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Robert T. Perry v. Joshua Gotbaum

February 28, 2011

ROBERT T. PERRY, PLAINTIFF,
v.
JOSHUA GOTBAUM, DIRECTOR OF THE PENSION BENEFIT GUARANTY CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Plaintiff Robert T. Perry ("Perry"), a former employee of the Pension Benefit Guaranty Corporation (the "PBGC"), filed this action against the Director of the PBGC in his official capacity ("Defendant").*fn1 The parties previously litigated two lawsuits before this Court that culminated in a Stipulation of Settlement and Dismissal in November 2005. See Civil Action No. 03-2495, Perry v. Chao (Nov. 8, 2005), Docket No. [30]; Civil Action No. 04-1996, Perry v. Chao (Nov. 8, 2005), Docket No. [20]. Perry filed this action less than one year later, on August 2, 2006, and he filed an Amended Complaint on January 19, 2007 alleging retaliation, hostile work environment, and breach of the parties' Settlement Agreement. On December 11, 2008, the Court granted-in-part Defendant's motion to dismiss any claims asserted under 42 U.S.C. § 1981, 1983, 1985, and 1986 and denied Defendant's alternative pre-discovery motion for summary judgment. See Perry v. Snowbarger, 590 F. Supp. 2d 90 (D.D.C. 2008). Following discovery, Defendant filed its [29] Motion for Summary Judgment, which is now pending before the Court. Perry filed an opposition, and Defendant filed a reply, and the motion is now ripe for adjudication. For the reasons explained below, the Court shall grant Defendant's Motion for Summary Judgment in its entirety.

I. BACKGROUND

A. Perry's Prior Lawsuits Against the PBGC and the Stipulation of Settlement and Dismissal

Plaintiff Robert Perry is an African American male who was employed as a GS-511-13 Auditor by the PBGC. Def.'s Stmt.*fn2 ¶ 1. In 2003 and 2004, Perry filed two civil actions in this Court alleging that the PBGC engaged in employment discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"). Id. ¶ 3. On November 8, 2005, the parties resolved those lawsuits in a Stipulation of Settlement and Dismissal (hereinafter, "Settlement Agreement"). Id. Under the terms of the Settlement Agreement, Perry released the PBGC from any all liability for "all matters related to his employment with [the PBGC] up to and including the date of this Stipulation of Settlement and Dismissal." Id. ¶ 4. Perry agreed "not to institute any other actions, charges, complaints, appeals or other proceedings against defendants or any of Defendants' past or present employees, officers, agents or representatives concerning any matter relating to his employment with PBGC and the termination of his PBGC employment that are based in any way on action or inaction as of this date by Defendants or Defendants' past or present employees." See Def.'s Ex. A. (Settlement Agreement) ¶ 1. The Settlement Agreement did not contain a confidentiality provision, and it was publicly filed with the Court. Def.'s Stmt. ¶ 9.

In exchange for the dismissal and release of claims, the PBGC agreed to "enter a formal Personnel Action in [Perry's] Official Personnel File indicating [Perry] was promoted, without back pay, to a GS-13, Step 3 auditor position," effective October 31, 2004. Def.'s Stmt. ¶ 8; Def.'s Ex. A (Settlement Agreement) ¶ 2(a). The PBGC also agreed to promote Perry prospectively to a GS-13, Step 10, Series 511 Auditor position for a period of one year, beginning the first full pay period after the Settlement Agreement. Def.'s Stmt. ¶ 8; Settlement Agreement ¶ 2(b). Pursuant to the Settlement Agreement, Perry's appointment would expire before the end of this one-year period if he obtained employment outside the PBGC. Settlement Agreement ¶ 2(b). Perry also agreed to try to obtain a detail to another federal agency to commence within the first six months of the one-year period. See id. ¶ 2(e). If Perry secured such a detail within six months, the PBGC would continue to pay him at a GS-13, Step 10 salary for the full year. Id. ¶ 2(e). If Perry did not obtain a detail to another agency, the PBGC would pay him a lump sum of $60,000 and place Perry on Leave Without Pay ("LWOP") status for the final six months of the year. Id. ¶ 2(f).

As part of the Settlement Agreement, the PBGC agreed to detail Perry to its Contracts and Control Review Department for six months, during which time Perry would be given time to attend job interviews and/or pursue training opportunities. Id. ¶ 2(c). As required by the Settlement Agreement, PBGC paid for approximately $10,100 in training opportunities for Perry. Def.'s Stmt. ¶ 11. The PBGC also provided Perry with an appropriate letter of recommendation and issued Perry a "fully successful" performance appraisal for FY 2005. Id. ¶¶ 13, 15.

Perry did not obtain a detail to another federal agency within the first six months after the Settlement Agreement, and therefore the PBGC paid him a lump sum of $60,000. Def.'s Stmt. ¶ 12.

B. The PBGC Takes Personnel Actions to Implement the Settlement Agreement In order to carry out its obligations under the Settlement Agreement, the PBGC took a series of personnel actions involving Perry. The Standard Form 52 ("SF-52") is used by federal government agencies to process requests for personnel actions. Def.'s Stmt. ¶ 5. After a request for personnel action is completed and approved, the form is sent to a Human Resources Specialist to process the action in the agency's personnel system, which generates the Standard Form 50 ("SF-50"). Id. The SF-50 is used to record personnel actions in an employee's Official Personnel Folder ("OPF"). With some exceptions that are not relevant to this case, all personnel actions require an SF-50 in an employee's OPF, and each action requires its own SF-50. Id. ¶ 6.

On November 23, 2005, the PBGC's Human Resources Department ("HRD") issued three SF-50 forms relating to Perry. See Aff. of Michele Pilipovich ("Pilipovich Aff.") ¶ 4. The first SF-50 granted Perry's promotion to GS-13, Step 3 retroactive to October 31, 2004. See id., Ex. 2 at 1. Under the section of the SF-50 form captioned "Legal Authority," HRD wrote, "SETTLEMENT AGREEMENT DTD 11-08-05." Id. At the bottom of the form, under the label "Remarks," HRD wrote "PURSUANT TO A SETTLEMENT AND STIPULATION PRESENTED TO THE U.S. DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ON NOVEMBER 8, 2005 EMPLOYEE IS NOT TO RECEIVE BACK PAY IN ACCORDANCE WITH COURT AGREEMENT." Id.

The second SF-50 promoted Perry to GS-13, Step 10 effective November 13, 2005. See Pilipovich Aff., Ex. 2 at 2. Under the section captioned "Legal Authority," HRD wrote, "REG 250.101." Id. Under the "Remarks" section, HRD wrote:

PURSUANT TO A STIPULATION AND SETTLEMENT PRESENTED TO THE U.S. DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ON NOVEMBER 8, 2005. EMPLOYEE IS PROMOTED FROM GS-12 STEP 06 BUT BASED ON COURT AGREEMENT PROMOTION IS FROM GS-13 STEP 3. EMPLOYEE IS NOT RECEIVING BACK PAY IN ACCORDANCE WITH COURT AGREEMENT.

Id. The third SF-50 was issued to indicate that Perry's promotion expired effective November 13, 2006. See Pilipovich Aff., Ex. 2 at 3. Under the "Remarks" section, HRD wrote, "PURSUANT TO A STIPULATION AND SETTLEMENT PRESENTED TO THE U.S. DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ON NOVEMBER 8, 2005." Id. All three SF-50 forms were signed by Jacqueline A. Isaac on behalf of Michele Pilipovich, the Director of HRD. Id. at 1-3.

On or about December 13, 2005, Perry complained via email to Rick Lattimer in the HRD about the language appearing in the "Remarks" section of the SF-50 forms that had been issued. Def.'s Stmt. ¶ 18. Lattimer responded to Perry, explaining that the language on the SF-50 forms was necessary in order to explain to the Office of Personnel Management ("OPM") how Perry was promoted. Id. ¶ 19. The Director of the HRD, Michele Pilipovich, testified in her affidavit that the promotions required under the Settlement Agreement were inconsistent with OPM rules governing federal employment and would raise questions without some explanation as to why they were awarded. See Pilipovich Aff. ¶ 5. Pilipovich explained that OPM audits the PBGC for compliance with federal regulations governing personnel actions and that OPM may withdraw the PBGC's personnel authority if it is not in compliance. Id.; Suppl. Aff. of Michele Pilipovich ¶ 4. Perry responded to Lattimer's email on December 14, 2005, specifying the language he wanted to be removed from the "Remarks" section of the SF-50s. Def.'s Stmt. ¶ 20. Perry acknowledged that some of the information on the SF-50s was necessary and claimed that the "codes" on the forms revealed the necessary information for OPM. Id. The PBGC contacted OPM for guidance on how to document the personnel actions required by the Settlement Agreement. Id. ¶ 21.

On January 4, 2006, Perry's counsel contacted the U.S. Attorney's Office and questioned the propriety of the language included under the "Remarks" section of the SF-50s. Def.'s Stmt. ¶ 22. The U.S. Attorney's Office responded the following day with a letter explaining that the language at issue was included to protect the PBGC in the event that OPM questioned the personnel actions. Id. ¶ 23. The letter also informed Perry's counsel that in an effort to address Perry's concerns, the PBGC would issue Perry an SF-50 for his Cost-of-Living Adjustment ("COLA") increase that would not contain a reference to the Settlement Agreement in the "Remarks" section. Id. The COLA SF-50 was issued on January 9, 2006. Id. ¶ 24; Pilipovich Aff., Ex. 6. After January 9, if Perry had to submit an SF-50 to a prospective employer during the application process, he could submit the COLA SF-50 because it was the most recently issued SF-50. Def.'s Stmt. ¶ 24. HRD Director Pilipovich testified that not all federal job announcements require an SF-50 to be provided with a job application. See Suppl. Aff. of Michele Pilipovich ¶ 6. Announcements that do require an SF-50 are verifying the applicant's employment status and pay grade, and a prospective employee can submit any SF-50 reflecting this information. Id.

Lori Bledsoe, then-Acting Director of the PBGC's equal employment opportunity ("EEO") office, attempted to resolve Perry's complaint about the remarks on the SF-50s. Def.'s Stmt. ¶ 25. In late January 2006, OPM responded to the PBGC's inquiry about documenting the personnel actions, informing the PBGC that it could remove the remarks that Perry complained about and change the authority code to justify the actions taken pursuant to the Settlement Agreement. Id. ¶ 26. In February 2006, the PBGC reissued and backdated the three November 2005 SF-50s without any language in the "Remarks" section of the forms. Id. ¶ 27. However, two of the three reissued forms contained a reference to "SETTLEMENT AGREEMENT DTD 11/08/05" under the heading "Legal Authority." See Pilipovich Aff., Ex. 7 at 1, 2.

On May 14, 2006, Perry was placed on Leave Without Pay status for a period not to exceed six months. Def.'s Stmt. ¶ 28. To effectuate this personnel action, the PBGC issued Perry an SF-50 which described the "Nature of Action" as "LOWP NTE 11-12-06" with a corresponding code 460. See Pilipovich Aff., Ex. 8 at 1.

OPM maintains a "Guide to Processing Personnel Actions" that explains how agencies should fill out SF-50 forms. Chapter 3 of the Guide contains instructions for implementing "decisions," defined to include settlement agreements between an agency and an employee. The Guide provides in pertinent part:

The agency that prepares personnel actions to implement a decision or take corrective action is responsible for . . . [i]nsuring that the reasons for cancellation are explained on the cancellation action and that the retroactive action and related documents in the Official Personnel Folder contain no reference to the reason the action is being processed retroactively - that is, no reference to the error, the grievance, or complaint that is the reason for the retroactive action being processed. The authority cited on a retroactive action is the authority that would have been cited if the action had been processed on or before its effective date. If, on the effective date of the action, the agency would not have had an appropriate authority to take the necessary action (for example, a decision orders the employee assigned to a position in a series for which standards were not issued until a year after the effective date), "Reg. 250.101" is cited as the authority. This is a general "do-what-the-decision-says" authority and its use avoids the need to cite a specific decision, Court Order, or other document which would identify more specifically the employee's original complaint and result in irrelevant information being placed on the action and in the Folder. This protects the employee's privacy and the usual intent of decisions.

See Def.'s Opp'n, Ex. 1 at 3-10. Chapter 32 of the OPM's Guide also contains guidance on what authority should be cited for certain cancellation actions. According to Table 32-E, if the cancellation is ordered or directed by "[a] court or an agreed-upon out-of-court settlement," then the authority cited should be the "court decision number and date." See Pl.'s Reply, Ex. C at 32-19. The parts of the Guide that have been provided to the Court do not reconcile the tension between these provisions.

The record shows that in May 2002, the PBGC issued an SF-50 to another employee, Dwayne Jeffers, citing "Reg. 250.101" as the authority for a promotion that was implemented pursuant to a settlement agreement. See Def.'s Opp'n, Ex. 4, Aff. of Dwayne Jeffers ¶¶ 9-10.

Similarly, an SF-50 was issued to an employee in 1998 who received a series of promotions pursuant to a settlement citing "Reg. 250.101" as authority. See Suppl. Aff. of Michele Pilipovich ¶ 3 & Ex. 1. These events occurred prior to Michele Pilipovich's tenure as Director of HRD, and there was significant turnover in personnel at HRD between 2002 and the time Perry's personnel actions were processed in 2005. See id. ¶¶ 2-3. Pilipovich believed that more authority than "Reg. 250.101" was necessary to document the personnel actions required for Perry under the Settlement Agreement. Id. ¶ 4.

C. Perry's Co-Workers Circulate Flyers and Emails Criticizing Him Ten months prior to the Settlement Agreement, in February 2005, a representational election was held by the Federal Labor Relations Authority. Def.'s Stmt. ¶ 30. During that election, PBGC bargaining unit employees selected the National Association of Governmental Employees ("NAGE") to be their exclusive representative. Id. On February 2, 2005, Perry was sworn in as Acting Secretary/Treasurer of NAGE Local R3-77. Id. ¶ 31. Dwayne Jeffers was sworn in as Vice-President At Large, and Richard "Dick" Petta was sworn in as President. Id. Following the union election, individuals disseminated flyers that were critical of PBGC management and NAGE officials, including Perry. Id. ¶ 32.

On June 7, 2005, Perry sent an email to various members of the PBGC upper management, including the Executive Director, the EEO Manager, and the Human Resources Director, complaining about certain flyers that had been circulated within the PBGC. Def.'s Stmt. ¶ 33. Perry was concerned that the flyers might incite other to take "untold actions against [him]." Id. HRD Director Pilipovich responded to Perry's email the following day and informed him that management would investigate his complaint. Id. ¶ 34. While the PBGC investigated Perry's complaint, it allowed Perry to work from home for a period of time to assuage his safety concerns. Id. ¶ 35. On June 16, 2005, the PBGC sent an email to all of its employees and contractors regarding its commitment to providing a workplace free from violence and harassment. Id.

On September 28, 2005, Perry contacted the PBGC's EEO office to request counseling. Def.'s Stmt. ¶ 36. Perry was represented by Dwayne Jeffers, who is African American. Id. The same day, Jeffers contacted the EEO office to request counseling for a similar complaint. Id. ¶ 37. Jeffers was represented by Perry. Id. On October 21, 2005, Perry sent his EEO counselor an email message providing documents relating to his EEO complaint. Id. ¶ 38. In this email, Perry stated that his complaint "consists fo PBGC's willingness to permit management and employees to commit ...


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