Anthony W. Perry v. Gina Raimondo, United States Secretary of Commerce , Et Al .

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.

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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.

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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).

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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

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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.

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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

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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

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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

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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

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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.

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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

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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

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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.

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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

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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.

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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

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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.

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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.

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