Scott v. Rice

• Decision Date: 07 June 1993
• Docket Number: No. 92-2463,92-2463
• Citation: 7 F.3d 226,1993 WL 375664
• Parties: NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. SANDRA M. SCOTT, Plaintiff-Appellant, v. DONALD RICE, Secretary, Department of the Air Force; John B. Conway, Chief, National Guard Bureau; Calvin G. Franklin, Maj. Gen., Commanding General, District of Columbia National Guard; David F. Wherley, Commander, District of Columbia Air National Guard, Defendants-Appellees. . Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 226

7 F.3d 226

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

SANDRA M. SCOTT, Plaintiff-Appellant, v. DONALD RICE, Secretary, Department of the Air Force; John B. Conway, Chief, National Guard Bureau; Calvin G Franklin, Maj. Gen., Commanding General, District of Columbia National Guard; David F. Wherley, Commander District of Columbia Air National Guard, Defendants-Appellees.

No. 92-2463.

United States Court of Appeals Fourth Circuit.

Argued: June 7, 1993.

Decided: September 23, 1993.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria.

ARGUED: Joseph David Kuchta, Kuchta & Brinker, for Appellant.

Patricia Anne Kerns, UNITED STATES AIR FORCE, for Appellees.

ON BRIEF: Richard Cullen, United States Attorney, Theresa Carroll Buchanan, Assistant United States Attorney, for Appellees.

D.S.C.

AFFIRMED

Before ERVIN, Chief Judge, PHILLIPS, Circuit Judge, and G. Ross ANDERSON, Jr., United States District Judge for the District of South Carolina, sitting by designation.

PER CURIAM:

OPINION

Major Sandra M. Scott appeals from an order granting the defendants' alternative motion to dismiss/motion for summary judgment on Scott's action for alleged violations of 42 U.S.C. § 1983. Reviewing the district court's decision de novo with respect to the Rule 12(b)(6) dismissal of Scott's action, see Schatz v. Rosenberg, 943 F.2d 485, 489 (4th Cir. 1991), cert. denied sub nom. Schatz v. Weinberg & Green, 112 S. Ct. 1475 (1992), we affirm.

In 1987 Scott was an officer and pilot on active duty in the District of Columbia Air National Guard's Air Guard Reserve. In June 1989 Scott returned to her post following a period of training at the National Guard's Air Command and Staff College, for which she had been recommended by her supervising officers. On October 24, 1990, Colonel David F. Wherley, Scott's unit commander, initiated an action pursuant to Air National Guard regulations to terminate Scott's Air Guard Reserve status. Regarding Scott's termination, Colonel Wherley stated:

I am taking this action based on a pattern of substandard performance and misconduct that demonstrates unacceptable leadership qualities for a Major on [Air Guard Reserve] status. The most recent incident involves complaining to enlisted personnel about management of the detachment and soliciting support from female members of the unit for a sex discrimination suit against me....

In response to Colonel Wherley's action, Scott filed a complaint alleging sexual discrimination by Colonel Wherley with the Office of Social Actions for the District of Columbia National Guard. Pursuant to District of Columbia National Guard procedure, Brigadier General S.J. Haransky, Jr. conducted an investigation into Scott's allegations of sexual discrimination and harassment. His investigation consisted of interviewing twenty-three members of Scott's unit. Brigadier General Haransky's report concluded that Scott had not presented any specific evidence of verbal or physical conduct of a sexual nature against her, and that she therefore had failed to establish a "prima facie case for sexual harassment or discrimination."

While Brigadier General Haransky's investigation was underway, Brigadier General Johnny Hobbs, Deputy Commander of the District of Columbia Air National Guard, appointed Major Steven R. Fuscher to conduct a simultaneous investigation into Colonel Wherley's allegations against Scott. Major Fuscher's investigation concluded that Scott had made negative comments about her job and the management of the squadron to enlisted members of her unit. Major General Calvin G. Franklin, the Commanding General of the District of Columbia National Guard, approved Colonel Wherley's decision to terminate Scott on June 7, 1991. Scott remains a member of the District of Columbia Air National Guard in a part-time status, but has been assigned to another unit.

Terminated from her employment as an active-duty officer, Scott brought this action pursuant to 42 U.S.C. § 1983. She sought a declaration that her termination had been ordered in violation of the First and Fourteenth Amendments to the Federal Constitution, 32 U.S.C. § 709, and Air National Guard Regulation 35-03, and an injunction restoring her to active-duty status. The action named as defendants (1) the Secretary of the Department of the Air Force, Donald B. Rice; (2) the Chief of the National Guard Bureau, Lieutenant General John B. Conway; (3) Major General Franklin; and (4) Colonel Wherley. Following oral argument, the district court granted the defendants' motion to dismiss pursuant to Rule 12(b)(6), holding as a matter of...