     Case: 11-10296   Document: 00511951023   Page: 1   Date Filed: 08/09/2012




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                    FILED
                                                                   August 9, 2012

                                 No. 11-10296                      Lyle W. Cayce
                                                                        Clerk

TERRENCE M. FILER,

                                           Plaintiff - Appellant

v.

MICHAEL B. DONLEY, Secretary of the Air Force,

                                           Defendant - Appellee



                  Appeal from the United States District Court
                       for the Northern District of Texas


Before JONES, Chief Judge, and PRADO and SOUTHWICK, Circuit Judges.
EDITH H. JONES, Chief Judge:
        Terrence M. Filer (“Filer”) was a dual-status Air Reserve Technician
(“ART”) in the 301st Maintenance Group (“301st MG”) falling under the 301st
Fighter Wing (“301st FW”). ARTs are full-time civilian employees who are also
required to serve in the Air Force Reserve in the units for which they work as
civilians. Filer was the Chief of Training Management of the 301st MG in his
civilian capacity and a Technical Sergeant (E-6) and Chief of Training of the
301st MG in his military capacity. Filer alleges that he was subjected to a
racially hostile work environment at the 301st MG, which caused him to leave
his civilian job with the unit and lose his reserve position. The district court
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granted summary judgment to the Secretary. Because we conclude that the
district court lacked jurisdiction over two allegations for failure to exhaust
EEOC procedures and over a third one by virtue of the Feres doctrine, we
VACATE the grant of summary judgment and remand with instructions to
DISMISS.
                              I. BACKGROUND
      Filer’s hostile work environment claim is based primarily on a single
incident. Filer was ordered to active duty from September 17th to September
21st, 2007 at the 301st MG. On September 21, Filer walked into the office of
Christopher Roark (“Roark”), a Quality Assurance Superintendent. Roark, who
was also an ART, was not Filer’s direct supervisor, but was a Senior Master
Sergeant and therefore a supervisory employee in the 301st. Roark was not in
his office, but Filer noticed a noose thumb-tacked to a inert grenade. Roark
referred to the grenade display as the “complaint department”; as a joke, the
grenade had a sign saying “take a number,” with a #1 sign attached to the pull
pin. When Filer returned later that day to speak to Roark about the noose, it
was gone. Roark had apparently been told by a coworker that Filer was offended
by the noose. Roark explained to Filer that he had found the noose while
deployed in Iraq and brought it back to attach to the grenade “as a second choice
for complaint[s],” but that he had thrown the noose away.
      Filer left Roark’s office and went to Chief Master Sergeant Martin Drewek,
Filer’s first-line civilian and military supervisor, to tell him about the noose.
Drewek advised Filer that he thought the noose was related to Saddam
Hussein’s hanging, and that Filer should give Roark the benefit of the doubt. On
September 27, Filer filed an informal EEO complaint. At the conclusion of the


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informal EEOC investigation two months later, Lt. Col. William Kountz,1 the
civilian manager and military commander of the 301st MG, issued an oral
admonishment to Roark for the noose incident and directed Roark to take a
course on equal opportunity sensitivity. Kountz also denied Roark a military
promotion for one year and denied Roark a medal he earned in Iraq.
       On January 10, 2008, a Command Directed Investigation (“CDI”) of the
noose incident was ordered by Colonel Kevin Pottinger, the military commander
of the 301st FW.        A CDI, separate from the formal complaint process, is
instigated to gather, analyze, and record information about matters of interest
to military command authorities. The CDI investigator concluded that Roark
exercised poor judgment in displaying the noose and that the incident could have
an adverse impact on the unit’s cohesion.
       Filer had filed a formal EEOC charge of discrimination on December 4,
2007, in which he alleged that the noose display was the basis for a racially
hostile work environment. The resulting EEOC investigation was undertaken,
and a final agency decision finding no hostile work environment issued in
January, 2010. Filer timely brought this lawsuit against defendant Michael B.
Donley, Secretary of the Air Force.
       In his federal court complaint, Filer alleged that he was subjected to a
racially hostile work environment by various acts and circumstances in addition
to the noose incident. These include: the display of swastikas on a wall in the
301st MG workplace between September 13 and 23, 2005;2 the creation of a work

       1
         Kountz was Filer’s second-line civilian supervisor and third-line supervisor in the
military.
       2
         With respect to the display of swastikas, which was not mentioned by Filer in either
his informal or formal EEOC complaints, a different civilian employee brought an EEOC

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environment and atmosphere in which white employees were given preferential
treatment over non-white employees; and the promotion of white employees to
management positions more frequently than non-white employees.
       The Secretary moved to dismiss the suit under Fed. Rule of Civ.
Proc. 12(b)(1) or (6), urging that the doctrine of intra-military immunity in Feres
v. United States, 340 U.S. 135, 71 S. Ct. 153 (1950), prevented ARTs like Filer
from seeking relief in court under Title VII. The district court denied the
motion. The Secretary then moved for summary judgment, reiterating the
applicability of the Feres doctrine, and contending alternatively that Filer could
not establish a prima facie hostile work environment case. The district court
granted summary judgment, holding that (1) because Filer’s claim did not
challenge the lawfulness of his discharge from the military or require a review
of military personnel decisions, the Feres doctrine did not bar the claim; (2) the
swastika incident and the allegations of preferential treatment to white
employees were not in any way related to the noose incident, were therefore not
exhausted, and could not be considered as contributing to the allegedly hostile
work environment; and (3) no rational trier of fact would conclude that the noose
incident alone was sufficiently severe or pervasive to create a hostile work
environment. Filer timely appealed.
                                 II. JURISDICTION
       Jurisdiction cannot be waived, and it is the duty of a federal court first to
decide, sua sponte if necessary, whether it has jurisdiction before the merits of
the case can be addressed. Energy Mgmt. Corp. v. City of Shreveport, 397 F.3d


complaint in 2005 challenging the display on a wall in the 301st MG. An investigation
concluded that the supervisor “failed to provide appropriate leadership and response to the
discovery of swastikas.”

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297, 301 n.2 (5th Cir. 2005). The court reviews de novo legal conclusions by the
district court about jurisdiction. McKnight v. Dresser, Inc., 676 F.3d 426, 429
(5th Cir. 2012). Although the government’s briefing on jurisdiction is sparse to
non-existent in this court, there are two jurisdictional issues in this case. The
first is whether Filer exhausted his administrative remedies under Title VII.
Pacheco v. Mineta, 448 F.3d 783, 795 (5th Cir. 2006) (affirming the dismissal of
the plaintiff’s Title VII claim under 12(b)(1) because of the plaintiff’s failure to
exhaust administrative remedies); Tolbert v. United States, 916 F.2d 245, 249
(5th Cir. 1990) (district court had no jurisdiction over a Title VII claim because
the plaintiff did not exhaust her administrative remedies). The second is
whether the surviving claim is justiciable under Feres, 340 U.S. 135, 71 S. Ct.
153 (holding service member tort claims against the government non-justiciable).
      The Supreme Court has held that while “subject-matter jurisdiction
necessarily precedes a ruling on the merits, the same principle does not dictate
a sequencing of jurisdictional issues.” Ruhrgas AG v. Marathon Oil Co., 526 U.S.
574, 584, 119 S. Ct. 1563, 1570 (1999). Ruhrgas concluded that a court does not
abuse its discretion where it dismisses a case based on a straightforward defect
of personal jurisdiction instead of reaching a “difficult and novel question” of
subject matter jurisdiction. Id. at 588, 119 S. Ct. at 1572. Because the Title VII
exhaustion/jurisdiction issue raised in this case is clear cut compared with the
Feres jurisdictional issue, we have discretion to dismiss on both grounds.
1. Exhaustion
      Ordinarily, an employee may not base a Title VII claim on an action that
was not previously asserted in a formal charge of discrimination to the EEOC,
or that could not “reasonably be expected to grow out of the charge of


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discrimination.” Pacheco, 448 F.3d at 789 (quoting Sanchez v. Standard Brands,
Inc., 431 F.2d 455, 466 (5th Cir. 1970)). The purpose of this exhaustion doctrine
is to facilitate the administrative agency’s investigation and conciliatory
functions and to recognize its role as primary enforcer of anti-discrimination
laws. In hostile work environment claims, however, if one act alleged to have
created the hostile environment is timely exhausted, “a court may consider ‘the
entire scope of the hostile work environment claim.’” Stewart v. Miss. Transp.
Comm’n, 586 F.3d 321, 328 (5th Cir. 2009) (quoting Nat’l R.R. Passenger Corp.
v. Morgan, 536 U.S. 101, 105, 122 S. Ct. 2061, 2068 (2002)). To apply this
“continuing violation doctrine . . . the plaintiff must demonstrate that the
separate acts are related.” Id.
      Filer based his Title VII hostile work environment lawsuit on:
      1.    The display of swastikas on a wall in the 301st MG workplace
            between September 13 and 23, 2005;
      2.    The creation of a work environment and atmosphere in the
            301st MG in which white employees were given preferential
            treatment over non-white employees;
      3.    The creation of a work environment and atmosphere in the
            301st MG in which non-white employees did not receive
            promotions to management positions as frequently as white
            employees; and
      4.    The noose incident.
Despite this list of allegations, Filer identified only the noose incident in his
EEOC complaints. The noose incident is a properly exhausted, actionable claim.
The district court disregarded Filer’s other allegations because they were in no
way related to the actionable incident. The district court reasoned, based on
undisputed facts, that Filer did not know about the swastika incident until the


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EEOC proceedings associated with this case, that Filer did not claim that any
of the alleged preferential treatment of white employees affected him directly,
and that Roark was not involved in any incident except the display of the noose.
         We agree with the district court that Filer’s other claims are unrelated to
the only actionable claim and cannot be aggregated into a timely hostile
environment claim. The court correctly held that it lacked jurisdiction to
consider the other allegations as to which Filer failed to exhaust his
administrative remedies. See Pacheco, 448 F.3d at 795; Tolbert, 916 F.2d at 249.
2. Feres Doctrine
         The remaining jurisdictional issue is whether Filer’s surviving claim is
barred by the Feres Doctrine. In Feres, the Supreme Court held that the
government “is not liable under the Federal Tort Claims Act (“FTCA”) for
injuries to servicemen where the injuries arise out of or are in the course of
activity incident to service.” 340 U.S. at 146, 71 S. Ct. at 159. Three times, this
court has interpreted Feres to prohibit judicial review of military employment-
related decisions. In Brown v. United States, 227 F.3d 295 (5th Cir. 2000), an
ART sued the government under Title VII, asserting that his discharge was
discriminatory and retaliatory. This court held that Title VII waived the
sovereign immunity of the military departments only for claims made by civilian
employees, not those by members of the armed services.              Id. at 298-99.
Consequently, “[c]laims arising purely from an ART’s civilian position are
provided for under Title VII; claims that originate from an ART’s military status,
however, are not cognizable.” Id. at 299. The plaintiff’s claims in that case were
categorized as “military personnel decisions,” which are not reviewable in court.
Id.


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      In Walch, this court considered whether Feres barred the discrimination
and retaliation claims of a dual-status federal technician and member of the
Texas National Guard who challenged his discharge from both his military and
civilian positions. Walch v. Adjutant Gen.’s Dep’t of Tex., 533 F.3d 289 (5th Cir.
2008). In discussing how to approach claims that were difficult to classify as
either arising from a plaintiff’s civilian or military status, Walch stated that it
“might turn to ‘factors such as whether the conduct is integrally related to the
military’s unique structure.’ ” Id. at 299 (quoting Brown, 227 F.3d at 299 n.5).
The court quoted with approval the Federal Circuit’s list of claims that dual-
status employees may not pursue: “those ‘that relate to enlistment, transfer,
promotion, suspension and discharge or that otherwise involve the military
hierarchy.’ ” Id. at 300 (quoting Jentoft v. United States, 450 F.3d 1342, 1345
(Fed. Cir. 2006)). “Under these precedents,” Walch concluded, “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.” Id.
at 301. Because Walch challenged his dismissal from the Texas National Guard,
his claim was deemed non-justiciable. Id.
      Finally, in Williams, this court considered whether an ART could bring a
Title VII claim challenging his discharge from his civilian and military positions
stemming from a positive drug test he gave while on active status with the Air
Force Reserve. Williams v. Wynne, 533 F.3d 360, 364 (5th Cir. 2008). This court
approved the district court’s determination that because the plaintiff “tested
positive for cocaine use while on military status,” his claim arose from his
position as a uniformed service member; therefore, “the decision to discharge


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him as a result was . . . a military personnel management decision, which was
integral to the military structure and which we will not second guess.” Id. at
368.
       Several factors lead to the conclusion that Filer’s hostile environment
claim arose from his military status. First, Filer was on active duty when the
noose incident occurred. The order to active duty is signed by Filer, is in the
record before us, and states that Filer “is ordered to” active duty. This order was
authorized by Lt. Col. William R. Kountz, the commander of the 301st MG, on
May 31, 2007, several months before the incident. Moreover, the order specifies
the dates on which Filer was to report for active duty and Filer confirmed that
he performed active duty on the date of the noose incident with his signature
dated September 24, 2007. In Williams, this court held that an event that
occurred during the plaintiff’s active duty arose from the ART’s military status.
533 F.3d at 368. Granted, in Williams, the defendant was suing over his
punishment for failing a drug test administered while on active status. Filer, in
contrast, pursues a Title VII claim arising from conduct by another while he was
on active status. Nevertheless, the status of the ART is significant because this
court has stated that ARTs have both military and civilian hats “only one of
which is worn at any particular time.” Walch, 533 F.3d at 295. Active duty
status is strong evidence of which hat is being worn.
       Nothing in the record implies this incident is attributable to Filer’s civilian
role despite his active duty status. Filer’s interaction with Master Sergeant
Roark is not indicative of either status because they were co-workers in both
spheres. Filer’s civilian and military jobs were similar: Chief of Training
Management of the 301st MG in his civilian capacity and Chief of Training of


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the 301st MG in his military capacity. Lt. Col. Kountz, who disciplined Roark,
was Filer’s boss in both his civilian and military capacities. We have no factual
basis to conclude that Filer was performing “purely” civilian job duties instead
of military job duties while he was assigned to active duty on September 21,
2009. See Brown, 227 F.3d at 299.
      Perhaps most important to this analysis is the admonition in Walch that
courts should not interfere with the military’s decisions about personnel
management. 533 F.3d at 301. Filer challenges as inadequate the Air Force’s
response to the noose incident.        The Air Force conducted two separate
investigations of the incident, one of which adjudged its impact on unit cohesion,
while the other resulted in decisions about military promotion, awarding
military honors, and appropriate training for military personnel. Lt. Col. Kountz
had to clear his decision on Roark’s military discipline with the FW
Commander, Col. Pottinger. A session of squadron-wide EEO training was
ordered.   These decisions are “integrally related to the military’s unique
structure.” Id. at 299. Judicial re-examination of such decisions would be
disruptive to the military. Id.
      The district court held all three prior Fifth Circuit cases distinguishable
because, unlike those cases involving a plaintiff’s discharge from the military,
“the court can safely adjudicate [Filer’s hostile environment] claims without
having to review military personnel decisions.” For the reasons just expressed,
we disagree. Moreover, because Title VII hostile environment claims often
criticize the conduct of co-workers as well as supervisors, they are at least as
likely as individual discharge claims to require close review of military structure,
discipline, and cohesion. Feres broadly prohibits tort suits where a service


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person’s injuries “arise out of or are in the course of activity incident to service.”
Feres, 340 U.S. at 146, 71 S. Ct. at 159. It is the military environment, not the
nature of the claim, that is controlling. In any event, attempting to distinguish
Title VII discharge claims from hostile environment claims will often be at cross-
purposes with the Brown trilogy and thus with Feres, because plaintiffs are apt
to join such claims in a lawsuit and would have every incentive to do so if a
hostile environment allegation is the key to the federal courthouse.
      Filer’s surviving Title VII claim is non-justiciable under Feres and this
court’s precedents. The district court should have dismissed this claim for lack
of jurisdiction instead of ruling on the merits..
                               III. CONCLUSION
      Filer failed to exhaust his Title VII administrative remedies on all
allegations except for the September 21st incident. Because the surviving claim
arose from Filer’s military service, Feres and Brown make that claim non-
justiciable. We therefore VACATE the summary judgment and REMAND to
the district court with instructions to dismiss for lack of jurisdiction.




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