Millonzi v. Adjutant General's Dep't of Tex.
| Decision Date | 02 January 2018 |
| Docket Number | NO. 1:17-CV-488-LY,1:17-CV-488-LY |
| Parties | CYNTHIA MILLONZI v. ADJUTANT GENERAL'S DEPARTMENT OF TEXAS, et al. |
| Court | U.S. District Court — Western District of Texas |
Before this Court are State Defendants' Motion to Dismiss (Dkt. No. 25), Plaintiff's Response (Dkt. No. 28), and State Defendants' Reply (Dkt. No. 32); Federal Defendants' Motion to Dismiss (Dkt. No. 24), Plaintiff's Response (Dkt. No. 27), and Federal Defendants' Reply (Dkt. No. 31) . The District Court referred the above motions to the undersigned Magistrate Judge for report and recommendation pursuant to 28 U.S.C. §636(b)(1)(A), FED. R. CIV. P. 72, and Rule 1(c) of Appendix C of the Local Rules.
Plaintiff Cynthia Millonzi brings this suit against the Adjutant General's Department of Texas, John F. Nichols in his official capacity as Texas Adjutant General, Joseph L. Lengyl in his official capacity as Chief of the National Guard Bureau, Ryan McCarthy in his official capacity as Acting Secretary of the Department of the Army,1 and the United States. She alleges discrimination and retaliation in violation of Title VII, as well as claims brought pursuant to the First Amendment and the due process and equal protection clauses of the Constitution.
In 2008, Millonzi was hired as a dual-status military technician working at the Texas Adjutant General's office. Previous to this she served in the military for more than two decades. Beginning in 2013, Millonzi alleges that she began experiencing discrimination based on her sexual orientation. In June 2013—following the Supreme Court's decision in U.S. v. Windsor—Millonzi alleges that she gave an interview to L Style G Style about coming out in the Texas National Guard. Though in the article she stated that her superiors were supportive of her decision, she claims that after the interview was published, she was subjected to discrimination on the basis of her sexual orientation (or gender). Millonzi alleges she was reassigned from the Adjutant General's Office, and later was passed over for a promotion to Chief of Staff. She further alleges that the new Chief of Staff, Colonel Scott MacLeod ordered an investigation into Millonzi's alleged absences and tardiness, and contends that the investigator, Colonel Amy Cook, had previously discriminated against others based on their sexual orientation.
The investigation ultimately found that Millonzi had submitted false military leave papers, contending that she stated she was eligible for leave to attend training that had not been approved. Col. MacLeod accepted the recommendation that Millonzi be terminated, and forwarded it to Brigadier Genereral Patrick M. Hamilton. Millonzi then submitted an informal EEO complaint that was dismissed, and BG Hamilton thereafter accepted Col. MacLeod's recommendation. Millonzi was given the option to retire or be terminated, and she chose to retire. Shortly after, Millonzi filed a second EEO complaint, which was once again dismissed. This time, she appealed to the Office of Federal Operations, which reversed the dismissal. However, the Adjutant General—who has final authority on any appeals— dismissed her complaint after the reversal. Millonzi subsequently retired from the National Guard.
As noted, Millonzi alleges the Defendants discriminated and retaliated against her in violation of Title VII, and violated her rights under the First Amendment, Equal Protection, and Due Process clauses. The defendants, grouped as "State" and "Federal," move to dismiss, arguing that this Court lacks jurisdiction to review Millonzi's claims, or, in the alternative, that she has failed to state a claim upon which relief may be granted.
Defendants move to dismiss pursuant to Rule 12(b)(1) alleging a lack of subject-matter jurisdiction. Federal district courts are courts of limited jurisdiction, and may only exercise such jurisdiction as is expressly conferred by the Constitution and federal statutes. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A federal court properly dismisses a case for lack of subject matter jurisdiction when it lacks the statutory or constitutional power to adjudicate the case. Home Builders Assn. of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). "The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction." Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001), cert. denied, 536 U.S. 960 (2002). "Accordingly, the plaintiff constantly bears the burden of proof that jurisdiction does in fact exist." Id. In ruling on a Rule 12(b)(1) motion, the court may consider the complaint alone; the complaint plus undisputed facts evidenced in the record; or the complaint, undisputed facts, and the court's resolution of disputed facts. Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008).
Federal Rule of Civil Procedure 12(b)(6) allows a party to move to dismiss an action for failure to state a claim upon which relief can be granted. FED. R. CIV. P.12(b)(6). In deciding a Rule12(b)(6) motion to dismiss for failure to state a claim, "[t]he court accepts all well-pleaded facts as true, viewing them in the light most favorable to the [nonmovant]." In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (internal quotation marks omitted), cert. denied, 552 U.S. 1182 (2008). The Supreme Court has explained that a complaint must contain sufficient factual matter "to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the [nonmovant] pleads factual content that allows the court to draw the reasonable inference that the [movant] is liable for the misconduct alleged." Id. The court generally is not to look beyond the pleadings in deciding a motion to dismiss. Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999).
Millonzi brings claims under Title VII for discrimination, based on her gender/sexual orientation, and retaliation, based on her exercise of free speech. Both Federal and State Defendants move to dismiss Millonzi's Title VII claims on the basis that they are barred by the Feres doctrine. In Feres v. United States, 340 U.S. 135 (1950), the Supreme Court held that military personnel may not bring claims under the Federal Torts Claims Act to recover for injuries that occurred "incident to their service." This doctrine has since been extended to also bar suits brought by military personnel pursuant to Bivens, § 1983, or Title VII. United States v. Stanley, 483 U.S. 669, 684 (1987) (Bivens); Crawford v. Tex. Army Nat'l Guard, 794 F.2d 1034, 1035-36 (5th Cir. 1986) (§ 1983); Brown v. United States, 227 F.3d 295, 299 (5th Cir. 2000) (Title VII). See also, Walch v. Adjutant General's Dep't of Tex., 533 F.3d 289, 294-95 (5th Cir. 2008) Millonzi's case is complicated, however, by unique legal issues posed by claims brought by dual-status technicians within the National Guard. Dual-status technicians "occupy a unique position in the federal personnel system, maintaining a dual status as civilians and [s]oldiers while serving in a hybrid state/federal system." Major Michael J. Davidson & Major Steve Walters, Neither Man nor Beast: The National Guard Technician, Modern Day Military Minotaur, ARMY LAW., Dec. 1995, at 49). They "provide support in the administration and training of the National Guard military organization and for the day-to-day maintenance and repair of equipment which cannot be accomplished during normal military training periods." Walch, 533 F.3d at 295 (quoting Davidson & Walters, at 49). Dual-status technicians are nominal federal civilian employees, but must obtain and maintain military membership in a state National Guard to remain in the position. Id.
Nearly every circuit to consider the issue, including the Fifth Circuit, has held that the Feres doctrine applies to Title VII claims made by dual-status technicians. Id. at 301.2 Millonzi is correct that, under Fifth Circuit precedent, a dual-status technician's employment is not "irreducibly military in nature," such that all claims made by these individuals are barred; indeed, this standard has only been applied by the Sixth Circuit, and has not yet been adopted by any other circuit. Bowers v. Wynne, 615 F.3d 455, 468 (6th Cir. 2010). Rather, the Fifth Circuit applies a case-by-case approach to the question. In this circuit, claims under Title VII for dual-status technicians "must be categorized as either arising from their position as a civilian employee of a military department, ortheir position as a uniformed service member." Brown, 227 F.3d at 299. A dual-status technician has both military and civilian hats "only one of which is worn at any particular time." Walch, 533 F.3d at 295. The question, therefore, is whether the plaintiff was "performing 'purely' civilian job duties." Filer v. Donley, 690 F.3d 643, 649 (5th Cir. 2012) (citing Brown, 227 F.3d at 299). Thus, if a dual-status technician's Title VII claims relate solely to the plaintiff's civilian status, those claims can proceed.3 The Fifth Circuit cautions, however, that "a court may not reconsider what a claimant's superiors did in the name of personnel management—demotions, determining performance level, reassignments to different jobs—because such decisions are integral to the military structure." Walch, 533 F.3d at 301.
The case law makes clear that the action must be "purely" civilian to proceed; any actions that "involve . . . intrusion into military personnel decisions are not permissible," even if that decision may also have a civilian component. Brown, 227 F.3d at 299. In fact, while courts have noted the theoretical...
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