Feres Doctrine Bars Title VII Discrimination Claims by “Dual Status” Army Employee

In Martinez v. McCarthy, 2020 WL 7579516 (2d Cir. Dec. 22, 2020) (Summary Order), the U.S. Court of Appeals for the Second Circuit affirmed the dismissal of discrimination, harassment, and retaliation claims – asserted under Title VII of the Civil Rights Act of 1964 – by plaintiff, a “dual status” employee of the U.S. Army.

The Second Circuit agreed with the district court’s determination that plaintiff’s claims were barred by the doctrine of intra-military immunity, as embodied in the so-called “Feres doctrine,” arising from Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950).

From the Order:

[W]e agree with the District Court that Martinez’s “allegations of harassment, discrimination and retaliation are too tightly intertwined with her military role in her dual employment and with the command structures and personnel to be ‘purely civilian.’ ” Joint App’x 71 (quoting Overton, 373 F.3d at 86). Plaintiff’s complaint describes harassment by other reserve members, not civilian co-workers. Her complaint also describes hostilities she experienced while engaged in military activities, such as during a “Field Exercise Training” in which Defendant-Appellee Weisbrod, a fellow reservist, allegedly left behind active duty orders “on purpose to set up [Martinez] to fail.” Joint App’x 16. Following this incident, Defendant-Appellee Michels allegedly scolded and humiliated her in front of dozens of soldiers who, according to Martinez’s complaint, laughed at her and “elevat[ed] [her] trauma.” Id. She also alleges that Weisbrod and Michels failed her on a mandatory military test even when she passed, while they would pass her male counterparts, even when they failed. Id. at 19. She further describes how she reported these, and other incidents, to both her civilian and military supervisors, and alleges that her military supervisors then failed to “prevent continuing discrimination, harassment, retaliation, and physical bullying in the workplace.” Id. at 20.

As in Overton, another Title VII case involving a dual-status employee where we found that “[a]ny attempt surgically to dissect and analyze” the line between the civilian and the military “would itself threaten to intrude into [military affairs],” so too would an attempt at wielding a scalpel fail here. 373 F.3d at 96. We therefore conclude that because Martinez’s suit “challenges conduct that is integrally related to the military’s unique structure,” including the military’s reporting processes, and that also because the challenged conduct is not “purely civilian,” the Feres doctrine bars her suit.

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