Mier v. Owens, 93-15923

• Citation: 57 F.3d 747
• Decision Date: 09 June 1995
• Docket Number: No. 93-15923,93-15923
• Parties: 68 Fair Empl.Prac.Cas. (BNA) 119, 64 USLW 2046 Arthur J. MIER, Plaintiff-Appellant, v. Donald L. OWENS, in his official capacity as Adjutant General of the Arizona State Army National Guard; Michael P.W. Stone, in his official capacity as Secretary of the Army, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 747

57 F.3d 747 68 Fair Empl.Prac.Cas. (BNA) 119, 64 USLW 2046 Arthur J. MIER, Plaintiff-Appellant,
v.
Donald L. OWENS, in his official capacity as Adjutant
General of the Arizona State Army National Guard;
Michael P.W. Stone, in his official
capacity as Secretary of the
Army, Defendants-Appellees. No. 93-15923. United States Court of Appeals,
Ninth Circuit. Argued and Submitted Dec. 14, 1994.
Decided June 9, 1995.

Page 748

Daniel D. Maynard, Johnston, Maynard, Grant & Parker, Phoenix, AZ, for plaintiff-appellant.

Cynthia M. Parsons, Asst. U.S. Atty., Phoenix, AZ, for defendants-appellees.

Appeal from the United States District Court for the District of Arizona.

Before: TANG, REINHARDT, and RYMER, Circuit Judges.

Opinion by Judge TANG; Partial Concurrence and Partial Dissent by Judge REINHARDT; Concurrence by Judge RYMER.

TANG, Senior Circuit Judge:

Arthur J. Mier appeals from a district court judgment dismissing his Title VII cause of action for lack of jurisdiction over the subject matter and for failure to state a claim upon which relief can be granted. The issue on appeal is whether a National Guard technician, whose job is a hybrid military-civilian position, can maintain a Title VII employment discrimination action. We conclude that Title VII applies to Guard technicians except when they challenge personnel actions integrally related to the military's unique structure. Because all of Mier's claims challenge actions of this kind, his complaint does not state a claim upon which relief can be granted. Therefore, we affirm the judgment of the district court, albeit on different grounds than provided by the district court.

Arthur J. Mier is a Hispanic civil service technician employed in the Arizona Army National Guard. Mier's job is a hybrid position, combining both military and civilian aspects. Mier serves in a civilian capacity as a full time supply management officer and in a military capacity as a commissioned officer not on active duty. In order to hold the civilian position, Mier is required to be a member of the National Guard and hold the commensurate military position.

Mier filed a complaint alleging defendants Donald Owens, adjutant of the Arizona Army National Guard, and Michael Stone, Secretary of the Army, discriminated against him on account of race, color, and national origin in violation of Title VII. The complaint alleges that the defendants discriminatorily denied Mier military promotions and suspended him from civilian employment as a result of the denial of the requisite military promotions. He also claims the defendants failed to promote him, suspended him, and investigated him all in retaliation for filing a discrimination complaint with the Department of the Army in 1986.

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The district court dismissed the action, holding that it had no jurisdiction over Mier's claims because Title VII is not applicable to uniformed members of the armed forces. The district court also held that Mier had failed to state a claim upon which relief could be granted because his claims were non-justiciable. Mier appeals the district court judgment.

The protection against employment discrimination provided by Title VII applies to civilian employees of the military, through 42 U.S.C. Sec. 2000e-16(a). Gonzalez v. Dept. of Army, 718 F.2d 926, 928 (9th Cir.1983). Title VII does not protect military personnel. Id. The issue on appeal is whether a National Guard technician, whose job is a hybrid military-civilian job, can maintain a Title VII employment discrimination action. Mier argues that Title VII applies to all personnel actions affecting National Guard technicians. The National Guard argues that the personnel actions at issue in this case, promotion, suspension, and an investigation, are military actions to which Title VII does not apply.

We begin by considering the National Guard Technicians Act ("NGTA"), 32 U.S.C. Sec. 709, to determine whether Congress stated in "unmistakable terms" that Title VII applies to National Guard technicians. See Gonzalez, 718 F.2d at 928 (quoting Johnson v. Alexander, 572 F.2d 1219, 1224 (8th Cir.1978)) (reasoning that, had Congress meant Title VII to apply to uniformed personnel, "it would have said so in unmistakable terms").

The NGTA nowhere expressly states that Title VII applies to Guard technicians. Although the statute provides that a Guard technician is "an employee of the Department of the Army or the Department of the Air Force, as the case may require," Sec. 709(d), this language indicates nothing about Title VII coverage. Title VII contains similar language, providing coverage to "employees ... in military departments," but this language has been interpreted to apply only to civilian employees of the military, not to uniformed military personnel. Gonzalez, 718 F.2d at 927-28.

The NGTA also sets forth employment rules for Guard technicians including the following: 1) If a Guard technician's job requires Guard membership, severance from the Guard requires severance from the technician's job; and 2) a technician who fails to meet military security standards can be severed from both the Guard and the technician job. 32 U.S.C. Sec. 709(e)(1)-(2). These rules neither indicate that Title VII is applicable, nor preclude Title VII coverage. These rules merely indicate that the Guard technician job is dual-status. The NGTA also lists several employment statutes that do not apply to Guard technicians and Title VII is not included among them. While the absence of Title VII from a list of inapplicable statutes may be the strongest suggestion in the NGTA that Congress intended Title VII to apply to Guard technicians, applicability of Title VII is clearly not provided in "unmistakable terms."

Although Gonzalez concluded that Congress would not apply Title VII to uniformed military personnel except in unmistakable terms, Guard technicians, who serve in a dual capacity as both military and...