Jentoft v. United States

• Decision Date: 08 May 2006
• Docket Number: No. 05-5125.,05-5125.
• Citation: 450 F.3d 1342
• Parties: Heidi A. JENTOFT, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1342

450 F.3d 1342

Heidi A. JENTOFT, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.

No. 05-5125.

United States Court of Appeals, Federal Circuit.

May 8, 2006.

Michael O. Crain, Crain & Davis, LLC, of Athens, Georgia, argued for plaintiff-appellant. With him on the brief was Kesler T. Roberts, of Athens, Georgia.

Thomas D. Dinackus, Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellee. With him on the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director, and Todd M. Hughes, Assistant Director.

Before LOURIE, GAJARSA, and DYK, Circuit Judges.

LOURIE, Circuit Judge.

Heidi A. Jentoft, a former dual status National Guard technician, appeals from the decision of the United States Court of Federal Claims (the "Claims Court") granting summary judgment in favor of the government on Jentoft's claim that the government violated the Equal Pay Act, 29 U.S.C. § 206(d). Jentoft also appeals from the Claims Court's decision dismissing her claim of retaliation under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., for lack of subject matter jurisdiction. Jentoft v. United States, 64 Fed.Cl. 549 (2005). Because the Claims Court erred in determining that Jentoft was not a federal civilian employee for purposes of the Equal Pay Act, we vacate and remand the case as it relates to that claim. We affirm the Claims Court's decision dismissing Jentoft's retaliation claim under the FLSA for lack of subject matter jurisdiction.

BACKGROUND

As we have previously recognized, "[t]he national guard is the successor to state militias of the nation's early years, and thus is a deeply embedded feature of our national defense system." Singleton v. Merit Sys. Prot. Bd., 244 F.3d 1331, 1333 (Fed.Cir.2001). The National Guard is a "hybrid" component of the United States armed forces in that it performs both federal and state functions. Id. During times of national emergencies, the President may mobilize the National Guard, putting it in federal duty status and making its members available for military duties normally assigned to the active armed forces and armed forces reserves. During non-emergency times, the National Guard is led by the state adjutants general. The state adjutants general answer to the governors of their respective states, who in turn, have the authority to call upon members of the National Guard in times of domestic emergencies or need.

The National Guard employs technicians for certain civilian duties, including the administration and training of the National Guard and the maintenance and repair of supplies issued to the National Guard or the armed forces. 32 U.S.C. § 709(a) (2000). In that respect, the National Guard technicians are employees of both the military and of the United States. Id. § 709(e). National Guard technicians are classified as either "dual status" or "nondual status," with the primary difference being that non-dual status technicians are not members of the National Guard. Dual status technicians are members of the National Guard, hold a military rank, and wear uniforms while performing their duties. Id. § 709(b). In addition to their civilian duties, dual status technicians perform military training for their unit of the National Guard.

The appellant in this case, Heidi A. Jentoft, worked for the Department of the Army, Georgia National Guard, as a civilian Supervisory Test Pilot from May 20, 2001 until April 5, 2002.¹ According to the complaint, the National Guard, through Colonel Dannis Livingston and Major Anthony Sutter, offered Jentoft a maintenance test pilot retention allowance bonus ("bonus") of approximately $10,000 if she were to accept a position as a National Guard test pilot. Allegedly relying on the bonus offer, Jentoft accepted the position on May 20, 2001, in Windsor, Georgia.

According to the complaint, the bonus was offered to other test pilots working in "substantially similar" positions in the Georgia National Guard. The complaint further alleged that other test pilots, all of whom were males, received the bonus. Only Jentoft, the lone female test pilot in the Georgia National Guard, did not receive the bonus that Livingston and Sutter promised her. On or about September 2001, Jentoft alleged that she informed Livingston and Sutter of her concern that she did not receive the bonus because she was a woman. On or about November 20, 2001, Jentoft alleged that she raised the same issue with Colonel Jimmy Davis.

Once Jentoft informed her superiors, Livingston, Sutter, and Davis, of her concern regarding the bonus, the complaint alleged that she began receiving unwarranted negative performance evaluations and false accusations regarding her ability as a technician in the Georgia National Guard. The complaint contrasted this treatment with the excellent performance evaluations that Jentoft purportedly had received before she raised the bonus issue. Jentoft also alleged that after raising the bonus issue, Sutter informed her that, although he did not want to, he was ordered to instigate the unwarranted and untrue negative evaluations. Jentoft was subsequently terminated from her position effective April 5, 2002.

Jentoft filed her complaint on July 31, 2003. In the complaint, Jentoft accused the government of violating her rights under the Equal Pay Act, 29 U.S.C. § 206(d), by discriminating among employees on the basis of sex. Specifically, the complaint averred that Jentoft, a woman, was paid less than male employees "in the same establishment for equal work on jobs the performance of which requires equal skill, effort and responsibility, and which are performed under similar working conditions." In addition, Jentoft claimed that Livingston, Davis, and Sutter terminated her employment in retaliation for her opposition to what she perceived were unlawful employment practices.² On May 4, 2004, the government filed a motion to dismiss Jentoft's claims under the Equal Pay Act and the FLSA. In the event that the Claims Court considered evidence or facts not contained in the complaint to decide the motion to dismiss, the government requested that the motion to dismiss be converted into a motion for summary judgment under RCFC 56.

In granting summary judgment that the government did not violate the Equal Pay Act, the Claims Court first addressed whether Jentoft, a dual status technician, was a "civilian" employee, as required by the statute, or whether her technician position was "irreducibly military such that [Jentoft] would be unable to maintain a claim under the Equal Pay Act." Jentoft, 64 Fed.Cl. at 553. According to the court, whether a dual status technician could be considered a "civilian" employee for purposes of the Equal Pay Act was a question of first impression that the circuit courts had not previously addressed. Id. The court noted, however, that the circuit courts, not including this court, had addressed whether a dual status technician was a "civilian" employee for purposes of other statutes prohibiting discrimination, e.g., Title VII, 42 U.S.C. § 2000e-16(a). Jentoft, 64 Fed.Cl. at 553.

In determining whether dual status technicians were "civilian" employees for purposes of discrimination statutes, the Claims Court examined two approaches that were taken by the circuit courts. Id. at 553-54. The First and Sixth Circuits, according to the Claims Court, held that "the capacity of dual status technicians was `irreducibly military in nature.'" Id. at 554 (citing Leistiko v. Stone, 134 F.3d 817, 820-21 (1998)). Thus, in those circuits, the court determined, "dual status technicians are necessarily `military' and, therefore, do not enjoy statutory rights that are available only to `civilian' employees," including rights under the Equal Pay Act. Id. According to the court, the Fifth and Ninth Circuits, however, "held that matters involving dual status technicians, while almost always military in nature, could theoretically be civilian." Id. Nonetheless, the Claims Court noted that those circuits held that courts cannot consider "matters that relate to enlistment, transfer, promotion, suspension and discharge or that otherwise involve the military `hierarchy.'" Id.

The Claims Court concluded that, under either approach, Jentoft's claim that the government violated the Equal Pay Act was not justiciable because the discriminatory acts on which she based her claim were "integrally military," "within the military sphere," or "incident to service." Id. at 556. Specifically, the court determined that the acts that Jentoft pled in order to support her claim, viz., that superior officers broke their promise to her regarding a recruitment bonus, that they willfully discriminated against her in compensation on the basis of gender, and that she was retaliated against because of her complaints, were "either identical, or analogous to the types of complaints concerning recruitment, promotion, evaluation, termination and retaliation that the courts have held to be clearly military." Id. Thus, even applying the more flexible standard of the Fifth and Ninth Circuits, the Claims Court concluded that Jentoft's claim was "military," and granted summary judgment denying Jentoft's claim under the Equal Pay Act. Id.

In addition to granting summary judgment on the Equal Pay Act claim, the Claims Court also dismissed for lack of jurisdiction Jentoft's claim that she was terminated in "retaliation for [her] complaints and opposition to what she reasonably believed to be unlawful employment practices and gender-based pay discrimination." Id. at 552. The Court noted that its subject matter jurisdiction pursuant to the Tucker Act, 28 U.S.C. § 1491(a)(1), does not extend to claims against the United States "sounding in tort." Id. (citing Qualls v. United States, 230 Ct.Cl. 534, 678 F.2d 190, 193 (Cl.Ct.1982); Henrichs v. United States, 27 Fed.Cl....