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Seda v. Colvin

United States District Court, D. Maryland

January 18, 2018

CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration, Defendant.


          Ellen Lipton Hollander United States District Judge

         In this employment discrimination case, self-represented plaintiff Anthony Wayne Seda filed suit against Carolyn W. Colvin, the former Acting Commissioner of the Social Security Administration (“SSA”). ECF 1.[1] Seda alleges that the SSA discriminated against him on the basis of his disabilities in 2005 and 2006 by terminating his employment in 2006; by refusing to provide him with reasonable accommodations; and by retaliating against him for seeking reasonable accommodations, in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”) and the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. (“FMLA”). ECF 1 at 4-5.

         Defendant has filed a pre-discovery motion to dismiss under Fed.R.Civ.P. 12(b)(1) and 12(b)(6), or, in the alternative, for summary judgment under Rule 56. ECF 13. It is supported by a memorandum (ECF 13-1) (collectively, the “Motion”) and multiple exhibits.[2] The SSA argues, inter alia, that plaintiff failed to exhaust his administrative remedies and that his claims are barred by res judicata. Plaintiff opposes the Motion. ECF 16 (“Opposition”). Defendant has replied. ECF 20 (“Reply”).

         Notably, plaintiff has not filed a Rule 56(d) affidavit opposing pre-discovery summary judgment. Indeed, plaintiff attached ten exhibits to his Opposition (ECF 16-1 to ECF 16-10), styled as “Substantial Evidences.” ECF 16 at 15.

         No hearing is necessary to resolve the Motion. See Local Rule 105(6). For the reasons that follow, I shall construe defendant's Motion as one for summary judgment and I shall grant the Motion.

         I. Factual and Procedural Background [3]

         Plaintiff, a military veteran, was hired by the SSA on February 27, 2005, under the Federal Career Intern Program (“FCIP”), to work as a “Social Insurance Specialist, Claims Representative Trainee” at the SSA office in Owings Mills, Maryland. ECF 13-2. At the time Seda was hired, he signed an acknowledgment that his position was not to extend beyond February 26, 2007, and that he could be terminated at any time. ECF 13-4. The appointment was an “excepted service” appointment. ECF 13-2. After two years in the FCIP, plaintiff would have been eligible for a career appointment. ECF 13-4.

         Plaintiff claims that he informed his supervisor on July 27, 2005, that he had a “cancerous polyp.” ECF 1-4 at 1; see ECF 16-1 at 1 (doctor's note). On December 22, 2005, Seda requested “immediate reassignment” to the Towson, Maryland SSA office in order to be closer to his home and his healthcare provider. ECF 16-1 at 4 (request for reassignment). Plaintiff alleges that his request was denied. See ECF 1-4 at 1-2; ECF 16-8 at 1. On January 25, 2006, plaintiff was terminated because of “a pattern of unacceptable conduct.” See ECF 13-3 (Notification of Personnel Action); see also ECF 13-5 (Notification of Termination).

         Seda maintains that he was “treated differently” and was harassed by his supervisors. ECF 1-4 at 2. According to plaintiff, by letters dated December 24, 2005, he wrote to the EEOC and the Secretary of Labor, requesting assistance in the matter of his requested transfer because of his prostate cancer. See ECF 16-8 at 1 (letter to EEOC); ECF 16-8 at 2 (letter to Department of Labor). Curiously, both letters, dated December 24, 2005, contain references to an “attached email dated January 17, 2006, ” which sought an update on the status of his transfer request. ECF 16-8 at 1; ECF 16-8 at 2. Plaintiff also submitted a screenshot of that email, which is indeed dated January 17, 2006, several weeks after the letters were purportedly written. ECF 16-1 at 7.

         Plaintiff was interviewed by an EEO Counselor on several dates in January and February 2006. See ECF 13-6 (“2006 EEO Complaint”) at 2. The counseling report discusses plaintiff's allegations that he was denied a reasonable accommodation in December 2005, and that he was non-sexually harassed by his supervisor in July 2005, who allegedly asked Seda his opinion on a welfare program. ECF 13-6 at 3. Plaintiff's 2006 EEO Complaint, alleging that he suffered non-sexual harassment and that he was terminated on the basis of his physical disabilities (cancer and other medical conditions), political affiliation (Republican), and participation in EEO activity (pursuing the 2006 EEO Complaint), was officially filed on February 28, 2006. ECF 13-7 at 1.

         The SSA accepted the 2006 EEO Complaint on April 7, 2006. ECF 13-7. However, on October 24, 2006, before the SSA's investigation was completed, plaintiff filed suit in this Court on the basis of the same 2006 EEO Complaint, alleging that he was terminated in retaliation for the exercise of his First Amendment rights. See Case AMD-06-2799 at ECF 9-9; ECF 11. Because plaintiff had decided to pursue his claims in federal court, the SSA moved to dismiss the 2006 EEO Complaint under 29 C.F.R. § 1614.107. See ECF 13-8. Administrative Judge Charles G. Shubow of the EEOC's Baltimore Field Office granted the motion to dismiss on March 13, 2007. Id. On March 12, 2007, then district judge Andre Davis dismissed the civil case. See Case AMD-06-2799 at ECF 12. It does not appear that plaintiff appealed the dismissal.

         Meanwhile, it appears that on October 23, 2006, plaintiff challenged his termination in an appeal filed with the Merit Systems Protection Board (“MSPB”). See ECF 13-9. On January 31, 2007, Administrative Judge Michael T. Rudisill dismissed that appeal for lack of jurisdiction. Id. at 1. Plaintiff filed a petition for review of the dismissal, and a three-member panel of the MSPB affirmed on May 8, 2007, rendering the decision final. ECF 13-10 at 1-2.

         In mid-2014, plaintiff filed another appeal with the MSPB, challenging the termination that had occurred more than eight years earlier. See ECF 13-11 at 2. That appeal was dismissed by an administrative judge in September 2014 (id. at 3-4), and the MSPB affirmed the decision. Id. at 6. Plaintiff appealed to the United States Court of Appeals for the Federal Circuit, which affirmed the dismissal. ECF 16-10 at 8; see Seda v. Merit Sys. Prot. Bd., 638 Fed.Appx. 1006, 1009 (Fed. Cir. 2016) (per curiam). Plaintiff filed a petition for certiorari to the United States Supreme Court, which was denied. 136 S.Ct. 2459 (2016).

         On March 31, 2015, plaintiff filed another EEO Complaint with the SSA, again alleging that he was denied a reasonable accommodation and that he was removed because of his disability and in reprisal for his request for accommodation. ECF 13-12 (“2015 EEO Complaint”) at 2. On May 7, 2015, the 2015 EEO Complaint was dismissed by the SSA as untimely under 29 C.F.R. § 1614.107(a)(2). ECF 13-13 at 4. Plaintiff appealed the dismissal to the EEOC, which affirmed on August 23, 2016. ECF 14-1. Plaintiff requested reconsideration of the decision, which was denied on November 30, 2016. ECF 13-15.

         It is from this procedural posture that plaintiff filed the pending action in this Court on December 9, 2016. See ECF 1.

         II. ...

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