Ex-Air Guard member sues former superiors claiming discrimination because of Native American heritage

Posted Dec. 11, 2013, at 6:36 p.m.
Last modified Dec. 11, 2013, at 8:25 p.m.

BANGOR, Maine — A former member of the Maine Air National Guard has sued six of her former superiors in federal court alleging that she was discriminated against because she’s a Native American.

Tonya D. Gardner, 42, of Hudson claims in the lawsuit filed in U.S. District Court in Bangor on Dec. 6, that she was denied a promotion from master sergeant to senior master sergeant after she complained about her supervisor’s repeated use of the phrase “stepped off the reservation” in May, September and November 2011, according to the complaint.

That phrase originated in the 19th century when Native Americans were not allowed to leave reservations without fear of being shot by U.S. Army soldiers, Gardner said Tuesday in an interview at the Bangor office of her attorneys, Eric and Cynthia Mehnert. Gardner is a member of the Aroostook Band of MicMacs.

“The first comment was about six months after my father passed away,” Gardner said. “He was very proud of his heritage and very proud I was in the military.”

When her father called Gardner on the phone, he addressed her by her rank, she said.

Gardner, who left her full-time job with the 101st Mission Support Flight in February 2013, is seeking $500,000 in punitive damages. She is not seeking reinstatement.

The St. Francis native said she was not as interested in the money as she is in being heard.

“I want to educate people,” a tearful Gardner said. “I want people to know that no matter where you work or where you are, it’s not right for someone to harass another person regarding their race.”

Maj. Michael Steinbuchel, public affairs officer for the Maine Army and Air National Guard, declined Wednesday to comment on the lawsuit.

“At this point, we have not seen a copy of the lawsuit,” he said.

The complaint had not been served on the Air Guard members as of 5 p.m. Wednesday, according to information posted on the court’s electronic case filing system.

Gardner sued Lt. Col. Thor L. Noyes, employed by a Department of Defense contractor assigned to the 101st Support Squadron; Col. Scott Young, commander of the 101st Mission Support Group; Capt. Rachel Beal, equal employment opportunity officer with the Air Guard; Lt. Col John Beatty, inspector general for the state of Maine; CMSgt. Juli McConnell, chief of flight for the 101st Force Support Squadron; and Brig. Gen. Gerard Bolduc, commander of the Maine Air Guard.

Gardner said Tuesday that even though she told Noyes she was offended by the comment the first time, he said he was not “politically correct” and repeated it.

Efforts to reach Noyes for comment Wednesday were unsuccessful.

Before filing the lawsuit, Gardner filed a complaint Nov. 29, 2012, with the Maine Human Rights Commission alleging what she later claimed in the lawsuit, according to documents provided by Steinbuchel. The commission dismissed her complaint and said in a letter dated May 2, 2013, that panel does not have the authority to consider complaints involving uniformed military personnel.

Gardner joined the Air Guard in 1998 at the age of 27 and became a master sergeant in November 2007, according to the complaint. Her responsibilities included administering training programs for the 101st, the complaint said. She received high performance ratings through August 2011.

Gardner alleged that she was “constructively discharged,” according to the complaint. Courts have defined “constructively discharged” as a supervisor deliberately making working conditions so intolerable that a reasonable person would be forced to resign, according to USLaw.com.

“I was looking forward to retiring [in nine years],” Gardner said Tuesday. “This was my future, my goal, my career. I loved what I did, and I did it very well. I feel like I helped a lot of people and was very dedicated to the mission.”

Gardner said that after she filed the complaint, she received a mid-year review that rated her performance below what it had been rated previously. It specifically said that she lacked “conflict resolution skills,” she said.

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