Lacey v. McDonough
| Decision Date | 05 May 2023 |
| Docket Number | 2:21-cv-02801-JTF-cgc |
| Parties | KENNETH LACEY, Plaintiff, v. DENIS R. MCDONOUGH, SECRETARY OF VETERANS AFFIARS, Defendant. |
| Court | U.S. District Court — Western District of Tennessee |
ORDER GRANTING DEFENDANT'S SECOND MOTION TO DISMISS, DENYING PLAINTIFF'S MOTION TO AMEND, AND FINDING AS MOOT DEFENDANT'S FIRST MOTION TO DISMISS.
Before the Court are three Motions, one filed by the Plaintiff Kenneth Lacey, and two others by the Defendant, the Secretary of the Department of Veterans Affairs (“the Secretary”). First is the Secretary's Motion to Dismiss Lacey's first Complaint, filed on March 3, 2022. (ECF No. 10.) However, given that Lacey's since filed Amended Complaint has superseded the first Complaint and the Secretary has since filed an updated Motion to Dismiss, the Court DENIES that motion as moot. Second is the Secretary's Second Motion to Dismiss Lacey's Amended Complaint for Failure to State a Claim, filed on March 29, 2022. (ECF No. 14.) Third is Lacey's Motion to Amend/Correct Complaint, filed on March 31, 2022. (ECF No 15.) Lacey did not respond substantively to the second Motion to Dismiss, instead filing a response contending that his Motion to Amend made the Motion to Dismiss moot. (ECF No 16.) The Secretary did not respond to the Motion to Amend. For the below reasons, the Motion to Amend is DENIED, and the Motion to Dismiss is GRANTED.
The following facts are taken primarily from Lacey's First Amended Complaint. Lacey seeks to replace this complaint, through his Motion to Amend, with a Second Amended Complaint. However, the two complaints are largely identical, and material contained solely in the Second Amended Complaint will be noted.
This case involves claims of race discrimination in employment and breach of contract. At all relevant times, Lacey, a Black man, was employed as a Housekeeper by the Department of Veterans Affairs at the VA Medical Center in Memphis, Tennessee. (ECF No. 9, 3.) As an employee, Lacey was a member of the National Association of Government Employees (“the Union”), a federal-sector labor union organized under the Federal Service Labor-Management Relations Statute (“FSLMRS”). On August 7, 2018, the Department “posted a position for a Safety and Occupational Health Specialist on USAJOBS[.]” (Id.) This position was referred to as Vacancy Announcement RZ-18-LP-10279638-T5, and Lacey internally refers to the position as “Announcement A.” (Id.) On September 7, 2018, the Department posted a substantially similar, separate job opening, referred to as Vacancy Announcement RZ-18-AFA-1034287-T5-BU, which Lacey refers to as “Announcement B.” (Id.) Lacey states that Announcement B was reserved exclusively for internal hires. (Id. at 5.) Lacey applied for Announcement A on August 13, 2018, and for Announcement B on September 8, 2018. (Id. at 4.) Both times Lacey applied, he was told by Sandra Dickey (the Occupational Health and Safety Manager at the Medical Center and the hiring official for both positions) that she did not receive his “referral” from Human Resources. (ECF No. 9, 4.) Lacey checked with Human Resources to confirm that Dickey, a white woman, did in fact receive the referral, and HR sent the referral numerous times. (Id.) Despite this, Dickey maintained that she did not receive a referral all the way through September 24, 2018. (Id. at 5.)
Ultimately, Lacey was not selected for either position. (Id. at 4.) Instead, two outside hires, Michael Penrod and David Maddock, were selected for Announcement A and Announcement B respectively. (Id.) Both Penrod and Maddock are white men. (ECF No. 9, 5.) Lacey alleges he was more qualified for both positions than Penrod and Maddock, and that their hirings were motivated by race discrimination and violated multiple contractual rights and procedures secured by the contract between the Union and the Department.
Lacey states that Penrod was selected on August 21 and Maddock on August 30. (Id.) Despite these early selection dates, Lacey notes that his resume was not “scored,” an evaluative process used in hiring, until September 5. (Id.) When his resume finally was scored, it was done improperly. Lacey's years of experience and OSHA Safety Certification should have earned him a score of 25 points, but he only received a score of 15 points. (Id. at 2, 5.) Lacey also states that the Department was required to keep the Vacancy Announcements open for at least 15 days, but did not do so with Announcement A. (Id. at 6.) Beyond the quick selection, Lacey notes that his experience and qualifications entitled him to an interview, which he did not receive, and that he deserved “first and full consideration” given his internal hire status. (ECF No. 9, 6.) Further, the Department was contractually obligated to inform him of the reasons he was not selected, but when Lacey asked, Dickey was unable to provide him with any justification for his non-selection. (Id. at 7.)
In his proposed Second Amended Complaint, Lacey states that he then filed a grievance against the Department and “went through two separate mediations with Defendant in an attempt to resolve this matter.” (ECF No. 15-2, 8.) He alleges that a union representative, Laffeatte Baptist, was present at both mediations, and that the Defendant verbally consented to allowing him to file the present lawsuit, thus waiving any immunity. As a result, Lacey “exhausted all administrative remedies in this matter with Defendant, as acknowledged by Defendant.” (Id.) Despite this, Lacey states that the Department “never provided a response to [his] grievance in writing, and has not kept detailed records of all that has occurred in this matter.” (Id.) The facts in this paragraph were contained only in Lacey's proposed Second Amended Complaint.
Lacey then filed a formal complaint with the Equal Employment Opportunity Commission, which issued a Final Order in his case on September 24, 2021. (ECF No. 9-1.) Lacey then filed the present case on December 22, 2021, alleging claims of race discrimination and breach of contract throughout the hiring process detailed above. (ECF No. 1) The Secretary filed an initial Motion to Dismiss on March 3, 2022, (ECF No. 10), but Lacey filed an Amended Complaint as of right that very day, (ECF No. 9.)[1]The Secretary then filed a Motion to Dismiss the Amended Complaint on March 29, 2022, (ECF No. 14), and Lacey filed a Motion to Amend/Correct Complaint, seeking to file the Second Amended Complaint, two days later on March 31, 2022, (ECF No. 15.) Lacey also filed a separate response to the second Motion to Dismiss on the same day, which argued that the motion was moot in light of his Motion to Amend. (ECF No. 16.)
The Secretary seeks dismissal of some of Lacey's claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. When evaluating a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the Court must determine whether the complaint contains “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012) (). A claim is plausible on its face “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. In other words, although the complaint need not contain detailed facts, its factual assertions must be substantial enough to raise a right to relief above a speculative level. Ass'n of Cleveland Fire Fighters v. City of Cleveland, 502 F.3d 545, 548 (6th Cir. 2007) (quoting Twombly, 550 U.S. at 555). However, “‘naked assertions devoid of further factual enhancement' contribute nothing to the sufficiency of the complaint.” 16630 Southfield Ltd. P'ship v. Flagstar Bank, F.S.B., 727 F.3d 502, 506 (6th Cir. 2013) (quoting Iqbal, 556 U.S. at 678). Determining whether a complaint states a plausible claim is “context-specific,” requiring the Court to draw upon its experience and common sense. Iqbal, 556 U.S. at 679. Defendants bear the burden of “proving that no claim exists.” Total Benefits Planning Agency, Inc. v. Anthem Blue Cross and Blue Shield, 552 F.3d 430, 433 (6th Cir. 2008).
While the Court's decision to grant or deny a motion to dismiss “rests primarily upon the allegations of the complaint, ‘matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint [] also may be taken into account.'” Barany-Snyder v. Weiner, 539 F.3d 327, 332 (6th Cir. 2008) (quoting Amini v. Oberlin Coll., 259 F.3d 493, 502 (6th Cir. 2001)). The Court may also consider “exhibits attached to the defendant's motion to dismiss so long as they are referred to in the complaint and are central to the claims contained therein.” Rondigo, L.L.C. v. Twp. of Richmond, 641 F.3d 673, 680-81 (6th Cir. 2011) (citation omitted).
In relevant part, Federal Rule of Civil Procedure 15 allows a party to amend a pleading once as a matter of course within 21 days after service. Fed.R.Civ.P. 15(a)(1)(A). After this first amendment as of right, a party must receive either the opposing party's written consent or leave of court to amend the pleading again. Id. 15(a)(2). Courts should grant leave to amend freely “when justice so requires,” and the Sixth Circuit has previously listed factors to guide this determination:
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