Hunter v. Stetson

• Decision Date: 22 December 1977
• Docket Number: No. 76 C 786.,76 C 786.
• Citation: 444 F. Supp. 238
• Parties: John T. HUNTER, Plaintiff, v. John C. STETSON, Secretary of the Air Force, et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

444 F. Supp. 238

John T. HUNTER, Plaintiff, v.John C. STETSON, Secretary of the Air Force, et al., Defendants.

No. 76 C 786.

United States District Court, E. D. New York.

December 22, 1977.

Eisner, Levy, Steel & Bellman, P. C., New York City, for plaintiff.

David G. Trager, U. S. Atty., Eastern District of New York, Brooklyn, N. Y., for federal defendants.

Louis Lefkowitz, New York Atty. Gen., New York City, for State defendants.

MEMORANDUM AND ORDER

NICKERSON, District Judge.

Plaintiff has brought suit claiming that his military rank in the New York Air National Guard (the "Guard") was reduced as a reprisal for his having taken part in proceedings on a discrimination complaint filed against the Guard by one of its civilian employees.The complaint alleges that plaintiff is employed by the federal government as a civilian technician performing certain support functions for the Guard, and as a condition of this employment he is required to be a member of the Guard pursuant to 32 U.S.C. § 709.At the time of the events complained of, plaintiff had a G.S.9 rating in his civilian employment and held the rank of Master Sergeant, E-7, as a member of the Guard.Plaintiff was also the Executive Vice President of the Association of Civil Technicians("ACT"), which was (and is) the union representing the Guard's civil employees.In August of 1974, James Allen, a black member of ACT was dismissed from his civilian employment, and he filed a discrimination complaint under Title VII of the Civil Rights Act of 1964 against his employers, including Colonel John C. Campbell.Plaintiff aided Allen in presenting and prosecuting the complaint, which, though ultimately unsuccessful, resulted in a report that was critical of Colonel Campbell.

The gist of plaintiff's complaint is that in retaliation for having assisted Allen in his discrimination claim, Colonel Campbell (who, like plaintiff, has both a military and civilian status with the Guard, and who is in both capacities plaintiff's superior), reduced plaintiff's military rank on a military pretext.

The complaint alleges that plaintiff filed a complaint in March of 1975 in accordance with the rules and regulations applicable to employees of the National Guard Bureau, alleging discrimination based on plaintiff's representation of Allen.This application was denied by the Assistant Adjutant General of the New York Air National Guard, for the Chief of Staff to the Governor, on the ground that "the complaint was outside the purview of the equal opportunity system and . . . that the nature of plaintiff's allegation indicated his channel of redress was in the military rather than the technician sphere."Amended Complaint, P. 5 This decision was appealed to the Board of Appeals and Review of the United States Civil Service Commission, which affirmed the action taken by the Assistant Adjutant General.Plaintiff thus demands various forms of declaratory, monetary and injunctive relief, and asserts jurisdiction under Subchapter VI of Title VII of the Civil Rights Act of 1964,42 U.S.C. § 2000e et seq.¹

Several of the defendants have moved to dismiss the complaint (1) for lack of subject matter jurisdiction; (2) for failure to state a claim upon which relief may be granted; (3) for failure to exhaust administrative (military) remedies; and (4)"for failure to state a justiciable claim."

The gist of defendants' arguments on this motion is that because the alleged retaliation took the form of a reduction in plaintiff's military rank, plaintiff has no remedy under Title VII, since the military is not an "employer" within the meaning of the statute.The defendants thus ask this court to affirm the administrative decision on the question of jurisdiction and thus to remit plaintiff to whatever remedy plaintiff may have in military channels.²

Defendants cite substantial authority for the proposition that the military is not an "employer" within the meaning of Title VII, and I will, for the purposes of this motion, assume the point.However, this does not dispose of the case, for I read the complaint as alleging improper action on the part of plaintiff's civilian employers; i. e., exploiting their dual status as plaintiff's military and civilian superiors to pervert the military decision-making process.And this was allegedly done with the intent of furthering goals in the realm of civilian employment: i. e., discouraging the processing of discrimination complaints.

It is the...