Zuress v. Donley, No. 08-17559 (9th Cir. June 8, 2010); Duvall v. Georgia-Pacific Consumer Prods., LP, No. 08-7096 (10th Cir. June 9, 2010)

| Jun 8, 2010 | Daily Developments in EEO Law |

Is a civilian employee with dual status in the Air Force Reserves a member of the armed services for purposes of intra-military immunity under Title VII? Is a position “vacant” for purposes of a “reasonable accommodation” under the ADA when it is occupied by a temporary employee? Definitional questions dominate the week’s cases.

Zuress v. Donley, No. 08-17559 (9th Cir. June 8, 2010):  The Ninth Circuit and other courts have recognized that dual-status employees, civilians who are required to also join the reserves as part of their duties, fall within the broad common-law tort immunity commonly referred to as the Feres doctrine. Feres v. United States, 340 U.S. 115 (1950), launched a rule declaring immune from adjudication (and outside the jurisdiction of U.S. courts) any claims that would require a civil court to examine command decisions of the military.  The image of a private suing a colonel for ordering a forced-march into the line of fire gives way, in reality, to a host of claims that look a lot more like ordinary employment situations. Here’s the claim in this case (at the complaint stage):

“Zuress was employed as a dual status Air Force Reserve Technician at Luke Air Force Base from July 2000 to June 2005. She served in a civilian capacity as a GS-12 Operations Staff Specialist for the 944th Operations Group and in a military capacity as an Air Force Reserve Captain in the 944th Operations Group.

“Zuress alleges that the Air Force violated her rights under Title VII by failing to promote her; failing to extend her military retirement date as long as she had requested; temporarily detailing her to a lower-grade position; and forcing her retirement. She contends that this unfair treatment began in September 2003 after she wrote a letter to senior Defense Department officials describing inappropriate sexual behavior following a Fighter Squadron “naming” ceremony and that it escalated when she agreed to serve as a character witness in a coworker’s discrimination case. Zuress alleges that, in retaliation, her former military commander refused to return her salute and her supervisors gave her two “average” performance reports, eliminating her chance for promotion. Because military officers twice passed up for promotion must separate from the military, Zuress’s performance reports guaranteed her forced retirement.”

Under prevailing circuit law, the district court held that the claim fell within the immunity, as the employee was required to serve dual-status under National Defense Authorization Act for Fiscal Year 1997, Pub. L. No. 104-201, § 1214, 110 Stat. 2422, 2695 (1996), codified at 10 U.S.C. § 10216. But the plaintiff raised the prospect that in a 1997 amendment to the act, federal statutes of general applicability such as Title VII were placed outside the scope of intra-military immunity.  The amendment stated that:

“(1) For purposes of this section and any other provision of law, a military technician (dual status) is a Federal civilian employee who- (A) is employed under section 3101 of title 5 or section 709(b) of title 32; (B) is required as a condition of that employment to maintain membership in the Selected Reserve; (C) is assigned to a civilian position as a technician in the administration and training of the Selected Reserve or in the maintenance and repair of supplies or equipment issued to the Selected Reserve or the armed forces.”

The plaintiff contended that the italicized language meant that she should be treated as a civilian employee for purposes of coverage under federal law. The Ninth Circuit, though, affirms dismissal on subject-matter jurisdiction grounds. Recognizing a split of authority over this subject, compare Jentoft v. United States, 450 F.3d 1342 (Fed. Cir. 2006) (finding that the amendment abrogated military immunity) with Williams v. Wynne, 533 F.3d 360, 367 (5th Cir. 2008) (1997 Amendments did not effect such a substantive change). The Ninth Circuit sides with the Fifth Circuit, finding the inference the Congress meant to override immunity too faint: “a clear statement is required from Congress to override our settled judicial doctrine of intra-military immunity. . . . [and t]he text of the 1997 Amendments does not satisfy that standard.”

Duvall v. Georgia-Pacific Consumer Prods., LP, No. 08-7096 (10th Cir. June 9, 2010): To reasonably accommodate disabled employees under the ADA, and employer may be required to consider “reassignment [of the disabled employee] to a vacant position.” 42 U.S.C. § 12111(9)(B). The Tenth Circuit had yet to reach a case where it had to defined the term “vacant,” but in this case holds “that a position is ‘vacant’ with respect to a disabled employee for the purposes of the ADA if it would be available for a similarly-situated non-disabled employee to apply for and obtain.”

In this case, the employee, “who suffers from cystic fybrosis, worked in the shipping department of a paper mill owned by Georgia Pacific (‘GP’). When GP decided to begin outsourcing the running of its shipping department, Duvall transferred to another department [converting] but found that the paper dust in the air made it impossible for him to work there. As a reasonable accommodation, Duvall requested that he be put back in his old shipping position, which was then occupied by a temporary contract worker pending the permanent outsourcing of the department, or in a position in the mill’s storeroom, which was also in flux at the time with a number of temporary employees filling some of the storeroom positions.” GP refused these accommodations. Instead, he was reassigned to the duties of “storeroom clerk, at a pay rate of $17.00 per hour-the top end of the new storeroom pay scale, but less than the $21.00 Duvall had been making in converting.”

The district court, on summary judgment, and Tenth Circuit both hold that there were no vacancies, as a matter of law, that the plaintiff could have filled during the relevant period. Writes the Tenth Circuit, “[t]he operative question in this case . . . is: did GP have any vacant positions to which Duvall could have been reassigned during the relevant three-month period between May and August of 2006? It is uncontested that some jobs in both the shipping department and the storeroom during that period were being filled by temporary workers provided by [temp agency] Encadria.” The ultimate plan was to outsource the same work to another contractor, Network Logistics Solutions.

Allowing that the term “vacant” is subject to different meanings, the panel analyzes the language in “the context of the statute as a whole-in this case, as a regulation of the employment relationship.” Defining vacancy in the context of whether a non-disabled employee could obtain the same job “Congress’ purpose in passing the statute was to place disabled employees on an equal footing with their non-disabled coworkers.” To define “vacancy” as any job not filled by a permanent employee “would effectively require employers to create new positions specifically for disabled employees-positions not available to nondisabled employees. Courts have universally held that the ADA does not require this.” Thus, “In sum, when a disabled employee seeks the reasonable accommodation of reassignment to a vacant position, positions within the company are ‘vacant’ for the purposes of the ADA when they would be available to similarly-situated nondisabled employees to apply for and obtain.”

In this case, according to the panel, “[t]he undisputed evidence was that GP’s business plan was to occupy these positions exclusively with Encadria contract employees until they would permanently be filled with [outsource contractor Network Logistics Solutions] employees or until GP later determined to make the storeroom positions vacant again for its own employees. Thus, from the perspective of GP’s employees, the positions were not vacant and available to any of them at the time Duvall sought an accommodating assignment into one of those positions.”

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