373 F.3d 83 (2nd Cir. 2004), 03-6008, Overton v. New York State Div. of Military and Naval Affairs

Docket Nº:03-6008.
Citation:373 F.3d 83
Party Name: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.
Case Date:June 03, 2004
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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373 F.3d 83 (2nd Cir. 2004)

William OVERTON, Plaintiff-Appellant,


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.

No. 03-6008.

United States Court of Appeals, Second Circuit

June 3, 2004

Argued: Aug. 5, 2003.

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[Copyrighted Material Omitted]

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Stephen Bergstein, Thornton, Bergstein, & Ullrich, LLP (Christopher D. Watkins, of counsel), Chester, NY, for Plaintiff-Appellant.

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, 32 U.S.C. § 709. As such, he was simultaneously employed by the New York Air National Guard (the "Guard") in a military capacity, and by the United States Department of the Air Force (the "USAF") in, at least nominally, a civilian capacity.

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, 42 U.S.C. § 2000e et seq. ("Title VII"). According to Overton's allegations, the violations occurred while both he and his immediate superior were acting in their civilian capacities.

The district court (Laura Taylor Swain, Judge) granted the defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56 because Overton's suit " 'challenged conduct [that was]

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integrally related to the military's unique structure' " and was therefore nonjusticiable. Overton v. Roche, No. 00 Civ. 1808, 2002 WL 31159065, at *3, 2002 U.S. Dist. LEXIS 18170, at *11 (S.D.N.Y. Sept. 26, 2002) (quoting Luckett v. Bure, 290 F.3d 493, 499 (2d Cir. 2002)).

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 32 U.S.C. § 709(e) ("A technician ... is an employee of the Department of the Army or the Department of the Air Force, as the case may be, and an employee of the United States."); see also Roper v. Dep't of the Army, 832 F.2d 247, 248 (2d Cir. 1987) (noting that "employees ... in military departments" are civilian employees and not enlisted personnel), and a reservist in the Guard, see 32 U.S.C. § 709(b) (requiring that a Guard Technician "[b]e a military technician (dual status)," "[b]e a member of the National Guard," and hold a specified "military grade"). In his civilian capacity as an aircraft electrician, Overton was primarily responsible for inspecting and repairing the environmental systems of C-5A aircraft, including their heating, air conditioning, and pneumatic systems. In his military capacity as a member of the Guard, Overton received training in military skills and trained other members of the Guard. He performed his civilian duties mainly during business hours from Monday to Friday and his military duties for one weekend every month and two weeks every summer.

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"

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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.

The Alleged Discriminatory Acts

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

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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.

The Lawsuit

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 42 U.S.C. § 2000e-16, which extends the application of Title VII to civilian employees of military departments, including the USAF.

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;...

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