United States District Court, W.D. Virginia, Harrisonburg Division
ROBERT E. KINNETT, Plaintiff,
KEY W SOTERA DEFENSE SOLUTIONS, Defendants.
MICHAEL F. URBANSKI, CHIEF UNITED STATES DISTRICT JUDGE
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.
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.
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.
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
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.
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
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.
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,"
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. 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.
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.
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.").
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
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 , 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