Anthony Perry v. Gina Raimondo

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 12, 2024 Decided May 14, 2024

No. 22-5319

ANTHONY W. PERRY,

APPELLANT

v.

GINA RAIMONDO, UNITED STATES SECRETARY OF COMMERCE,

ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:17-cv-01932)

Nathaniel A.G. Zelinsky, appointed by the court, argued

the cause for appellant. With him on the briefs was Catherine

E. Stetson, appointed by the court.

Anthony W. Perry, pro se, was on the briefs for appellant.

Catherine Padhi, Attorney, U.S. Department of Justice,

argued the cause for appellees. With her on the brief were

Brian M. Boynton, Principal Deputy Assistant Attorney

General, and Charles W. Scarborough and Stephanie Marcus,

Attorneys. Derek Hammond and R. Craig Lawrence,

Assistant U.S. Attorneys, entered appearances.

2

Before: HENDERSON, PAN and GARCIA, Circuit Judges.

Opinion for the Court filed by Circuit Judge PAN.

PAN, Circuit Judge. Appellant Anthony Perry is a former

employee of the Census Bureau (the “Bureau”). He retired

pursuant to a settlement agreement, after the Bureau

commenced procedures to fire him. Perry challenged the

circumstances of his departure from the agency by filing a

“mixed case” appeal before the Merit Systems Protection

Board (the “Board” or “MSPB”), which alleged violations of

the Civil Service Reform Act (“CSRA”) and various federal

anti-discrimination laws. The Board ultimately dismissed the

case on the ground that it lacks jurisdiction under the CSRA

over voluntary decisions to retire. The district court reviewed

the Board’s decision, concluded that it was not arbitrary or

capricious, and entered summary judgment in favor of the

government.

On appeal, Perry argues that the district court erred by

failing to consider his discrimination claims de novo, and by

affirming the Board’s dismissal of his case for lack of

jurisdiction. Because the district court did not allow Perry to

litigate the merits of his discrimination claims, as required by

statute, we reverse in part and remand for further proceedings

on the discrimination claims. We affirm the district court’s

conclusion that the Board properly dismissed Perry’s mixed

case for lack of jurisdiction.

I.

A.

Federal employees are protected from unlawful

employment actions by two different — but overlapping —

statutory regimes.

3

First, federal employees are protected by anti-

discrimination laws, such as Title VII of the Civil Rights Act

of 1964 (“Title VII”) and the Age Discrimination in

Employment Act of 1967 (“ADEA”). Title VII prohibits

employment discrimination on the basis of race, color,

religion, sex, or national origin, see 42 U.S.C. § 2000e–16;

while the ADEA prohibits discrimination on the basis of age,

see 29 U.S.C. § 633a. To make a claim under an anti-

discrimination statute, a federal employee must go through an

administrative process at the employing agency. See Al-Saffy

v. Vilsack, 827 F.3d 85, 88 (D.C. Cir. 2016); 29 C.F.R.

§ 1614.101 et seq. At the outset, the employee has forty-five

days to report the alleged discrimination to an Equal

Employment Opportunity (“EEO”) counselor. Al-Saffy, 827

F.3d at 85 (citing 29 C.F.R. § 1614.105(a)(1)). The counselor

“will attempt an informal resolution,” but if counseling does

not resolve the employee’s claim, “the employee may file a

formal complaint with the employing agency itself, usually

through that agency’s [EEO] office.” Id. (citing 29 C.F.R.

§ 1614.106). The agency then must “conduct an impartial

and appropriate investigation of the complaint,” and provide

the employee with an investigative report. Id. (citing 29

C.F.R. § 1614.106(e)(2)) (cleaned up). Once it does so, the

employee may request either an immediate decision from the

agency or a hearing before an administrative law judge

(“ALJ”) employed by the Equal Employment Opportunity

Commission (“EEOC”). Id. After the ALJ considers the

complaint and issues a decision, id. at 88–89, the agency must

enter a final order, stating whether it will fully implement the

decision of the ALJ. 29 C.F.R. § 1614.110(a). The employee

has the right to appeal the final order to the EEOC. Al-Saffy,

827 F.3d at 89. Moreover, after exhausting the above-

described administrative remedies, the employee may file a

discrimination case in the district court. Id.; see also 42

U.S.C. § 2000e-16(c).

4

Second, federal employees are protected by the CSRA,

which “establishes a framework for evaluating personnel

actions taken against federal employees.” Kloeckner v. Solis,

568 U.S. 41, 44 (2012). Under the CSRA, an agency may not

take a “particularly serious” adverse employment action

against an employee — such as a removal, a suspension for

more than 14 days, or a demotion, id. at 44 & n.1; see 5

U.S.C. § 7512 — unless doing so would “promote the

efficiency of the service,” 5 U.S.C. § 7513(a). The agency

must demonstrate that the employee “engaged in

misconduct,” King v. Frazier, 77 F.3d 1361, 1363 (Fed. Cir.

1996), and that the adverse action appropriately promotes the

efficiency of the service after accounting for various factors.

See Douglas v. Veterans Admin., 5 M.S.P.R. 280, 304–06

(1981). When an agency takes a serious adverse employment

action, “the affected employee has a right to appeal the

agency’s decision to the MSPB, an independent adjudicator

of federal employment disputes.” Kloeckner, 568 U.S. at 44;

see 5 U.S.C. § 7513(d). The employee might argue, for

example, that they did not commit any misconduct, see King,

77 F.3d at 1363, or that the adverse action was too harsh and

thus unnecessary to promote the efficiency of the service, see

Douglas, 5 M.S.P.R. at 304–06. If the MSPB determines that

the adverse action was justified under the CSRA, then the

employee may seek judicial review of the MSPB’s decision in

the Federal Circuit. See 5 U.S.C. §§ 7703(a)–(c). The

Federal Circuit will set aside an MSPB ruling only if it is “(1)

arbitrary, capricious, an abuse of discretion, or otherwise not

in accordance with law; (2) obtained without procedures

required by law, rule, or regulation having been followed; or

(3) unsupported by substantial evidence.” Id. § 7703(c).

Sometimes, a federal employee alleges unlawful

discrimination and a serious adverse employment action: The

employee might allege, for example, that they were

5

terminated based on their race. That federal employee “may

proceed in a variety of ways.” Kloeckner, 568 U.S. at 45.

The employee may bring a standard claim under Title VII by

exhausting administrative remedies in the agency and then

filing a case in the district court. See Al-Saffy, 827 F.3d at

85–89. Or instead, they may bring the case before the MSPB

as a “mixed case,” which combines a claim under a federal

anti-discrimination statute with a challenge to a serious

adverse employment action under the CSRA. Kloeckner, 568

U.S. at 50 (“[M]ixed cases” are “those appealable to the

MSPB and alleging discrimination.”); 29 C.F.R.

§ 1614.302(a)(2) (defining a “mixed case appeal” as one in

which an employee “alleges that an appealable agency action

was effected, in whole or in part, because of discrimination”).

In a mixed case, the employee can appeal the adverse action

directly to the MSPB, thereby “forgoing the agency’s own

system for evaluating discrimination charges.” Kloeckner,

568 U.S. at 45. Alternatively, the employee may file an EEO

complaint with the agency and then appeal an unfavorable

outcome to the MSPB. Id. (citing 5 CFR § 1201.154(b); 29

CFR § 1614.302(d)(1)(i)). If the employee chooses to

proceed in a mixed case before the MSPB, and the personnel

action is upheld, the employee may seek review of the

MSPB’s ruling by a United States District Court. Perry v.

MSPB, 582 U.S. 420, 432 (2016).

B.

Appellant Anthony Perry worked for the Census Bureau

from 1984 to 2012. While employed at the Bureau, Perry

filed several EEO complaints alleging race- and age-based

discrimination — Perry is African-American and was in his

mid-forties at the time that he filed his complaints.

6

In 2011, the Bureau determined that Perry often was

absent during his scheduled working hours. The Bureau

learned of Perry’s unauthorized absences when it audited his

identification-badge monitoring reports, which kept track of

when he scanned in and out of the building. When Perry’s

supervisor implemented a policy that required all employees

to sign a daily attendance log, Perry initially refused to

comply.

The Bureau decided to discipline Perry for his conduct.

In the Bureau’s view, Perry’s absenteeism and recalcitrance

“adversely impacted the [a]gency” and raised questions about

Perry’s “integrity and reliability.” J.A. 132. The Bureau

balanced Perry’s violations against his twenty-six years of

service and found that the “egregiousness and repetitive

nature” of Perry’s misconduct necessitated termination. Id. at

133. Thus, on June 7, 2011, the Bureau proposed removing

Perry from his “position and Federal service to promote the

efficiency of the service.” Id.; see 5 U.S.C. § 7513(a) (agency

may take serious disciplinary actions under the CSRA if

doing so would “promote the efficiency of the service”).

Perry submitted a formal response. With respect to his

absences from work, Perry argued that he had osteoarthritis,

which required him to walk frequently. Perry claimed that he

had told his supervisor about his medical condition and that

the supervisor had told him to “do what [he] needed to do.”

J.A. 137. Perry understood those words to confer “an

informal accommodation for [his health] problem,” which

included permission for him to take frequent walks and other

exercise outside of the office building. Id. But Perry

conceded that he had used some of the time he spent outside

of the building during working hours to prepare his EEO

actions “in [his] car.” Id. Furthermore, Perry admitted that

he had “failed communications” with his supervisor about

7

recording leave. Id. at 137–38. With respect to his refusal to

sign the attendance log, Perry stated that he had “requested an

explanation” about why he was being required to sign in, and

that he had begun signing the log after his supervisor

provided an explanation. Id. at 138. Based on all those

circumstances, Perry proposed as a “settlement” that, instead

of being fired, he could serve a 14-day suspension and repay

any salary that the Bureau thought necessary. Id. at 140.

The Bureau refused Perry’s offer. After some back and

forth, however, the Bureau and Perry came to an agreement:

Perry would serve a 30-day suspension, leave voluntarily

before September 4, 2012, agree “not to file a claim against

the Agency concerning this matter,” and withdraw his

pending discrimination complaints. J.A. 109–10, 433. Perry

retired in March 2012.

C.

Soon after Perry left the Bureau, he decided to challenge

the Bureau’s actions that led to the end of his employment.

To do so, Perry filed an appeal before the MSPB. Although

the MSPB’s jurisdiction is limited to “particularly serious”

adverse employment actions, such as an involuntary

termination, Kloeckner, 568 U.S. at 44, Perry alleged that the

Bureau had coerced him into retiring, rendering his departure

involuntary. See id. (noting that the MSPB possesses

jurisdiction over an adverse employment action “[i]f (but only

if) the action is particularly serious”).

Perry leveled two sets of substantive allegations. First,

he claimed that the Bureau had discriminated against him

based on his race, age, and disability, and had retaliated

against him for filing complaints with the EEO office.

Second, he claimed that the Bureau’s decision to terminate his

employment violated the CSRA because it failed to take

8

account of his disability and accommodations. See King, 77

F.3d at 1363 (noting that an adverse action cannot be

sustained if the employee did not engage in any misconduct).

Thus, Perry alleged discrimination that was intertwined with

an adverse employment action within the MSPB’s

jurisdiction; and he pled violations of both the CSRA and

federal anti-discrimination laws — in other words, he brought

a mixed case. See Kloeckner, 568 U.S. at 44.

An ALJ initially dismissed Perry’s appeal without a

hearing, on the ground that the MSPB lacks jurisdiction over

voluntary decisions to retire. But Perry appealed to the

Board, arguing in relevant part that the Bureau had coerced

him into retiring by unjustifiably threatening to terminate

him. See Schultz v. U.S. Navy, 810 F.2d 1133, 1136 (Fed.

Cir. 1987) (noting that the Board has jurisdiction if agency

lacks “reasonable grounds for threatening to take an adverse

action”). The Board rejected Perry’s claim that the Bureau

lacked reasonable grounds to fire him based on his

absenteeism, noting that Perry’s “own statements”

demonstrated that there was “at least some basis for” his

termination. J.A. 349–50. After remanding the case to an

ALJ to address a different issue, the Board ultimately

affirmed the dismissal of Perry’s case because, it concluded,

his retirement had been voluntary and the MSPB therefore

lacked jurisdiction.

Perry, acting pro se, petitioned for review of the Board’s

decision in this court. We appointed amicus curiae to present

arguments in support of Perry’s position. The parties

ultimately agreed that the case was not properly before the

D.C. Circuit but disputed which court should review the

Board’s decision instead. See Perry v. MSPB, 829 F.3d 760,

763 (D.C. Cir. 2016). Perry and amicus argued that the

mixed case should be heard in the district court. Id. The

9

government argued that the case should be decided in the

Federal Circuit. Id. After we transferred the case to the

Federal Circuit, the Supreme Court granted certiorari and

reversed, holding that “[m]ixed cases shall be filed in district

court.” Perry, 582 U.S. at 431 (cleaned up). On remand from

the Supreme Court, we transferred the case to the district

court. See Perry v. Ross, 697 F. App’x 18 (D.C. Cir. 2017).

The district court granted summary judgment in favor of

the government. Perry v. Ross, No. 17-cv-1932, 2022 WL

4598650, at *14 (D.D.C. Sept. 30, 2022). First, the district

court reviewed and affirmed the Board’s dismissal of Perry’s

mixed case for lack of jurisdiction. The district court

reasoned that retirements are generally voluntary and

therefore lie outside the Board’s jurisdiction. But the district

court recognized that a retirement may be deemed involuntary

if an agency initiates the separation process despite knowing

that it cannot justify terminating the employee. See Schultz,

810 F.2d at 1136. Applying that standard, the district court

affirmed the Board’s holding that the Bureau had reasonable

grounds to terminate Perry’s employment. In relevant part,

the court upheld the Board’s conclusion that Perry’s own

“admissions regarding his ongoing absences from work and

his failure to complete leave requests” demonstrated “at least

some basis for the proposed discipline.” Perry, 2022 WL

4598650, at *8.

Second, the district court entered summary judgment in

favor of the government with respect to Perry’s

discrimination claims. Because the Board had not reached a

decision on the merits of those claims, the district court

concluded that it could only consider whether the Board’s

jurisdictional dismissal of the entire mixed case was arbitrary

or capricious. The district court thus did not separately

consider the merits of Perry’s discrimination claims. Because

10

the district court had decided to affirm the Board’s dismissal

of the mixed case, it concluded that the government was

entitled to summary judgment on Perry’s discrimination

claims as well.1

Perry appealed the district court’s ruling and filed a pro

se motion for summary reversal. He argued, in relevant part,

that he had a “right to . . . trial de novo” on his discrimination

claims. 5 U.S.C. § 7703(c). We denied Perry’s motion for

summary reversal and appointed amicus curiae to present

arguments in support of Perry’s position. Perry has adopted

amicus’s arguments before us.

II.

Although Perry brought both discrimination claims and a

CSRA claim before the MSPB, the Board determined that it

lacked jurisdiction to hear Perry’s mixed case because his

retirement from the Bureau was voluntary. The Board thus

dismissed the entire case without addressing Perry’s

discrimination claims. In reviewing the MSPB’s decision, the

district court affirmed the Board’s dismissal of the case and

did not consider the merits of the discrimination claims.

Perry now challenges the district court’s disposition of both

parts of his mixed case: First, Perry contends, and the

government now concedes, that the district court erred by

failing to allow him to litigate his discrimination claims de

novo. Second, Perry argues that the Board’s dismissal of his

mixed case should be reversed because he was entitled to an

evidentiary hearing before an ALJ to determine whether his

retirement was involuntary under the CSRA. We address

each argument in turn.

1

The district court also rejected Perry’s other claims, which are

not pressed on appeal.

11

A.

This case requires us to clarify the standard of review that

the district court must apply when reviewing a ruling of the

MSPB in a mixed case. The district court reviewed and

affirmed the Board’s dismissal of the case, properly applying

a deferential standard of review. See infra Part II.B; 5 U.S.C.

§ 7703(c). But it did not conduct a separate, de novo

proceeding to resolve Perry’s discrimination claims. Instead,

the district court relied on its affirmance of the MSPB’s

dismissal of the case and reasoned that a plaintiff is not

entitled to a trial de novo on a discrimination claim unless the

MSPB decided that claim on the merits. Perry, 2022 WL

4598650, at *12–*13 (“Because the MSPB decided that it

lacked jurisdiction over Perry’s discrimination claims, this

court’s task is to decide if that decision was arbitrary and

capricious — not whether the discrimination claims have

merit.”).

All parties now agree that the district court erred and that

it was required to consider Perry’s discrimination claims de

novo even if the Board did not address those claims. To start,

the provision of the CSRA that addresses judicial review of

MSPB decisions states that “in the case of discrimination . . .

the employee or applicant shall have the right to have the

facts subject to trial de novo by the reviewing court.” 5

U.S.C. § 7703(c). Moreover, the Supreme Court has held that

in mixed cases, the “reviewing court” identified in the statute

is the federal district court — not the Federal Circuit, where

other MSPB appeals are heard. See Perry, 582 U.S. at 431; 5

U.S.C. § 7703. This is evidently because the Federal Circuit,

an appellate court, cannot oversee the litigation of

discrimination claims and conduct a “trial de novo,” if

necessary. See Perry, 582 U.S. at 429 (citing 5 U.S.C.

§ 7703(c)). In sum, under the relevant statute and Supreme

12

Court precedent, Perry is entitled to have the “facts” of his

discrimination claims “subject to trial de novo” in the district

court.

Any confusion on this point may be rooted in our case

law, which historically distinguished between different types

of mixed cases. We previously held that mixed cases in

which the Board reached a decision on the merits should be

reviewed in the district court; but other types of mixed cases

in which the Board dismissed the case on procedural or

jurisdictional grounds should be reviewed in the Federal

Circuit. See Perry, 829 F.3d at 762; Powell v. Dep’t of Def.,

158 F.3d 597, 599 (D.C. Cir. 1988). The Supreme Court

abrogated that line of cases in two decisions. First, in

Kloeckner, the Supreme Court held that mixed cases decided

by the MSPB on procedural grounds should proceed in

district court. See 568 U.S. at 56 (noting that mixed cases

belong in district court whether the MSPB decided the case

“on procedural grounds or instead on the merits”). Then, in

Perry’s initial appeal of the Board’s decision, the Supreme

Court made explicit that all mixed cases should be heard in

district court. Perry, 582 U.S. at 431 (“We announced a clear

rule in Kloeckner: Mixed cases shall be filed in district

court.” (cleaned up)). Together, Kloeckner and Perry instruct

that a mixed case should be “review[ed]” in district court, 5

U.S.C. § 7703(c), regardless of whether the Board decided it

on the merits, on procedural grounds, or on jurisdictional

grounds; as the Court explained, those labels are “slippery”

and attempting to draw a “distinction” between them “may be

unworkable.” Perry, 582 U.S. at 434–36.

The district court thus was required, as the “reviewing

court,” to provide a “trial de novo” on Perry’s claims of

discrimination. 5 U.S.C. § 7703(c). Although the term

“reviewing court” may seem to imply that the district court

13

should “review” only a merits decision by the MSPB on a

discrimination claim, that term is used because the court must

“review” the entire mixed case — for example, in this case,

the district court should have “reviewed” the MSPB’s

jurisdictional dismissal of the entire case and then separately

considered the discrimination claims. Indeed, the statute

specifies that the employee has a right to a “trial de novo” “in

the case of discrimination,” i.e., on the part of the mixed case

that constitutes a discrimination claim. Id. That is true even

though the MSPB dismissed the mixed case for lack of

jurisdiction. Because the Supreme Court considered and

rejected making any distinction between merits- and non-

merits-based decisions by the Board in this context, Perry,

582 U.S. at 434–37, a district court’s statutory obligation to

consider discrimination claims de novo cannot depend on

whether the MSPB reached a decision on the merits. In sum,

all mixed cases decided by the MSPB are reviewed by the

district court, id. at 431, and the district court must allow all

discrimination claims in mixed cases to be tried or litigated de

novo, 5 U.S.C. § 7703(c).2

2

Despite the government’s acknowledgement here that the

discrimination claims incorporated in a mixed case must be

reviewed de novo, the government took a different position before

the district court. The government claimed that the district court

would not need to resolve Perry’s discrimination claims if it

concluded that the MSPB properly “dismissed [Perry’s case] for

lack of jurisdiction.” See Gov’t Mot. Sum. J., ECF No. 34-3, at 7

n.3. And the government requested dismissal of the entire case,

including the discrimination claims, based on an argument that the

MSPB’s jurisdictional determination was sound. See id. at 12 (“For

the reasons set forth above, Defendant respectfully request[s] that

the Court affirm the jurisdictional determination of the MSPB and

dismiss this case.”). The district court apparently was misled by

the government’s incorrect representations.

14

The foregoing framework raises the question of whether

Perry was required to pursue an EEO complaint before the

agency and to exhaust his administrative remedies before

litigating the discrimination part of his mixed case in the

district court. Perry urges us to hold that plaintiffs in mixed

cases are not required to exhaust their administrative

remedies, even though that step would be mandatory if they

instead brought a pure discrimination claim under an anti-

discrimination statute. See supra Part I.A. But as the parties

now agree, Perry filed an EEO complaint in this case, albeit

after he filed his appeal in the MSPB; and Perry’s EEO

complaint was resolved on the merits by the agency and later

affirmed by the EEOC. Thus, it is undisputed that Perry

exhausted his administrative remedies. Under the

circumstances, the issue of whether administrative exhaustion

is necessary in a mixed case is not relevant to the resolution

of this appeal; and we therefore leave it for another day. See

United States v. Philip Morris USA Inc., 566 F.3d 1095, 1118

(D.C. Cir. 2009) (“Because these challenges have no impact

on the outcome of this appeal, we decline to address them.”).

B.

Perry challenges the Board’s dismissal of his mixed case

for lack of jurisdiction, based on its conclusion that he

voluntarily retired from the Bureau. Perry argues that he

sufficiently alleged facts that entitled him to an evidentiary

hearing on the voluntariness of his retirement. We disagree.

Although we review the district court’s grant of summary

judgment de novo, Navajo Nation v. Dep’t of the Interior, 57

F.4th 285, 291 (D.C. Cir. 2023), our review of the underlying

jurisdictional determination by the Board is deferential. We

will set aside the Board’s jurisdictional ruling only if we

conclude that it was “arbitrary or capricious, obtained without

15

compliance with lawful procedures, unsupported by

substantial evidence or otherwise not in accordance with

law.” Barnes v. Small, 840 F.2d 972, 979 (D.C. Cir. 1988);

see 5 U.S.C. § 7703(c).

As discussed supra, the Board cannot exercise

jurisdiction over disputes about an employee’s voluntary

retirement, but the Board has jurisdiction if the employee

demonstrates that his retirement was, in fact, not voluntary.

See Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322, 1324

(Fed. Cir. 2006). Under longstanding Board precedent, a

retirement is considered involuntary if the retirement occurred

after the “agency threatened to take a future disciplinary

action that [the agency] knew or should have known could not

be substantiated.” See Fassett v. Postal Serv., 85 M.S.P.R.

677, 679 (2000). The touchstone for “should have known” is

reasonableness. Thus, if the agency has some “reasonable

grounds” for terminating an employee and the employee then

resigns, that resignation is voluntary. See Schultz, 810 F.2d at

1136; Locke v. Postal Serv., 61 M.S.P.R. 283, 288 (1994).

An employee is entitled to an evidentiary hearing on the

voluntariness of their resignation if they make a “nonfrivolous

allegation” of facts demonstrating that the agency lacked

reasonable grounds for terminating the employee. Deines v.

Dep’t of Energy, 98 M.S.P.R. 389, 395 (2005).

Here, Perry contends that he made a “nonfrivolous

allegation” of facts demonstrating that the agency lacked

reasonable grounds for terminating his employment. See

Deines, 98 M.S.P.R. at 395. Specifically, he claims that his

frequent absences from work did not furnish “reasonable

grounds” for termination because he had an unofficial

accommodation for osteoarthritis that allowed him to be

absent as necessary. Thus, he argues, he is entitled to an

evidentiary hearing on whether his absences were justifiable.

16

Perry’s argument fails because the alleged informal

accommodation did not account for all of his absences. His

own submissions to the Board confirmed that he sometimes

was absent from work for reasons unrelated to osteoarthritis.

He stated that he took time to “deal with the emotional . . .

stress of at least six years of . . . struggles with the agency.”

J.A. 137. He also admitted that he prepared his EEO actions

in his car during working hours. And he acknowledged

skipping meetings that he was not “emotionally able to

attend.” Id. at 138. Thus, at least some of Perry’s absences

were not attributable to any accommodation for osteoarthritis,

and those undisputedly unexcused absences provided

reasonable grounds for Perry’s termination.

The instant case is similar to Bahrke v. Postal Service, in

which an employee who entered a settlement agreement with

his employing agency attempted to demonstrate that there

were no reasonable grounds to sustain the agency’s original

threat to remove him. See 98 M.S.P.R. 513, 516–17 (2005).

The agency had proposed to terminate the employee because

he was absent too often, id. at 516, but the employee claimed

that he was entitled to take leave under the Family and

Medical Leave Act (“FMLA”) on the days in question, id. at

519. Even though the “agency [had] approved the [] FMLA

leave,” the Board noted that there were other “unscheduled

absences during the [relevant] period,” not attributable to

FMLA leave. Id. at 520–21. The Board thus determined that

the agency had reasonable grounds to discipline Bahrke and

that his entry into the settlement agreement was not

involuntary. Id. at 521 (agency had justification where “of

the eleven unscheduled absences . . . at least one appears to

have been” for an impermissible reason). Similarly here, the

Bureau had reasonable grounds to terminate Perry based on

his concededly unapproved absences, even if other absences

might have been excused. The Board’s reasoning in this case

17

was consistent with its precedent and was not arbitrary or

capricious. See Barnes, 840 F.2d at 979.

Perry’s arguments to the contrary are unavailing. First,

Perry asks us to apply what are known as the “Douglas”

factors to determine conclusively that his termination would

not have been justified. See Douglas, 5 M.S.P.R at 305–06

(identifying twelve non-exhaustive factors relevant to

evaluating the lawfulness of an agency’s employment

action).3 But our task is not to make such a determination.

We need only decide whether the Board’s conclusion that the

Bureau had reasonable grounds to fire Perry was “arbitrary or

capricious . . . unsupported by substantial evidence or

3

Those factors are: (1) “The nature and seriousness of the

[employee’s] offense”; (2) “the employee’s job level and type of

employment”; (3) “the employee’s past disciplinary record”; (4)

“the employee’s past work record, including length of service,

performance on the job, ability to get along with fellow workers,

and dependability”; (5) “the effect of the offense upon the

employee’s ability to perform at a satisfactory level and its effect

upon supervisors’ confidence in the employee’s ability to perform

assigned duties”; (6) “consistency of the penalty with those

imposed upon other employees for the same or similar offenses”;

(7) “consistency of the penalty with any applicable agency table of

penalties”; (8) “the notoriety of the offense or its impact upon the

reputation of the agency”; (9) “the clarity with which the employee

was on notice of any rules that [were] violated in committing the

offense, or had been warned about the conduct in question”; (10)

“potential for the employee’s rehabilitation”; (11) “mitigating

circumstances surrounding the offense such as unusual job

tensions, personality problems, mental impairment, harassment, or

bad faith, malice or provocation on the part of others involved in

the matter”; and (12) “the adequacy and effectiveness of alternative

sanctions to deter such conduct in the future by the employee or

others.” Douglas, 5 M.S.P.R. at 305–06.

18

otherwise not in accordance with law.” Barnes, 840 F.2d at

979; 5 U.S.C. § 7703(c); cf. Bahrke, 98 M.S.P.R. at 521. The

fact that some Douglas factors might weigh in Perry’s favor

does not render arbitrary or capricious the Board’s conclusion

that the Bureau had reasonable grounds for terminating his

employment.

Next, Perry claims that the Board’s decision was

insufficiently reasoned. Although the Board’s analysis was

brief, it concluded that at least some of Perry’s absences were

unrelated to his alleged accommodation for osteoarthritis.

See J.A. 349–50 (noting that “there appears to have been at

least some basis for the proposed discipline” because, for

example, Perry admitted some absences were attributable to

“failed communications between him and his supervisor”

(cleaned up)). The Board’s reasoning is thus “reasonably . . .

discern[able]” and was not arbitrary or capricious. Alaska

Dep’t of Env’t Conservation v. EPA, 540 U.S. 461, 497

(2004) (cleaned up).

* * *

For the foregoing reasons, we reverse the district court’s

dismissal of Perry’s discrimination claims and remand for

further proceedings on those claims, consistent with this

opinion. We affirm the district court’s ruling that the MSPB

properly dismissed Perry’s mixed case because the Board

lacked jurisdiction to hear claims arising from Perry’s

voluntary retirement.

So ordered.