United States District Court, D. Kansas
MEMORANDUM & ORDER
Murguia, United States District Judge
plaintiff Crystalee Protheroe filed suit against defendants
Department of Defense and Secretary of the Air
Force/Inspector General (“the federal
defendants”), and the Kansas National Guard, General
Lee E. Tafaneli, General Jay Selander, and Colonel William
Heiffner (“the Kansas Guard defendants”) for
declaratory, injunctive and monetary relief resulting from
her alleged wrongful non-selection for reenlistment in the
Kansas Air National Guard.
the Kansas Guard and federal defendants filed motions to
dismiss (Docs. 19 and 27). The Kansas Guard moved for
dismissal with prejudice. Plaintiff failed to timely respond
to either motion and was ordered by this court to show cause
as to why she had not responded, and to file her response to
defendants' motions. (Doc. 31). Instead of filing a
response-even after the court granted a time extension to do
so-plaintiff filed her own motion to dismiss (Doc. 36) asking
this court to dismiss the case without prejudice. The federal
defendants did not object to plaintiff's motion (Doc.
37), however, the Kansas Guard defendants filed a response
requesting again that the court dismiss the complaint with
prejudice (Doc. 38). Because plaintiff failed to respond to
defendants' motions to dismiss, the court may consider
defendants' motions as uncontested pursuant to D. Kan.
complaint consists of a pro se civil cover sheet and a letter
addressed to the Air Force Board of Military Corrections. In
the civil cover sheet, plaintiff alleges her career was
ruined because she was discriminated and retaliated against.
She claims the court has federal jurisdiction under 10 U.S.C.
§ 1034, 28 U.S.C. § 1341, 5 U.S.C. § 3204, 5
U.S.C. § 1221, 32 U.S.C. §§ 362 and 328, and
K.S.A. §§ 44-1133 and 1132.
the letter addressed to the Air Force Board of Military
Corrections, plaintiff alleges generally that, just prior to
her enlistment renewal, she was notified by her commander
that she was being placed on a performance development plan.
Because she felt she was denied adequate reasoning for her
poor performance, she began sending complaints to her
commander citing specific areas, guidelines, and directives
he was failing to meet, many dealing with the Guard's
treatment of victims of domestic violence. Plaintiff claims
that as she began filing complaints, she was increasingly
subjected to punitive personnel actions, hostility, and
discrimination. She was eventually “non-selected”
moved to dismiss plaintiff's complaint under Rule
12(b)(6) and 12(b)(1) of the Federal Rules of Civil
Rule 12(b)(6), a court may dismiss a complaint for
“failure to state a claim upon which relief can be
granted.” Rule 8(a)(2) states that a pleading must
contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” To
withstand a motion to dismiss under 12(b)(6), a complaint
must contain “enough allegations of fact, taken as
true, ‘to state a claim to relief that is plausible on
its face.'” Khalik v. United Air Lines,
671 F.3d 1188, 1190 (10th Cir. 2012) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)). A claim
is plausible when “the pleaded factual content allows
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 663 (2009). When the complaint
contains well-pled factual allegations, a court should
“assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.”
12(b)(1) provides for dismissal when a court lacks subject
matter jurisdiction over a case. Federal courts are courts of
limited jurisdiction and must have a statutory basis to
exercise jurisdiction. Montoya v. Chao, 296 F.3d
952, 955 (10th Cir. 2002). Thus, a federal court only has
jurisdiction over a civil action arising under the
constitution, laws, or treaties of the United States or where
there is diversity of citizenship. See 28 U.S.C.
§§ 1331, 1332. “Jurisdiction is a threshold
question that a federal court must address before reaching
the merits of a statutory question, even if the merits
question is more easily resolved and the party prevailing on
the merits would be the same as the party that would prevail
if jurisdiction were denied.” Montoya, 296
F.3d at 955.
proceeding pro se, filed an unconventional complaint in the
form of a letter addressed to the Air Force Board of Military
Corrections in which she outlined her grievances against
defendants. A court must liberally construe a pro se
complaint and apply “less stringent standards than
formal pleadings drafted by lawyers.” Erickson v.
Pardus, 551 U.S. 89, 94 (2007). A court may not,
however, supply “additional factual allegations to
round out a plaintiff's complaint or construct a legal
theory on plaintiff's behalf.” Whitney v. New
Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).
noted above, plaintiff asserts this court has jurisdiction
over her claims based on a number of federal statutes and two
Kansas statutes. Her claims, however, are based mainly on her
accusations of retaliatory discharge for filing complaints
regarding the Guard's failures in dealing with victims of
discharge is actionable in Kansas if an employee is able to
demonstrate that she falls within one of the exceptions to
the employment-at-will doctrine. See Goodman v. Wesley
Medical Center, L.L.C., 78 P.3d 817, 821 (Kan. 2003).
The Kansas Supreme Court has recognized termination for
whistleblowing as one of these exceptions. See Palmer v.
Brown, 752 P.2d 685, 689 (Kan. 1988). To establish a
retaliatory discharge claim for whistleblowing, a plaintiff
must prove: (1) a reasonably prudent person would have
concluded the employee's co-worker or employer was
engaged in activities in violation of rules, regulations, or
the law pertaining to public health, safety, and the general
welfare; (2) the ...