Seda v. Colvin

Filing 22

MEMORANDUM OPINION. Signed by Judge Ellen L. Hollander on 1/18/2018. (dass, Deputy Clerk) (c/m 1/18/18-das)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ANTHONY WAYNE SEDA,
Plaintiff,
v.
Civil Action No. ELH-16-3949
CAROLYN W. COLVIN,
Acting Commissioner,
Social Security Administration,
Defendant.
MEMORANDUM OPINION
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
1

As defendant notes, Nancy Berryhill is the now the Acting Commissioner of the SSA.
ECF 13 at 1 n.1.
2

Defendant supplemented the Motion with a replacement exhibit (ECF 14-1), because
one of the original exhibits, as submitted, was illegible. ECF 13-14.

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 Background3

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
3

The Factual Background is derived from the exhibits submitted by the parties and from
the Complaint. Because plaintiff is pro se, I must construe his submissions liberally. See
Erickson v. Pardus, 551 U.S. 89, 94, (2007); see also Macena v. U.S. Citizenship & Immigration
Servs., TDC-14-3464, 2015 WL 6738923, at *1 (D. Md. Nov. 2, 2015).
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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 nonsexual 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

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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 F. App’x 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.

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

Standard of Review

As noted, defendant has moved to dismiss or, in the alternative, for summary judgment.
ECF 13. A motion styled in the alternative, to dismiss or for summary judgment, implicates the
court’s discretion under Rule 12(d) of the Federal Rules of Civil Procedure. See Kensington Vol.
Fire Dept., Inc. v. Montgomery Cty., 788 F. Supp. 2d 431, 436-37 (D. Md. 2011). Ordinarily, a
court “is not to consider matters outside the pleadings or resolve factual disputes when ruling on
a motion to dismiss.” Bosiger v. U.S. Airways, 510 F.3d 442, 450 (4th Cir. 2007). However,
under Rule 12(b)(6), a court, in its discretion, may consider matters outside of the pleadings,
pursuant to Rule 12(d). If the court does so, “the motion must be treated as one for summary
judgment under Rule 56,” and “[a]ll parties must be given a reasonable opportunity to present all
the material that is pertinent to the motion.” Fed. R. Civ. P. 12(d). But when, as here, the
movant expressly captions its motion “in the alternative,” as one for summary judgment, and
submits matters outside the pleadings for the court’s consideration, the parties are deemed to be
on notice that conversion under Rule 12(d) may occur; the court “does not have an obligation to
notify parties of the obvious.” Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 261 (4th
Cir. 1998).
A district judge has “complete discretion to determine whether or not to accept the
submission of any material beyond the pleadings that is offered in conjunction with a Rule
12(b)(6) motion and rely on it, thereby converting the motion, or to reject it or simply not
consider it.” 5C Alan Wright & Arthur Miller et al., Federal Practice & Procedure § 1366 (3d
ed.). This discretion “should be exercised with great caution and attention to the parties’

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procedural rights.” Id. In general, courts are guided by whether consideration of extraneous
material “is likely to facilitate the disposition of the action,” and “whether discovery prior to the
utilization of the summary judgment procedure” is necessary. Id.
Ordinarily, summary judgment is inappropriate “where the parties have not had an
opportunity for reasonable discovery.” E.I. du Pont de Nemours & Co., 637 F.3d at 448-49; see
Putney v. Likin, 656 F. App’x 632, 638-640 (4th Cir. 2016) (per curiam); McCray v. Maryland
Dep’t of Transp., 741 F.3d 480, 483 (4th Cir. 2014). However, “the party opposing summary
judgment ‘cannot complain that summary judgment was granted without discovery unless that
party has made an attempt to oppose the motion on the grounds that more time was needed for
discovery.’” Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244 (4th Cir. 2002)
(quoting Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 961 (4th Cir. 1996)); see also
Dave & Buster’s, Inc. v. White Flint Mall, LLLP, 616 F. App’x 552, 561 (4th Cir. 2015).
To raise adequately the issue that discovery is needed, the nonmovant typically must file
an affidavit or declaration pursuant to Rule 56(d) (formerly Rule 56(f)), explaining why, “for
specified reasons, it cannot present facts essential to justify its opposition,” without needed
discovery. Fed. R. Civ. P. 56(d); see Harrods, 302 F.3d at 244-45 (discussing the affidavit
requirement of former Rule 56(f)). A nonmoving party’s Rule 56(d) request for additional
discovery is properly denied “where the additional evidence sought for discovery would not have
by itself created a genuine issue of material fact sufficient to defeat summary judgment.” Strag
v. Bd. of Trs., Craven Cmty. Coll., 55 F.3d 943, 954 (4th Cir. 1995); see Amirmokri v. Abraham,
437 F. Supp. 2d 414, 420 (D. Md. 2006), aff’d, 266 F. App’x. 274 (4th Cir. 2008) (per curiam),
cert. denied, 555 U.S. 885 (2008).
If a nonmoving party believes that further discovery is necessary before consideration of

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summary judgment, the party who fails to file a Rule 56(d) affidavit does so at her peril, because
“‘the failure to file an affidavit . . . is itself sufficient grounds to reject a claim that the
opportunity for discovery was inadequate.’” Harrods, 302 F.3d at 244 (quoting Evans, 80 F.3d
at 961); see also Dave & Buster’s, Inc., 616 F. App’x at 561. But, the nonmoving party’s failure
to file a Rule 56(d) affidavit does not obligate a court to issue a summary judgment ruling that is
obviously premature.
Although the Fourth Circuit has placed “‘great weight’” on the Rule 56(d) affidavit, and
has said that a mere “‘reference to Rule 56(f) [now Rule 56(d)] and the need for additional
discovery in a memorandum of law in opposition to a motion for summary judgment is not an
adequate substitute for [an] affidavit,’” the appellate court has “not always insisted” on a Rule
56(d) affidavit. Harrods, 302 F.3d at 244 (quoting Evans, 80 F.3d at 961). According to the
Fourth Circuit, the failure to file an affidavit may be excused “if the nonmoving party has
adequately informed the district court that the motion is pre-mature and that more discovery is
necessary,” and the “nonmoving party’s objections before the district court ‘served as the
functional equivalent of an affidavit.’” Id. at 244-45 (quoting First Chicago Int’l v. United
Exchange Co., LTD, 836 F.2d 1375, 1380-81 (D.C. Cir. 1988)).
As indicated, this case has a long history, both administratively and in federal court.
Notably, plaintiff has not filed an affidavit under Rule 56(d), nor has he suggested that he would
be prejudiced in the absence of discovery.

Moreover, although plaintiff asserts that the

defendant “has misrepresented the facts and falsified and concealed the truth” to this Court (ECF
16 at 6), plaintiff does not dispute the authenticity of the exhibits attached to defendant’s Motion.
Instead, plaintiff has attached his own exhibits to his Opposition, which I shall also consider.
See ECF 16-1 to ECF 16-10. Therefore, I am satisfied that it is appropriate to address plaintiff’s

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claims in the context of summary judgment, because this will facilitate disposition of the case.
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is
appropriate only “if the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” See Celotex Corp. v. Catrett, 477 U.S.
317, 322-24 (1986); see also Iraq Middle Mkt. Dev. Found. v. Harmoosh, 848 F.3d 235, 238 (4th
Cir. 2017) (“A court can grant summary judgment only if, viewing the evidence in the light most
favorable to the non-moving party, the case presents no genuine issues of material fact and the
moving party demonstrates entitlement to judgment as a matter of law.”). The nonmoving party
must demonstrate that there are disputes of material fact so as to preclude the award of summary
judgment as a matter of law. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.
574, 585-86 (1986).
The Supreme Court has clarified that not every factual dispute will defeat a summary
judgment motion. “By its very terms, this standard provides that the mere existence of some
alleged factual dispute between the parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be no genuine issue of material
fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). A
fact is “material” if it “might affect the outcome of the suit under the governing law.” Id. at 248.
There is a genuine issue as to material fact “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id.; see Sharif v. United Airlines, Inc., 841 F.3d 199,
2014 (4th Cir. 2016); Raynor v. Pugh, 817 F.3d 123, 130 (4th Cir. 2016); Libertarian Party of
Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013). On the other hand, summary judgment is
appropriate if the evidence “is so one-sided that one party must prevail as a matter of law.”
Anderson, 477 U.S. at 252. And, “the mere existence of a scintilla of evidence in support of the

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plaintiff’s position will be insufficient; there must be evidence on which the jury could
reasonably find for the plaintiff.” Id.
Notably, “[a] party opposing a properly supported motion for summary judgment ‘may
not rest upon the mere allegations or denials of [her] pleadings,’ but rather must ‘set forth
specific facts showing that there is a genuine issue for trial.’” Bouchat v. Baltimore Ravens
Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (quoting former Fed. R. Civ. P.
56(e)), cert. denied, 541 U.S. 1042 (May 17, 2004); see also Celotex, 477 U.S. at 322-24. As
indicated, the court must view all of the facts, including reasonable inferences to be drawn from
them, in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd., 475
U.S. at 587; accord Roland v. United States Citizenship & Immigration Servs., 850 F.3d 625, 628
(4th Cir. 2017); FDIC v. Cashion, 720 F.3d 169, 173 (4th Cir. 2013).
The district court’s “function” is not “to weigh the evidence and determine the truth of
the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at
249; accord Guessous v. Fairview Prop. Inv., LLC, 828 F.3d 208, 216 (4th Cir. 2016). Thus, in
considering

a

summary

judgment

motion,

the

court

may

not

make

credibility

determinations. Jacobs v. N.C. Administrative Office of the Courts, 780 F.3d 562, 569 (4th Cir.
2015); Mercantile Peninsula Bank v. French, 499 F.3d 345, 352 (4th Cir. 2007). Therefore, in
the face of conflicting evidence, such as competing affidavits, summary judgment ordinarily is
not appropriate, because it is the function of the fact-finder to resolve factual disputes, including
matters of witness credibility. See Black & Decker Corp. v. United States, 436 F.3d 431, 442
(4th Cir. 2006); Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644-45 (4th Cir.
2002).
However, to defeat summary judgment, conflicting evidence must give rise to

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a genuine dispute of material fact. Anderson, 477 U.S. at 247-48. If “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party,” then a dispute of material fact
precludes summary judgment. Id. at 248; see Sharif v. United Airlines, Inc., 841 F.3d 199, 204
(4th Cir. 2016). Conversely, summary judgment is appropriate if the evidence “is so one-sided
that one party must prevail as a matter of law.” Anderson, 477 U.S. at 252. And, “the mere
existence of a scintilla of evidence in support of the [movant’s] position will be insufficient;
there must be evidence on which the jury could reasonably find for the [movant].” Id.
III.

Discussion

Defendant has moved to dismiss or, in the alternative, for summary judgment on three
grounds: (1) plaintiff failed to exhaust his administrative remedies because he did not timely seek
EEO counseling; (2) plaintiff failed to exhaust his administrative remedies with respect to his
failure to accommodate claim under the FMLA; and (3) plaintiff’s claims are barred by res
judicata. ECF 13-1 at 8-14. Because I find that plaintiff’s 2015 EEO Complaint is untimely,
and, moreover, that plaintiff’s claims are barred by res judicata, I need not consider whether
plaintiff exhausted his administrative remedies as to his FMLA claim.
Federal employees “who believe they have been discriminated against on the basis of
race, color, religion, sex, national origin, age, disability, or genetic information must consult [an
EEO] Counselor [in the employee’s federal agency] prior to filing [an agency EEO] complaint in
order to try to informally resolve the matter.” 29 C.F.R. § 1614.105(a); see also Nielsen v.
Hagel, 666 F. App’x 225, 227 (4th Cir. 2016); Young v. Nat’l Ctr. for Health Serv. Research,
828 F.2d 235, 237 (4th Cir. 1987). Moreover, the employee “must initiate contact with a
Counselor within 45 days of the date of the matter alleged to be discriminatory.” 29 C.F.R.

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§ 1614.105(a)(1); see also Nielsen, 666 F. App’x at 227; Verrier v. Sebelius, CCB-09-402, 2010
WL 1222740, at *8 (D. Md. Mar. 23, 2010).
The EEO counselor must “conduct an initial counseling session, during which the
counselor must inform the aggrieved party in writing of his rights and responsibilities, and offer
the employee the option of pursuing alternative dispute resolution (ADR).” Nielsen, 666 F.
App’x at 227 (citing 29 C.F.R. §§ 1614.105(b)(1), (2)). Counseling may lead to the withdrawal
of the claim or a settlement agreement between the employee and employer. See 29 C.F.R.
§ 1614.504(a); Campbell v. Geren, 353 F. App’x 879, 882 (4th Cir. 2009). If the employee
chooses to pursue ADR, the EEO counselor must conduct a “final interview” within 90 days of
the initial interview. 29 C.F.R. §§ 1614.105(d), (f). At the end of the 90 day period, if the matter
is not resolved, “the counselor must issue a written notice of right to file a formal complaint
within the agency.”

Nielsen, 666 F. App’x at 227 (citing 29 C.F.R. § 1614.105(d)-(f)).

Thereafter, the aggrieved party must file a formal complaint with the agency within 15 days of
receipt of notice from the agency. See 29 C.F.R. §§ 1614.105(d), 1614.106(b).4
Once the agency takes “final action” on the formal complaint, the aggrieved party may
appeal the decision to the EEOC or, within 90 days, file a civil suit. See 42 U.S.C. § 2000e-16;
29 C.F.R. §§ 1614.110, 1614.401, 1614.407(a); see also Nielsen, 666 F. App’x at 227. If an
employee appeals to the EEOC, the Office of Federal Operations (“OFO”) “reviews the record,
supplements it if necessary, and then issues a written decision.” Scott v. Johanns, 409 F.3d 466,
468 (D.C. Cir. 2005) (citing 29 C.F.R. § 1614.404-05). A decision by the OFO is considered to
be final, “triggering the right to sue” in court.

4

Scott, 409 F.3d at 468 (citing 29 C.F.R.

Untimely complaints are subject to dismissal, but the 15-day time limit is also subject to
“waiver, estoppel, and equitable tolling.” 29 C.F.R. § 1614.604(c).
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§ 1614.405(b)). Once the aggrieved party receives a “right to sue” letter, he or she has 90 days
to file a civil action. 42 U.S.C. § 2000e-5(f)(1).
An aggrieved party who fails to comply with the applicable administrative procedures has
failed to exhaust her administrative remedies and is generally barred from filing suit. See, e.g.,
Balas v. Huntington Ingalls Indus., Inc., 711 F.3d 401, 407 (4th Cir. 2013); Miles v. Dell, Inc.,
429 F.3d 480, 491 (4th Cir. 2005); Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 132 (4th Cir.
2002); see also Frank v. England, 313 F. Supp. 2d 532, 536 (D. Md. 2004). In the Fourth
Circuit, the exhaustion requirement of anti-discrimination statutes functions as a jurisdictional
bar where a plaintiff has failed to comply with it. In Balas, 711 F.3d at 406, the Court said:
“[F]ederal courts lack subject matter jurisdiction over Title VII claims for which a plaintiff has
failed to exhaust administrative remedies.” Thus, failure to comply generally mandates dismissal
of a suit. Lorenzo v. Rumsfeld, 456 F. Supp. 2d 731, 734 (E.D. Va. 2006) (citing Zografov v.
Veterans Admin. Med. Ctr., 779 F.2d 967, 970 (4th Cir. 1985)).
To be sure, this case is brought under the ADA, rather than Title VII. But, “the ADA
incorporates [Title VII’s] enforcement procedures . . . including the requirement that a plaintiff
must exhaust his administrative remedies by filing a charge with the EEOC before pursuing a
suit in federal court.” Sydnor v. Fairfax Cty., Va., 681 F.3d 591, 593 (4th Cir. 2012) (internal
citations omitted).
The exhaustion requirement is not “simply a formality to be rushed through so that an
individual can quickly file his subsequent lawsuit.” Chacko v. Patuxent Institution, 429 F.3d
505, 510 (4th Cir. 2005). Rather, it “‘reflects a congressional intent to use administrative
conciliation as the primary means of handling claims, thereby encouraging quicker, less formal,
and less expensive resolution of disputes.’” Balas, 711 F.3d at 407 (quoting Chris v. Tenet, 221

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F.3d 648, 653 (4th Cir. 2000)). “Allowing [the EEOC] first crack at these cases respects
Congress’s intent . . . .” Sydnor, 681 F.3d at 593.
Defendant argues that because plaintiff did not seek EEO counseling in connection with
this case until almost nine years after his termination (greatly exceeding the 45 day limitation),
his claims must be dismissed. ECF 13-1 at 9. Plaintiff responds by asserting that he did timely
seek EEO counseling in December 2005 and February 2006. ECF 16 at 7. But, as defendant
points out, the claims associated with his initial 2006 EEO Complaint were dismissed in 2007.
ECF 13-1 at 9. The EEO Complaint that gave rise to this suit was filed in 2015. See ECF 13-12.
Plaintiff alleges in his Complaint that his supervisors blocked him from speaking with the
SSA’s Office of Civil Rights, and that “[i]t wasn’t until December 7, 2014, that Anthony Wayne
Seda was able to speak to” an EEO representative. ECF 1 at 2. However, as the SSA’s decision
dismissing plaintiff’s 2015 EEO Complaint found, plaintiff “has provided no evidence that he
was not aware of the time limits for contacting an EEO Counselor. The record is void of a
credible explanation to justify his untimely contact with the counselor . . . .” ECF 13-13 at 3.
And, of course, plaintiff had previously contacted an EEO Counselor before, in 2006, when he
filed his original 2006 EEO Complaint. It would be unreasonable to conclude that Seda was
unaware of the proper procedure.
There is no genuine dispute as to the fact that plaintiff’s instant EEO Complaint was filed
in 2015, long after his termination in 2006. Nor has plaintiff offered any evidence that would
allow me to find that his delay was justifiable. Therefore, after reviewing the exhibits presented,
I conclude that granting summary judgment is appropriate on the basis of plaintiff’s failure to
timely exhaust administrative remedies.
In the alternative, plaintiff’s claims are barred by res judicata. Res judicata, or claim

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preclusion, is a judicial doctrine by which “a final judgment on the merits bars further claims by
parties or their privies based on the same cause of action.” Montana v. United States, 440 U.S.
147, 153 (1979). The doctrine is intended to preclude parties from “contesting matters that they
have had a full and fair opportunity to litigate,” thereby conserving judicial resources and
minimizing the possibility of inconsistent decisions. Id. at 153-54.
Res judicata applies when the following three elements are present: “(1) a final judgment
on the merits in an earlier suit, (2) an identity of the cause of action in both the earlier and later
suit, and (3) an identity of parties or their privies in the two suits.” Young-Henderson v.
Spartanberg Area Mental Health Ctr., 945 F.2d 770, 773 (4th Cir. 1991) (quoting Nash Cty. Bd.
of Educ. v. Biltmore Co., 640 F.2d 484, 486 (4th Cir. 1981)). Of import here, “[a] plaintiff's
invocation of a different legal theory in the subsequent action” does not preclude application
of res judicata. Onawola v. Johns Hopkins Univ., AMD-07-870, 2007 WL 5428683, at *1 (D.
Md. Sept. 24, 2007); see Restatement (Second) of Judgments § 24(2) cmt. c (1982).
Defendant contends that res judicata bars Seda’s claims because this Court has already
issued a final decision on the merits on claims against defendant regarding plaintiff’s termination
from the SSA. See Seda v. Social Security Administration, Case AMD-06-2799. Although the
claims here present slightly different causes of action, all three elements required for claim
preclusion have been met.
First, as noted, plaintiff filed his 2006 EEO Complaint following his discharge from the
SSA, and then brought a claim in this Court, which was decided by a final judgment on the
merits. See id. at ECF 11. Thus, I have no hesitation in finding satisfaction of the first element.
Second, a cause of action is “identical” for purposes of res judicata if it “involves a right
arising out of the same transaction or series of connected transactions that gave rise to the claims

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in the first action.” Harnett v. Billman, 800 F.2d 1308, 1314 (4th Cir. 1986); see Clodfelter v.
Republic of Sudan, 720 F.3d 199, 210 (4th Cir. 2013) (“[W]e follow the ‘transactional’ approach
when considering whether causes of action are identical: ‘As long as the second suit ‘arises out
of the same transaction or series of transactions as the claim resolved by the prior judgment,’ the
first suit will have preclusive effect.’” (Citation omitted)); In re Varat Enterprises, Inc., 81 F.3d
1310, 1316 (4th Cir. 1996). Notably, “[u]nder this transactional approach, res judicata will bar a
‘newly articulated claim[]’ if it is based on the same underlying transaction and could have been
brought in the earlier action.” Clodfelter, 720 F.3d at 210 (citing Laurel Sand & Gravel, Inc. v.
Wilson, 519 F.3d 156, 162 (4th Cir. 2008)).
The claims presented here clearly arise out of the 2006 discharge from the SSA, and
therefore “involve right[s] arising out of the same transaction or series of connected transactions”
as earlier alleged. See Harnett, 800 F.2d at 1314. Accordingly, that Seda relies on theories of
relief that differ from his prior complaint does not bar the application of res judicata in this case.
Onawola, 2007 WL 5428683, at *1.
Finally, the defendant in this case is in privity with the defendant in the previous cases.
Parties are in privity for purposes of res judicata where they are “so identified in interest . . . that
[they] represent the same legal right in respect to the subject matter involved.” Martin v. Am.
Bancorporation Ret. Plan, 407 F.3d 643, 651 (4th Cir. 2005). Moreover, “[p]rivity exists where
a plaintiff attempts to relitigate the same claim by naming different governmental entities and
employees as defendants.” Kayzakian v. Buck, 865 F.2d 1258 (Table), at *2 (4th Cir. 1988) (per
curiam) (citing Mears v. Town of Oxford, Md., 762 F.2d 368, 371 n.3 (4th Cir. 1985)). The
defendant here is merely the official at the head of the SSA at the time this suit was filed, and
therefore shares the interests of the agency itself, previously sued by plaintiff.

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See

id. Consequently, the privity requirement is met.
Therefore, even if plaintiff’s suit were timely filed, it would be barred by res judicata.
V.

Conclusion

For the reasons set forth above, I shall grant defendant’s Motion. An Order follows,
consistent with this Memorandum Opinion.

Date: January 18, 2018

/s/
Ellen Lipton Hollander
United States District Judge

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