Perry v. Kappos, 062810 VAEDC, 1:10cv167 (JCC)

Docket Nº1:10cv167 (JCC).
Opinion JudgeJAMES C. CACHERIS, District Judge.
Party NameCHUCKWUDI PERRY, Plaintiff, v. DAVID J. KAPPOS, Director of the U.S. Patent and Trademark Office, Defendant.
Case DateJune 28, 2010
CourtUnited States District Courts, 4th Circuit, United States District Court (Eastern District of Virginia)



DAVID J. KAPPOS, Director of the U.S. Patent and Trademark Office, Defendant.

No. 1:10cv167 (JCC).

United States District Court, E.D. Virginia, Alexandria Division.

June 28, 2010


JAMES C. CACHERIS, District Judge.

This case is before the Court on a Motion to Dismiss Plaintiff Chuckwudi Perry's ("Plaintiff" or "Perry") Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) filed by David J. Kappos ("Defendant" or the "Government").1 For the following reasons, the Court will deny Defendant's Motion.

I. Background

This case arises out of the termination of Plaintiff's employment as a patent examiner with the United States Patent & Trademark Office, an agency within the Department of Commerce ("USPTO" or the "Agency"). (Compl. ¶¶ 3, 9, 38.) Plaintiff alleges disability discrimination in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq. ("RA") (Count One) and retaliation in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-3(a) ("Title VII") (Count Two).

Plaintiff alleges that he has monocular vision (blindness in one eye) and an "undiagnosed but continuing degenerative eye disease" in his other eye. (Compl. ¶ 46.) Count One is premised on Plaintiff's contention that Defendant failed to provide the "reasonable accommodation of a flexible schedule," which he alleges would have allowed him to seek treatment for his vision. (Compl. ¶¶ 49-55.) Count Two is premised on Plaintiff's contention that his supervisor at the USPTO "initiated a sequence of actions to attempt to justify Mr. Perry's dismissal" in response to Perry filing "an informal complaint of discrimination" regarding a disagreement he had with the Human Resources Department at the USPTO. (Compl. ¶¶ 61-64.)

In its Motion to Dismiss, the Government argues that "the plaintiff, having failed and refused to carry out his obligations in the administrative [discovery] phase of the [United States Equal Employment Opportunity Commission ("EEOC")] process, has failed to exhaust his administrative remedies; [and] such exhaustion is a prerequisite to pursuit of this action in this Court." (Def.'s Memorandum in Support of its Motion to Dismiss ("Mem.") at 1.) The parties, however, disagree sharply about Plaintiff's level of cooperation in the administrative discovery phase of the EEOC process, and both parties rely entirely on the exhibits to their briefs, rather than the allegations in the Complaint, for factual support for their arguments.

Plaintiff, assisted by counsel, initiated the EEOC process on June 18, 2007. (Mem. Ex. 1 (EEOC Counselor's Inquiry Report) at 1.)2 The Plaintiff's formal complaint of discrimination is dated August 2, 2007. (Mem. Ex. 2 (Complaint of Employment Discrimination).) The formal complaint was received by the USPTO's EEOC Officer on August 13, 2007, and it was accepted for investigation in part and dismissed in part on September 17, 2007. (Mem. Ex. 3 (September 17, 2007 letter from the USPTO's Office of Civil Rights to Plaintiff's then-attorney, Morris E. Fisher, Esq.).)

Following USPTO's acceptance of the complaint, Plaintiff was in contact with EEO investigator James Hubbard ("Hubbard"), a government contractor. (See Mem. Ex. 4 (Report of Investigation) at 1; Plaintiff's Opposition to Mem. ("Opp.") Ex. A (Declaration of Chuckwudi Perry) ¶ 4.) Plaintiff avers that, in October and November of 2007, he requested his "first counsel" to "coordinate a date on which [the attorney] could attend a meeting with Mr. Hubbard and [Plaintiff]." (Ex. 4 ¶ 5.) After the attorney failed to do so, Plaintiff avers that he fired the attorney and retained his second counsel, Lee Boothby ("Boothby"). (Opp. Ex. A ¶¶ 5-6.) Plaintiff further avers that, in December of 2007, Hubbard "changed direction" and asked Plaintiff to respond to "written questions" and the statements made in draft affidavits of three USPTO employees "in writing." (Opp. Ex. A ¶ 6.)

On January 10, 2008, having received no response from Plaintiff, Hubbard sent a letter to Boothby "reintroducing himself" and providing Plaintiff with a "list of interrogatories." (Reply Memorandum in Support of Def.'s Mot. to Dismiss ("Reply") Ex. 1 at 1.) Hubbard also emailed the letter and interrogatories to "" and ""3 (Reply Ex. 1 at 4.) Hubbard's letter asked that Boothby "please acknowledge receipt of [the] correspondence" and that Hubbard wished Boothby to have Perry "respond [to the letter] within 15 days of receipt." (Reply Ex. 1 at 1.) Additionally, the email to Boothby stated that Hubbard was "interested in having Mr. Perry respond to the Interrogatories attached to this correspondence within 15 days of receipt of e-mail; however, if [Plaintiff] is available to meet with [him] in person, please arrange a location and a specific date, and I will meet with him in your presence." (Reply Ex. 1 at 4.) Boothby's office acknowledged receipt of the January 10, 2008 letter on January 14, 2008. (Reply Ex. 1 at 3.)

After the fifteen days had elapsed, on February 1, 2008, Hubbard issued his "Report of Investigation." (Mem. Ex. 4.) At that time, Plaintiff had failed to "provide sworn testimony requested from him and his current [legal] representative Lee Boothby." (Mem. Ex. 4 at 2.) Hubbard drafted the Report of Investigation based on, among other things, documentary evidence obtained from the USPTO and the "sworn testimony" of the "identified [Responsible Management Officials]." Plaintiff avers that he was not aware Hubbard was going to file his report on February 1; however, Perry makes no statement regarding the fifteen-day deadline imposed by Hubbard in his January 10, 2008 letter. (Opp. Ex A ¶ 9.) On February 5, 2008, Plaintiff submitted an "Affidavit" and "Rebuttal Statement" to Hubbard. (Mem. Ex. 5 at 2; Opp. Ex. A ¶ 8.) The Agency requested a Supplemental Report of Investigation to incorporate Plaintiff's February 5 submissions. (Mem. Ex. 5 at 2.) Hubbard filed this Supplemental Report on March 27, 2008. (Mem. Ex. 5 at 2.)

The Plaintiff sought a hearing before the EEOC, which appointed an Administrative Judge to hear and resolve the matter. During the discovery period before the EEOC, Plaintiff refused to provide a complete and unredacted copy of...

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