Bartley v. U.S. Dept. of Army

• Decision Date: 07 August 2002
• Docket Number: Case No. 01-1375.
• Citation: 221 F.Supp.2d 934
• Parties: Bobbie BARTLEY, Beth Graves, Amanda High, Audrey Maher, Lesa McManigell, Nancy Mills, Nikole Ozier-Cain, and Sherry Rader, Plaintiff, v. U.S. DEPARTMENT OF THE ARMY, Illinois National Guard, Richard Austin, Paul Gebhardt, James Burgess, and David Harris, Defendant.
• Court: U.S. District Court — Central District of Illinois

221 F.Supp.2d 934

Bobbie BARTLEY, Beth Graves, Amanda High, Audrey Maher, Lesa McManigell, Nancy Mills, Nikole Ozier-Cain, and Sherry Rader, Plaintiff, v. U.S. DEPARTMENT OF THE ARMY, Illinois National Guard, Richard Austin, Paul Gebhardt, James Burgess, and David Harris, Defendant.

Case No. 01-1375.

United States District Court, C.D. Illinois.

August 7, 2002.

COPYRIGHT MATERIAL OMITTED

James Moody, Cavanagh & Ohara, Springfield, IL, Ronald Triggs, Law Offices of Ronald E. Triggs, P.S., Cheyenne, WY, for Plaintiffs.

Mark Neiemeyer, Fairview Heights, IL, for Defendant U.S. Department of the Army.

Karen McKnaught, Office of the Attorney General, Springfield, IL, for Defendant Illinois National Guard, State of Illinois Department of Military Affairs, Richard Austin, Paul Gebhart, and David Harris.

James Burgess, Springfield, IL, pro se.

ORDER

MIHM, District Judge.

This matter is before the Court on two Motions to Dismiss, one filed by Defendant, United States Department of the Army, ("Army"), and the other by Defendants, Illinois National Guard ("ING"), State of Illinois Department of Military Affairs ("IDMA"), Richard Austin ("Austin"), Paul Gebhardt ("Gebhardt"), and David Harris ("Harris").¹ For the following reasons, the Army's Motion to Dismiss is GRANTED [# 27], and the Motion to Dismiss filed by the ING, IDMA, Austin, Gebhardt, Harris are GRANTED IN PART and DENIED IN PART [# 29].

BACKGROUND

Plaintiffs are eight women who worked, or are still working in different capacities at Camp Lincoln in Springfield, Illinois. Defendants are the Army, ING, IDMA, and the following individuals sued in their official and individual capacities: (1) former Adjutant General of the ING, Austin; (2) current Adjutant General Harris; (3) former Assistant Adjutant General Gebhardt; and (4) former Chief of Staff of the ING and IDMA, Burgess. Plaintiffs, Bobbie Bartley ("Bartley"), Amanda High ("High"), Nikole Ozier-Cain ("Ozier-Cain"), Beth Graves ("Graves"), Audrey Maher ("Maher"), Lesa McManigell ("McManigell"), Sherry Rader ("Rader"), and Nancy Mills ("Mills") bring the above-styled action against these agencies and officers seeking compensatory and punitive damages. They allege that they have suffered continuing harassment and retaliation, including rape, sodomy, unwelcome sexual advances and touching, requests for sexual favors, sexual innuendos, harassing phone calls, threats of physical harm, non-consensual sex and duress. (Compl.¶¶ 18(a)-(h).) They claim that this conduct deprived them of their rights under the constitution and laws of the United States and the State of Illinois, including their fifth and fourteenth amendment rights to equal protection, their Title VI and Title VII rights, their rights under Illinois' Human Rights Act.

Specifically, Bartley claims that these constitutional and statutory violations occurred during her service as a federal technician from October 1993 to September 1996, and thereafter when she became a member of the Active Guard Reserve ("AGR"). (Compl.¶ 3.) She alleges that the harassment and retaliation spanned her civilian and military employment. Id.

High, a federal employee from August 1994 to 1996 when she became a member of the AGR, alleges she suffered harassment in her technician and military employment. Prior to bringing suit in this Court, High filed administratively on Form 7279-R on December 22, 1999, under Army Regulation 600-20.²

Maher also alleges harassment and retaliation as a technician (January 1994 to November 1998) and member of the AGR. She filed administratively on Form 7279-R on December 27, 1999.³

Ozier-Cain served as a federal technician from March 26, 1995, to December 17, 1996, when she became a member of the AGR, from which she alleges constructive discharge. (Compl.¶ 9.) According to the Complaint, the harassment covered Ozier-Cain's technician and military roles. She filed a Form 7279-R on December 27, 1999.⁴

Lieutenant Colonel McManigell, an ING employee since September 1997, alleges sexual harassment from August 1998 to the present by Burgess, Gebhardt and other male commanders. (Compl.¶ 18(e).) As alleged, this harassment covered her state employment. Id. She filed a Form 7279-R on August 31, 2000.⁵ She also filed a form titled "Department of Military Affairs[,] Discrimination Complaint" on October 19, 2000.

Plaintiff Graves served in the AGR from 1989 to January 1992, when she alleges constructive discharge. Prior to this suit, she filed a Form 7279-R on December 27, 1999.⁶

Similarly, Rader has served in the AGR since September 1990. (Compl.¶ 10.) She alleges harassment in her military status by Burgess and other male commanders from 1993 to the present. (Compl.¶ 18(g).) She filed a Form 7279-R on December 22, 1999.⁷

Mills was a federal employee between May 28, 1985 and 1987, at which point she became a state employee with the IDMA. She alleges to have worked at IDMA until April 1998, when she was constructively discharged. (Compl.¶ 9.)

These Plaintiffs filed a Complaint in the Central District of Illinois, Springfield Division on February 22, 2001. The case was transferred to the Peoria Division on September 13, 2001. Plaintiffs filed for class certification on January 11, 2002. After receiving a full briefing from each party, the Court denied class certification.

Motions to Dismiss were filed by the Army, ING, IDMA, Austin, Gebhardt and Harris. Plaintiffs responded and each party has filed supplementary briefs. This Order follows.

DISCUSSION

The Army seeks dismissal of the claims against it. In a separate pleading, ING, IDMA, Austin, Gebhardt and Harris seek dismissal as well.

I. Army

Plaintiffs assert that the Army deprived them of their: (1) fifth amendment right to equal protection, (Count I); (2) rights under Title VI, 42 U.S.C. § 2000d (Count III); (3) right to work an environment free from gender-based harassment under Title VII, 42 U.S.C. § 2000e et seq., (Count IV). Plaintiffs also allege that the army negligently failed to train and supervise male employees (Count VII) so as to "assure that such employees would not physically and verbally assault and assail other employees ..."

The Army makes the following arguments in support of its request for dismissal of these claims: (1) Title VI does not apply to sex discrimination; (2) Title VII is the Plaintiffs' exclusive remedy for their employment discrimination claims; (3) Plaintiffs have failed to comply with the Title VII prerequisites; (4) Plaintiffs have failed to properly serve the Army; (5) Plaintiffs fail to make any allegations against the Army; (6) the Army possesses sovereign immunity; and (7) the Feres doctrine bars the Plaintiffs' claims.

A. Title VI

Plaintiffs seek relief under Title VI, 42 U.S.C.2000d, which states:

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

Because this statute does not forbid sex discrimination, Plaintiffs' Title VI claim against the Army is dismissed with prejudice. See Grove City College v. Bell, 687 F.2d 684, 691 (3d Cir.1982) ("Indeed, the legislative history reveals that Title IX was designed to fill the gap left by Title VI of the Civil Rights Act of 1964, which did not prohibit discrimination based on sex.")

To escape this conclusion, Plaintiffs argue that the statute's plain language "is an incomplete statement of the law in that the defendant avoids citation of National Guard Regulation (AR) 600-22 and (AF) 40-1614 which recognizes ... that `[a]ll National Guard personnel are entitled to serve in an environment free from sexual harassment.'" National Guard Regulation ("NGR") 600-22 states:

This regulation establishes policies and procedures for filing, processing, investigating, settling, and adjudicating discrimination complaints in the Army National Guard (ARNG) and Air National Guard (ANG). It implements Title VI of the Civil Rights Act of 1964, as amended, DoD Directives 1350.2, and 5500.11, Army Regulation 600-20, and Air Force Instruction 36-2706, prohibiting discrimination based on race, color, religion, gender, national origin, or reprisal.

Despite this attempt to escape the plain language of Title VI, Plaintiffs' argument would require an unnatural reading of the last sentence of NGR 600-22. It would require the reading that each statute, regulation and directive listed forbids every type of discrimination listed. This is not a necessary or even suggested reading. Rather, at least one of the other regulations listed address sex discrimination (DoD Directive 1350.2).⁸ Additionally, Plaintiffs do not argue that this regulation contains a private right of action allowing them to proceed; rather, they attempt to proceed directly under Title VI. Accordingly, the Title VI claims against the Army are dismissed (Count III).

B. Title VII as the Exclusive Remedy

The Army argues that to the extent Plaintiffs claim to be federal employees, Title VII is the exclusive remedy for their employment discrimination claims and, therefore, their fifth amendment equal protection and negligent failure to train/supervise claims must be dismissed. Because Title VII "provides the exclusive judicial remedy for claims of discrimination in federal employment," Brown v. General Svcs. Admin., 425 U.S. 820, 825, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976), Plaintiffs' fifth amendment equal protection claims against the Army must be dismissed, Coe v. Nat'l. Labor Relations Bd., 40 F.Supp.2d 1049, 1053-54 (E.D.Wis.1999) (dismissing first, fifth and fourteenth amendment claims against NLRB because Title VII is the exclusive remedy for federal employees for employment discrimination and plaintiff failed to establish that any of his claims were independent of the employment claims); Dodson v. U.S. Army Finance and Accounting Ctr., 636 F.Supp....