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In United States District Court

For the District of Maryland

___________________________________________________________________________

ANTHONY W. PERRY, )
5907 Croom Station Road )
Upper Marlboro, MD 20772 )
)
Plaintiff, )
) Civil Action No:
vs. )
)
)
UNITED STATES OF AMERICA )
)
Defendant )
__________________________________________________________________________
COMPLAINT
This Federal Tort Claims Act action (FTCA) seeks money damages in the amount of
$6,530,000.00 against Defendant United States Government for loss and injury due to negligent
acts and omissions, breach of duty with reckless and intentional infliction of emotional distress
with deliberate disregard for Plaintiffs emotional condition where the actors knew distress was
certain to result from said conduct and intended to be; the conduct was willful, wanton and
vindictive imposition of a constructive retirement/discharge and constructive suspension
carried out by the named employees of the Department of Commerce and U.S. Census Bureau
signatories concurring with the actions detailed in the gag agreement document titled EEOC
Settlement Agreement coerced and imposed on Plaintiff August 22, 2011 in their official
capacities resulting in intentional long-term injury, distress, loss and damage to Plaintiff.
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There was no voluntary settlement of pending EEOC claims. Plaintiff was coerced into the
gag agreement under duress for unsubstantiated charges of misconduct. The Agency charged
appellant for receiving pay for time not worked and not following supervisor directive. The
Plaintiff had been provided with an accommodation since 2007 and therefore was allowed a
flexible work schedule. The Agency has yet to produce evidence of misconduct and cannot
produce nor sustain evidence of misconduct.
This is not an EEO complaint. The aspect of the conduct that forms this complaint does not
hinge on the prior pending and current acts of discrimination illegally dissolved, forfeited, and
waived by the nondisclosure/gag agreement. The complaint hinges alone on the constructive
suspension and constructive discharge/retirement imposed on Plaintiff without producing or
providing evidence for the cause of action.
The remedy for negligence, breach of duty and acts or omissions, intentional infliction of
emotional distress with wanton, willful and reckless disregard for the emotional distress caused
by constructive discharge and constructive suspensions without cause of action are defined by
provisions of the FTCA, 28 USC 1346(b), 1402(b), 2401(b), and 2671-2680 and recognized by the
State of Maryland.
JURISDICTION AND VENUE
1. An administrative claim was properly presented to the Department of Commerce,
Employment and Labor Law Division Chief and his superior Barbara Fredericks on February 12,
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2014 in accordance with 28 U.S.C 2401. Subsequently, Plaintiff submitted an amended
complaint on March 1, 2014.
2. By return receipt the Agency acknowledged receipt of the administrative claim.
3. By return receipt the Agency sent certified letter denial of administrative claim dated
March 12, 2014 per administrative requirement imposed by FTCA. Timely submission of this
action satisfies the final administrative requirement of the Plaintiff.
4. Therefore venue is proper in this District Court under 28 U.S.C. 1346(b), 1402(b),
2401(b), and 2671-2680 because the Plaintiff resides in Maryland, both administrative
requirement are met and a substantial portion of the events giving rise to this cause of action
occurred in Prince Georges County, Maryland.
PARTIES
5. Plaintiff Anthony W. Perry was previously employed for 29 years and 6 months by
Defendant the U.S. Government, Department of Commerce, U.S. Census Bureau.
6. Defendant United States of America is the employer of named employees and is being
sued for employee negligence, with malice and reckless disregard, acts and omissions,
intentional and negligent infliction of emotional distress in their personal and official capacities
and
7. Serve Hon. Eric Holder, the Attorney General of the United States and head of the
United States Department of Justice.
8. Serve Hon. Rod J. Rosenstein, the U.S. Attorney for the District of Maryland.
9. Employee Thomas Mesenbourg, in his official and personal capacity was Deputy
Director and Chief Operating Officer of the U.S. Census Bureau took the official personnel
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action per SF-50 approving the constructive suspension and constructive retirement with no
proof of misconduct, and
10. Employee Brian McGrath, U.S. Census Bureau Chief Information Officer in his official and
personal capacity as the Management Official initiating the proposed removal action and
approving constructive retirement and suspension and signatory to nondisclosure/gag
agreement, and
11. Employee Terryne F. Murphy, Deciding Official in her official and personal capacity
sustained charges of misconduct without evidence and assisted drafting nondisclosure/gag
constructive discharge document, and
12. Employee Brian D. Giacomo, Branch Chief Employment and Labor Law Division, in his
official and personal capacity signatory to the nondisclosure/gag constructive discharge and
suspension document, and
13. Employee Barbara Fredericks, Associate Counsel supervisor of Brian D. Giacomo in her
official and personal capacity providing approval of signing by Branch Chief Employment and
Labor Law Division Brian DiGiacomo for enforcement of nondisclosure constructive discharge
document giving weight of the full department behind the constructive discharge, and
14. Employee Ronda J. Brown, Agency Representative Attorney in her official and personal
capacity as draftee and signatory to the nondisclosure/gag agreement constructive discharge
document, and
15. Employee Darren Gutschow, Assistant Division Chief Telecommunications Division in his
official and personal capacity who was NOT Plaintiffs supervisor of record but authored
document proposing removal of Plaintiff for unsubstantiated charges of misconduct, and
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16. Employee Roy Castro, Chief Equal Employment Opportunity Office in his official and
personal capacity and signatory to the nondisclosure/gag document was aware of prior and
current EEO activity of Plaintiff, and
17. Employee John Cunningham, Human Resources Division Chief in his official and personal
capacity for agreement implementation and enforcement signatory for Ted Johnson of the
nondisclosure/gag agreement, and
18. EMPLOYEE TED JOHNSON, Chief Human Resources in his official and personal capacity
approved agreement and signatory to nondisclosure/gag agreement in his individual and
official capacity, and
19. Employee Benjamin Felder, in his official and personal capacity author of email dictating
constructive suspension and constructive retirement and other acts against Plaintiff used to
construct nondisclosure/gag agreement, and
20. Employee and AFGE Union President Johnny Zuagar in his official capacity representing
Plaintiff before the Agency, and
21. Employee Stacy Chalmers, in her official and personal capacity assisting Terryne Murphy
with the implementation of the constructive retirement and suspension illegal nondisclosure
agreement, and
22. Employee Susan Aramaki, Chief of the Office of Civil Rights and the office with
responsibility to enforce the illegal nondisclosure agreement in her official and personal
capacity.
FACTUAL BACKGROUND

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23. In June of 2011, Plaintiff had performed 28.5 years of superior federal service via prior
employment at the U.S. Department of Agriculture (BARC) and then current employment with
the U.S. Census Bureau.
24. Plaintiff had been the recipient of two Bronze Medals for performance and special
accomplishments.
25. In 2009, Plaintiff graduated from the Department of Commerces Executive Leadership
Development Program and selected to give class remarks by fellow program classmates.
26. Also in June 2011, Plaintiff had an 11 year-old daughter in private school and undergoing
extensive orthodontic reconstruction. Plaintiff has had to secure personal loans to pay tuition
and at any time since Plaintiffs constructive discharge, his daughter might not be able to return
due to the financial impact of the Agencys tort action against Plaintiff forcing loss of nearly half
of his salary.
27. 2007 through 2012, Plaintiff was nursing degenerative osteoarthritis in hips and lower
back since at least 2007 which supervisors of record and management was aware, but in other
joints as well, making it difficult to sit, stand, or lie down for long periods of time and
sometimes requiring a cane to walk. Supervisor of record, Patricia Musselman and Dale Reed
had provided informal accommodations with no impact on Plaintiffs work performance.
28. March 31, 20011 email communication from Agency Management Representative
Ronda J. Brown that she had communicated my settlement proposal for pending consolidated
EEOC actions before the EEOC AJ to the Management Official Brian E. McGrath, Associate
Director for Information Technology and Chief Information Officer who is the same
Management Official who authorized and initiated the constructive removal and constructive
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suspension, coerced the forfeiture and waiver of the EEOC claims that were pending before the
EEOC AJ at the Baltimore Field Office.
29. April 5, 2011 Appellant sent certified letter to the EEOC Preparation for Settlement
Discussion.
30. On May 19, 2011 Appellant certified letter to EEOC Motion in objection to agency
motion to dismiss pending EEOC claims disputing and documenting every material fact when
these instant adverse actions described in the proposal to remove document and the Aug. 22,
2011 nondisclosure/gag agreement served on Appellant.
31. On July 6, 2011, in a continuing dialogue with the Census Bureau Director, Appellant
sent an email to the Director complaining about continuing race and age discrimination against
Appellant and other African American employees in the Information Technology.
32. On July 7, 2011 Darren Gutschow, an Agency employee that was NOT and had never
been my supervisor of record on June 7, 2011 served me with a Proposed Removal. He was
totally and completely unaware of informal accommodations that had been made by past and
current supervisors.
33. June 9, 2011/June 13, 2011 submission of formal disability accommodation and medical
records dating back to 2007 up to 2011 submitted to Agency Disability Program Office. Total
hip replacement February 27, 2012.
34. June 21, 2011 Dale Reed notified by Disability Program Office that an employee, in his
group, submitted a reasonable accommodations request.
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35. June 26, email from HR employee Ben Felder to AFGE Union Rep. Johnny Zuagar
dictating Appellants retirement, suspension, reassignment, forfeiture of pending EEOC claims,
and forbid to work at Commerce.
36. Medical Records and formal Request for a Reasonable Accommodation and approval on
file with the Disability Program Office before Appellant received the Agency drafted EEO
document or the Deciding Officials decision.
37. Plaintiff stated in my response to the Deciding Official that my supervisor of record Dale
Reed stated that he did not know what a Reasonable Accommodation was and the Agency did
not dispute this fact in the record.
38. On July 22, 2011, Plaintiff responded to the Deciding Official prior to Appellant being
able to collect evidence and investigate the charges fully due to time constraints imposed on
Appellant and the threat of termination and therefore applied the reasonable person standard
and relied on Agency statements in reference to this matter.
39. On August 11, 2011 while waiting for the Deciding Officials reply to Appellants
response as defined by the June 7, 2011 Proposed Removal and no evidence of misconduct only
charges, the Agency served on me what it called an EEOC Settlement Agreement dated August
22, 2011 which explicitly dictated the terms and conditions of the Appellants continued
employment with the Agency and required a 30-day suspension, retirement no later than Sept.
4, 2012, reassignment into a Non-Supervisory IT Specialist position, forbade to ever work for
the Department of Commerce, and the forfeiture of prior pending EEOC claims before an EEOC
AJ in the Baltimore EEOC Field Office prior to the Deciding Officials decision and in direct
contradiction to the procedure stated in the Proposed Removal and therefore committed a
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harmful procedural error. It contained no information on MSPB right of appeal the adverse
actions.
40. At some time prior to August 11, 2011, the Agency told the AFGE Union Official, Johnny
Zuagar that Plaintiff would be terminated immediately if he did not sign the agreement or if he
went to the EEOC Office.
41. On August 26, 2011, the Deciding Official issued a decision upholding the charges
without ever producing and making available evidence of misconduct and imposed the terms of
the nondisclosure/gag agreement on Plaintiff without consideration of the flexible work
schedule accommodation by supervisor of record since 2007. The flexible work schedule
allowed me to make up time taken to manage the continuous arthritis pain which made me
unable to sit or stand for long periods.
42. No consideration at all was received by Plaintiff in return for the so called settlement
agreement. This was not a settlement. Pending claims were dissolved, waived and forfeited by
coercion and duress pending threat of termination without cause.
43. The SF-50 personnel actions show that the suspension and retirement were constructive
actions carried out by Agency management and are not voluntary as claimed by Agency.
Important Facts of Law
44. Appellant was coerced into a Non-Disclosure/gag agreement dictating a constructive
suspension and constructive retirement/discharge.
45. The Office of Special Counsel confirmed in Report of Prohibited Personnel Practices OSC File
Nos. MA-12-4640 and MA-13-1126 that a threatened action by an agency is purely
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coercive if an employee can show that the agency knew or should have known that the
reason for the threatened action could not be substantiated. See Bowie v. US Postal Service
and Schultz v. United States Navy).
46. The gag agreement which dictates suspension, retirement, and other personnel actions
violates EEOC Guidance on non-waivable employee rights under EEOC enforced statutes is
deemed void and unenforceable as against public policy.
47. -In Shultz v. U.S. Navy, if an employee can show that the Agency knew that the reason for
the threatened removal could not be substantiated, the threatened action by the Agency is
purely coercive. Cosby v. United States, 189 Ct.Cl. 528, 417 F.2d 1345, 1355 (1969); Autera
v. United States, 182 Ct.Cl. 495, 389 F.2d 815, 817 (1968); Rich v. Mitchell, 273 F.2d 78, 79
(D.C.Cir.1959), cert. denied, 368 U.S. 854 , 82 S.Ct. 91, 7 L.Ed.2d 52 (1961).
48. -In Scharf v. U.S. Air Force, with freedom of choice as the guiding principle, it has been
held that the element of voluntariness is vitiated when (1) an employee resigns under
duress brought on by government action, see, e.g., McGucken v. United States, 407 F.2d
1349, 1351, 187 Ct.Cl. 284 (Ct.Cl.), cert. denied, 396 U.S. 894, 90 S.Ct. 190, 24 L.Ed.2d 170
(1969); (2) an employee unsuccessfully tries to withdraw his resignation before its effective
date, see Cunningham v. United States, 423 F.2d 1379, 1384-85, 191 Ct.Cl. 471 (Ct.Cl.1970);
(3) an employee submits a resignation under time pressure, see Perlman, 490 F.2d at 932-
33; or (4) an employee fails to understand the situation due to mental incompetence, see
Manzi v. United States, 198 Ct.Cl. 489, 492 (1972). See Taylor v. United States, 591 F.2d 688,
692, 219 Ct.Cl. 86 (Ct.Cl.1979); Christie v. United States, 518 F.2d 584, 588, 207 Ct.Cl. 333
(Ct.Cl.1975).
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49. -In Perlman v. United States, whether an action is voluntary or involuntary is determined
not by the form of the action, but by the circumstances that produced it. [Federal
Personnel Manual Supp. 752-1, subchapter S1-2a(1).] See Ainsworth v. United States, 180
Ct.Cl. 166, 172 (1967), and the recent decision in Manzi v. United States, 198 Ct.Cl. 489, 495
(1972).
50. -In McGucken v. United States, supra, in determining whether an employee's resignation
was submitted under duress, the three elements necessary to show duress are (1) that one
side involuntarily accepted the terms of another, (2) that circumstances permitted no other
alternative, and (3) that said circumstances were the result of coercive acts of the opposite
party.
51. -In Fruehauf, duress involves a step beyond mere illegality and implies that a person has
been unlawfully constrained or compelled by another to perform an act under
circumstances which prevent the exercise of free will (Fruehauf Southwest Garment Co v.
United States).
Damages Sought
Appellant seeks $6,530,000 in damages to include all allowable damages from loss of
salary, leave, benefits, promotional opportunities, reduced retirement benefits, tax liability
incurred, spouse 401k loans, personal loans, future and other current economic losses,
including consequential damages and all other allowable compensatory and noncompensatory
damages not specifically stated.

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Respectfully,
|signed|
Anthony W. Perry