Ketelsen v. Geren et al
Order on Motion to Dismiss
UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
JEFFREY J. KETELSEN,
PETE GEREN, ACTING SECRETARY )
OF THE ARMY, et al.,
ORDER AND OPINION
Motion at Docket 6]
I. MOTION PRESENTED
At docket 6, defendants Pete Geren, Acting Secretary of the Army, and Michael
Mitchell move to dismiss plaintiff’s complaint pursuant to Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim upon which relief can be granted. At docket 6,
plaintiff Jeffrey Ketelsen filed a limited opposition to the motion to dismiss. Defendants
replied at docket 10. Oral argument was not requested and it would not assist the court.
Jeffrey Ketelsen worked as a supervisory police office for the Fort Greely Police
Department. In 2005, Ketelsen filed a claim of sex discrimination with the Equal
Employment Opportunity Commission (“EEOC”) after he was denied the opportunity to
apply for a position for which he was qualified and “the position was filled with a female
employee without opening said position for competition.”1 The EEOC matter settled
prior to a formal hearing.
On June 26, 2007, Mr. Ketelsen filed the underlying complaint alleging that after
he filed his EEOC claim, his supervisor Michael Mitchell denied him professional
development and training opportunities, adversely changed his work schedule, and
fraudulently modified his performance evaluation. Mr. Ketelsen’s complaint further
alleges that “[d]efendant acted to discriminate against Plaintiff pursuant to Title VII of the
Age Discrimination in Employment Act and Rehabilitation Act,” and that defendant
breached the implied covenant of good faith and fair dealing in his employment
contract.2 Defendants now move to dismiss plaintiff’s complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6).
III. STANDARD OF REVIEW
A motion to dismiss for failure to state a claim made pursuant to Federal Rule of
Civil Procedure 12(b)(6) tests the legal sufficiency of the claims in the complaint. In
reviewing a Rule 12(b)(6) motion to dismiss, “[a]ll allegations of material fact in the
complaint are taken as true and construed in the light most favorable to the nonmoving
party.”3 The court is not required to accept every conclusion asserted in the complaint
as true, rather the court "will examine whether conclusory allegations follow from the
Doc. 1 at p. 2.
Doc. 1 at pp. 2, 6, 7.
Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir. 1997).
description of facts as alleged by the plaintiff."4 A claim should only be dismissed if "it
appears beyond doubt that a plaintiff can prove no set of facts in support of his claim
which would entitle him to relief."5 A dismissal for failure to state a claim can be based
on either “the lack of a cognizable legal theory or the absence of sufficient facts alleged
under a cognizable legal theory.”6
Defendants move to dismiss plaintiff’s complaint on the grounds that: 1) plaintiff’s
complaint failed to allege any facts giving rise to an action under the Age Discrimination
in Employment Act (“ADEA”); 2) plaintiff has not exhausted his administrative remedies
under the Rehabilitation Act; 3) to the extent plaintiff’s complaint can be read to
implicate Title VII of the Civil Rights Act of 1964, plaintiff has failed to exhaust his
administrative remedies and to show that he filed his civil action within 90 days from the
date the EEOC dismissed his claim; and 4) plaintiff’s breach of the implied covenant of
good faith and fair dealing claim fails “because his sole recourse in an employment
grievance with the federal government is the Civil Service Relief Act.”7
In his Limited Opposition to Motion to Dismiss, plaintiff acknowledges that the
citations in his complaint to the ADEA and Rehabilitation Act were erroneous, but
contends that his complaint alleges sufficient facts to support a claim of “discrimination
Holden v. Hagopian, 978 F.2d 1115, 1121 (9th Cir. 1992) (quoting Brian Clewer, Inc. v.
Pan American World Airways, Inc., 674 F.Supp. 782, 785 (C.D.Cal. 1986)).
Vignolo, 120 F.3d at 1077.
Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990).
Doc. 6 at p. 4.
based upon retaliation for a sex discrimination claim.”8 Plaintiff further asserts that “a
fair remedy would be to permit Plaintiff to amend his complaint to assert the proper
statute(s) to set forth the cognizable legal theory.”9 Plaintiff does not address
defendants’ argument concerning his breach of the implied covenant of good faith and
fair dealing claim.
Defendants reply that any amendments to plaintiff’s complaint would be futile
because plaintiff has not established that he filed his action within 90 days from the date
the EEOC dismissed his claim as is required under 42 U.S.C. § 2000e-5(f)(1). Although
plaintiff has not plead any facts from which the court can determine that his Title VII civil
action was filed within 90 days from the date the EEOC dismissed his claim,10 it is not
clear from the record that plaintiff cannot plead such facts.11
The Ninth Circuit has ruled that dismissal under Rule 12(b)(6) should not be
granted unless it is clear that the complaint could not be saved by any amendment.12
Moreover, Rule 15(a) provides that “[a] party may amend the party’s pleading once as
matter of course at any time before a responsive pleading it served.” Here, defendants
have not filed a responsive pleading to date. Accordingly, the court will deny
defendants’ motion to dismiss without prejudice and will give plaintiff 30 days from the
date of this order to file and serve an amended complaint setting forth the proper
Doc. 8 at p. 1.
Scholar v. Pacific Bell, 963 F.2d 264, 266-267 (1992).
Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 541 (9th Cir. 1984).
statutory grounds for relief and facts showing that plaintiff met the requirements of
administrative exhaustion and timely filed his complaint.
For the reasons set out above, defendants’ motion to dismiss at docket 6 is
DENIED without prejudice. It is further ORDERED that within 30 days from the date
of this order, plaintiff shall file an amended complaint setting forth the proper statutory
grounds for relief and facts showing that plaintiff met the requirements of administrative
exhaustion and timely filed his complaint.
DATED this 4th day of March 2008.
/s/ JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE
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