Breiner v. Montgomery County, Board of Education

Filing 10

OPINION and ORDER: granting 6 Motion to Dismiss. Signed by Judge Karen K. Caldwell on 1/25/19. (JLM)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
LEXINGTON
NICHOLAS CHARLES BRIENER,

CIVIL ACTION NO. 5:18-351-KKC

Plaintiff,
V.

OPINION AND ORDER

BOARD OF EDUCATION OF
MONTGOMERY COUNTY,
Defendant.

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This matter is before the Court on the motion to dismiss (DE 6) by defendant Board of
Education of Montgomery County. The Court must grant the motion.
Plaintiff Nicholas Charles Briener alleges that he was subjected to disparate treatment
and ultimately fired by the Board after revealing that he was bisexual. He asserts a claim for
“discrimination based on his sexual orientation in violation of Title VII.” (DE 1, Complaint,
Prayer for Relief, ¶A & ¶¶ 21, 22.) This is the sole claim asserted by Briener.
Title VII forbids employers and labor organizations from “discriminat[ing] against any
individual . . . because of such individual's race, color, religion, sex, or national origin.” 42
U.S.C. § 2000e–2(a)(1). Briener recognizes that the Sixth Circuit has ruled that “sexual
orientation is not a prohibited basis for discriminatory acts under Title VII.” Vickers v. Fairfield
Med. Ctr., 453 F.3d 757, 762 (6th Cir.2006). “A claim premised on sexual-orientation
discrimination thus does not state a claim upon which relief may be granted.” Gilbert v. Country
Music Ass'n, Inc., 432 F. App'x 516, 519 (6th Cir. 2011). Despite this ruling, Briener argues this

Court “has the authority to make a determination, independent of Sixth Circuit precedent.” (DE
8, Response at 6.) This is incorrect.
Though recognizing “practical problems” with its current interpretation of Title VII, the
Sixth Circuit has ruled that Vickers “remains controlling authority unless an inconsistent decision
of the United States Supreme Court requires modification of the decision or this Court sitting en
banc overrules the prior decision.” Tumminello v. Father Ryan High Sch., Inc., 678 F. App'x
281, 285 (6th Cir.), cert. denied, 138 S. Ct. 121 (2017). Thus, this Court is bound by it.
For all these reasons, the Court hereby ORDERS that the Board’s motion to dismiss (DE
6) is GRANTED.
Dated January 25, 2019.

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