Corey v. U.S.

• Citation: 124 F.3d 216
• Parties: 97 CJ C.A.R. 1700 NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of
• Decision Date: 29 November 1993
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 216

124 F.3d 216

97 CJ C.A.R. 1700

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

Cheryl COREY, Plaintiff-Appellant, v. UNITED STATES of America; United States Air Force; Steven

Turner, Colonel, individually and in his official capacity

as Colonel of the United States Air Force; Silas R.

Johnson, Brigadier General, individually and in his official

capacity as Wing Commander, 552nd Air Control Wing of the

United States Air Force; Philip Manning, Lieutenant

Colonel, individually and in his official capacity as

Detachment Commander, 965th Airborne Air Control Squadron of

the United States Air Force, Defendants-Appellees.

No. 96-6409.

(D.C.No. 96-CV-552)

United States Court of Appeals, Tenth Circuit.

Aug. 20, 1997.

Before BRORBY, EBEL and KELLY, Circuit Judges.

ORDER AND JUDGMENT ^*

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

Appellant Cheryl Corey appeals from the district court's order granting the appellees' motion to dismiss. We exercise jurisdiction over Ms. Corey's appeal pursuant to 28 U.S.C. § 1291, and affirm.

Ms. Corey is a former member of the United States Air Force. She initiated a civil action in the United States District Court for the Western District of Oklahoma against the United States of America, Department of the Air Force, Air Force Colonel Steven Turner, Air Force Brigadier General Silas R. Johnson, Jr., and Lieutenant Colonel Philip Manning. Ms. Corey's complaint, which seeks compensatory and punitive damages, sets forth the following causes of action: (1) violation of 42 U.S.C. § 2000e et seq.; (2) conspiracy to deprive her of her right to the equal protection of the law, in violation of 42 U.S.C. § 1985; (3) breach of contract; ¹ (4) sexual assault and battery; (5) intentional infliction of emotional distress; (6) negligence; (7) defamation; and (6) tortious interference with contract. Ms. Corey's tort claims were brought pursuant to 28 U.S.C. § 1346(b) and the Federal Tort Claims Act, 28 U.S.C. §§ 2671--2679.

In her complaint, Ms. Corey sets forth the following allegations. On March 21, 1991, she enlisted as an Airman in the United States Air Force. While stationed at Tinker Air Force Base, Oklahoma, she was "repeatedly subjected to and suffered a continuous history and pattern of sexual harassment and discrimination" during the course of her employment. In September 1994, Brigadier General Johnson sent Ms. Corey to Incirlik, Turkey, for a temporary assignment. In Turkey, Lt. Colonel Manning was Ms. Corey's military detachment commander, and Colonel Turner was employed with another detachment.

On September 16, 1994, Colonel Turner's detachment arranged a party on Incirlik Air Base Turkey. Ms. Corey attended the party, as did numerous members of her detachment and Colonel Turner's detachment. During the party, Colonel Turner became intoxicated and "sexually assaulted [Ms. Corey] by intentionally grabbing [her] buttocks with both hands." Although Ms. Corey and other officers reported the assault to Lt. Colonel Manning, he took no action to assist Ms. Corey and he refused to seriously consider her complaint. Thereafter, Ms. Corey filed a complaint with the Air Force Office of Special Investigations. Lt. Colonel Manning attempted to cover up the incident and made threats to potential witnesses to prevent them from assisting in the investigation of Colonel Turner. The Air Force failed to take disciplinary action against Colonel Turner and Lt. Colonel Manning. In fact, both of these individuals were promoted to an increased level of responsibility.

Ms. Corey claims she has no recourse to pursue her harassment claim because the Air Force "has established a system and mechanism to discourage complaints against its senior officers." Furthermore, she claims the Air Force has generally failed to adequately supervise, train, investigate, and discipline its military members regarding sexual harassment and discrimination. As a result of the actions of the Air Force, Ms. Corey felt compelled not to renew her enlistment contract and suffered monetary damages.

In September 1995, Ms. Corey filed her complaint in federal court against the United States and individual defendants. The defendants then filed a motion to dismiss Ms. Corey's complaint pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction and Fed.R.Civ.P. 12(b)(6) for failure to state a cause of action for which relief could be granted. In October 1996, the district court entered an order granting the motion to dismiss. The court determined Ms. Corey's Title VII claim must be dismissed because Title VII was inapplicable to uniformed military personnel. The court found Ms. Corey's remaining claims should be dismissed because they were non-justiciable under the Supreme Court's decision in Feres v. United States, 340 U.S. 135 (1950). Following the dismissal of her action, Ms. Corey timely filed a notice of appeal.

Although her appellate arguments are somewhat disjointed, Ms. Corey appears to assert two principal arguments: (1) the district court erroneously determined she could not assert a claim under Title VII and (2) the district court erroneously determined the Feres doctrine barred her § 1985 claims and her claims under the Federal Tort Claims Act.

First, we review Ms. Corey's contention the district court erred in concluding she could not assert a claim under Title VII. The district court's dismissal of Ms. Corey's Title VII claim was made pursuant to Rule 12(b)(6). We review de novo a district court's dismissal for failure to state a claim. Kidd v. Taos Ski Valley, Inc., 88 F.3d 848, 854 (10th Cir.1996). We uphold such a dismissal "only when it appears that the plaintiff can prove no set of facts in support of the claims that would entitle [her] to relief, accepting the well-pleaded allegations of the complaint as true and construing them in the light most favorable to the plaintiff." Fuller v. Norton, 86 F.3d 1016, 1020 (10th Cir.1996).

Ms. Corey contends her Title VII claim against the United States should be allowed to proceed. Ms. Corey argues Congress intended Title VII to apply to uniformed military personnel, just as it intended the statute to apply to other citizens. According to Ms. Corey, "[t]he plain meaning of Title VII suggests that no distinction exists between uniformed employees and civilian employees under Title VII."

Unfortunately for Ms. Corey, it is well settled Title VII does not afford protections to uniformed personnel of the various armed forces. 42 U.S.C. § 2000e-16(a) (1994 & Supp.1997) extends Title VII coverage to "employees ... in military departments as defined in section 102 of Title 5." 5 U.S.C. § 102 (1994) defines military departments as the departments of the Army, Navy and Air Force. However, 10 U.S.C. § 101(a)(4) defines "armed forces" as the Army, Navy, Air Force, Marine Corps, and Coast Guard. In Gonzalez v. Department of the Army, 718 F.2d 926, 928 (9th Cir.1983), the Ninth Circuit concluded "[t]he two differing definitions show that Congress intended a distinction between 'military departments' and 'armed forces,' the former consisting of civilian employees, the latter of uniformed military personnel." Thus, the court held that Title VII is only applicable to civilian employees of the Army, Navy, and Air Force; the statute is not applicable to uniformed members of the armed forces. Id. at 928-29.

In Salazar v. Heckler, 787 F.2d 527, 530 (10th Cir.1986), we recognized that " § 717 [of Title VII] does not afford protection 'to the uniformed personnel of the various armed services.' " Citing Gonzales, we stated:

The definitions of "military departments" and "armed forces" contained in the United States Code ... compel the view "that the term 'military departments' in section 717(a) of Title VII ... can be fairly understood to include only civilian employees of the Army, Navy, and Air Force and not both civilian employees and enlisted personnel."

Id. The other circuits that have considered the issue are in agreement that Title VII does not apply to uniformed members of the armed forces. See, e.g., Roper v. Department of Army, 832 F.2d 247, 248 (2d Cir.1987) ("we cannot agree to the extension of Title VII to uniformed members of the armed forces."); Taylor v. Jones, 653 F.2d 1193, 1200 (8th Cir.1981) (Title VII not applicable to those who enlist or apply for enlistment in United States armed forces). Ms. Corey has provided this court with no circuit precedent to the contrary.

Because Title VII is not applicable to uniformed members of the armed forces, the trial court's dismissal of Ms. Corey's Title VII claim was appropriate. Ms. Corey's argument that Congress intended Title VII to apply to uniformed personnel is clearly without merit in light of prevailing law. ²

Next, we review Ms. Corey's claim the district court erroneously determined her § 1985 claims and her claims under the Federal Tort Claims Act were precluded under the Feres doctrine. ³ Although not specifically stated in its order, we assume the district court dismissed Ms. Corey's claims under the Feres doctrine pursuant to Fed.R.Civ.P. 12(b)(1). ⁴ See Dreier v. United States, 106 F.3d 844, 847 (9th Cir.1997) (motion to dismiss under Feres doctrine properly treated as Rule 12(b)(1) motion to dismiss). "We review de novo whether the Feres doctrine is applicable to the facts reflected in the record." Id. (citation and...