Millonzi v. Adjutant General's Department of Texas et al

Filing 35

REPORT AND RECOMMENDATIONS re 25 Motion to Dismiss filed by Adjutant General's Department of Texas, John F. Nichols, 24 Motion to Dismiss for Failure to State a Claim filed by Robert Speer, United States, Joseph L. Lengyl. The Court RECOMMENDS that the District Court GRANT Defendants Motions to Dismiss (Dkt. Nos. 24 & 25). Signed by Judge Andrew W. Austin. (dm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
CYNTHIA MILLONZI
V.
ADJUTANT GENERAL’S
DEPARTMENT OF TEXAS, et al.

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NO. 1:17-CV-488-LY

REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE LEE YEAKEL
UNITED STATES DISTRICT JUDGE
Before this Court are State Defendants’ Motion to Dismiss (Dkt. No. 25), Plaintiff’s

Response (Dkt. No. 28), and State Defendants’ Reply (Dkt. No. 32); Federal Defendants’ Motion
to Dismiss (Dkt. No. 24), Plaintiff’s Response (Dkt. No. 27), and Federal Defendants’ Reply (Dkt.
No. 31) . The District Court referred the above motions to the undersigned Magistrate Judge for
report and recommendation pursuant to 28 U.S.C. §636(b)(1)(A), FED. R. CIV. P. 72, and Rule 1(c)
of Appendix C of the Local Rules.
I. GENERAL BACKGROUND
Plaintiff Cynthia Millonzi brings this suit against the Adjutant General’s Department of
Texas, John F. Nichols in his official capacity as Texas Adjutant General, Joseph L. Lengyl in his
official capacity as Chief of the National Guard Bureau, Ryan McCarthy in his official capacity as
Acting Secretary of the Department of the Army,1 and the United States. She alleges discrimination
and retaliation in violation of Title VII, as well as claims brought pursuant to the First Amendment
and the due process and equal protection clauses of the Constitution.
1

Speer.

Acting Secretary McCarthy is automatically substituted for former Acting Secretary Robert

In 2008, Millonzi was hired as a dual-status military technician working at the Texas
Adjutant General’s office. Previous to this she served in the military for more than two decades.
Beginning in 2013, Millonzi alleges that she began experiencing discrimination based on her sexual
orientation. In June 2013—following the Supreme Court’s decision in U.S. v. Windsor—Millonzi
alleges that she gave an interview to L Style G Style about coming out in the Texas National Guard.
Though in the article she stated that her superiors were supportive of her decision, she claims that
after the interview was published, she was subjected to discrimination on the basis of her sexual
orientation (or gender). Millonzi alleges she was reassigned from the Adjutant General’s Office, and
later was passed over for a promotion to Chief of Staff. She further alleges that the new Chief of
Staff, Colonel Scott MacLeod ordered an investigation into Millonzi’s alleged absences and
tardiness, and contends that the investigator, Colonel Amy Cook, had previously discriminated
against others based on their sexual orientation.
The investigation ultimately found that Millonzi had submitted false military leave papers,
contending that she stated she was eligible for leave to attend training that had not been approved.
Col. MacLeod accepted the recommendation that Millonzi be terminated, and forwarded it to
Brigadier Genereral Patrick M. Hamilton. Millonzi then submitted an informal EEO complaint that
was dismissed, and BG Hamilton thereafter accepted Col. MacLeod’s recommendation. Millonzi
was given the option to retire or be terminated, and she chose to retire. Shortly after, Millonzi filed
a second EEO complaint, which was once again dismissed. This time, she appealed to the Office
of Federal Operations, which reversed the dismissal. However, the Adjutant General—who has final
authority on any appeals— dismissed her complaint after the reversal. Millonzi subsequently retired
from the National Guard.
2

As noted, Millonzi alleges the Defendants discriminated and retaliated against her in
violation of Title VII, and violated her rights under the First Amendment, Equal Protection, and Due
Process clauses. The defendants, grouped as “State” and “Federal,” move to dismiss, arguing that
this Court lacks jurisdiction to review Millonzi’s claims, or, in the alternative, that she has failed to
state a claim upon which relief may be granted.
II. LEGAL STANDARD
A.

Rule 12(b)(1)
Defendants move to dismiss pursuant to Rule 12(b)(1) alleging a lack of subject-matter

jurisdiction. Federal district courts are courts of limited jurisdiction, and may only exercise such
jurisdiction as is expressly conferred by the Constitution and federal statutes. Kokkonen v. Guardian
Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A federal court properly dismisses a case for lack
of subject matter jurisdiction when it lacks the statutory or constitutional power to adjudicate the
case. Home Builders Assn. of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998).
“The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction.”
Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001), cert. denied, 536 U.S. 960 (2002).
“Accordingly, the plaintiff constantly bears the burden of proof that jurisdiction does in fact exist.”
Id. In ruling on a Rule 12(b)(1) motion, the court may consider the complaint alone; the complaint
plus undisputed facts evidenced in the record; or the complaint, undisputed facts, and the court’s
resolution of disputed facts. Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008).
B.

Rule 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) allows a party to move to dismiss an action for

failure to state a claim upon which relief can be granted. FED. R. CIV. P.12(b)(6). In deciding a Rule
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12(b)(6) motion to dismiss for failure to state a claim, “[t]he court accepts all well-pleaded facts as
true, viewing them in the light most favorable to the [nonmovant].” In re Katrina Canal Breaches
Litig., 495 F.3d 191, 205 (5th Cir. 2007) (internal quotation marks omitted), cert. denied, 552 U.S.
1182 (2008). The Supreme Court has explained that a complaint must contain sufficient factual
matter “to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial
plausibility when the [nonmovant] pleads factual content that allows the court to draw the reasonable
inference that the [movant] is liable for the misconduct alleged.” Id. The court generally is not to
look beyond the pleadings in deciding a motion to dismiss. Spivey v. Robertson, 197 F.3d 772, 774
(5th Cir. 1999).
III. ANALYSIS
A.

Title VII Claims
Millonzi brings claims under Title VII for discrimination, based on her gender/sexual

orientation, and retaliation, based on her exercise of free speech. Both Federal and State Defendants
move to dismiss Millonzi’s Title VII claims on the basis that they are barred by the Feres doctrine.
In Feres v. United States, 340 U.S. 135 (1950), the Supreme Court held that military personnel may
not bring claims under the Federal Torts Claims Act to recover for injuries that occurred “incident
to their service.” This doctrine has since been extended to also bar suits brought by military
personnel pursuant to Bivens, § 1983, or Title VII. United States v. Stanley, 483 U.S. 669, 684
(1987) (Bivens); Crawford v. Tex. Army Nat’l Guard, 794 F.2d 1034, 1035-36 (5th Cir. 1986) (§
1983); Brown v. United States, 227 F.3d 295, 299 (5th Cir. 2000) (Title VII). See also, Walch v.
Adjutant General’s Dep’t of Tex., 533 F.3d 289, 294-95 (5th Cir. 2008)
4

Millonzi’s case is complicated, however, by unique legal issues posed by claims brought by
dual-status technicians within the National Guard. Dual-status technicians “occupy a unique position
in the federal personnel system, maintaining a dual status as civilians and [s]oldiers while serving
in a hybrid state/federal system.” Major Michael J. Davidson & Major Steve Walters, Neither Man
nor Beast: The National Guard Technician, Modern Day Military Minotaur, ARMY LAW., Dec.
1995, at 49). They “provide support in the administration and training of the National Guard
military organization and for the day-to-day maintenance and repair of equipment which cannot be
accomplished during normal military training periods.” Walch, 533 F.3d at 295 (quoting Davidson
& Walters, at 49). Dual-status technicians are nominal federal civilian employees, but must obtain
and maintain military membership in a state National Guard to remain in the position. Id.
Nearly every circuit to consider the issue, including the Fifth Circuit, has held that the Feres
doctrine applies to Title VII claims made by dual-status technicians. Id. at 301.2 Millonzi is correct
that, under Fifth Circuit precedent, a dual-status technician’s employment is not “irreducibly military
in nature,” such that all claims made by these individuals are barred; indeed, this standard has only
been applied by the Sixth Circuit, and has not yet been adopted by any other circuit. Bowers v.
Wynne, 615 F.3d 455, 468 (6th Cir. 2010). Rather, the Fifth Circuit applies a case-by-case approach
to the question. In this circuit, claims under Title VII for dual-status technicians “must be
categorized as either arising from their position as a civilian employee of a military department, or
2

See Overton v. N.Y. State Div. of Military & Naval Affairs, 373 F.3d 83, 95 (2d Cir. 2004);
Willis v. Roche, 256 F. App’x 534, 537 (3d Cir. 2007); Wetherill v. Green, 616 F.3d 789, 795-96 (8th
Cir. 2010); Zuress v. Donley, 606 F.3d 1249, 1255 (9th Cir. 2010); cf. Norris v. Sec’y, U.S. Dep’t
of Army, 517 F. App’x 873, 874 (11th Cir. 2013) (finding that—under any of the tests put forth by
the other circuits— the plaintiff’s claims for employment discrimination were barred by Feres). But
see Jentoft v. United States, 450 F.3d 1342, 1348 (Fed. Cir. 2006) (finding that a dual-status
technician’s claim under the Equal Pay Act was not barred by Feres).
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their position as a uniformed service member.” Brown, 227 F.3d at 299. A dual-status technician
has both military and civilian hats “only one of which is worn at any particular time.” Walch, 533
F.3d at 295. The question, therefore, is whether the plaintiff was “performing ‘purely’ civilian job
duties.” Filer v. Donley, 690 F.3d 643, 649 (5th Cir. 2012) (citing Brown, 227 F.3d at 299). Thus,
if a dual-status technician’s Title VII claims relate solely to the plaintiff’s civilian status, those
claims can proceed.3 The Fifth Circuit cautions, however, that “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.” Walch, 533 F.3d at 301.
The case law makes clear that the action must be “purely” civilian to proceed; any actions
that “involve . . . intrusion into military personnel decisions are not permissible,” even if that
decision may also have a civilian component. Brown, 227 F.3d at 299. In fact, while courts have
noted the theoretical possibility that such a case could exist, the undersigned was unable to find a
single case in which a federal court found that a dual-status technician’s claims were purely civilian
in nature.4 Though Millonzi attempts to cast her claims as solely civilian in nature—indeed, she uses
the word “civilian” extensively through her Complaint— it is clear that a decision in Millonzi’s favor

3

See Wetherill, 616 F.3d at 798 (“Because Title VII applies to civilian employees of military
departments, dual-status technicians could theoretically suffer an employment injury not incident to
military service, and thus maintain a justiciable suit under Title VII against the Guard. This is not
such a case, however.”); Luckett v. Bure, 290 F.3d 493, 499 (2d Cir. 2002) (“There may be cases in
which dual-status, military-civilian employees allege a justiciable Title VII complaint arising purely
from their civilian employment.”).
4

This statement excludes Jentoft, which merely argues that claims may be brought by a DST,
and does not analyze whether the claims arose from the military or civilian aspects of the DST
position.
6

in this case would implicate an intrusion into the very questions of military hierarchy that Feres was
designed to avoid. First, at all times, the superiors she accuses of discrimination and retaliation were
her military, as well as civilian, supervisors, and she was required to wear her uniform when at work.
Second, Millonzi was terminated for allegedly falsifying military leave documents. In fact, the
investigation report addressed both military and civilian hours and found that she had engaged in
conduct unbecoming an officer. Finally, she retired from the National Guard shortly after the
Adjutant General issued his final decision on her EEO appeals. This means that, if her claims were
successful, in addition to the Court’s decision directly affecting military personnel decisions, the
Court would also be forced to reinstate her not only to her civilian position, but also into the National
Guard.
Millonzi does not dispute that the investigation found that she falsified military leave
documents or that the actions taken were by her military supervisors. Rather, she asserts that this
does not transform the employment decision from a purely civilian one to one covered by Feres.
Millonzi relies heavily on the fact that she was not given access to a military lawyer for the EEO
appeals process. However, this, by itself, does not mandate a finding that her claims are purely
civilian. Millonzi was terminated first from her civilian position, but subsequently retired from her
military position due to her termination. See Cantu v. Nichols, 2012 WL 4962115 at *1 (S.D. Tex.
Oct. 16, 2012) (explaining that the plaintiff was removed from his technician position and later
discharged from the National Guard). Moreover, even actions taken during the work week,
seemingly in the civilian sphere, may still be decisions that affect the military hierarchy such that
they are subject to Feres. Take, for example, the Fifth Circuit’s decision in Filer. In that case, even
though the alleged harassment happened solely during the work week in the plaintiff’s civilian job,
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the court found that the claims nevertheless affected the military structure, as the plaintiff’s civilian
supervisors were also her military supervisors (as is also the case here). Filer, 690 F.3d at 649-50;
see also Overton, 373 F.3d at 95-96. Similarly, in a case out of the Middle District of Alabama, the
court found that even a claim for improper relations with a superior was barred by Feres where the
plaintiff was removed from her civilian, but not her Guard position. Norris v. McHugh, 857 F. Supp.
2d 1229, 1235-36 (M.D. Ala. 2012).
Millonzi also relies on a decision by the EEOC to support her argument. Dkt. No. 28 at 3-4.
In that case, the Commission cited to case law out of the Fifth Circuit to hold that each Title VII
complaint by dual-status technicians should be assessed on a case-by-case basis to determine whether
the “discriminatory act arose in the individual’s military capacity or civilian capacity.” See Neville
v. Donley, EEOC Doc. 0720110023, 2013 WL 5295937, at *4 (Aug. 1, 2013). Applying this
framework, the Commission found that it had jurisdiction over the plaintiff’s claims as the alleged
discriminatory acts occurred in a purely civilian sphere. Id. at *5. Noting that the discrimination in
that case occurred during the civilian work week, Millonzi argues that the result should be the same
here, since that is exactly what happened in her case.
However, Millonzi’s situation is not analogous to that of Neville. Millonzi contends that she
was terminated from her civilian position based on her sexual orientation, and is correct in noting
that the effect was originally felt in her civilian status as she was only later asked to retire from her
National Guard position. However, the situation is vastly different from that in Neville, where the
plaintiff was allegedly harassed by her colleagues during the civilian work week. Millonzi has not
alleged harassment, but rather that she was terminated based on her sexual orientation. Additionally,
Millonzi was removed from her position for allegedly turning in false leave papers, indicating that
8

she was approved for military leave when she was not. This clearly moves the allegations into the
military sphere, as this Court would be required to determine whether these allegations were merely
a pretext in order to proceed.5 Though Millonzi goes out of her way to avoid challenging her military
discharge, the fact remains that removal from her civilian position directly affected her military
discharge, and further, that she was terminated for actions relating to her military status. Moreover,
even were the facts similar to those in Neville, this Court is not bound by EEOC precedent; rather
it must apply Fifth Circuit caselaw. Filer dealt with a nearly identical situation to that in Neville and
in that case the Fifth Circuit came to the opposite result. See 690 F.3d at 649–50.6 Thus, even
assuming that the facts are similar to those in Neville, the Fifth Circuit’s decision in Filer governs,
and Millonzi’s Title VII claims should therefore be dismissed for lack of jurisdiction.
B.

Mindes Claims
This leaves only the constitutional claims that Millonzi has characterized as a “Mindes

action.” Millonzi asserts claims for First Amendment retaliation and violations of the equal
protection and due process clauses. Here, she asserts that she was forced to leave her position based
on her exercise of free speech, discriminated against based on her sexual orientation (or sex), and
deprived of a hearing prior to her termination. Millonzi brings these claims alleging that, under
Mindes v. Seaman, an individual is permitted to bring suit claiming that an internal military decision
violated a Constitutional, statutory, or regulatory rule after exhausting all administrative remedies.

5

At this stage, the Court must accept the pleaded facts as true, and Millonzi has pled that the
actions taken by her superiors were solely in their civilian status. However, the report generated to
support Millonzi’s removal indicates both “fraud in entitlements” and “conduct unbecoming an
officer.” Dkt. No. 25-2 at 2, 8.
6

Additionally, only the EEOC has so far found any Title VII claim by a dual-status technician
to be justiciable. Every federal court to look at such a claim has come to the opposite result.
9

453 F.2d 197, 299 (5th Cir. 1971). Thus, Millonzi asserts, her claims that the Defendants violated
the Constitution should not be dismissed under the Feres doctrine.
First, Millonzi’s claims for First Amendment retaliation and equal protection are merely an
attempt to recast her Title VII discrimination and retaliation claims. It cannot be the case that a
plaintiff whose Title VII claims are barred by Feres can simply recast them as constitutional
violations to avoid the Feres bar. The decision in Walch supports this reasoning. In that case, the
court found that equal protection claims asserted under § 1983 or Bivens would also be barred by
Feres, just as the plaintiff’s Title VII claims were. Walch, 533 F.3d at 297. The court reasoned that
“allowing claims pursuant to Bivens or Sections 1983 and 1985 to be brought by a National Guard
technician against his chain of military command—even if some in that command also are
technicians in addition to being Guardsmen—is contrary to the principles announced” in prior
precedent. Walch, 533 F.3d at 297. Thus, because “[i]t is not possible to disentangle for these
purposes [a technician’s] military role and command structure from [his/her] civilian employment
. . . without raising the same concerns as when those claims are brought by traditional guardsmen,”
constitutional claims made by a dual-status technician are barred under the Feres doctrine. Id.; see
also Bradley v. La. Air Nat. Guard, 2010 WL 5207593, at *5 (E.D. La. Dec. 15, 2010) (finding that
claims for discrimination and retaliation brought under Bivens, §§ 1983 or 1985, or Title VII were
barred by Feres); Perez v. Puerto Rico Nat. Guard, 951 F. Supp. 2d 279, 291–92 (D.P.R. 2013)
(holding that the plaintiff’s claim for a violation of the Equal Protection clause, made under § 1983,
was barred under Feres). Millonzi’s claims for First Amendment retaliation and equal protection
are identical to those made under Title VII, and should therefore be dismissed for lack of jurisdiction.

10

The court in Walch addressed the plaintiff’s claim for violations of his procedural due process
rights separately, though the opinion is not entirely clear on the distinction. Thus, the viability of
the Mindes doctrine after Walch is murky, at best. In Walch, the court applied Mindes to the
plaintiff’s claim that his procedural due process rights had been violated. Walch, 533 F.3d at 302.
It did not address the plaintiff’s discrimination or retaliation claims, as it instead held, earlier in the
decision, that these were barred under Feres. Id. at 297. Since 2008, when Walch was decided,
Mindes has only been cited by one district court in the Fifth Circuit, where a plaintiff argued that the
technician removal procedures violated his due process rights. See Cantu v. Nichols, 2012 WL
4962115, at *4-5 (S.D. Tex. Oct. 16, 2012). Both Walch and Cantu refer to Mindes as an exception
to the Feres doctrine that applies to “internal military decisions” when four factors have been met.
Walch, 533 F.3d at 302; Cantu, 2012 WL 4962115 at *3. Thus, it appears possible for a procedural
due process claim to fall within the exception to the Feres doctrine that Mindes set forth.7
Ultimately, both decisions dismissed the procedural due process claim without addressing the four
Mindes factors so the import of those cases on Millonzi’s due process claim is unclear.
Regardless, Millonzi’s due process claim should be dismissed. As was the case in Cantu,
Millonzi argues that her procedural due rights were violated because she was not given a hearing.

7

Interestingly, the court in Walch noted that: “[b]ecause courts may not be the only tribunals
available . . . we now examine certain non-judicial remedies that [the plaintiff] insists he should be
allowed to pursue” before addressing the plaintiff’s procedural due process claims under Mindes.
533 F.3d at 301 (emphasis added). It is possible, from this language, to infer that the Fifth Circuit
intended to indicate that the Mindes analysis applies solely to administrative remedies, rather than
to constitutional procedural due process claims, though this is far from clear. Moreover, the court
in Walch solely applied this analysis to the plaintiff’s claims with regard to his military discharge,
and not his Title VII discrimination claims. Id. at 303. On the other hand, the court in Cantu cited
Walch to apply Mindes to constitutional due process claims resulting from the plaintiff’s removal
from the technician position. 2012 WL 4962115 at *4-5.
11

In Walch the plaintiff challenged his dismissal from the national guard—an internal military decision
subject to Mindes. It is not entirely clear that Mindes even applies to Millonzi’s claim, since she is
complaining about her termination without a hearing from her civilian position.8 However, even if
Mindes applies to her EEO complaint procedures, the holdings from Walch and Cantu clearly state
that there is no requirement that Millonzi be given a hearing. See Walch, 533 F.3d at 302; Cantu,
2012 WL 4962115 at *5. In Cantu, the court addressed an identical argument and found that the
adjutant general has the right to remove a dual-status technician for cause at any time.9 2012 WL
4962115, at *5 (citing 32 U.S.C. § 709(f)(2)). Thus a hearing was not constitutionally required. Id.
Nor does Millonzi point to any statutes or regulations she claims were violated during the process
that would otherwise support her claim for procedural due process. See id. As such, this claim
should also be dismissed.
IV. RECOMMENDATIONS
In accordance with the foregoing discussion, the Court RECOMMENDS that the District
Court GRANT Defendants’ Motions to Dismiss (Dkt. Nos. 24 & 25).
V. WARNINGS
The parties may file objections to this Report and Recommendation. A party filing
objections must specifically identify those findings or recommendations to which objections are

8

Because Millonzi retired from the national guard, there are no military proceedings to
challenge.
9

The court in Cantu also held that the plaintiff’s claim was moot as he did not challenge his
military discharge. Because membership in the national guard is a requirement for all dual-status
technicians, failure to challenge his military discharge mooted the plaintiff’s challenge to his
technician removal. Cantu, 2012 WL 4962115 at *4.
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being made. The District Court need not consider frivolous, conclusive, or general objections. See
Battle v. United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).
A party’s failure to file written objections to the proposed findings and recommendations
contained in this Report within fourteen (14) days after the party is served with a copy of the Report
shall bar that party from de novo review by the District Court of the proposed findings and
recommendations in the Report and, except upon grounds of plain error, shall bar the party from
appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the
District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150–53 (1985);
Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc).
SIGNED this 2nd day of January, 2018.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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