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Kinnett v. Key W Sotera Defense Solutions

United States District Court, W.D. Virginia, Harrisonburg Division

August 26, 2019




         This matter comes before the court on defendant Key W Sotera Defense Solutions' ("Sotera") motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. ECF No. 2. Plaintiff Robert E. Kinnett ("Kinnett") has also filed three motions, the issues of which are intertwined with those of dismissal. ECF Nos. 25, 26, & 30. Pursuant to 28 U.S.C. § 636(b)(1)(B), the court referred this case to United States Magistrate Judge Joel C. Hoppe for a report and recommendation. ECF No. 8. Judge Hoppe recommended Kinnett's motions be denied and Sotera's motion be granted. ECF No. 35. Kinnett filed his objections to the Report and Recommendation on August 5, 2019. ECF No. 37.

         For the reasons stated below, the court will DENY Kinnett's motions, OVERRULE Kinnett's objections, ADOPT the Report and Recommendation in its entirely, and GRANT Sotera's motion to dismiss.


         Sotera is a private employer operating under contract with the FBI. ECF No. 1-2, at 2. Sotera hired Kinnett as a "Web Application Developer" in 2016. Id. Kinnett was assigned to work out of the FBI's Records Management Division office in Winchester, Virginia, where he was responsible for developing web-based business applications for the FBI's Business Operations Support United ("BOSU"). Id. at 2 & 5.

         In December 2016, Kinnett and John Hake, another Sotera developer, met with various BOSU staff to discuss plans to create a BOSU Helpdesk application. ECF No. 1-2, at 5. While some concern was expressed regarding whether Timothy Willems, a BOSU supervisor not present at the meeting, would agree to the application, Kinnett was instructed to begin planning and development. Id., Later that month, Willems and Kinnett met at Willems' instigation to "get to know" each other. Id. at 6. As Kinnett alleges in the Complaint, Willems is "very religious," and mentioned during this initial conversation that he had attended a bluegrass concert at a church in Stanley, Virginia, where Kinnett lives. Id. When Willems asked Kinnett what his wife did for work, Kinnett "responded that his husband was currently developing a kiln to heat treat firewood." Id., "Willems was unable to continue the conversation," and Kinnett "continued talking about his husband's work until Mr. Willems was able to regain his composure." Id. Thereafter, Willems "would periodically ask Plaintiff[J 'So you don't know the church in Stanley with the bluegrass concert?' always with a creepy smile and a little chuckle." Id. Willems's "repeated" "out-of-the-blue" questions made Kinnett "very uncomfortable in his work environment." Id.

         Kinnett was asked to give a progress demonstration to Willems on the new BOSU Helpdesk application in March 2017. ECF No. 1-2, at 7. Elizabeth Louch, Kinnett's supervisor, congratulated him on the presentation; Willems made no comment. ECF No. 1-2, at 5 & 7. The next day, Louch and Dena Barnes, the BOSU project manager, told Kinnett mat the application was being abandoned, and that he should revive previous versions. Id. at 7. Kinnett also met privately with Louch, who informed him that he was being placed on a "Performance Improvement Plan" and that he would be working closely with Barnes on a "very aggressive schedule" to which Louch had agreed. Id. at 7.

         In March 2017, Barnes instructed Kinnett not to speak or work with Haire, Sotera's other developer. ECF No. 1-2, at 7-8. Kinnett informed Louch about Barnes's instruction, and the two later met with Barnes. Id. Kinnett told Barnes that he thought her instruction violated federal regulations that permit the government to assign projects to contractors, but prohibit the government from directing contractors as to the means of completing the project. Id. Barnes became angry and told Kinnett, "I can do both!" Id. Louch later met privately with some of the BOSU staff members, and it was decided that Kinnett would be permitted to work with Haire on a limited basis, but that he should not interfere with Haire's work. Id.

         Kinnett was ultimately able to resolve all issues with the older software on which he was working, with the exception of one issue that he "was unable to resolve due to lack of access." ECF No. 1-2, at 8. He reported this issue to Barnes and received authorization to make changes but was later sent an email accusing him of making unauthorized modifications. Id. While this email was sent by BOSU project owner Mike Dillon, Kinnett believes the email "was dictated by Mr. Willems in an attempt to discredit [him] and create a hostile work environment." Id. On the following day, Louch advised Kinnett not to tell co-workers that Willems did not like him. Id. Not long after, Louch terminated Kinnett's employment. Id. at 8-9. According to Kinnett, she did so "per Mr. Willems' request." Id. After Kinnett was terminated, Willems presented Louch with the resume of a member of his church for consideration to fill Kinnett's position. Id. at 9.

         In October 2017, Kinnett filed a charge with the Office of Federal Contractor Compliance Programs ("OFCCP") alleging that Sotera had discriminated against him based on sexual orientation and religion. ECF No. 1-2, at 3. The OFCCP found that Kinnett had not made any allegations of discrimination to Sotera before termination and that Kinnett was fired because three FBI employees had complained about his performance. ECF No. 1-3, at 2-3. The OFCCP thus concluded that there wasn't enough evidence to find that Sotera had "violated its obligations under the nondiscrimination and affirmative action provisions of [Executive Order] 11246," Id. at 3, and issued Kinnett a "Notice of Right-To-Sue under Title I of the ADA or Title VII of the Civil Rights Act of 1964," id.

         Kinnett filed suit in August 2018 and asserted four claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e: (1) disparate impact religious discrimination; (2) hostile work environment religious discrimination; (3) dsparate treatment sex-based discrimination; and (4) retaliation.[1] ECF No. 35, at 5-6; ECF No. 1-2, at 9-14. Sotera moved to dismiss the Complaint on October 23, 2018. ECF No. 2. Following this motion, Kinnett filed two supplemental motions-a motion for a ruling on his joint employment status, ECF No. 26, and two motions regarding amending the Complaint, ECF Nos. 25 & 30.


         Rule 72(b) of the Federal Rules of Civil Procedure permits a party to "serve and file specific, written objections" to a magistrate judge's proposed findings and recommendations within fourteen days of being served with a copy of the report. See also 28 U.S.C. § 636(b)(1). The Fourth Circuit has held that an objecting party must do so "with sufficient specificity so as reasonably to alert the district court of the true ground for the objection." United States v. Midgette, 478 F.3d 616, 622 (4th Or. 2007), cert denied, 127 S.Ct. 3032 (2007).

To conclude otherwise would defeat the purpose of requiring objections. We would be permitting a party to appeal any issue that was before the magistrate judge, regardless of the nature and scope of objections made to the magistrate judge's report. Either the district court would then have to review every issue in the magistrate judge's proposed findings and recommendations or courts of appeals would be required to review issues that the district court never considered. In either case, judicial resources would be wasted and the district court's effectiveness based on help from magistrate judges would be undermined.

Id. The district court must determine de novo any portion of the magistrate judge's report and recommendation to which a proper objection has been made. "The district court may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed.R.Civ.P. 72(b)(3); accord 28 U.S.C. § 636(b)(1). "General objections that merely reiterate arguments presented to the magistrate judge lack the specificity required under Rule 72, and have the same effect as a failure to object, or as a waiver of such objection." Moon v. BWX Techs., Inc., 742 F.Supp.2d 827, 829 (W.D. Va. 2010) (citing Veney v. Astrue, 539 F.Supp.2d 841, 845 (W.D. Va. 2008)), affd, 498 Fed.Appx. 268 (4th Cir. 2012); see also Thomas v. Arn, 474 U.S. 140, 154 (1985(3)) ("[T]he statute does not require the judge to review an issue de novo if no objections are filed.").

         Further, objections that only repeat arguments raised before the magistrate judge are considered general objections to the entirety of the report and recommendation. See Veney, 539 F.Supp.2d at 845. As the court noted in Veney:

Allowing a litigant to obtain de novo review of her entire case by merely reformatting an earlier brief as an objection "mak[es] the initial reference to the magistrate useless. The functions of the district court are effectively duplicated as both the magistrate and the district court perform identical tasks. This duplication of time and effort wastes judicial resources rather than saving them, and runs contrary to the purposes of the Magistrates Act." Howard [v. Sec'y of Health & Human Servs.], 932 F.2d [505], 509 [(6th Cir. 1991)].

539 F.Supp.2d at 846. A party who reiterates his previously raised arguments will not be given "the second bite at the apple [] he seeks." Id. Instead, the re-filed brief will be treated as a general objection, which ...

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