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A ruling on the distinction between civilian and military personnel as it bears on the right to sue for discrimination has divided a panel of the 2nd U.S. Circuit Court of Appeals. The court found that a technician for the New York Air National Guard who served in both civilian and military capacities could not sue for employment discrimination because of the doctrine of intra-military immunity. Overton v. New York State Division of Military and Naval Affairs, 03-6008. A majority opinion by Judge Robert Sack said allowing a trial court to hear the case of William Overton against his civilian supervisor, Master Sergeant Samuel Fletcher, “would likely intrude into and impact upon his military relationship with Fletcher … “ Judge Rosemary Pooler concurred in the result but issued a separate opinion saying she could not concur with critical parts of the majority’s reasoning. Pooler said the reasoning “reflects a fundamental misunderstanding” of 2nd Circuit precedent on the issue and “worse, it undermines what little civil rights protections were previously afforded civilian technicians employed in a dual capacity with the military.” Overton, a black reservist in the Guard, also worked as a technician at Stewart Air National Guard Base, inspecting and repairing aircraft systems. He was a civilian during business hours from Monday through Friday and performed military duties one weekend a month and two weeks every summer. Even in his civilian capacity, Overton was required to wear a military uniform and was subject to some military disciplinary rules. Sergeant Fletcher, Overton’s immediate supervisor in both his civilian and military capacities, allegedly made a number of racially offensive remarks and discriminated against Overton on job assignments. Overton also alleged that he was transferred in retaliation for making complaints about discrimination. His lawsuit in the Southern District alleged violations of the New York Human Rights Law, the Equal Protection Clause of the Fourteenth Amendment and Title VII. Judge Laura Taylor Swain granted the defendant’s motion to dismiss the Title VII claim, finding that the controversy was non-justiciable because Overton’s duties as an aircraft electrician were “integrally related to military operations.” Any inquiry into the sergeant’s alleged actions “would have the same effect on military discipline as a direct inquiry into the military judgments,” she concluded. MILITARY RELATIONSHIP The 2nd Circuit upheld Swain’s ruling, citing Feres v. United States, 340 U.S. 135 (1950), which states that the doctrine of intra-military immunity bars a lawsuit if the injuries “arise out of or are in the course of activity incident” to a plaintiff’s military service. Judge Sack wrote that Title VII creates a limited exception to the Feres doctrine that allows civilian employees of the military to bring suit. “Overton argues that his claims are justiciable because, although they are covered by the Feres doctrine, his lawsuit falls within Title VII’s exception for lawsuits by civilian employees of the military,” Sack said. “We conclude to the contrary that Overton’s claims are barred because, on the facts of this case, Title VII does not override the Feres doctrine’s prohibition.” Feres, he said, “is designed in large measure to prevent civilian courts from interfering with military discipline and decision-making,” and the doctrine “also acts to prevent federal courts from exercising constitutional powers that are delegated to Congress and the Executive Branch.” Judge Sack noted that the Circuit Courts of Appeals have “nearly unanimously” applied Feres to bar suits by Guard technicians arising out of their dual-status employment, and have done so “even in cases in which the injuries complained of were incurred while the plaintiff was allegedly performing the nominally civilian aspects of his or her employment.” The Section of Title VII at issue was 42 U.S.C. �2000e-16, which prohibits discriminatory practices in military departments. Sack said the 2nd Circuit addressed the tension between the Feres doctrine and �2000e-16 in Luckett v. Bure, 290 F.3d 493 (2d Cir. 2002), in which the court said Title VII does not supersede the doctrine where the claims challenge conduct “integrally related to the military’s unique structure” or is not “purely civilian.” Here, Judge Sack said, even though Overton’s complaint concerned conduct that occurred while he was performing his civilian duties, “Overton’s suit, if permitted to proceed, would likely affect his military relationship with Fletcher.” “Any attempt to surgically dissect and analyze the civilian relationship between Overton and Fletcher, with its distinctively military dimensions, moreover, would itself threaten to intrude into their military relationship,” he said. In her opinion, Judge Pooler took issue with the majority’s reading of the Luckett case, which she quotes as requiring courts to recognize Title VII’s protections unless “the challenged conduct is integrally related to the military’s unique structure.” “What this language suggests is that the general military nature of the complainant’s employment is not the central concern,” she wrote. “It is indeed irrelevant that Overton or Fletcher were wearing uniforms or worked on a military base when Fletcher made the challenged comments.” Judge Richard Wesley joined Judge Sack in the majority. Stephen Bergstein and Christopher D. Watkins of Thornton, Bergstein & Ullrich in Chester, N.Y., resented Overton. Assistant U.S. Attorneys Ross E. Morrison and Neil M. Corwin represented the government.

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