William OVERTON, Plaintiff-Appellant, v. NEW YORK STATE DIVISION OF MILITARY AND NAVAL AFFAIRS, a subdivision of the State of New York, James Roche, Secretary of the Air Force, Defendants-Appellees, Victor H. Horton, sued in his individual capacity, Thomas P. Maguire, sued in his individual capacity, Defendants.
Docket No. 03-6008.
United States Court of Appeals, Second Circuit.
Argued: August 5, 2003. Decided: June 3, 2004.
373 F.3d 83
Ross E. Morrison, Assistant United States Attorney for the Southern District of New York (James B. Comey, United States Attorney, and Neil M. Corwin, Assistant United States Attorney, of counsel), New York, NY, for Defendant-Appellees Roche.
David Axinn, Assistant Solicitor General for the State of New York (Eliot Spitzer, Attorney General of the State of New York, of counsel), New York, N.Y., for Defendant-Appellee New York State Division of Military and Naval Affairs.
Before: POOLER, SACK, and WESLEY, Circuit Judges.
POOLER, Circuit Judge, concurs in the judgment in a separate opinion.
SACK, Circuit Judge.
The plaintiff-appellant, William Overton, was at all relevant times a dual-capacity Guard Technician under the National Guard Technicians Act of 1968,
Overton brought suit in the United States District Court for the Southern District of New York against the New York State Division of Military and Naval Affairs (which oversees the Guard), the Secretary of the USAF, and two of Overton‘s Guard Technician superiors, asserting, inter alia, that racially harassing and retaliatory actions taken toward him by his immediate superior violated Title VII of the Civil Rights Act of 1964, as amended,
The district court (Laura Taylor Swain, Judge) granted the defendants’ motion for summary judgment pursuant to
We affirm.
The Workplace
In early 1989, Overton began working for the Guard and the USAF as a dual-status Guard Technician in the Electro-Environmental (“ELEN“) shop of the 105th Airlift Wing (“105th AW“) at Stewart Air National Guard Base in New York. The mission of the 105th AW is to conduct strategic airlift operations for the USAF, Air National Guard, USAF Reserves, and other Department of Defense components. It operates, maintains, and deploys thirteen C-5A Galaxy aircraft for use in transporting military personnel and military equipment, such as tanks, trucks, armored personnel carriers, helicopters, and artillery.
As a Guard Technician, Overton was both a civilian aircraft electrician employed by the USAF, see
As a civilian employee of the federal government, Overton was entitled to certain medical and retirement benefits. He was a member of a collective bargaining unit, and a collective bargaining agreement governed his civilian employment.1
While acting in his civilian capacity as an aircraft electrician, Overton complied with the statutory requirement that he wear his military uniform, including his military rank insignia.2 The parties disagree as to the extent to which Overton was required to obey military rules of protocol while performing his nine-to-five duties, but Overton concedes that he was subject to some military disciplinary rules, such as regulations preventing him from being absent without leave.
Overton asserts that his civilian chain of command was different from his military chain of command in that each was determined by a separate so-called “manning” document. The defendants agree that the two chains of command are technically separate — i.e., they are reflected in two separate “manning” documents. It is also undisputed, however, that when Overton‘s co-worker Master Sergeant Samuel Fletcher became Overton‘s immediate civilian supervisor in 1991, the two documents established identical chains of command. At that time, Fletcher reported to defendant Lieutenant Colonel Victor Horton, who reported to defendant Wing Commander, Brigadier General Thomas P. Maguire.
Overton is African-American. He alleges that in 1990, during the course of his civilian employment, Fletcher, who was at that time his civilian co-worker and immediate military superior, created a hostile work environment by making racially offensive remarks and threatening Overton in a racially offensive manner.3 Overton asserts that he complained about these remarks to his civilian supervisor, Donald Checksfield, who told Overton that Fletcher had made other offensive racial remarks.
In September 1991, after an internal investigation by Checksfield‘s supervisor, Checksfield was removed as ELEN shop supervisor for making “a false statement about an individual and report[ing] an incident that never occurred causing an unnecessary racial situation.” Letter from Lt. Col. Pasquale A. Stramandinoli to Master Sergeant Donald Checksfield 1 (Sept. 11, 1991). Fletcher was promoted to ELEN shop supervisor to replace Checksfield as Overton‘s civilian supervisor.4 From that time forward, Fletcher was both Overton‘s immediate civilian and immediate military superior. Overton contends that thereafter, Fletcher continued to make racially offensive remarks,5 and discriminated against Overton with respect to job assignments and support.
In 1995, Overton filed an equal employment opportunity complaint with the Guard and the USAF. He requested a transfer to another part of the 105th AW or to have Fletcher removed as his supervisor. In December 1996, the Guard and the USAF rejected his complaint. Overton thereupon appealed to the Equal Employment Opportunity Commission. In November 1999, the Commission denied the appeal but issued a “right to sue” letter to Overton.
In June 1996, Overton was transferred from the ELEN shop to another shop, where he received the same salary, did not interact with Fletcher, and found the working environment “tolerable.” Deposition of William R. Overton, July 19, 2001, at 266. Nonetheless, on June 4, 1998, Overton resigned from his civilian post and requested a discharge from his military position. He was honorably discharged from the Guard the following day. Overton alleges that his transfer was in retaliation for his discrimination complaints. The defendants assert that it was in response to the needs of the base. Overton contends that, in either case, he resigned because his transfer “curtailed any possibility of future advancement” in the 105th AW. Declaration of William R. Overton dated Nov. 12, 2001 ¶ 22, at 6.
On March 9, 2000, Overton instituted this lawsuit by filing a complaint in the United States District Court for the Southern District of New York. He alleges that the defendants violated his rights under the New York Human Rights Law, the Equal Protection Clause of the Fourteenth Amendment, and Title VII. On August 10, 2001, following completion of discovery, the defendants moved for summary judgment. Overton conceded at that time that his state-law and federal constitutional claims should be dismissed. Overton, 2002 WL 31159065, at *1, 2002 U.S. Dist. LEXIS 18170, at *2-*3. He maintained, however, that during the course of his performance of civilian duties, Title VII entitled him to protection from a hostile work environment. Specifically, he relied on
The district court granted the defendants’ motion for summary judgment on Overton‘s Title VII claim, holding that it was nonjusticiable because the behavior at issue was “integrally related to the military‘s structure.” Id., 2002 WL 31159065, at *3, *4-*5, 2002 U.S. Dist. LEXIS 18170, at *10, *16 (internal quotation marks omitted; quoting Luckett, 290 F.3d at 498, in turn quoting Mier v. Owens, 57 F.3d 747, 749 (9th Cir.1995), cert. denied, 517 U.S. 1103, 116 S. Ct. 1317, 134 L. Ed. 2d 470 (1996)). The court observed that Overton‘s Title VII claim “rest[ed] on allegations of improper, racially-discriminatory conduct by MSgt. Fletcher, who was Plaintiff‘s immediate military superior,” and that Overton‘s duties as an aircraft electrician were “integrally related to military operations.” Id., 2002 WL 31159065, at *4, 2002 U.S. Dist. LEXIS 18170, at *15. The court therefore concluded that any inquiry into Fletcher‘s actions “`would have the same effect on military discipline as a direct inquiry into military judgments.‘” Id., 2002 WL 31159065, at *4, 2002 U.S. Dist. LEXIS 18170, at *16 (quoting Stauber v. Cline, 837 F.2d 395, 400 (9th Cir.), cert. denied, 488 U.S. 817, 109 S. Ct. 55, 102 L. Ed. 2d 33 (1988)).
Overton appeals.
DISCUSSION
The Feres Doctrine of intra-military immunity bars a lawsuit if “the injuries [for which a plaintiff seeks to recover] arise out of or are in the course of activity incident to [the plaintiff‘s military] service.” Feres v. United States, 340 U.S. 135, 146, 71 S. Ct. 153, 95 L. Ed. 152 (1950). Title VII creates a limited exception to the Feres doctrine that allows some lawsuits to be brought pursuant to the provisions of Title VII if the plaintiff is a civilian employee of the military. Roper, 832 F.2d at 248. Overton argues that his claims are justiciable because, although they are covered by the Feres doctrine, his lawsuit falls within Title VII‘s exception for lawsuits by civilian employees of the military. We conclude to the contrary that Overton‘s claims are barred because, on the facts of this case, Title VII does not override the Feres doctrine‘s prohibition.
I. Standard of Review
We review a district court‘s grant of summary judgment de novo, construing the evidence in the light most favorable to the non-moving party. Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir.1999), cert. denied, 529 U.S. 1098, 120 S. Ct. 1832, 146 L. Ed. 2d 776 (2000). A district court must grant a motion for summary judgment if “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law,”
A. The Feres Doctrine
The Supreme Court first recognized the doctrine of intra-military immunity in Feres v. United States, 340 U.S. at 146, 71 S. Ct. 153. There the Court held that uniformed members of the armed forces may not bring suit against the federal government under the Federal Tort Claims Act (“FTCA“) for injuries that “arise out of or are in the course of activity incident to service.” Id. Since Feres, the courts have expanded the doctrine6 so that it now generally protects the government from suit for injuries arising from “activit[ies] incident to [military] service.” United States v. Stanley, 483 U.S. 669, 681, 107 S. Ct. 3054, 97 L. Ed. 2d 550 (1987).7 Most important for our purposes, the Feres doctrine prevents members of the military from challenging military decisions through actions brought under Title VII. Roper, 832 F.2d at 248.
The Supreme Court has observed that the Feres doctrine is designed in large measure to prevent civilian courts from interfering with military discipline and decision-making.
In the last analysis, Feres seems best explained by “the peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of such suits on discipline, and the extreme results that might obtain if suits under the Tort Claims Act were allowed for negligent orders given or negligent acts committed in the course of military duty.”
United States v. Muniz, 374 U.S. 150, 162, 83 S. Ct. 1850, 10 L. Ed. 2d 805 (1963) (quoting United States v. Brown, 348 U.S. 110, 112, 75 S. Ct. 141, 99 L. Ed. 139 (1954)); accord United States v. Shearer, 473 U.S. 52, 57, 105 S. Ct. 3039, 87 L. Ed. 2d 38 (1985). Such litigation would require civilian courts to evaluate military decisions and disciplinary actions “at the expense of military discipline and effectiveness.” Id. at 59, 105 S. Ct. 3039. The Court has expressed “concern[] with the disruption of `[t]he peculiar and special relationship of the soldier to his superiors’ that might result if the soldier were allowed to hale his superiors into court.” Chappell, 462 U.S. at 304 (second alteration in original) (quoting Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 676, 97 S. Ct. 2054, 52 L. Ed. 2d 665 (1977) (Marshall, J., dissenting)).
The Feres doctrine also acts to prevent federal courts from exercising constitutional powers that are delegated to Congress and the Executive Branch.
[J]udges are not given the task of running the Army. The responsibility for setting up channels through which such grievances can be considered and fairly settled rests upon the Congress and upon the President of the United States and his subordinates. The military constitutes a specialized community governed by a separate discipline from that of the civilian. Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters.
Orloff v. Willoughby, 345 U.S. 83, 93-94, 73 S. Ct. 534, 97 L. Ed. 842 (1953); see also Dibble v. Fenimore, 339 F.3d 120, 125 (2d Cir.2003) (quoting Orloff), cert. denied, supra.
At the same time, courts have recognized that the “incident to military service” test may bar a claim in federal court even though its pursuit, under the particular circumstances of the case, might not weaken military discipline or interfere with discretion as to military matters. See Stanley, 483 U.S. at 682, 107 S. Ct. 3054. The process of determining case-by-case the impact of litigation on the operation of the military would itself unduly intrude into military affairs. Id.
A test for liability that depends on the extent to which particular suits would call into question military discipline and decisionmaking would itself require judicial inquiry into, and hence intrusion upon, military matters. Whether a case implicates those concerns would often be problematic, raising the prospect of compelled depositions and trial testimony by military officers concerning the details of their military commands. Even putting aside the risk of erroneous judicial conclusions (which would becloud military decisionmaking), the mere process of arriving at correct conclusions would disrupt the military regime. The “incident to service” test, by contrast, provides a line that is relatively clear and that can be discerned with less extensive inquiry into military matters.
Id. at 682-83, 107 S. Ct. 3054.
B. The Feres Doctrine Applied to Lawsuits by Guard Technicians
The Feres doctrine‘s bar to lawsuits that are “incident to military service” has generally been applied to suits by Guard Technicians arising while they are being paid as civilian employees. Despite the fact that their employment may be denominated civilian, the duties that they are performing are typically military in nature. Although the Supreme Court has not decided whether the Feres doctrine applies to a Guard Technician‘s lawsuit arising from his or her dual-status employment and brought against another Guard Technician, the state, or the federal government, the Circuit Courts of Appeals have: They have nearly unanimously applied the Feres doctrine to bar such suits. See, e.g., Fisher v. Peters, 249 F.3d 433, 443 (6th Cir.2001) (applying the Feres doctrine to a Title VII action brought by a Guard Technician); Brown v. United States, 227 F.3d 295, 299 (5th Cir.2000) (same). And they have done so even in cases in which the injuries complained of were incurred while the plaintiff was allegedly performing the nominally civilian aspects of his or her employment. See, e.g., Wright v. Park, 5 F.3d 586, 589 (1st Cir.1993) (applying the Feres doctrine to a section 1983 action brought by a Guard Technician and allegedly related to his civilian duties); Stauber v. Cline, 837 F.2d 395, 399 (9th Cir.1988) (applying the doctrine to a state tort law claim brought by a Guard Technician and allegedly related to his civilian duties); NeSmith v. Fulton, 615 F.2d 196, 201 (5th Cir.1980) (applying the doctrine to a section 1983 claim brought by a Guard Technician and allegedly related to his civilian duties). But see Mier, 57 F.3d at 748 (9th Cir.1995) (stating that the Feres doctrine bars a Title VII claim by a Guard Technician only if the suit involves “personnel actions integrally related to the military‘s unique structure“).8
First, a Guard Technician‘s employment as a civilian is ordinarily in support of a mission that is ultimately military in nature. The broad purpose of the National Guard Technicians Act of 1968,
Thus, the civilian employment of Guard Technicians is often incident to military service. “[A] suit based upon service-related activity necessarily implicates the military judgments and decisions that are inextricably intertwined with the conduct of the military mission.... Civilian employees of the Government also may play an integral role in military activities.” United States v. Johnson, 481 U.S. 681, 682, 691 & n. 11, 107 S. Ct. 2063, 95 L. Ed. 2d 648 (1987) (holding nonjusticiable a lawsuit against a civilian agency for allegedly negligent assistance of a military mission); accord Shearer, 473 U.S. at 55-56 (holding nonjusticiable a suit brought by the mother of a member of the military who was killed allegedly as a result of the Army‘s negligence while he was off duty); Stauber, 837 F.2d at 400 (relying on Johnson with reference to a suit by a Guard Technician).
Second, there are concerns about the intrusive nature of the inquiry that would be necessary for a federal court to disentangle a plaintiff‘s civilian and military duties if the Feres doctrine were applicable only to suits arising out of the latter. “[T]he mere process of arriving at correct conclusions would disrupt the military regime.” Stanley, 483 U.S. at 683, 107 S. Ct. 3054; see also Lutz, 944 F.2d at 1487 (“[W]here it is sufficiently ambiguous whether challenged actions were `incident to military service,’ and the process of disentangling conduct not incident to service from that incident to service would itself work an impermissible intrusion upon military matters, Feres must be applied to the whole course of conduct.“).
Overton has not argued that his claims are not “incident to military service,” as he might have. That issue is therefore not before us. See Chayoon v. Chao, 355 F.3d 141, 143 (2d Cir.2004) (“`On a motion invoking sovereign immunity to dismiss for lack of subject matter jurisdiction, the plaintiff bears the burden of proving by a preponderance of evidence that jurisdiction exists.‘” (quoting Garcia v. Akwesasne Hous. Auth., 268 F.3d 76, 84 (2d Cir.2001))); Wake v. United States, 89 F.3d 53, 57 (2d Cir.1996) (holding that “the Feres doctrine concerns the waiver of sovereign immunity“). We therefore need not address the question whether the Feres doctrine applies because Overton‘s claims “arise out of or ... in the course of activity incident to [military] service.” Feres, 340 U.S. at 146, 71 S. Ct. 153; cf. Brown, 739 F.2d at 368 (holding that Feres did not bar claims against national guardsmen who participated in a “mock lynching“).10
III. Title VII‘s Exception to the Feres Doctrine
Although Overton does not contest that the injuries for which he seeks redress arose from activities “incident to military service,” the application of the Feres doctrine to Title VII actions such as the one before us is not entirely straightforward. “[Feres] is a judicial doctrine leaving matters incident to service to the military” but only “in the absence of congressional direction to the contrary.” Stauber, 837 F.2d at 399; accord Chappell, 462 U.S. at 304, 103 S. Ct. 2362 (noting that Congress is “the constitutionally authorized source of authority over the military system of justice” and can create causes of action that supersede the Feres doctrine); Roper, 832 F.2d at 248 (holding that the “express indication” of Congress supersedes the Feres doctrine); Gonzalez v. Dep‘t of Army, 718 F.2d 926, 928 (9th Cir.1983) (same). Title VII is, of course, “congressional direction.” The issue thus becomes whether and in what circumstances Title VII allows a Guard Technician to bring a claim relating to his or her civilian employment despite the Feres doctrine and whether Overton‘s suit is, therefore, justiciable.
A. Section 2000e-16
The provision of Title VII under which Overton brings suit,
All personnel actions affecting employees or applicants for employment ... in military departments as defined in
section 102 of Title 5 , [which includes the Department of the Air Force,] ... shall be made free from any discrimination based on race, color, religion, sex, or national origin.
As far as we have been able to determine, each Circuit to address this issue has held on the facts before it that a section 2000e-16 action brought by a Guard Technician could not proceed in the face of the Feres doctrine. The Circuits have differed, though, in their analysis.
The Sixth Circuit has held that section 2000e-16 never supersedes the Feres doctrine in an action by a Guard Technician, even if the alleged harassment arises in the course of his or her civilian employment. Fisher, 249 F.3d at 443-44. The court based its decision on its previously articulated view “that the positions of National Guard technicians are `irreducibly military in nature.‘” Id. at 439 (quoting Leistiko v. Stone, 134 F.3d 817, 820-21 (6th Cir.1998)) (per curiam) (in turn quoting Leistiko v. Sec‘y of the Army, 922 F. Supp. 66, 73 (N.D. Ohio 1996)));11 cf. Wright, 5 F.3d at 588 (stating that the role of a Guard Technician is “irreducibly military in nature“). Similarly, the Ninth Circuit has stated that § 2000e-16 does not create an exception to the Feres doctrine for suits by Guard Technicians because the “applicability of Title VII [to such suits] is clearly not provided in `unmistakable terms.‘” Mier, 57 F.3d at 749 (quoting Gonzalez, 718 F.2d at 928 (stating that “if Congress had intended for [§ 2000e-16] to apply to the uniformed personnel of the various armed services it would have said so in unmistakable terms“)).12
The Fifth Circuit, by contrast, has read section 2000e-16 explicitly, but partially, to override the Feres doctrine. Brown, 227 F.3d at 299. “As a consequence of the limited scope of the Title VII waiver, employment discrimination claims by [Guard Technicians] must be categorized as either arising from their position as a civilian employee of a military department, or their position as a uniformed service member.” Id. In the Fifth Circuit‘s view, a Guard Technician‘s Title VII claim is therefore permissible if it involves only actions taken purely in the civilian capacities of the persons involved. The court noted that in some cases, categorizing a Guard Technician‘s claim may be difficult. Indeed, an apparently civilian claim might be military if the challenged conduct was “integrally related to the military‘s unique structure.” Id. at 299 n. 5 (citing Mier, 57 F.3d at 750). It was clear on the facts before the Brown court that the actions it was considering were military. The court therefore was not required to decide in what cases behavior towards a Guard Technician might be purely civilian, not “integrally related to the military‘s unique structure,” and thus, under its analysis, the basis for a justiciable Title VII claim.
We again apply the two tests described in Luckett to determine whether Overton‘s claim falls within Title VII‘s exception to the Feres doctrine.14
B. Overton‘s Claim
Overton asserts that his Title VII claim is different from those asserted by the plaintiffs in Luckett, Brown, Fisher, and Mier. In all of those cases, the plaintiffs challenged decisions regarding their military status in the National Guard. Because a military decision was at the core of each case, it was ultimately easy to conclude that whatever the test, section 2000e-16 did not override the operation of the Feres doctrine. But Overton‘s claim focuses on Fletcher‘s behavior toward Overton on weekdays during business hours, when both were performing what Overton asserts were purely civilian duties not integrally related to the military‘s unique structure. We disagree with Overton‘s characterization and therefore conclude that in the factual circumstances of this case, section 2000e-16 does not overcome the Feres bar.
To be sure, at the time the conduct of which Overton complains took place, his status was “civilian.” He was then being paid by the USAF to perform the nominally civilian portion of his Guard-Technician duties. At the same time, however, Overton‘s suit, if permitted to proceed, would likely affect his military relationship with Fletcher. The defendants’ alleged misconduct occurred while Overton worked on a military base to assure the military‘s airlift capacity, while wearing a military uniform, under the direct supervision of Fletcher, who was also his immediate military superior. Overton‘s closely related dual roles engendered closely related military and civilian relationships with Fletcher. The nominally civilian, yet distinctly military, relationship between the two was thus central to Overton‘s military mission and the military‘s unique structure of command. Any attempt surgically to dissect and analyze the civilian relationship between Overton and Fletcher, with its military dimensions, moreover, would itself threaten to intrude into their military relationship.15 Courts are “ill-equipped to determine the impact upon discipline that... [such an] intrusion upon military authority might have.”16 Chappell, 462 U.S. at 305, 103 S. Ct. 2362.
We see no reason and the government does not seek to persuade us,17 however, that there can be no situation in which a Guard Technician would have a justiciable Title VII claim with respect to his or her “purely civilian” employment by the federal government, even in circumstances where the Feres doctrine is otherwise applicable. We need not and do not speculate as to what circumstances, if any, might give rise to such a claim.
CONCLUSION
The actions of Fletcher toward Overton to which Overton has testified, and the National Guard‘s and USAF‘s asserted failure effectively to address them — which we must accept as fact for purposes of reviewing the district court‘s grant of the defendants’ motion for summary judgment — are plainly reprehensible. Nonetheless, the Feres doctrine applies, the exception of
POOLER, Circuit Judge, concurring in the judgment.
I concur in the judgment. Regretfully and respectfully, I cannot concur in the majority‘s reasoning, as set forth in Section III of the opinion, because I find that its analysis contains two central flaws. First, the rationale underlying the majority‘s holding reflects a fundamental misunderstanding of this court‘s holding in Luckett v. Bure, 290 F.3d 493 (2d Cir.2002), and worse, it undermines what little civil rights protections were previously afforded civilian technicians employed in a dual capacity with the military. The majority concludes that Overton‘s claims are integrally related to military matters, notwithstanding the fact that Overton alleged that the racial discrimination occurred during the week day working hours “while both he and his immediate superior were acting in their civilian capacities.” Op. at 85, 95-961-1
Title VII protections extend to discrimination actions brought by military personnel in hybrid jobs entailing both civilian and military aspects except when the challenged conduct is integrally related to the military‘s unique structure.
Luckett, 290 F.3d at 499 (emphasis added). What this language suggests is that the general military nature of the complainant‘s employment is not the central concern. It is indeed irrelevant that Overton or Fletcher were wearing uniforms or worked on a military base when Fletcher made the challenged comments. Instead, the issue is whether the challenged conduct itself, rather than the nature of the employment relationship, is military in nature.
Indeed, courts from other circuits in similar cases have likewise focused on whether the complained of actions implicate military concerns. See, e.g., Brown v. United States, 227 F.3d 295, 299 (5th Cir.2000) (the plaintiff air-technician “seeks review of actions taken by the military that form the basis of his military discharge. While these actions had a civilian component ... they nonetheless were actions taken within the military sphere.“) (emphasis added); Gregory v. Widnall, 153 F.3d 1071, 1074 (9th Cir.1998) (“Title VII applies to Guard technicians except when they challenge personnel actions integrally related to the military‘s unique structure.“) (citing Mier v. Owens, 57 F.3d 747, 748 (9th Cir.1995) (emphasis added and internal quotation omitted)). These cases, like Luckett, correctly focus on the challenged conduct, rather than on the nature of the employment relationship. In holding otherwise, the majority today makes it nearly impossible for a civilian technician, alleging a Title VII claim, to surmount the Feres doctrine. Obviously, a civilian technician‘s employment with the military will necessarily create a military employment relationship and involve duties with some military aspects.
The majority is concerned that it cannot “surgically” dissect and analyze the civilian versus military relationship between Overton‘s and Fletcher‘s relationship. Op. at 96 However, we need not do so to resolve this case. To the contrary, looking at the relationship status of the personnel members is the approach of the Sixth Circuit, an approach we rejected in Luckett. See Fisher v. Peters, 249 F.3d 433, 443-44 (6th Cir.2001). The Sixth Circuit has held that Feres categorically bars claims by guard technicians because their positions are “irreducibly military in nature.” Id. In Luckett, we opted instead for an inquiry into whether the Title VII claim “challenges conduct integrally related to the military‘s unique structure.” By choosing a conduct-based rather than status-based inquiry, this court held that, notwithstanding the military aspect of the guard technician position, their Title VII claims can be considered unless they complain about some activity or conduct integrally related to military matters.
In the end, however, I reluctantly find that Overton‘s Title VII claims should be dismissed insofar as his claims relate to military personnel decisions, which specifically include (1) Fletcher‘s promotion and assignment to ELEN shop supervisor, (2) defendants’ failure to remove Fletcher from his position after Overton complained of Fletcher‘s conduct; (3) Overton‘s reassignment to the Aerospace Ground Equipment shop in June 1996; and (4) Overton‘s complaint that Fletcher assigned him to perform less desirable tasks than non-African-American technicians working in the same shop. These claims relate to conduct that is integrally related to specific military matters because they involve personnel decisions surrounding the staffing needs of a particular shop, the quality of workplace supervision, and the imposition of disciplinary measures. Moreover, an analysis into whether Fletcher assigned Overton to perform less desirable tasks would involve some inquiry into Overton‘s and other shop employees’ job responsibilities for inspecting and maintaining various aircrafts. Accordingly, I concur with the judgment, insofar as it dismisses claims based on these personnel decisions.
My second difficulty with the majority‘s reasoning is that it fails to address Overton‘s hostile work environment claims, which is due, in part, to its conclusion that Overton‘s claims are categorically barred due to the status and nature of his employment. These claims should not have been deemed nonjusticiable under Feres because they involve conduct not integrally related to any military function. Overton complains about numerous acts and comments by Fletcher while both men were employed in their civilian capacity and performing civilian classed duties. As discussed above, the test set forth by Luckett makes clear that the primary issue is whether the challenged conduct itself, rather than the nature of the employment relationship, is military in nature. While the decision whether to transfer Overton or to discipline Fletcher may not be examined because these decisions implicate the military‘s unique structure of command and discipline, these acts and comments by Fletcher cannot be said to relate to any military function.
However, Overton‘s hostile work environment claims cannot survive because he does not allege conduct that is sufficiently egregious. To prevail against a motion for summary judgment on a hostile work environment claim, “a plaintiff must show that the harassment was sufficiently severe or pervasive to alter the conditions of the victim‘s employment and create an abusive working environment.” Terry v. Ashcroft, 336 F.3d 128, 147 (2d Cir.2003) (quotation marks and citations omitted). In this case, Overton claims that in or about 1990, Fletcher said to him, “Smile, so that we can see you in the dark.” On another occasion, Fletcher told him that his co-worker “likes his coffee [black] like he likes his women.” In Fall 1991, Fletcher was angry with Overton as a result of Overton‘s complaints regarding Fletcher‘s conduct. Outside of Overton‘s presence, Fletcher stated “I‘ll kill that nigger.” In or about 1994 or 1995, when Overton was carrying a broom handle, Fletcher said, “What‘s that Bill, your spear?” In 1995, Fletcher allegedly threw a salt shaker at Overton. In that same year, Overton claimed that Fletcher marked him AWOL when he was approximately 15 minutes late to work, even though Fletcher had not done this when other employees were late.
As a final point, I wish to make clear that although I ultimately agree with the majority‘s disposition of Overton‘s claims, I write separately to warn against an undisciplined expansion of the Feres doctrine. It is important to recognize “that not every action by one member of the armed services against another implicates military decision making, relates to the military mission, or is incident to service.” Lutz v. Sec. of the Air Force, 944 F.2d 1477, 1484 (9th Cir.1991); see also Mier, 57 F.3d at 750 (“[military] personnel actions are not always integrally related to the military‘s unique structure.“). This observation is especially relevant in light of the fact that the military has and continues to expand in number and in function. See Jonathan Turley, Pax Militaris: The Feres Doctrine and the Retention of Sovereign Immunity in the Military System of Governance, 71 GEO. WASH. L. REV. 1, 34 (2003). As noted by Professor Turley, the military has now “taken on a variety of `collateral functions’ far removed from core combat-related functions. Many of these collateral functions were once handled by civilian companies and, depending on availability, civilian companies are often used as an alternative resource.... The application of Feres in collateral areas of military governance produces the most vivid examples of doctrinal over-reach.” Id. at 34-35. In light of this shift in the military‘s general function, and in order to protect the rights of the substantial population of civilian technicians employed by the military, the historically liberal and automatic invocation of ”Feres concatenations must come to an end.” Lutz, 944 F.2d at 1487 (quotation and citation omitted).