Perry v. Ross

• Decision Date: 30 September 2022
• Docket Number: Civil Action 17-cv-1932 (TSC)
• Parties: ANTHONY PERRY, Plaintiff, v. WILBUR ROSS United States Secretary of Commerce, Defendant.
• Court: U.S. District Court — District of Columbia

ANTHONY PERRY, Plaintiff, v. WILBUR ROSS United States Secretary of Commerce, Defendant.

Civil Action No. 17-cv-1932 (TSC)

United States District Court, District of Columbia

September 30, 2022

MEMORANDUM OPINION

Tanya S. Chutkan, United States District Judge

Despite his diligent efforts in pursuing this employment action pro se plaintiff Anthony Perry has been unsuccessful in having his discrimination claims adjudicated in prior administrative or judicial fora. Unfortunately for Perry this court will not reach his discrimination claims either but instead will affirm the Merit Systems Protection Board's (MSPB or “Board”) decision dismissing his claims for lack of jurisdiction.

I. BACKGROUND

A. Factual Background

Perry was a Supervisory Information Technology Specialist with the U.S. Census Bureau (“Bureau”)^[1] when he retired in 2012 after thirty years of service. ECF No. 30-3, Pls. Br. at 5. Starting in 2007, he filed six Equal Employment Opportunity (“EEO”) complaints (alleging age, gender, race and retaliation), which were still pending in the spring of 2011. ECF No. 35-4, Defs. SOF, ¶¶ 6, 8.

On April 13, 2011, Perry's supervisor informed his staff that, effective April 18, they were required to sign a daily attendance log. Id. ¶ 9; Pls. Br. at 6. On four occasions, Perry failed to comply with the sign-in requirement. ECF No. 35-13, Removal Notice at 10; Pls. Br. at 6. On April 26, the supervisor “again informed [Perry] of his directive regarding the requirement to sign-in/out on the attendance log,” but Perry failed to comply eleven more times. ECF No. 35-13, Removal Notice at 10-11.

On June 7, 2011, Information Technology Assistant Division Chief Daren Gutschow sent Perry a memorandum proposing to terminate him because he had received pay for time he had not worked. ECF No. 35-13, Removal Notice. The Bureau's identification badge monitoring reports indicated that from October 2010 through April 2011, Perry's time and attendance records showed he was absent sixty-two times when he should have been working. Id. at 10. The Bureau also recommended removing him because of his initial refusal to sign the daily attendance log. Id. at 10-11.

Perry subsequently met with IT Chief Terryne Murphy, the deciding official, on several occasions. ECF No. 43, Pls Resp. to Defs. SOF ¶¶ 16-17; ECF No. 35-14. After one of those meetings, Murphy drafted a file memorandum indicating that Perry had proposed, inter alia, that he repay the money he was allegedly paid for the time he was not working, and that he be allowed to continue his employment through September 2012, when he would be eligible to retire with thirty years of service. ECF No. 35-14. Although Perry challenges this account, claiming that he indicated he would contest the removal and had no plans to resign or retire, his June 22, 2011 post-meeting email to Murphy suggests otherwise. ECF No. 43, Pls Resp. to Defs. SOF ¶ 17, 19; ECF No. 35-15. While he did not admit fault, Perry's email stated: “Please allow me to repay the debt, be punished, and stay until May 30, 2012 and walk out of here with dignity.” ECF No. 35-15.

One week later, in a June 30 email copied to his union representative, Perry formally responded to the removal notice. ECF No. 35-7. He explained that some of his absences were due to an “informal accommodation” with his supervisor, who allowed Perry to walk, stretch and exercise outside the building in an effort to manage his osteoarthritic hip and degenerative osteoarthritis in his lower back and knee joint. Id. ¶ I(A); Pls. Br. at 5. Perry claimed his supervisor had not placed any constraints on this arrangement and Perry had not been informed that the arrangement had ceased. ECF No. 35-7, ¶ I(A). He also indicated that he had not been told that walking outside the building created “different accountability” issues than walking inside the building and had he been so informed, he could have formally requested accommodations through the agency disability program.^[2] Id. Perry also explained that in some instances he had taken extended lunch breaks, as was the “accepted practice” at the Census Bureau. Id. ¶ I(B).

In his email, Perry further explained that some of his missed time was due to “failed communications between me and my supervisor in the leave request process, change in work schedule (worked on days leave was taken and on leave days I worked), not remembering to complete request afterwards, or not remembering to correct time and attendance for leave taken.” Id. ¶ I(C). Finally, Perry admitted that “[s]ome of the extended time taken outside of the building was also to deal with the emotional and physical stress of at least six years of EEO struggles with the agency. I attempted to represent myself and I would work on aspects of those actions in my car.” Id. ¶ I(B).

With respect to the sign-in requirement, Perry explained:

After the initial request to sign-in, I requested an explanation from my supervisor regarding the change in procedure from the prior three years when no sign-in was required. My supervisor refused to provide any feedback nor did he pursue this matter in any manner with me until after I received the “proposal to remove.” I inquired of my supervisor again and at that time he stated a purpose for the changed procedure after which I started to sign the log provided.

Id. ¶ 1(E). Perry claims his supervisor explained that the Bureau instituted the new procedure to “get” Perry. Pls. Br. at 30.

Finally, Perry asked the Bureau to consider several mitigating factors, including his supervisor's prior approval of breaks, the fact that he had no past performance issues, his length of service, and that he had never been offered an opportunity to correct the attendance problem before the removal notice. ECF No. 35-7, ¶ III. He proposed that, in light of these factors, he be given instead a fourteen-day suspension and ordered to reimburse the agency for the hours it claimed he was paid when he was not working; he did not mention retirement. Id. ¶ VI.

On July 25, 2011, the Bureau presented Perry with a written settlement proposal requiring, among other things, that Perry “resign/retire no later than” May 30, 2012-the same date on which Perry had earlier suggested he could leave “with dignity.” ECF No. 35-16, 12/23/13 ALJ Opinion 2-3. Several weeks later, on August 16, 2011, Perry and his local Union President, Johnny Zuagar, signed a Settlement Agreement (“Agreement”) under which Perry would dismiss his EEO claims and the Bureau would suspend him for thirty days, but maintain his employment until he retired in September 2012. ECF No. 35-10, Settlement Agreement.

In signing the Agreement, Perry acknowledged that “his decision to retire [wa]s both voluntary and irrevocable.” Id. ¶ 2(a). Specifically, the Agreement provided that:

Complainant further agrees to voluntarily waive all appeal rights he has and to not litigate in any forum, judicial or administrative, any claims arising from a removal

Complaint specifically waives any and all rights and claims arising out of the issues raised in the above-cited formal complaints of discrimination. . . . Complainant waives any and all rights and claims arising from Complainant's employment under the [ADEA], the Older Workers' Benefit Protection Act, the Rehabilitation Act. . . and/or Title VII. . . . This release includes but is not limited to release of any right to administrative, judicial, or congressional relief, or any other type of relief . . . . ....

By signing this Agreement, Complainant agrees that Complainant has read and understands the entire Agreement, the effect(s) of each provision, . . .and that Complainant has signed this Agreement voluntarily and was in no way coerced. Complainant shall have twenty-one (21) days from the date of receipt of this Agreement to consider it terms. Should Complainant sign this Agreement before the twenty-one (21) day time period expired, [sic] Complainant attests that Complainant's decision to accept such a shortening of this period is knowing and voluntary, and was not induced by the Agency through fraud, misrepresentation, and/or threat to withdraw or alter the terms of the Agreement.

Id. ¶¶ 2(c), 2(h), 8.

On March 28, 2012, five months after signing the Agreement, Perry informed the Bureau that he “need[ed] and want[ed] to stay several years past” his agreed-upon retirement date. Pls. Ex. 1, JA69. But the following day, he applied for voluntary retirement effective in September, in exchange for a $25,000 incentive payment. ECF Nos. 34-19; 34-20; Defs. SOF ¶ 37. The Bureau approved his application shortly thereafter and, less than one month later, he appealed his “involuntary” retirement to the MSPB. ECF Nos. 34-5; 34-6. Around the same time, he also sent an email to Murphy indicating a desire to “stay several years past September.” Pls. Ex. 1, JA69. Perry now claims he was attempting to rescind his retirement request. See ECF No. 30-2, Pls. SOF ¶¶ 53-54. Nonetheless, the Bureau retired Perry as scheduled.

B. Prior Administrative Proceedings

Challenging his retirement, Perry filed an administrative appeal in which he reasserted his EEO claims, argued that the proposed removal was in retaliation for his EEO activities, and claimed that he had signed the Agreement involuntarily. Pls Ex. 1, JA30. As such, he argued, the Agreement's waiver provisions did not prevent him from pursuing his underlying discrimination claims nor challenging his forced retirement. See Perry v. Merit Sys. Prot. Bd., ___U.S.___, 137 S.Ct. 1975, 1982 (2017) (citation omitted). The MSPB administrative law judge (ALJ) found that Perry had voluntarily signed the Agreement and had therefore waived his right to appeal. ECF No. 35-22, 7/30/12 ALJ Opinion at 3-5. ...