activity might escape that analysis: the actions of Rochon's supervisors, sought to be ascribed to defendants through the conspiracy. It will be recalled the supervisors (not themselves defendants here) are accused of tolerating the discriminatory atmosphere, refusing to investigate the incidents and punishing Rochon for reporting those incidents. Those actions (or failures to act) by the supervisors are under pretense of federal law, for to the extent they involve Rochon's employment relationship with the federal government the supervisors clearly act as agents of the federal ...


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