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Midyett v. Wilkie

United States District Court, W.D. Arkansas, Fayetteville Division

December 16, 2019

ROBERT L. WILKIE, Secretary, Department of Veterans Affairs DEFENDANT


          Timothy L. Brooks, United States District Judge

         Currently 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.

         I. BACKGROUND

         On 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.

         While 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.

         The 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).

         All 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.

         A 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, [1] but recharacterizing them as Title VII, ADEA, Whistleblower Protection Act, No. FEAR Act, and due process claims.

         The Government filed a motion to dismiss the 2014 case on May 21, 2014. The Court referred the motion to the Honorable Erin L. Setser, [2] 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.

         At 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.

         Unlike 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).

         Defendant 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 discussion below.


         Rule 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 ...

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