Perry v. Kappos, 11-1476
| Decision Date | 13 June 2012 |
| Docket Number | No. 11-1476,11-1476 |
| Parties | CHUCKWUDI PERRY, Plaintiff - Appellant, v. DAVID KAPPOS, Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office, Defendant - Appellee, and GARY F. LOCKE, Secretary, United States Department of Commerce, United States Patent and Trademark Office, Agency, Defendant. |
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
UNPUBLISHED
Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. James C. Cacheris, Senior District Judge. (1:10-cv-00167-JCC-TCB)
Before WILKINSON, DIAZ, and FLOYD, Circuit Judges.
ARGUED: Stephen Z. Chertkof, HELLER, HURON, CHERTKOF, LERNER, SIMON & SALZMAN, PLLC, Washington, D.C., for Appellant. Julie Ann Edelstein, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Douglas B. Huron, HELLER, HURON, CHERTKOF & SALZMAN, Washington, D.C., for Appellant. Neil H. MacBride, United States Attorney, R. Joseph Sher, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
The U.S. Patent & Trademark Office ("USPTO") terminated the employment of Chuckwudi Perry. Perry responded by filing suit, alleging that the USPTO discharged him in contravention of the Rehabilitation Act of 1973 and Title VII. The district court granted summary judgment in favor of the USPTO. On appeal, we conclude that Perry's Rehabilitation Act claim fails because he is unable to establish that he is disabled under the statute. Perry's Title VII claim similarly lacks merit, as Perry has not shown a causal relation between his alleged protected conduct and the termination of his employment. We therefore affirm the judgment of the district court.
Perry suffers from vision problems. He has no vision in his left eye and reduced vision in his right eye. Perry's ailments have caused a "lack of depth perception, frequent sudden degradation of vision in [his] right eye, and inability to distinguish subtle color changes." J.A. 239. With the use of corrective devices, however, Perry is able to perform critical tasks. He has obtained a Maryland driver's license and even feels comfortable traversing certain routes at night, provided they are familiar and well lit. Perry can moreover"read efficiently" with the use of magnifying glasses and straight-edge devices. Id. In the workplace, Perry reports that the "cumulative effects" of his conditions "frequently leave [him] fatigued and needing to take a break or rest before continuing work." Id. Although Perry can perform an office job that requires him to work primarily at a computer, his vision problems render him "less efficient than able-bodied persons." Id. 240.
On January 22, 2007, Perry joined the USPTO as a patent examiner. Despite his vision problems, Perry "was able to perform the essential functions of his patent examining position." Id. 258. Indeed, Perry was even able to drive himself to and from the local Metro stop each workday. While employed at the USPTO, Perry suffered complications with his eyesight that required continuing medical treatment. He sought a flexible schedule from the USPTO, allowing him to miss normal work hours to tend to his medical needs and make up the lost time at night or on the weekends. Perry claimed that none of his supervisors responded to his requests in a meaningful manner.
Soon after joining the USPTO, Perry became involved in a dispute about his salary. On January 29, Perry emailed April Irondi, a human-resources employee, to begin the process of securing a pay advance. Irondi told Perry to stop by her officewhen he had time to talk, and he visited Irondi's office after receiving her response. He claimed that Irondi was on the phone when he arrived at her office. As he approached the door, Perry asserted that Irondi told him to leave immediately and close the door behind him. Irondi later complained to her supervisor about the incident, alleging that Perry had verbally accosted her. Jeffrey Pwu, Perry's supervisor, learned about the incident and confronted Perry. Perry, an African American, believed that Irondi's and Pwu's actions were the result of discrimination against him on the basis of race.
After the incident with Irondi and discovering that the wrong salary grade and step had been entered in his file, Perry contacted Bernice Nesbitt, another human-resources employee, to remedy the problem. Nesbitt directed Perry to speak with Irondi. Perry responded in a February 6 email that he had "had problems with Ms. Irondi and [he did] not want to deal with her any more [sic]." Id. 144. He also threatened to file an administrative grievance if employees did not become more solicitous of his requests and complaints.
About a week later, Perry contacted the USPTO's Office of Civil Rights ("OCR") about the incident with Irondi. On February 15, Lisa Dill, the Equal Employment Opportunity ("EEO") specialist at the USPTO, scheduled a meeting with Perry to discuss his concerns about the pay-advance dispute. Perry metwith Dill and described his issues with Irondi and Pwu, alleging that the actions of both were racially discriminatory. Perry learned that the OCR would draft an informal complaint, after the issuance of which he would have fifteen days to file a formal complaint of employment discrimination.
Perry testified that he felt pressure from Pwu not to file a formal complaint. According to Perry, Pwu began asking him about the status of his complaint in late February or early March. On the first occasion, Pwu asked Perry, "[W]hat's going on?" and Perry informed him that he was "trying to work through the issues." Id. 167. Pwu told Perry to keep him informed. In a second encounter, Pwu stopped Perry in the hall and again asked, "What's going on?" Id. Perry responded that "everything was fine" because he feared being fired. Id. He explained why he thought Pwu was pressuring him not to file a formal complaint:
It wasn't so much what he said. It was what he did. He was very--he was constantly wanting to talk with me and get my--get my status or what was happening with this. It wasn't from a standpoint of wanting to help, or at least that, because he really didn't. It was just from the standpoint of wanting to know what was going on and whether or not I was going to file formal.
Id. 176-77. Perry received his Notice of Right to File a Formal Complaint on March 15, but he elected not to formalize his grievances.
Citing Perry's lackluster performance as a patent examiner, Deborah Reynolds, the assistant to the director at the Patent Training Academy, on May 14 filed a request for termination of his employment. Jim Ng, director of the Patent Training Academy, wrote to Perry on May 23 to inform him that he had been discharged. Ng explained that Perry's performance had not "progressed at the expected rate," that he had "routinely" missed due dates and failed to complete assignments, and that his work record "indicate[d] little or no potential for growth and development as a career professional in the USPTO." Id. 129.
Perry responded to his termination by filing a second informal complaint with the USPTO's OCR, alleging that the USPTO had discriminated against him on the basis of race and disability. He subsequently filed a formal complaint of employment discrimination--which repeated the charges made in the second informal complaint--with the Equal Employment Opportunity Commission ("EEOC"). An administrative law judge dismissed Perry's complaint, and the EEOC affirmed.
Perry then filed this action in the U.S. District Court for the Eastern District of Virginia, raising two claims against David Kappos, the director of the USPTO. First, Perry allegedthat the USPTO violated the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., by refusing to grant him reasonable accommodations and intentionally discriminating against him on the basis of his disability--i.e., monocular vision that impaired his ability to perform the major life activities of seeing and working. Second, Perry alleged that the USPTO discharged him in contravention of the antiretaliation provision of Title VII, 42 U.S.C. § 2000e-3(a). He claimed that the USPTO terminated his employment as retaliation for filing an informal complaint of discrimination.
The district court granted Kappos's motion for summary judgment. The court first held that Perry was not "disabled" pursuant to the Rehabilitation Act, foreclosing relief on that claim. As for the Title VII claim, the court found that Perry's filing an informal complaint was mere "opposition" activity under the statute. Because Perry had failed to demonstrate that he reasonably believed that the employment practice he opposed was unlawful, the court found this claim meritless.
This appeal followed.
We review de novo the district court's grant of summary judgment. EEOC v. Xerxes Corp., 639 F.3d 658, 668 (4th Cir. 2011). Summary judgment is appropriate where the moving party"shows that there is no genuine dispute as to any material fact" and that it is "entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 252 (1986). At the summary judgment stage, the nonmoving party must come forward with more than " 'mere speculation or the building of one inference upon another' " to resist dismissal of the action. Othentec Ltd. v. Phelan, 526 F.3d 135, 140 (4th Cir. 2008) (quoting Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985)); see also Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299, 308 (...
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