A federal worker's discrimination and retaliation claims were largely dismissed by the court.

Record source: CourtListener

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY SOUTHERN DIVISION at LONDON ROBERT S. BRUNER, Plaintiff, Civil Action No. 6: 25-141-KKC v. PAM BONDI, et al., MEMORANDUM OPINION AND ORDER Defendants. *** *** *** *** This matter is before the Court upon the motion of the defendants to dismiss the Complaint filed by plaintiff Robert Bruner. [R. 20] The parties have filed their respective responses and replies, [R. 21]; [R. 23], rendering the matter ripe for decision. I. In his complaint, Bruner indicates that in March 2023 he began temporary service as the acting Associate Warden for Operations (“AW(O)”) at the Federal Correctional Institution at Manchester. See [R. 1-1 at 2] Bruner applied for the AW(O) position, vacancy announcement MSS-2023-0005, on a permanent basis. He alleges that he “was on the Best Qualified list for the vacancy[.]” However, on September 21, 2023, he was not selected for the position. Instead, Michael Duff was chosen to serve as the new AW(O). See id. Because Duff was not scheduled to begin in his new role until April 2024, Bruner continued to serve as the acting AW(O) until that time. See id. at 2. At some point thereafter, the incumbent Associate Warden for Programs (“AW(P)”) retired, creating a vacancy for that position. Bruner implies that he applied for the AW(P) position, vacancy announcement MSS-2024-0002. See [R. 1-1 at 2] However, in April 2024, Duff was placed in the AW(P) position. At the same time, Joshua Hensley was selected for the AW(O) position instead of Bruner. See id. Bruner states that Director Lothrop made both hiring decisions based upon the recommendation of Regional Director Gomez without reviewing the candidates’ resumes, qualifications, or experience. Bruner contends that he was objectively “more qualified” for each of the positions than the candidates chosen. See [R. 1-1 at 3] In an amendment to his administrative complaint to the BOP, Bruner separately alleged that in November 2023, the defendants “endorsed a BHS Newsletter addressed to all agency employees, including the aggrieved [which] included a photograph of a hand gesture which the Agency previously perceived as ‘racially motivated[.]’”. [R. 1-2 at 3] Bruner also asserts that he was subjected to a hostile work environment when at some point in time “agency counsel contacted the Plaintiff’s supervisor interfering with the selection process.” [R. 1-1 at 3] Bruner contends that Bureau of Prisons’ officials engaged in employment discrimination, failure to comply with the requirements of merit selection rules, and retaliation. [R. 1 at 3-4] He seeks damages and ancillary relief. See id. at 8. II. The Court first addresses three matters raised in Bruner’s response to the motion to dismiss. See [R. 21] First, Bruner asks the Court to deny the motion to dismiss because the defendants did not file a response indicating whether they would interpose objections to the sufficiency of process, as the Court had requested. See [R. 21 at 3-4, referencing [R. 17]] Defendants’ counsel indicates that she did not receive the Court’s Order as the result of an apparent administrative error. [R. 23 at 6] The failure to respond, while regrettable, is not a sufficient ground upon which to deny the pending motion to dismiss. Second, Bruner requests that the Court to afford him to leave to amend his complaint if it determines that the motion to dismiss should be granted. [R. 21 at 4] But a plaintiff’s request to amend his complaint in an unspecified manner, conditioned upon the Court’s grant of a dispositive motion at some point in the future, is neither a proper means to seek amendment nor a valid ground upon which 2 to deny an otherwise meritorious motion to dismiss. See Rosenberg v. Gould, 554 F.3d 962, 965 (11th Cir. 2009) (“Where a request for leave to file an amended complaint simply is imbedded within an opposition memorandum, the issue has not been raised properly.”); Price v. Hodges Motor Co., LLC, No. 3:19-CV-34-J-34-PDB, 2019 WL 13273857, at *1 (M.D. Fla. Feb. 15, 2019) (holding that “a request for affirmative relief, such as a request for leave to amend a pleading, is not properly made when simply included in a response to a motion.”) (citing Fed. R. Civ. P. 7(b)). Further, a party seeking an amendment must attach a copy of the amended complaint to his motion. See Kuyat v. BioMimetic Therapeutics, Inc., 747 F.3d 435, 444 (6th Cir. 2014). Bruner has not done so here. While a dispositive motion is pending, if a plaintiff decides that amendment is necessary to address deficiencies in his pleading he may take that step immediately whether as a matter of right under Rule 15(a)(1) or by seeking leave of Court under Rule 15(a)(2). If he waits until after the Court grants the motion to dismiss, he may still be able to amend his complaint, but only by meeting the more demanding standards of Rule 59 or 60. Clark v. United States, 764 F.3d 653, 661 (6th Cir. 2014). The Court will therefore deny this informal request as well. Third, the defendants’ motion seeks dismissal of Bruner’s claims asserted under 5 U.S.C. § 2301 and 5 C.F.R. § 335.103(b), a statute and regulation codifying certain merit systems principles. See [R. 20 at 7-9] Bruner responds that he “does not allege that 5 C.F.R. § 335.103 creates an independent cause of action” but that he referenced the rules in his complaint only to “provide relevant factual context supporting Plaintiff’s Title VII claims…” [R. 21 at 4] Bruner’s complaint belies that assertion: he cites the merit systems rules as both an independent claim and as a separate basis for this Court’s jurisdiction. See [R. 1 at 3, 4] Regardless, because Bruner now concedes that merit selection rules do not provide an independent cause of action, the Court will dismiss any such claims. III. 3 The defendants move to dismiss Bruner’s complaint, contending that it does not state facts to viably establish a claim of employment discrimination, a hostile work environment, or retaliation. See [R. 20 at 1] The Court addresses these contentions in turn. A motion under Rule 12(b)(6) of the Federal Rules of Civil Procedure seeks dismissal of the plaintiff’s complaint for failure to state a claim upon which relief may be granted. At a minimum, a complaint must set forth sufficient factual allegations “to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Peterson v. Johnson, 87 F.4th 833, 836 (6th Cir. 2023). When deciding whether the complaint meets that standard, the Court accepts all well- pleaded factual allegations as true and draws all reasonable inferences in the plaintiff’s favor. Jackson v. City of Cleveland, 64 F.4th 736, 743 (6th Cir. 2023). However, the Court “need not give legal conclusions and unwarranted factual inferences a presumption of truth.” Heyward v.

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