249 F.3d 433 (6th Cir. 2001), 99-5830, Fisher v Peters

Docket Nº:99-5830
Citation:249 F.3d 433
Party Name:Tracy D. Fisher, Plaintiff-Appellant, v. F. Whitten Peters, Acting Secretary of the United States Air Force, Defendant-Appellee.
Case Date:April 09, 2001
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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249 F.3d 433 (6th Cir. 2001)

Tracy D. Fisher, Plaintiff-Appellant,


F. Whitten Peters, Acting Secretary of the United States Air Force, Defendant-Appellee.

No. 99-5830

United States Court of Appeals, Sixth Circuit

April 9, 2001

Argued: December 6, 2000

Appeal from the United States District Court for the Eastern District of Tennessee at Knoxville. No. 98-00220, R. Leon Jordan, District Judge.

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Carol S. Nickle, NICKLE & LAFEVOR, Knoxville, Tennessee, for Appellant.


Before: BOGGS and GILMAN, Circuit Judges; BECKWITH, District Judge[**].


BECKWITH, District Judge.

Tracy Fisher ("Plaintiff") appeals the district court's order granting summary judgment to Defendant. For the following reasons, we affirm the district court's judgment.

I. Facts and Procedural History

During the relevant period of time, Plaintiff worked at the McGhee Tyson Air National Guard Base. As an Accounting Technician, she served as a federal civilian employee of the United States Air Force at the GS-6 level. In addition, she served as a Guard technician in the Tennessee Air National Guard holding the rank of Technical Sergeant.1 Plaintiff's duties as an Accounting Technician included paying invoices for services provided to the base and processing travel vouchers. As a Guard technician, Plaintiff was required to participate one weekend per month in "unit training assemblies" or Guard duty days. Guard technicians at the McGhee Tyson Guard Base are required to wear uniforms during the week as well as on the weekend assemblies. Military courtesies such as saluting superior officers are observed.

During the performance appraisal rating period of 1994-1995, MSgt Kenneth "Bud" Knight, an Active Guard Reservist, served as the Supervisory Accounting Technician and as Plaintiff's immediate supervisor for purposes of both Plaintiff's technician work and her Guard duties. Lt Col Gary Wade served as Plaintiff's second-level supervisor

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in both her technician and Guard duties, and Col Knable served as Plaintiff's third-level supervisor for both duties.2 During that appraisal period, Plaintiff received a single performance appraisal which covered both her technician and Guard duties. MSgt Knight was the appraiser; Lt Col Wade was the reviewing authority; and Col Knable was the approving official.

In her Complaint, Plaintiff alleges that on or about January19, 1996, Lt Col Wade downgraded her technician performance appraisal and forwarded it to the Support Personnel Management office without Plaintiff's signature. According to Plaintiff, MSgt Knight permitted Plaintiff to prepare her own evaluation. Plaintiff, who rated herself "outstanding," claims that her immediate supervisor initially agreed with this rating. Plaintiff alleges that Lt Col Wade subsequently changed this "outstanding" rating to an "excellent" rating.

In approximately August of 1996, Plaintiff applied for the position of Supervisory Accounting Technician, the position previously held by MSgt Knight. The applicants for that position were directed to submit a military service resume as well as a resume describing work experience, education, awards, etc. Lt Col Wade served as the "recommending official" in filling MSgt Knight's vacancy. Lt Col Wade selected a male candidate who Plaintiff described as "far less qualified" than her. Under the perception that Lt Col Wade discriminated against her by failing to select her, Plaintiff filed an administrative complaint with the Equal Opportunity Office claiming gender discrimination.

On or about March 20, 1997, Plaintiff applied for the position of Supply Management Officer. The Supply Management Officer is the person ultimately accountable for all government property on the base, other than real property and aircraft. The officer's responsibilities encompass all requisition activities leading to the acquisition of government property on the base. The position also requires an officer's appointment in the Guard. Applicants for the position were directed to submit a military service resume as well as a resume describing work experience, training, awards, etc. Major Bruce Lonas served as the "recommending official" in filling the vacancy for the position. In assessing the candidates for the position of Supply Management Officer, Major Lonas considered both their military and technician qualifications. Major Lonas considered military bearing to be significant because the position "required membership in the Tennessee Air National Guard; it was a management position, and its occupant would therefore be a 'company representative' of the Air National Guard and the greater Total Air Force." According to Plaintiff, Major Lonas selected "a male with far less qualifications." Plaintiff, contending that this decision was discrimination based on her gender and retaliation for filing the prior discrimination complaint, filed an administrative complaint.

On or about June 18, 1997, Plaintiff applied for a promotion to General Schedule 9/11 Logistics Management Specialist. That position involves being responsible for the transport of personnel, equipment,

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and supplies to and from deployment locations as well as maintenance of all personnel, equipment, and supplies while deployed. Major Wallace Houser, who held this position, considered it to be "inherently military in nature." Specifically, the Logistics Management Specialist is the Installation Deployment officer for the base and works on behalf of the Base Commander as the single point of contact for all deployment functions. Applicants for the position were directed to submit a military service resume as well as a resume describing work experience, training, awards, etc. In addition, an officer's appointment was required for the position as well as a top secret clearance in the Guard and a minimum of 24 months of experience in mobility programs or execution. According to Plaintiff, "a male with far less qualifications" was selected for this position. Plaintiff alleges that Defendant's failure to select her constitutes discrimination based on her gender and retaliation for having filed the prior charges of discrimination.

In addition, Plaintiff claims that her supervisors made derogatory remarks about female employees and sexually offensive remarks which created a hostile work environment. Plaintiff alleges to have heard Lt Col Wade state that females should not be in the military and that women should be at home where they belong. Plaintiff alleges that Lt Col Wade "continuously made sexually offensive and derogatory remarks about female employees in [Plaintiff's] presence." Plaintiff reported the conduct but contends that Defendant dismissed her complaints and failed to take remedial action. Defendant denied Plaintiff's request for transfer.

Throughout this time, Plaintiff sought remedies through the civilian rather than the military system. This is understandable in light of misleading regulations and Defendant's response to Plaintiff's allegations and complaints.

The National Guard Regulation which sets forth the National Guard Civilian Discrimination Complaint System states that the regulation applies to "National Guard technician personnel," as well as other personnel. NGR (AR) 690-600 / NGR (AF) 40-1614. Under the sub-category of "Who May File a Complaint," this regulation provides that any National Guard technician who believes that he has been illegally discriminated against in an employment matter subject to the control of the National Guard may file a complaint. Id. However, the regulation later prohibits National Guard members from filing a complaint under this regulation if the alleged discrimination relates to the member's military status. Id.

The regulation establishing the National Guard Military Discrimination Complaint System provides that "[i]ndividuals who believe that they have been discriminated against in technician employment must process such complaints under [the regulation providing for the National Guard civilian discrimination complaint system]." NGR (AR) 600-22/NGR (AF) 30-3.

The regulation establishing the civilian system provides that the National Guard Bureau acts as the "Agency" within the meaning of 29 C.F.R. 1614 and therefore is responsible for the propriety of the acceptance and dismissal of complaints of discrimination. NGR (AR) 690-600/NGR (AF) 40-1614. Representatives in the Equal Opportunity Office accepted each of Plaintiff's complaints and investigated them. In a narrative report prepared in response to one of Plaintiff's complaints, Title VII and case law interpreting Title VII is cited and applied. In a final report issued in response to Plaintiff's first complaint, the Director for Equal Opportunity, finding no discrimination, instructed Plaintiff

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that she could file a civil action in an appropriate U.S. District Court. The Area Director of the U.S. Equal Employment Opportunity Commission indicated that Plaintiff's complaint was properly filed pursuant to Title VII. On three separate occasions three different individuals informed Plaintiff that she must seek a remedy though the civilian system.

Plaintiff filed each of her four administrative complaints on forms provided by the Equal Opportunity Office of the National Guard Bureau. The form cited as authority "Public Law 92-261 amending 42 U.S.C. 2000e" and stated as its principal purpose: "[u]sed by National Guard technicians in filing a formal complaint of discrimination."

Defendant did not directly address these points in his brief but did respond to some of these issues in oral argument. Counsel addressed the...

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