United States District Court, W.D. Arkansas, Fayetteville Division
F. ALLAN MIDYETT, M.D. PLAINTIFF
ROBERT L. WILKIE, Secretary, Department of Veterans Affairs DEFENDANT
MEMORANDUM OPINION AND ORDER
Timothy L. Brooks, United States District Judge
before the Court are Defendant Robert L. Wilkie's Motion
to Dismiss (Doc. 10) and Plaintiff F. Allan Midyett,
M.D.'s Response in Opposition. (Doc. 13). For the reasons
given below, the Motion is GRANTED, and the
case is DISMISSED WITH PREJUDICE pursuant to
the doctrine of res judicata.
November 21, 2010, Plaintiff F. Allan Midyett began working
as a radiologist at the Veteran's Healthcare Systems of
the Ozarks ("VHS"), which is a hospital system
operated by the U.S. Department of Veterans Affairs. VHS
terminated Midyett's employment on March 19, 2012. Two
days after the termination, he filed an Equal Employment
Opportunity ("EEO") complaint before the Equal
Employment Opportunity Commission's Office of Federal
Operations ("OFO"), "alleging that [VHS]
discriminated against, and harassed him, on the bases of his
race (Cherokee), national origin (Native American), sex
(male), disability (hypertension and congestive heart
failure), age (seventy-one), and in reprisal for prior
protected EEO activity arising under Title VII." (Doc.
1-1, p. 150). On October 23, 2012, Midyett filed a second EEO
complaint "alleging discrimination based on reprisal for
prior EEO activity." Id. at 151. The two EEO
complaints collectively asserted that VHS had discriminated
against and harassed Midyett due to his race, national
origin, sex, disability, and age, all in violation of Title
VII of the Civil Rights Act, the Rehabilitation Act, and the
Age Discrimination in Employment Act ("ADEA"). He
also claimed that VHS retaliated against him when he reported
these incidents of discrimination and harassment.
the EEO complaints were pending, Midyett filed four separate
lawsuits in state court, one after the other. All lawsuits
were eventually removed to this Court. The four complaints
concerned the factual circumstances surrounding Midyett's
termination from VHS, including allegations that his employer
discriminated against him, retaliated against him, and
generally treated him unfairly.
first lawsuit was filed on July 9, 2012, in the Circuit Court
of Washington County, Arkansas, against Lisa Dahlgren,
Medical Staff Coordinator for VHS. The case was removed to
federal court with the United States substituted as the
defendant. (No. 5:12-CV-5188). Next, on July 10, 2012,
Midyett filed a second lawsuit in the Circuit Court of
Washington County, this time against Dr. John Cuchia, a
physician affiliated with VHS. Once again, the case was
removed to federal court, and the United States was
substituted for Dr. Cuchia. (No. 5:12-CV-5187). On July 11,
2012, Midyett filed a third complaint in Washington County
Circuit Court, this time against Dr. John Henley, the former
Chief of Staff of VHS. The United States answered the third
complaint on Dr. Henley's behalf and removed the case to
this Court. (No. 5:12-CV-5183). Finally, on July 12, 2012,
Midyett filed a fourth complaint in state court naming as the
defendant Dr. Robert Levy, the former Chairman of the
Professional Standards Board for VHS. Just as before, the
United States entered an appearance in the case and removed
it to this Court. (No. 5:12-CV-5184).
four cases ("the 2012 cases") were dismissed in
separate orders issued on October 29, 2012. In the dismissal
orders, the Court found that it lacked federal jurisdiction
over some of the state law claims and that other substantive
employment-based claims should be dismissed for failure to
state plausible causes of action pursuant to Federal Rule of
Civil Procedure 12(b)(6). The complaints were all extremely
detailed, lengthy, and difficult to follow. They recited
essentially the same facts, though the legal causes of action
arising from those facts varied slightly from case to case.
little over a year after the 2012 cases were dismissed,
Midyett filed another lawsuit on January 14, 2014. This time
he filed directly in this Court, suing Dr. Levy for a second
time. (No. 5:14-CV-5016 ("the 2014 case")). By the
beginning of 2014, Midyett's EEO complaints were still
pending before the OFO, and he had not yet received a
right-to-sue letter. Nevertheless, he pushed ahead and filed
the 2014 case, asserting many of the same employment-based
causes of action that he filed in 2012,  but
recharacterizing them as Title VII, ADEA, Whistleblower
Protection Act, No. FEAR Act, and due process claims.
Government filed a motion to dismiss the 2014 case on May 21,
2014. The Court referred the motion to the Honorable Erin L.
Setser,  United States Magistrate Judge for the
Western District of Arkansas, who recommended that the case
be dismissed pursuant to the doctrine of res judicata.
See Doc. 66, No. 5:14-CV-5016. Midyett filed
objections to the Magistrate Judge's Report and
Recommendation ("R&R"), and the Court reviewed
the matter de novo. After careful consideration, the
Court adopted the R&R and dismissed the 2014 case in a
written order published on July 13, 2015. (Doc. 73, No.
5:14-CV-5016). The Court found that the case Midyett filed
against Dr. Levy in 2012 involved the same parties as the
case filed in 2014. Further, the 2012 case against Dr. Levy
resulted in a final judgment on the merits, was based on
proper jurisdiction, and arose from the same nucleus of
operative facts asserted in the 2014 case. Id. at 2.
That "nucleus of operative facts" was defined to
include the facts surrounding Midyett's "alleged
terminat[ion] from the VA hospital where he was employed in
violation of his rights, and the administrative hearing
related to his termination" Id. The Court
specifically held that Midyett's 2012 case against Dr.
Levy asserted claims for failure to accommodate a disability,
harassment, hostile work environment, age and sex
discrimination, and retaliation; and the 2014 case asserted
many of the same substantive claims, though expressed through
different legal theories. Id.
around the time the 2014 case was being dismissed in this
Court, the OFO's investigation of Midyett's EEO
complaints began picking up steam. On July 14-15 and 20-21,
the administrative law judge ("ALJ") held several
hearings, and Midyett and his counsel were afforded the
opportunity to appear in person and submit evidence.
See Doc. 1-1, pp. 35-54, No. 5:19-CV-5152. The ALJ
issued a final decision on January 25, 2017, denying all
claims. Id. at 151-52. The agency then affirmed the
decision and issued a final order of dismissal on February 2,
2017. See Id. at 147. Midyett filed an
administrative appeal on March 1, 2017. Id. Two
years later, the appeals process finally concluded, and the
OFO affirmed the ALJ's order in an opinion dated April
25, 2019. Id. at 147-60. The order on appeal found
that Midyett "had not shown that the Agency
discriminated against, or subjected him to a hostile work
environment, based on his age, disability, national origin,
race, sex, or in reprisal for his EEO activity."
Id. at 158-59. He subsequently filed a request for
reconsideration, which was denied on July 26, 2019. See
Id. at 142-44. At long last, the OFO's
administrative review of the EEO complaints was at an end,
and Midyett, with his right-to-sue letter in hand, filed the
instant Complaint in this Court on August 13, 2019.
the previous complaints reviewed by this Court, the instant
one is brought against the Secretary of the Department of
Veterans Affairs himself, and not against any employees of
VHS; however, like Midyett's previous complaints, this
one claims that he was discriminated and retaliated against
while employed as a VHS radiologist from late 2010 to early
2012. Specifically, he brings claims for gender, race, and
national origin discrimination and retaliation under Title
VII, disability discrimination under the Americans with
Disabilities Act ("ADA"), and age discrimination
under the ADEA. (Doc. 1, p. 2).
filed a motion to dismiss the case on the basis of res
judicata on October 15, 2019, and Midyett filed a response.
His response is largely unhelpful in that it rehashes the
merits of his claims for several pages and only addresses res
judicata in the final paragraphs of the brief. Midyett argues
that res judicata does not apply because his previous
lawsuits did not include claims styled as Title VII claims.
He also observes that if the Court construed Title VII claims
from his prior lawsuits, the Court "could [not] possibly
have had jurisdiction" to hear such claims, since they
were pending before the OFO at the time. The Court will
consider the parties' arguments on res judicata in the
12(b)(6) requires a court reviewing a motion to dismiss
"to accept as true all of the factual allegations
contained in the complaint, and review the complaint to
determine whether its allegations show that the pleader is
entitled to relief." Schaaf v. Residential Funding
Corp.,517 F.3d 544, 549 (8th Cir. 2008). To survive
such a motion, the complaint "'must contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.'" Junk
v. Terminix Int'l Co.,628 F.3d 439, 445 (8th Cir.
2010) (internal quotation marks omitted) (quoting
Ashcroft v. Iqbal,556 U.S. 662, 678 (2009)).
Although the complaint need not provide specific facts in
support, it "must include sufficient factual information
to provide 'grounds' on which the claim rests, and to
raise a right to relief above a speculative level."
Id. (internal citation omitted). A complaint ...