Taylor v. Jones

• Citation: 495 F. Supp. 1285
• Decision Date: 08 August 1980
• Docket Number: No. LR-C-76-90.,LR-C-76-90.
• Parties: Corenna TAYLOR, Plaintiff, v. James H. JONES, Defendant, United States of America, Intervenor.
• Court: U.S. District Court — Eastern District of Arkansas

495 F. Supp. 1285

Corenna TAYLOR, Plaintiff, v. James H. JONES, Defendant United States of America, Intervenor.

No. LR-C-76-90.

United States District Court, E. D. Arkansas, W. D.

August 8, 1980.

COPYRIGHT MATERIAL OMITTED

John W. Walker, Richard Quiggle, Little Rock, Ark., for plaintiff.

David L. Williams, Asst. Atty. Gen., for the State of Arkansas, Doug Chavis, III, Asst. U. S. Atty., E. D. Arkansas, Little Rock, Ark., Lt. Col. Robert A. DeMetz, Washington, D. C., for defendant.

OPINION

ARNOLD, Circuit Judge, sitting by designation.

On April 11, 1980, this Court granted in part the motion of the defendant Jones for a new trial. The Court's previous holding that plaintiff had been discriminated against in respect of her first-held position of recruiter was vacated. The question of what equitable relief, if any, would be appropriate was held in abeyance. The new trial was to be limited to these two issues: whether plaintiff's non-renewal as a recruiter was racially motivated, and what permanent equitable relief should be granted. The partial new trial was held on May 29, June 2, June 4, June 5, and June 6, 1980. At the conclusion of the new trial, the Court announced certain findings and conclusions from the bench, and these were later embodied in a written order.¹

In the meantime, the defendant Jones had appealed to the Court of Appeals from this Court's interim injunction. On June 10, 1980, the Court of Appeals heard oral argument on the motion of the defendant Jones to stay or modify this Court's injunction pendente lite. This motion was supported by the United States, which had been granted leave to intervene in the Court of Appeals, as well as here. On June 12, 1980, the Court of Appeals entered an order declining to rule, for the time being, on the motion for stay or modification. The case was remanded to this Court to permit it to prepare its findings of fact and conclusions of law, enter final judgment, and re-certify the case to the Court of Appeals. In addition, the order of the Court of Appeals set forth four specific issues to be addressed by this Court.

The post-trial briefs directed by this Court have now been filed and read. The last such document was filed here on July 22, 1980. This Court therefore now makes the following findings of fact and conclusions of law, pursuant to which final judgment will be entered and certified to the Court of Appeals in accordance with its order of June 12, 1980.

I. BACKGROUND

The facts of this case, so far as they have already been set forth in this Court's three previous published opinions, will not be repeated here. It may be useful, however, to sketch briefly the nature of the Arkansas National Guard and the various categories of employees and military personnel discussed by the witnesses. The Arkansas National Guard is simply "the Militia" of the State of Arkansas, mentioned at several points in the Constitution of the United States. Under Article I, Section 8, Clause 16, for example, the Congress is given power

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

In addition, under Article I, Section 8, Clause 15, Congress may call forth the Militia "to execute the Laws of the Union, suppress Insurrections and repel Invasions." When "the Militia of the several States" is "called into the actual Service of the United States," the President is its commander-in-chief, Article II, Section 2, Clause 1. As the Constitution itself provides, state militias are a hybrid. They have some of the characteristics of federal instrumentalities, and some of the characteristics of state instrumentalities. The importance of the Militia is further underscored by the Second Amendment, which notes that "a well-regulated Militia" is "necessary to the security of a free State . . .."

The commander-in-chief of the Arkansas National Guard, except at such times as it is called into the active service of the United States, is the Governor of Arkansas. The military head of the Guard is the Adjutant General, an officer appointed by the Governor. James H. Jones, the named defendant in this case, has been Adjutant General since 1979. Acting under its constitutional power quoted above, Congress has "federally recognized" the Arkansas National Guard, as it has the Militia of every other state, and has laid down detailed provisions by law for the organization, arming, and disciplining of the Guard. Thus, every person who becomes a member of the Arkansas National Guard is also a member of the National Guard of the United States, a military entity under the administrative supervision of the National Guard Bureau, which is part of the Department of Defense. Under 32 C.F.R. § 564.1(f), the appointment of the Adjutant General of a state and his tenure of office are governed by the laws of the state. No officer may be federally recognized for the position allotted for the Adjutant General other than the officer appointed as the Adjutant General of the state. As required by the Constitution, the appointment of officers in a state's national guard is a function of the state concerned. 32 C.F.R. § 564.2(a)(2).

The Adjutant General, sometimes also referred to as the head of the State Military Department, is the appointing authority for all personnel, both civilian and military, within the Department. He has full power to hire, fire, place, and assign, subject to valid federal regulations authorized by statute. Except when the National Guard is on the actual service of the United States, the Department of Defense has no command authority over the Adjutant General.

Personnel of the military department are divided into two main categories: military and civilian. The military category includes all "members" of the National Guard. These people all have a military rank, either as enlisted persons, warrant officers, or commissioned officers. Most of the military personnel of the National Guard are actively associated with it only on week ends and during a training period each summer. Some military personnel, however, are on full-time military duty. In addition, some members of the National Guard who have active military status only during the summer training period and on week ends are also employed by the Guard in a civilian capacity.

Civilian employees of the Guard fall into two categories: federal and state. "Federal employees," also known as "technicians," must, as a condition precedent, be members of the Guard, with some exceptions not here relevant. That is they must have a military status and rank before being eligible for employment as a federal technician. The Arkansas National Guard has about 986 federal employees. These people work regular civilian hours and are subject, in their capacity of civilian federal employees, to civil-service regulations. All of these federal employees are paid with federal funds. In addition, the Arkansas National Guard has about 115 state employees. These persons, who may or may not have any military status, or be members of the Guard, fill positions created by the law of Arkansas. Some of them are paid with state funds, and some with federal funds, but the federal funds from which they are paid are placed in the State Treasury and disbursed therefrom in accordance with appropriations bills passed by the state General Assembly. The Adjutant General supervises and has authority over all military and civilian personnel of the Guard, including members, federal employees, and state employees, whatever their current status may be, and wherever the funds to pay their salaries may come from.

II. THE PLAINTIFF'S CLAIM WITH RESPECT TO THE POSITION OF RECRUITER

After the first trial, on February 20 and 21, 1980, the Court found that the plaintiff, Corenna Taylor, had been terminated as a recruiter because of her race (a finding later vacated), and that she had later been constructively discharged from her position as mail-room clerk because of her race. There is no dispute as to Ms. Taylor's status in the later-held position of mail-room clerk. She was a state employee and, as such, was indisputably subject to Title VII of the Civil Rights Act of 1964.

At the time of the first trial, the Court was under the impression that Ms. Taylor's recruiter position was as a federal employee, to whom Title VII (albeit a different section) is also applicable. This impression was incorrect. Evidence adduced at the trial, when considered in context, makes it clear that Ms. Taylor was not either a federal or a state employee when she functioned as a recruiter during the second quarter of 1974. She was, at this time, a member of the Arkansas National Guard on full-time duty in military status. Title VII is therefore not applicable. Johnson v. Alexander, 572 F.2d 1219 (8th Cir.), cert. denied, 439 U.S. 986, 99 S.Ct. 579, 58 L.Ed.2d 658 (1978).

It does not follow, however, that plaintiff has no cause of action with respect to the non-renewal of her appointment as a recruiter. Plaintiff has pleaded two other theories: 42 U.S.C. § 1981, and an implied right of action to enforce the equal-protection component of the Due Process Clause of the Fifth Amendment. (Presumably the Fifth Amendment, rather than the Fourteenth, would be the appropriate constitutional provision, since as a recruiter plaintiff was in a military status defined by federal law and regulations.) In order to determine the applicability of the latter theory, the Court would have to decide whether a private right of action to redress racial discrimination in violation of the Fifth Amendment may be implied by analogy to Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), and Bivens v. Six Unknown Named Agents of Federal...