Kingrey v. Wormuth

686 F.Supp.3d 460

Kristin M. KINGREY, Plaintiff, v. Christine WORMUTH, et al., Defendants.

CIVIL ACTION NO. 2:21-cv-00612

United, States District Court, S.D. West Virginia, Charleston Division

Signed August 10, 2023

Kayla Stickley Reynolds, Michael B. Hissam, Casey E. Waldeck, Hissam Forman Donovan Ritchie, Charleston, WV, for Plaintiff.

Fred B. Westfall, Jr., United States Attorney's Office, Charleston, WV, for Defendants.

MEMORANDUM OPINION AND ORDER

JOSEPH R. GOODWIN, UNITED STATES DISTRICT JUDGE

Pending before the court is Defendants' Motion to Dismiss and/or for Summary Judgment. [ECF No. 42]. The motion offers several arguments in favor of dismissal, but the dispositive issue in this case is whether the intra-military immunity doctrine deprives this court of jurisdiction over the claims asserted by Plaintiff, a dual-status technician with both military and civilian roles. For the reasons explained below, I find that it does. Defendants' motion is GRANTED.

I. Background

This case involves claims of employment discrimination on the basis of sex, in violation of Title VII of the Civil Rights Act of 1964.

Master Sergeant Kristin M. Kingrey ("MSgt Kingrey") is "a dual status technician" in the West Virginia National Guard. [ECF No. 1, ¶ 8]. She "is a female employee who identifies as a lesbian." Id. ¶ 12. Based on her outward appearance, MSgt Kingrey "is often perceived as masculine" and "gender nonconforming." Id. ¶¶ 13-14.

"As a dual status technician, [MSgt] Kingrey is employed with the Department of the Air Force as an Air Transportation Craftsman¹ and as a[ ] [Human Resource Office] Benefits Specialist." Id. ¶ 10. The Human Resource Office ("HRO") position "is a civilian position within the federal government" and is "temporary in nature." Id. ¶¶ 11, 26.

In August 2018, MSgt Kingrey was deployed to Qatar. Id. ¶ 23. While in Qatar, she applied for the permanent position of Human Resource Development Specialist ("HRDS"). Id. ¶¶ 24-25. MSgt Kingrey remotely interviewed for the HRDS position on January 7, 2019, and was informed later that day that she had been selected for the role. Id. ¶¶ 28-29. MSgt Kingrey accepted the offer and "began completing paperwork to begin training for the . . . position." Id. ¶¶ 31-32.

When MSgt Kingrey returned to West Virginia in March 2019, she was placed on medical restrictions due to an injury she sustained while deployed. Id. ¶ 33. Her injury rendered her unable to assume the HRDS role. Id. ¶ 35. According to MSgt Kingrey, certain unspecified regulations provide that the "position could be temporarily filled," but once she was medically cleared, she "was to begin serving in the HRDS position." Id. ¶ 36. Although she remained on medical convalescence orders until December 2020, MSgt Kingrey "received training for the HRDS position" upon her return from deployment. Id. ¶ 34; [ECF No. 48, at 6].

After returning from Qatar, MSgt Kingrey was informed by Lieutenant Colonel ("Lt Col") Kelly Ambrose that Colonel Michael Cadle ("Brig Gen Cadle")² "had made negative, disparaging, and intentionally discriminatory remarks about Plaintiff Kingrey which were centered on her sex - including her sexual orientation and perceived gender nonconformity." [ECF No. 1, ¶ 37]. Specifically, MSgt Kingrey allegedly learned that Brig Gen Cadle had arranged for a meeting with Lt Col Ambrose during which he commented on MSgt Kingrey's "masculine features and requested and/or instructed [Lt Col] Ambrose to counsel . . . Kingrey on how to appear more feminine." Id. ¶ 41. During this conversation, Brig Gen Cadle allegedly told Lt Col Ambrose that MSgt Kingrey's career advancement "would suffer unless [she] began taking steps to make herself appear more feminine." Id. ¶ 42. At the time he allegedly made these remarks, Brig Gen Cadle "was the Vice Commander of the 130th Air Lift Wing" and supervised MSgt Kingrey, a member of that Wing. [ECF No. 42-1, at 3]. In his roles as Vice Commander, and later as Director of Joint Staff, Brig Gen Cadle "was actively involved in the hiring decisions" for his units. [ECF No. 1, ¶ 47].

According to MSgt Kingrey, she has dealt with other instances of discrimination and harassment from colleagues throughout her military career. Id. ¶¶ 48-54. For example, MSgt Kingrey alleges that she is "frequently harassed for the length of her hair," and that she "was forced to 'try on' a women's Honor Guard jacket, in front of others, to confirm that none of the women's sizes would fit." Id. ¶¶ 48, 50. Another instance involved "colleagues and superiors perpetuating the rumor that [she] was 'transitioning' from female to male." Id. ¶¶ 51-52. When MSgt Kingrey reported the rumor to Brig Gen Cadle, he allegedly directed her to "work it out" with the superior believed to have started the rumor, and he insinuated that the disagreement was motivated by "a prior intimate relationship" with that superior, who also identifies as a lesbian. Id. ¶¶ 53-54. Until receiving the adverse employment decisions at issue in this case, MSgt Kingrey says that she largely "attempted to endure and tolerate these discriminatory acts and comments." Id. ¶ 56.

In March 2020, Brig Gen Cadle began acting "as a general supervisor over the HRO." [ECF No. 48-1, at 38:10]. Later that spring, MSgt Kingrey "received a phone call from Lieutenant Colonel Board informing her that the Army had pulled the funding for the HRDS position." [ECF No. 1, ¶ 59]. Within a few months, the position was reposted as a temporary role and subsequently "filled by a person outside the protected class." Id. ¶¶ 61, 68.

In September 2020, MSgt Kingrey applied for another role within the HRO, this time an Employee Benefits position. Id. ¶ 70. She had previously received relevant training and was certified for the position "at the grade level GS-11/12." Id. ¶¶ 71, 72. After interviewing before a panel, MSgt Kingrey "was notified that - despite her experience and training - she had not been selected." Id. ¶ 73. The Employee Benefits position was awarded to "a non-veteran employee who is outside the protected class." Id. ¶ 74. MSgt Kingrey claims that the hiring panel was supervised by Brig Gen Cadle. Id. ¶ 80.

As a result of the alleged discrimination, MSgt Kingrey filed an Equal Employment Opportunity complaint in October of 2020. Id. ¶ 81. While her complaint was being investigated, MSgt Kingrey was notified that she was under investigation by the National Guard for an unprofessional relationship. Id. ¶ 84. She claims that her "primary witness," Lt Col Ambrose, was also investigated, and "other favorable witness(es) . . . were contacted and made to feel threatened." Id. ¶¶ 85-86. During the investigation, MSgt Kingrey received "her first negative performance appraisal." Id. ¶ 87. She claims that these retaliatory actions "resulted in a bias[ed] Final Agency Decision which fails and/or outright refuses to acknowledge the intentional, unlawful, discrimination and the supervisory authority [Brig Gen] Cadle held/holds over all those within the HRO." Id. ¶ 88.

On November 23, 2021, MSgt Kingrey filed a Complaint in this court against Christine Wormuth, Secretary of the Department of the Army, and Frank Kendall, Secretary of the Department of the Air Force, in their official capacities, based on federal question jurisdiction. She asserts two claims under Title VII: Sex Discrimination (Count I) and Retaliation (Count II). Id. at 12-18. To remedy her alleged injuries, MSgt Kingrey seeks appointment to the HRDS position, appointment to the Employee Benefits position, compensatory damages, back pay, pre- and post-judgment interest, attorneys' fees and costs, and other equitable relief. Id. at 18-19.

On March 20, 2023, Defendants filed the instant Motion to Dismiss and/or for Summary Judgment. [ECF No. 42]. MSgt Kingrey responded to the motion on April 10, 2023, [ECF No. 48], and Defendants replied on April 19, 2023, [ECF No. 52]. The motion is ripe for review.

II. Legal Standard

Federal courts are courts of limited jurisdiction, meaning that they have the power to act solely in the areas authorized by Congress and the United States Constitution. Strawn v. AT&T Mobility LLC, 530 F.3d 293, 296 (4th Cir. 2008). The two bases for subject matter jurisdiction are federal question and diversity. See 28 U.S.C. §§ 1331, 1332. The only form of subject matter jurisdiction alleged to exist in this case is federal question jurisdiction. [ECF No. 1, ¶ 18].

Federal question jurisdiction "exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987); 28 U.S.C. § 1331. Here, MSgt Kingrey's Complaint plainly raises a federal question by asserting claims under Title VII, a federal statute. In this case, however, that threshold showing does not end the inquiry, because the defendants against whom she asserts her claims are both federal officials sued in their official capacities. It is well established that the United States, including its officers, is immune from suit unless sovereign immunity has been waived. Clendening v. United States, 19 F.4th 421, 426 (4th Cir. 2021) (quoting Sanders v. United States, 937 F.3d 316, 327 (4th Cir. 2019)). Accordingly, Defendants argue they are immune from this suit because "Congress has not waived its sovereign immunity to allow uniformed members of the armed forces to pursue discrimination claims under Title VII." [ECF No. 43-1, at 7].

Defendants' challenges to the justiciability of Plaintiff's claims are properly raised in a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. See Randall v. United States, 95 F.3d 339, 343 (4th Cir. 1996). "In ruling on a 12(b)(1) motion, the court may consider exhibits outside the pleadings." Williams v. United States, 50 F.3d 299, 304 (4th Cir. 1995) (citing Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)). Moreover,...