United States District Court, D. Maryland
Lipton Hollander United States District Judge
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. 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.
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. 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
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.
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.
Factual and Procedural Background 
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.
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).
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.
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.
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.
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.
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
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.
from this procedural posture that plaintiff filed the pending
action in this Court on December 9, 2016. See ECF 1.