Opinion
No. 00 Civ. 1808 (LTS)(HBP)
September 25, 2002
LAW OFFICES OF MICHAEL H. SUSSMAN, Esq., By: Christopher D. Watkins, Esq., Goshen, NY, Attorney for Plaintiff William R. Overton
JAMES B. COMEY, Esq., UNITED STATES ATTORNEY FOR THE SOUTHERN DISTRICT OF NEW YORK, By: Ross E. Morrison, Esq., Assistant United States Attorney, New York, NY, Attorney for Defendants Roche, Horton, and Maguire.
ELIOT SPITZER, Esq., ATTORNEY GENERAL OF THE STATE OF NEW YORK, By: Frederick L. Lieberman, Assistant Attorney General, New York, New York, Attorney for Defendant New York State Division of Military and Naval Affairs.
OPINION AND ORDER
This civil case, in which William R. Overton ("Plaintiff" or "Overton") alleges racial discrimination in the workplace, retaliation, and constructive discharge, is before the Court on the motions of defendants James G. Roche ("Roche"), Victor H. Horton ("Horton"), and Thomas P. Maguire ("Maguire"), and the New York State Division of Military and Naval Affairs ("NYSDMNA") (collectively, "Defendants") for summary judgment dismissing the complaint.
By Order entered pursuant to Federal Rule of Civil Procedure 25(d)(1), Roche, the Secretary of the United States Air Force, who appears to have been sued in his official capacity, has been substituted for F. Whitten Peters, the Acting Secretary of the United States Air Force from July 30, 1999 to January 20, 2001, who was originally named in the Complaint. See Order dated September 25, 2002.
In his complaint, Plaintiff alleges that Defendants subjected him to disparate treatment in violation of the Equal Protection Clause of the United States Constitution, New York Executive Law section 298, et seq., and the Civil Rights Act of 1964, § 701 et seq., as amended 42 U.S.C.A. § 2000e et seq., (West 1994) ("Title VII"). In response to Defendants' summary judgment motion, Plaintiff has conceded that all of his claims other than that against defendants Roche and NYSDMNA for racial harassment and racial discrimination in violation of Title VII should properly be dismissed. (Pl. Mem. in Opp. at 1.) For the reasons that follow, Defendants' motion for summary judgment is granted in its entirety.
BACKGROUND
The following facts are undisputed except to the extent specifically characterized below as allegations. Plaintiff is African-American and was at all relevant times a member of the Air National Guard. In or about February 1986, Plaintiff obtained a full-time "Guard-Technician" position as a teletype operator or Communications Manager in the Communications Flight group with the New York Air National Guard ("NYANG") and the United States Air Force ("USAF"). (Pl.'s Decl. ¶ 3.) As a Guard-Technician, Plaintiff was both a military member of the NYANG and a civilian employee of the U.S.A.F. Id. 32 U.S.C.A. § 709(b) (West 1959 Supp. 2002). As a civilian employee, Plaintiff was entitled to certain federal medical and retirement benefits, and was a member of a collective bargaining unit.
In 1989, Plaintiff began working as an Aircraft Electrician, a position also classified as a Guard-Technician, in the Electro-Environmental ("ELEN") shop with the 105th Airlift Wing ("AW") at Stewart Air National Guard Base. (Pl.'s Decl. ¶ 4.) The AW "support[s] and maintain[s] the national defense through the military airlift of defense material and personnel." (Def's.' Local Rule 56.1 Statement ¶ 26.) The mission of the 105th AW is to conduct strategic airlift operations for the USAF, Air National Guard, Air Force Reserves and other Department of Defense components. It operates, maintains and deploys thirteen C-5A Galaxy aircraft, which are used to transport military material such as tanks, trucks, armored personnel carriers, artillery, helicopters and other supplies, along with military personnel. (Demand Decl. ¶ 4.) Plaintiff was primarily responsible for inspecting and repairing environmental systems of the C-5A aircraft. (Pl.'s Decl. ¶ 9.) Plaintiff performed these duties from Monday through Friday. As a Guard-Technician, Plaintiff was also required to maintain his National Guard military rank and to perform the military duties of a Guardsman one weekend a month and during a two-week summer camp. His main duty in this aspect of his job was to train other Guardsmen. (Id. ¶ 6.)
Plaintiff alleges that in 1990, during his Monday — Friday civilian employment, his co-worker and military superior, Master Sergeant Samuel Fletcher ("MSgt. Fletcher"), made racially offensive remarks to him, creating a hostile work environment. (Am. Compl. ¶¶ 11, 12, 18.) In September 1991, MSgt. Fletcher was promoted to ELEN shop supervisor, in which position he served as Plaintiffs direct supervisor, and allegedly continued making racially derogatory comments. (Id. ¶ 15.)
Plaintiff contends that MSgt. Fletcher made the following comments prior to September 1991: "`Smile, so I can see you in the dark,'" "`Nate likes his coffee like he likes his women,'" and "`I'll kill that nigger.'" (Pl.'s Decl. ¶¶ 10, 12.)
Plaintiff alleges that MSgt. Fletcher said the following after his promotion: "`All Blacks are niggers,'" for Niggers belong on the basketball court rather than working on CS aircrafts,'" and "`[Blacks] are too stupid to be working on aircraft[s].'" (Pl.'s Br. at 4.) In 1995, MSgt. Fletcher allegedly asked Plaintiff, in a "mock African American dialect," if Plaintiff was eating fried chicken, when he was holding a cheeseburger. (Pl.'s Decl. ¶ 17.) In 1995, MSgt. Fletcher allegedly threw a salt shaker at Plaintiff when they were in the ELEN shop break room after ordering him to "`[p]ut it back where [he] got it from.'" (Id. ¶ 18.)
In 1995, Plaintiff filed a formal Equal Employment Opportunity ("EEO") complaint against MSgt. Fletcher for racial harassment and discrimination. (Id. ¶ 20.) In his EEO complaint, Plaintiff requested that MSgt. Fletcher be removed as shop supervisor or that Plaintiff be transferred to flight line. (Id. ¶ 21.) Plaintiffs requests were, however, denied and Plaintiff was transferred to the Aerospace Ground Equipment ("AGE") shop in June of 1996. (Id. ¶ 22.) Plaintiff had no contact with MSgt. Fletcher in the AGE shop. (Overton Dep. at 7, ¶ 42, Ex. to Defs.' Local Rule 56.1 Statement.) Although Plaintiff found employment in AGE "tolerable" (id.), he resigned in June 1998, allegedly because of his frustration at the failure of the administration to respond adequately to his complaints of discrimination.
Plaintiff was required to wear his uniform, with military rank insignia, while performing all of his Guard-Technician duties. Although he alleges that he did not have to address his ELEN supervisors (who were also in Plaintiffs military chain of command) by their military rank, he has not proffered evidence to refute Defendants' specific, sworn assertions that military rules of grooming and protocol apply while in uniform. The personnel in Plaintiffs chain of command were identical with respect to the civilian and military aspects of his duties. The civilian technician aspect of Plaintiffs employment was governed by a collective bargaining agreement that included a grievance procedure. The agreement provides for the processing of grievances through a chain of command culminating in the state Adjutant General, followed by arbitration if the grievant remains unsatisfied with the result. (Ex. F to Kenny Decl.)
Plaintiff asserts that different "manning documents" applied to the two aspects of his employment but has not controverted Defendants' specifications of the titles and personnel in the chain of command. (Compare Pl.'s Decl. ¶ 8 with. Demand Decl. ¶ 9.)
DISCUSSION
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue to any material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The trial court must view the record in the light most favorable to the non-moving party and resolve all uncertainties and draw all reasonable inferences against the moving party. Hill v. Taconic Dev. Disabilities Services Office, 181 F. Supp.2d 303, 316 (S.D.N.Y. 2002) (citation omitted). The role of the court is not to "weigh the evidence and determine the truth of the matter but to determine if there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). A material fact is genuinely disputed only if, based on that fact, a jury could reasonably find in favor of the non-moving party. Id. at 248. The moving party carries the initial burden of showing that there is no genuine issue of fact. Matsushita Elec. Indus., Co. v. Zenith Radio Co., 475 U.S. 574, 586 (1986). When the moving party meets this burden, the "non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts.'" Id. at 586.
Defendants' principal contention with respect to Plaintiffs Title VII claim is that the complaint is nonjusticiable because, due to the military character of Plaintiffs Guard-Technician employment, it concerns intra-military affairs in which the federal courts do not intervene. The United States Supreme Court has long recognized the need to insulate the armed forces from damages actions that risk disrupting the hierarchical command relations among military personnel, even if those actions arise from allegations of racial discrimination. See Chappell v. Wallace, 462 U.S. 296 (1983). Military superiors and the armed forces are protected from such actions under the doctrine of intra-military immunity. Id. The Supreme Court has reasoned that "[c]ivilian courts must, at the very least, hesitate long before entertaining a suit which asks the court to tamper with the established relationship between enlisted military personnel and their superior officers; that relationship is at the heart of the necessarily unique structure of the Military Establishment." Id. at 300.
This principle is also known as the Feres doctrine. Feres v. United States, 340 U.S. 135 (1950).
Following this rationale, "courts of appeals have consistently refused to extend statutory remedies available to civilians to uniformed members of the armed forces absent a clear direction from Congress to do so."Coffman v. State of Michigan, 120 F.3d 57, 59 (6th Cir. 1997). Accordingly, the Second Circuit has held that Title VII does not provide a remedy for uniformed service members. See Roper v. Dep't of the Army, 832 F.2d 247, 247-48 (2d Cir. 1987); Luckett v. Lynnederie, No. 01-6178, 2002 WL 1021713 (2d Cir. May 17, 2002). Federal Equal Employment Opportunity Commission ("EEOC") regulations similarly exclude uniformed members of military departments from their scope. See 29 C.F.R. § 1614.103 (d)(1) (2002).
Title VII protections may, however, extend to "discrimination actions brought by military personnel in hybrid jobs entailing both civilian and military aspects except where the challenged conduct is integrally related to the military's unique structure." Luckett, 2002 WL 1021713, at *4 Guard-Technician is such a hybrid position because eligibility for the technician position depends on membership in the National Guard. 32 U.S.C.A. § 709(b) (West 1959 Supp. 2002). See also Brown v. United States, 227 F.3d 295, 299 (5th Cir. 2000) (reserve technician may seek relief pursuant to Title VII if the alleged conduct arises solely from civilian duties); Mier v. Owens, 57 F.3d 747, 748 (9th Cir. 1994) (intra-military immunity does not bar Title VII. Claims of Guard-Technicians except when "challenged personnel actions [are] integrally related to military's unique structure."). The Court must, accordingly, assess whether the disputed conduct "is integrally related to the military's unique structure," Luckett, 2002 WL 1021713, at *4, to determine whether Plaintiffs Title VII claim is justiciable.
In Luckett, the Second Circuit turned, in examining the justiciability of a Guard-Technician's Title VII claim, to the analytical framework established by the Ninth Circuit in Mier v. Owens. Luckett, 2002 WL 1021713, at *3. The Mier Court held that Title VII applies to such hybrid employees except "where the challenged conduct is integrally related to the military's unique structure." Mier v. Owens, 57 F.3d 747, 748 (9th Cir. 1995). The Ninth Circuit held the Mier plaintiffs claim nonjusticiable because it related to military promotion, which the court characterized as "one of the most obvious examples of a personnel action that is integrally related to the military's structure" Id. 57 F.3d at 751. Similarly, the Luckett court found that plaintiffs claims were nonjusticiable because they involved a military transfer that resulted in a loss of his civilian position "and . . . actions taken by his military supervisors," holding the claims "integrally related to the military's unique structure." Id. at *4. Cf. Brown v. United States, 227 F.3d 295, 299 (5th Cir. 2000) (personnel decisions forming basis of reserve technician's military discharge that resulted in termination of civilian employment were taken within military sphere and thus nonjusticiable),cert. denied, 531 U.S. 1152 (2001); Fisher v. Peters, 249 F.3d 433, 443 (6th Cir. 2001) (Title VII claim of a Guard-Technician, whose civilian and military chain-of-command were virtually identical, was nonjusticiable because position is "irreducibly military" in nature").
By contrast, the Mier court observed that controversies alleging discriminatory conduct on the part of peers or subordinates may not implicate military hierarchy or discipline. Id. at 750.
Plaintiff maintains that his Title VII claims are not integrally military because they concern racial discrimination that he suffered while working as a civilian technician. Plaintiff emphasizes the differences between his civilian and military working conditions. First, he alleges that he was not required to address his military superiors or co-workers by rank while performing duties as a technician. Second, Plaintiff asserts that he was subject to disciplinary rules governed by collective bargaining as a civilian employee, whereas the Code of Military Justice determined disciplinary action when he served as a Guardsman. Next, Plaintiff argues that, as a civilian, he had collective bargaining rights and certain civilian benefits. Plaintiff further argues that the chain of command was different for his Guardsman and technician positions although, as noted above, the only specific difference he has identified is that the applicable "manning documents" were different.
While the distinctions cited by Plaintiff might be significant in other circumstances, they do not alter the fundamental focus of the claims at issue. Plaintiffs claims rest on allegations of improper, racially-discriminatory conduct by MSgt. Fletcher, who was Plaintiffs immediate military superior as well as his immediate superior in the ELEN shop. As the Ninth Circuit noted in Mier, "the `relationship between enlisted military personnel and their superior officers . . . is at the very heart of the necessarily unique structure of the Military Establishment.'" Mier, 57 F.3d at 750 (quoting Chappell v. Wallace, 462 U.S. 296, 300, 305 (1983)). To permit Plaintiff to pursue a Title VII challenge of the actions of his superior officer would be to intrude into an aspect of Plaintiffs hybrid employment that is integrally military. See Fisher, 249 F.3d at 443-44 (even if Guard-Technician position were not "irreducibly military" in nature, plaintiffs claim barred because it challenged the conduct of civilian superiors who were also her military superiors); Stauber, 8317 F.2d at 399 (Guard-Technician's tort claims barred because "military regulations, standard operating procedures, and active duty military officers controlled how the shop was run").
Moreover, though the analysis could differ for a Guard-Technician with different responsibilities, Plaintiff offers no evidence that his position is anything other than integrally related to military operations. He describes his primary duty as an Aircraft Electrician in the ELEN shop as inspection and repair of C-S aircraft (Pl.'s Decl. ¶ 9), aircraft that are used to transport defense personnel and equipment in military operations around the world. Nor does Plaintiff dispute that ELEN shop personnel, including Guard-Technicians, may be deployed at any time for training in or outside the United States to "support ongoing international military operations" (Intelisano Decl. ¶ 3; see also Demand Decl. ¶ 7) or that, without ELEN shop Guard-Technicians, the 105th AW cannot fulfill its military function (Demand Decl. ¶ 13). Where civilian employees "play an integral role in military activities . . . [,] an inquiry into the civilian activities would have the same effect on military discipline as a direct inquiry into military judgments." Stauber, 837 F.2d at 400 (citation omitted). Accordingly, Plaintiffs Title VII claim is nonjusticiable.
CONCLUSION
For the foregoing reasons, the Court finds that Plaintiffs Title VII claim is nonjusticiable and therefore must be dismissed for lack of subject matter jurisdiction. Plaintiff having conceded the points raised by Defendants with respect to his other causes of action, Defendants' motion for summary judgment dismissing the complaint is granted in its entirety.
SO ORDERED.