Filer v. Donley

• Decision Date: 09 August 2012
• Docket Number: No. 11–10296.,11–10296.
• Citation: 690 F.3d 643,115 Fair Empl.Prac.Cas. (BNA) 1307
• Parties: Terrence M. FILER, Plaintiff–Appellant, v. Michael B. DONLEY, Secretary of the Air Force, Defendant–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

690 F.3d 643

115 Fair Empl.Prac.Cas. (BNA) 1307

Terrence M. FILER, Plaintiff–Appellant,

v.Michael B. DONLEY, Secretary of the Air Force, Defendant–Appellee.

No. 11–10296.

United States Court of Appeals, Fifth Circuit.

Aug. 9, 2012.

Chris Attig (argued), Attig Law Firm, P.L.L.C., Dallas, TX, for Plaintiff–Appellant.

Tami C. Parker, Asst. U.S. Atty. (argued), Dallas, TX, Amber Michelle Rogers, Asst. U.S. Atty., Fort Worth, TX, for Defendant–Appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before JONES, Chief Judge, and PRADO and SOUTHWICK, Circuit Judges.

EDITH H. JONES, Chief Judge:

Terrence M. Filer (“Filer”) was a dual-status Air Reserve Technician (“ART”) in the 301st Maintenance Group (“301st MG”) falling under the 301st Fighter Wing (“301st FW”). ARTs are full-time civilian employees who are also required to serve in the Air Force Reserve in the units for which they work as civilians. Filer was the Chief of Training Management of the 301st MG in his civilian capacity and a Technical Sergeant (E–6) and Chief of Training of the 301st MG in his military capacity. Filer alleges that he was subjected to a racially hostile work environment at the 301st MG, which caused him to leave his civilian job with the unit and lose his reserve position. The district court granted summary judgment to the Secretary. Because we conclude that the district court lacked jurisdiction over two allegations for failure to exhaust EEOC procedures and over a third one by virtue of the Feres doctrine, we VACATE the grant of summary judgment and remand with instructions to DISMISS.

I. BACKGROUND

Filer's hostile work environment claim is based primarily on a single incident. Filer was ordered to active duty from September 17th to September 21st, 2007 at the 301st MG. On September 21, Filer walked into the office of Christopher Roark (“Roark”), a Quality Assurance Superintendent. Roark, who was also an ART, was not Filer's direct supervisor, but was a Senior Master Sergeant and therefore a supervisory employee in the 301st. Roark was not in his office, but Filer noticed a noose thumb-tacked to a inert grenade. Roark referred to the grenade display as the “complaint department”; as a joke, the grenade had a sign saying “take a number,” with a # 1 sign attached to the pull pin. When Filer returned later that day to speak to Roark about the noose, it was gone. Roark had apparently been told by a coworker that Filer was offended by the noose. Roark explained to Filer that he had found the noose while deployed in Iraq and brought it back to attach to the grenade “as a second choice for complaint[s],” but that he had thrown the noose away.

Filer left Roark's office and went to Chief Master Sergeant Martin Drewek, Filer's first-line civilian and military supervisor, to tell him about the noose. Drewek advised Filer that he thought the noose was related to Saddam Hussein's hanging, and that Filer should give Roark the benefit of the doubt. On September 27, Filer filed an informal EEO complaint. At the conclusion of the informal EEOC investigation two months later, Lt. Col. William Kountz, ¹ the civilian manager and military commander of the 301st MG, issued an oral admonishment to Roark for the noose incident and directed Roark to take a course on equal opportunity sensitivity. Kountz also denied Roark a military promotion for one year and denied Roark a medal he earned in Iraq.

On January 10, 2008, a Command Directed Investigation (“CDI”) of the noose incident was ordered by Colonel Kevin Pottinger, the military commander of the 301st FW. A CDI, separate from the formal complaint process, is instigated to gather, analyze, and record information about matters of interest to military command authorities. The CDI investigator concluded that Roark exercised poor judgment in displaying the noose and that the incident could have an adverse impact on the unit's cohesion.

Filer had filed a formal EEOC charge of discrimination on December 4, 2007, in which he alleged that the noose display was the basis for a racially hostile work environment. The resulting EEOC investigation was undertaken, and a final agency decision finding no hostile work environment issued in January, 2010. Filer timely brought this lawsuit against defendant Michael B. Donley, Secretary of the Air Force.

In his federal court complaint, Filer alleged that he was subjected to a racially hostile work environment by various acts and circumstances in addition to the noose incident. These include: the display of swastikas on a wall in the 301st MG workplace between September 13 and 23, 2005;² the creation of a work environment and atmosphere in which white employees were given preferential treatment over non-white employees; and the promotion of white employees to management positions more frequently than non-white employees.

The Secretary moved to dismiss the suit under Fed. Rule of Civ. Proc. 12(b)(1) or (6), urging that the doctrine of intra-military immunity in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), prevented ARTs like Filer from seeking relief in court under Title VII. The district court denied the motion. The Secretary then moved for summary judgment, reiterating the applicability of the Feres doctrine, and contending alternatively that Filer could not establish a prima facie hostile work environment case. The district court granted summary judgment, holding that (1) because Filer's claim did not challenge the lawfulness of his discharge from the military or require a review of military personnel decisions, the Feres doctrine did not bar the claim; (2) the swastika incident and the allegations of preferential treatment to white employees were not in any way related to the noose incident, were therefore not exhausted, and could not be considered as contributing to the allegedly hostile work environment; and (3) no rational trier of fact would conclude that the noose incident alone was sufficiently severe or pervasive to create a hostile work environment. Filer timely appealed.

II. JURISDICTION

Jurisdiction cannot be waived, and it is the duty of a federal court first to decide, sua sponte if necessary, whether it has jurisdiction before the merits of the case can be addressed. Energy Mgmt. Corp. v. City of Shreveport, 397 F.3d 297, 301 n. 2 (5th Cir.2005). The court reviews de novo legal conclusions by the district court about jurisdiction. McKnight v. Dresser, Inc., 676 F.3d 426, 429 (5th Cir.2012). Although the government's briefing on jurisdiction is sparse to non-existent in this court, there are two jurisdictional issues in this case. The first is whether Filer exhausted his administrative remedies under Title VII. Pacheco v. Mineta, 448 F.3d 783, 795 (5th Cir.2006) (affirming the dismissal of the plaintiff's Title VII claim under 12(b)(1) because of the plaintiff's failure to exhaust administrative remedies); Tolbert v. United States, 916 F.2d 245, 249 (5th Cir.1990) (district court had no jurisdiction over a Title VII claim because the plaintiff did not exhaust her administrative remedies). The second is whether the surviving claim is justiciable under Feres, 340 U.S. 135, 71 S.Ct. 153 (holding service member tort claims against the government non-justiciable).

The Supreme Court has held that while “subject-matter jurisdiction necessarily precedes a ruling on the merits, the same principle does not dictate a sequencing of jurisdictional issues.” Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584, 119 S.Ct. 1563, 1570, 143 L.Ed.2d 760 (1999). Ruhrgas concluded that a court does not abuse its discretion where it dismisses a case based on a straightforward defect of personal jurisdiction instead of reaching a “difficult and novel question” of subject matter jurisdiction. Id. at 588, 119 S.Ct. at 1572. Because the Title VII exhaustion/jurisdiction issue raised in this case is clear cut compared with the Feres jurisdictional issue, we have discretion to dismiss on both grounds.

1. Exhaustion

Ordinarily, an employee may not base a Title VII claim on an action that was not previously asserted in a formal charge of discrimination to the EEOC, or that could not “reasonably be expected to grow out of the charge of discrimination.” Pacheco, 448 F.3d at 789 (quoting Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir.1970)). The purpose of this exhaustion doctrine is to facilitate the administrative agency's investigation and conciliatory functions and to recognize its role as primary enforcer of anti-discrimination laws. In hostile work environment claims, however, if one act alleged to have created the hostile environment is timely exhausted, “a court may consider ‘the entire scope of the hostile work environment claim.’ ” Stewart v. Miss. Transp. Comm'n, 586 F.3d 321, 328 (5th Cir.2009) (quoting Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 105, 122 S.Ct. 2061, 2068, 153 L.Ed.2d 106 (2002)). To apply this “continuing violation doctrine ... the plaintiff must demonstrate that the separate acts are related.” Id.

Filer based his Title VII hostile work environment lawsuit on:

1. The display of swastikas on a wall in the 301st MG workplace between September 13 and 23, 2005;

2. The creation of a work environment and atmosphere in the 301st MG in which white employees were given preferential treatment over non-white employees;

3. The creation of a work environment and atmosphere in the 301st MG in which non-white employees did not receive promotions to management positions as frequently as white employees; and

4. The noose incident.

Despite this list of allegations, Filer identified only the noose incident in his EEOC complaints. The noose incident is a properly exhausted, actionable claim. The district court disregarded Filer's other allegations because they were in no way related to the actionable incident. The district court reasoned, based on undisputed facts, that Filer did not...