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Seweryniak v. Sessions

United States District Court, E.D. Virginia, Richmond Division

January 31, 2018

RICHARD H. SEWERYNIAK, Plaintiff,
v.
JEFFERSON B. SESSIONS, ATTORNEY GENERAL, DEPARTMENT OF JUSTICE FBI, Defendant.

          REPORT & RECOMMENDATION ON DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT

          Roderick C. Young, United States Magistrate Judge.

         Richard H. Seweryniak (“Seweryniak”) brings this action pro se against United States Attorney General Jefferson B. Sessions (“Sessions” or “Defendant”) alleging violations of 5 U.S.C. § 2303, the Civil Service Reform Act of 1978, the Administrative Procedure Act of 1946, and 29 C.F.R. § 1614.405. This matter comes before the Court pursuant to 28 U.S.C. § 636(b)(1)(B) for a Report and Recommendation on Defendant's Motion to Dismiss Plaintiff's Complaint (“Motion to Dismiss”) (ECF No. 4) under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Order, ECF No. 9.) Having considered Seweryniak's Complaint and the parties' briefs, and for the reasons discussed below, the Court RECOMMENDS that Defendant's Motion to Dismiss be GRANTED.

         I. BACKGROUND

         As required by Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, the Court accepts as true Seweryniak's well-pleaded allegations and views all facts and draws all reasonable inferences in the light most favorable to him. T. G. Slater & Son, Inc. v. Donald P. & Patricia A. Brennan, LLC, 385 F.3d 836, 841 (4th Cir. 2004) (citing Mylan Labs, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)). Seweryniak alleges few facts to support the claims in his Complaint. However, Defendant attaches a Decision from the United States Equal Employment Opportunity Commission ("EEOC") to its Memorandum in Support of the Motion to Dismiss that supplements the factual background that Seweryniak provided in his Complaint.[1] The Court notes the EEOC Decision is of unquestioned authenticity and accordingly will consider it in its analysis of the Motion to Dismiss. Applying these standards, the facts are construed as follows for the purpose of resolving the Motion to Dismiss.

         A. Relevant Factual Background

         The basis for Seweryniak's Complaint arises from his former employment with the Federal Bureau of Investigation ("FBI"). (Compl. at 4, ECF No. 1). Seweryniak alleges that the FBI subject him to various adverse actions after he "informed the highest ranking official in his FBI field office of actions he believes to be believed was [sic] illegal and in violation of the scope of a search warrant." (Id.) Seweryniak claims that, after his report, his supervisors and coworkers subjected him to "documented retaliation" and a hostile work environment. (Id.) He further claims that he was "denied promotion and certification, transferred to another office, and subjected to a malicious internal non-criminal investigation which led to the revocation of a job transfer, and revocation of his security clearance, a condition of employment." (Id.) Seweryniak states that his supervisors and co-workers held "secretive meetings" and "conspired to have him removed from his position" prior to Seweryniak's annual review in September 2010, and before his two-year probationary period expiration. (Id.) The EEOC Decision provides additional details regarding these facts.

         As of June 2012, Seweryniak worked as an Information Technology Specialist - Forensic Examiner (ITSFE) in the FBI's Cyber Division facility in Washington, D.C. (Defendant's Mem. in Supp. Mot. Dismiss, Ex. 1, at 2, ECF No. 5-1 (hereinafter "EEOC Decision").) On June 22, 2012, Seweryniak was placed in a non-pay status.[2] (Id.) On July 11, 2012, Seweryniak alleged that he informed the Unit Chief of his office that he disagreed with the Supervisory Management and Program Analyst's ("SMPA") decision to deny approval of Seweryniak's "examinations toward certification" after he had been a trainee for nearly three years. (Id.) Seweryniak further alleged that he advised the Unit Chief that he intended to file an Equal Employment Opportunity complaint against SMPA for obstructing his certification process. (Id.) That same day, the Unit Chief, Acting Supervisor, and one co-worker contacted a Supervisory Special Agent about personal safety concerns stemming from a series of "printouts to an automotive web site" allegedly posted by Seweryniak. (Id.) The Supervisory Special Agent reviewed over one thousand of Seweryniak's postings and determined there was no security threat. (Id.)

         On or around July 20, 2012, two Supervisory Special Agents informed Seweryniak that they were investigating allegations that he misused a government computer, disclosed sensitive information without authorization, and conducted himself unprofessionally outside the workplace. (Id.) On July 21, 2012, Seweryniak was suspended from work immediately without pay and informed not to return to work until instructed to do so. (Id.) His security badge, credentials, Blackberry, and government-issued laptop were confiscated, and the Security Division issued a letter, dated July 19, 2012, advising Seweryniak that his security clearance was suspended. (Id.) On or around July 25, 2012, the Acting Chief of the Internal Investigations Section authorized an internal investigation into Seweryniak's actions. (Id.)

         Seweryniak was scheduled to begin a Computer Scientist position with the FBI on October 1, 2012; he received an offer for this position on or around June 22, 2012. (Id.) However, the Computer Scientist position required a top secret security clearance as a condition of employment. Because Seweryniak's security clearance was suspended, on August 22, 2012 the FBI informed him that the job offer had been rescinded based on his "current employment status." (Id.) On November 19, 2012, Seweryniak began working at the Washington Field Office after his top secret security clearance was reinstated. (Id. at 3.)

         B. Relevant Procedural History

         On October 6, 2012, Seweryniak filed an Equal Employment Opportunity complaint with the FBI alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"). (Id.) On September 24, 2013, after an investigation, the FBI issued a Final Agency Decision pursuant to 29 C.F.R. §1614.110(b) concluding that Seweryniak failed to prove that the FBI subjected him to the alleged discrimination. (Id.) As a matter of right, Seweryniak appealed the Final Agency Decision to the EEOC on October 29, 2013. (Id. at 1.) The EEOC affirmed the Final Agency Decision on August 25, 2016. (Id.) Seweryniak timely filed a Request for Reconsideration with the EEOC and received a Decision on Request for Reconsideration on December 27, 2016. (Plaintiffs Resp. to Mot. Dismiss, at 1, ECF No. 7.) The Decision on Request for Reconsideration specifically provided Seweryniak with ninety (90) days to file a civil action in the United States District Court for the Title VII discrimination alleged within the Equal Employment Opportunity complaint. (Plaintiffs Resp. to Mot. Dismiss, Ex. 1, at 2, ECF No. 7-1.)

         Seweryniak filed his Complaint in this Court on March 27, 2017. On January 16, 2018, Judge Lauck issued an Order referring the Motion to Dismiss to the undersigned for Report and Recommendation. (ECF No. 9.) The Court dispenses with oral argument because the facts and legal contentions are adequately presented in the materials before the Court, and oral argument would not aid in the decisional process. E.D. Va. Loc. Civ. R. 7(J). The motion has been fully briefed and is ripe for review.

         II. LEGAL STANDARD

         A. Motion to Dismiss for Lack of Subject ...


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