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Wetherill v. Geren

July 31, 2009


The opinion of the court was delivered by: Karen E. Schreier Chief Judge


Plaintiff, Nancy Wetherill, brought this action alleging discrimination based on her gender and on race and national origin. Defendants Steven Doohen, Theodore Johnson, and the South Dakota National Guard move to dismiss. Defendants Pete Geren and the Army National Guard move to dismiss. For the reasons stated below, both motions are granted.


Wetherill joined the Army National Guard in 1974 and was commissioned on July 4, 1977. From 1982 to 2008, Wetherill served in Rapid City, South Dakota, as a full-time military technician. On July 1, 1999, she achieved the rank of colonel, and on April 1, 2007, Wetherill became the Director of Operations, Military Technician, for the South Dakota Army National Guard.

Under 10 U.S.C. § 14507(b), a colonel is removed from active status the first day of the month after the month in which the officer completes 30 years of commissioned service. According to this statute, Wetherill's Mandatory Removal Date (MRD) was July 31, 2007. In May 2007, Major General Michael A. Gorman, who was at the time Adjutant General of the South Dakota Army National Guard, submitted a request to the National Guard Bureau (NGB) that Wetherill's MRD be extended to December 30, 2010. That is the date on which Wetherill could have received full annuity payments under the Civil Service Retirement System; an earlier MRD would mean that she would collect a reduced annuity payment. On July 18, 2007, NGB approved this request. Shortly thereafter, Major General Gorman retired as Adjutant General and was replaced by Brigadier General Steven Doohen.

On January 23, 2008, Adjutant General Doohen asked the NGB to revoke the MRD extension previously granted to Wetherill and to recognize April 30, 2008, as her new MRD. On February 2, 2008, Brigadier General Theodore Johnson and Colonel Dennis Flanery informed Wetherill that on April 30, 2008, she would be terminated from her military technician position for "force management" reasons. Then, Adjutant General Doohen stayed Wetherill's MRD from April 30, 2008, to July 31, 2008. On February 5, 2008, the NGB granted Adjutant General Doohen's request to revoke Wetherill's previous MRD and held that the "effective date of separation is 31 July 2008." Docket 1 ¶ 17. Wetherill protested the modification of her MRD and made allegations of gender and racial discrimination, all to no avail. On May 8, 2008, Wetherill was given a new work assignment, which she claims involved work that was "intended to be performed by persons holding a rank lower than Colonel." This new assignment also forced her to work by herself in an isolated building. Ultimately, Wetherill was terminated from her military technician position on July 31, 2008.

Wetherill states that she was the only female Asian-American officer in the South Dakota Army National Guard and was the only female in the South Dakota Army National Guard "to have served at the 06 level in a non-special branch." Id. ¶ 22. Finally, Wetherill claims that "[n]o other technician in the South Dakota Army National Guard has ever been denied the opportunity to receive an unreduced annuity as a result of having an MRD waiver being denied, modified or revoked." Id. ¶ 20.

Wetherill's complaint states that the decision to revoke her MRD waiver was due to discrimination based on her gender, race, and national origin, and that the act of moving Wetherill to a different work station in May 2008 was in retaliation for her complaints of discrimination. Because of defendants' discrimination, Wetherill alleges that she was deprived of receiving a full retirement annuity, future promotions, and substantial pay increases, and she suffered humiliation, embarrassment, and shame.


Rule 12(b)(6) requires the court to review only the pleadings to determine whether they state a claim upon which relief can be granted. In considering a motion to dismiss, the court assumes all facts alleged in the complaint are true, construes the complaint liberally in the light most favorable to the plaintiff, and should dismiss only if "it appears beyond a doubt that the plaintiff can prove no set of facts which would entitle the plaintiff to relief." Coleman v. Watt, 40 F.3d 255, 258 (8th Cir. 1994). "The issue is not whether a claimant will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed. 2d 90 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183, 191, 104 S.Ct. 3012, 3017, 82 L.Ed. 2d 139 (1984).

Defendants also assert that this action should be dismissed under Rule 12(b)(1) for lack of subject-matter jurisdiction. "Dismissal for lack of subject-matter jurisdiction because of the inadequacy of the federal claim is proper only when the claim is 'so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to involve a federal controversy.'" Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89, 118 S.Ct. 1003, 140 L.Ed. 2d 210 (1998) (citations omitted). Because Wetherill brings this suit under 42 U.S.C. § 2000e, which grants federal courts jurisdiction over discrimination suits such as this one, the court concludes that the motion to dismiss is properly evaluated under Rule 12(b)(6), and not as one for lack of subject-matter jurisdiction. See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89, 118 S.Ct. 1003, 140 L.Ed. 2d 210 (1998) (stating that there is subject-matter jurisdiction "if the right of the petitioners to recover under the complaint will be sustained" if there is a dispute as to the construction of federal law); see also Wood v. United States, 968 F.2d 738, 739 (8th Cir. 1992) (affirming dismissal of discrimination suit of National Guard airman for failure to state a claim under 12(b)(6)).


Defendants argue that Wetherill's claims should be dismissed because they are non-justiciable under the doctrine established in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). Defendants further contend that the court lacks subject matter jurisdiction because Title VII does not extend to military personnel. Finally, because Feres and its progeny bar civil suits by military members against the armed services, the state defendants argue that the Eleventh Amendment prohibits Wetherill's claims against them.

In response, Wetherill states that dismissal at this stage would be inappropriate, "because it remains to be seen whether or not the challenged conduct in this case involved 'an assessment of [Wetherill's] military qualifications.' " Docket 15, page 7 (citing Hupp v. United States, 144 F.3d 1144, 1148 (8th Cir. 1998)). Therefore, argues Wetherill, the court is unable to evaluate whether, under Eighth Circuit precedent, her Title VII claim is non-justiciable. Discovery, she claims, will reveal ...

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