Petition for Writ of Certiorari — Tina Neville, Petitioner v. Janet Dhillon, Chair, Equal Employment Opportunity Commission, et al.

Supreme Court briefNov 27, 2019

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APPENDIX

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APPENDIX TABLE OF CONTENTS

Page

Unpublished Opinion of

The United States Court of Appeals

For the Fifth Circuit

entered June 28, 2019...........

Judgment of

United States District Court

Western District of Texas

entered August 30, 2019

18a

Order of

The United States Court of Appeals for

The Fifth Circuit

Re: Denying Petition for Rehearing

entered August 30, 2019..............

20a

Final Order of

The Honorable David Alan Ezra

Re: Granting Respondents’ Motions to Dismiss and

Alternative Motions for Summary Judgment

filed March 29, 2018

22a

29 CFR § 1614.103

53a

29 CFR § 1614.107

56a

29 CFR § 1614.405

60a

29 CFR § 1614.408

62a

29 CFR § 1614.503

63a

-li-

32 USCS § 709

66a

42 USCS § 2000e-16

69a

29 CFR § 1614.405

74a

-in-

FILED: JUNE 28, 2019

IN THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

No. 18-50438

TINA NEVILLE,

Plaintiff - Appellant

VICTORIA LIPNIC, Acting Chair of the U.S. Equal

Employment Opportunity Commission; PATRICK M.

SHANAHAN,

ACTING

SECRETARY,

U.S.

DEPARTMENT

DEFENSE;

HEATHER

WILSON, Secretary of the Air Force; GENERAL

JOSEPH L. LENGYEL, Chief, National Guard

Bureau; JOHN F. NICHOLS, Major, Adjutant

General-Texas Military,

Defendants - Appellees

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:16-CV-1231

Before CLEMENT,

Circuit Judges.

GRAVES,

and

OLDHAM,

PER CURIAM:*

Tina Neville appeals the district court’s grant

of motions to dismiss and, alternatively, for summary

judgment in favor of federal and state entities after

the dismissal of her petition for writ of mandamus

seeking military agency compliance with Equal

Employment Opportunity Commission (EEOC)

orders finding discrimination. For the reasons set

forth below, we AFFIRM.

FACTS AND PROCEDURAL HISTORY

Tina Neville was employed as a Dual-Status

National Guard Technician at Lackland Air Force

Base in San Antonio. Dual-Status Technicians (DST)

are by statute both employees of the Department of

the Air Force and civilian employees of the United

States. See 32 U.S.C. § 709(e). As a condition to the

civilian portion of the employment, a DST must

become and remain a uniformed member of the

National Guard. See 32 U.S.C. §§ 709(b), (d)-(e).

Neville was employed in a civilian capacity as a WG12 Aircraft Mechanic and in a military capacity as an

Air Force Master Sergeant in the 149th Fighter Wing

at Lackland. Her status as a DST involved servicing

F-16 fighter jets in both her civilian and military

capacities.

* Pursuant to 5TH ClR. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH ClR. R.

47.5.4.

In March 2006, Neville had a hysterectomy.

Subsequently, she developed complications related to

endometriosis and submitted documentation from her

physicians ordering her to work on light duty. Neville

maintains that her supervisor, Pedro Soriano, refused

to allow her “light duty” because “guys don’t have

hysterectomies,” and, as a result, she suffered a right

knee injury and lower back sprain. Neville took a

medical leave of absence from June 25 or 26, 2007, to

May 12, 2008. On June 26, 2007, Neville received a

performance evaluation from Soriano with a rating of

“Fully Successful” rather than her previous rating of

“Outstanding.” Neville maintains that Soriano said

he would not give an “Outstanding” rating to someone

he and “the guys did not respect.”

As a result of her injury, Neville filed a claim

with the Department of Labor’s Office of Workers’

Compensation Program (OWCP). Although she

received her regular base salary for the requisite 45

days after she was injured, Neville maintains she did

not begin to receive workers’ compensation benefits

until January 2008. On May 12, 2008, Neville

returned to work on light duty status. However,

Neville believed the modified position exceeded her

physical limitations. As a result, Neville stopped

reporting to work on August 26, 2008. On November

6, 2008, the OWCP terminated Neville’s benefits on

the grounds that she had abandoned suitable work

offered by her employer without any justification. In

January 2009, Neville took disability retirement and

retired from both her military and civilian positions.

Meanwhile, on November 13, 2007, Neville

filed an EEOC complaint alleging that the United

States Air Force (USAF) and the National Guard

Bureau (NGB) discriminated against her on the bases

of sex (female) and disability (complications from her

hysterectomy).

On January 26, 2011, after various hearings,

an EEOC Administrative Law Judge (ALJ) issued a

decision finding that Neville established she had been

subjected to gender discrimination when Soriano

refused to assign her light duty and when he issued

an annual performance rating of “Fully Successful”

rather than “Outstanding.”

The ALJ also noted

numerous incidents of various crew members calling

Neville offensive names and subjecting Neville to

other harassment.

As a result of the discrimination, the ALJ

ordered relief in the form of (1) back pay with interest

and benefits; (2) non-pecuniary compensatory

damages for the emotional and physical harm Neville

suffered as a result of the discrimination; (3)

attorneys’ fees and costs of $63,675.03; and (4) an

amendment to Neville’s 2006-07 performance

appraisal. The ALJ also ordered NGB to provide EEO

training, post a notice of discrimination for 12

months, and recommended that disciplinary action be

taken against Soriano.

Thereafter, the federal and state defendants

declined to implement the ruling on jurisdictional

grounds, asserting the actions arose out of Neville’s

service as a military technician, were barred by the

Feres doctrine, and also that the ALJ ordered relief in

contravention of the Eleventh Amendment because

the Texas Military Department is a state entity and

did not waive its sovereign immunity. The USAF and

NGB appealed the ALJ’s decision and Neville

counter-appealed. On August 1, 2013, the EEOC’s

Office of Federal Operations (OFO) issued a final

decision. The 2013 OFO decision: (1) upheld the

ALJ’s decision finding sex discrimination; (2) ordered

an increased non- pecuniary award of $150,000 be

paid to Neville within 60 days; (3) ordered the NGB to

provide Neville back pay for the period between June

25, 2007, and August 26, 2008, as well as attorneys’

fees and other remedial action within 60 days; (4)

ordered the NGB to amend Neville’s 2006-07

performance rating within 60 days; (5) ordered the

NGB to provide Title VII training to all management

officials at Lackland; (6) ordered the NGB to take

disciplinary action against responsible management

officials; and (7) ordered the NGB to post a notice of

discrimination.

On December 17, 2013, Neville filed a petition

for enforcement (PFE) of the order with the EEOC,

claiming that the USAF, NGB and Texas Air National

Guard (TXANG) had disregarded the 2013 OFO

decision.

On July 2, 2015, the EEOC issued its 2015 PFE

decision finding: (1) at the time of Neville’s claim, she

was acting as a federal civilian employee under the

protection of Title VII; (2) the TXANG is a federal

executive agency for the purposes of Title VII; and the

TXANG discriminated against Neville based on her

sex. In addition to the above-listed requirements of

the 2013 OFO decision, the 2015 PFE decision

ordered the TXANG to: (1) pay Neville $150,000 in

non- pecuniary compensatory damages, as well as

$63,675.03 in attorneys’ fees and costs, within 30

days; (2) compensate Neville for all back pay, with

interest and benefits between June 25, 2007 and

August 26, 2008, within 30 days; calculate and

compensate Neville for any overtime; (4) amend

Neville’s 2006-07 performance appraisal; and (7)

provide at least 16 hours of in-person training to all

management officials and employees at Lackland,

149th Fighter Wing, Flight Line Section, regarding

Title VII responsibilities. The 2015 PFE decision also

ordered the Department of Defense, as head of the

NGB and USAF, to consider taking appropriate

disciplinary measures against the responsible

employees and to post notice of discrimination.

Additionally, the 2015 PFE decision said that, if the

agencies failed to comply, then Neville had the right

to file a civil action to force compliance under 29

C.F.R. §§ 1614.407, 1614.408 and 1614.503(g).

On March 18, 2016, Neville filed an Amended

Petition for Writ of Mandamus in the U.S. District

Court for the District of Columbia seeking to compel

the EEOC to enforce the final decision on her PFE or,

alternatively, to force the defendants to comply with

the PFE.1 In December 2016, Neville’s amended

petition was transferred to the Western District of

Texas. Thereafter, the defendants filed motions to

dismiss and, alternatively, for summary judgment.

Neville filed a motion for summary judgment and,

alternatively, for a directed verdict. On November 20,

2017, the district court granted the defendants’

motions and denied Neville’s. The court dismissed

Neville’s petition for writ of mandamus. Neville

subsequently filed this appeal.

1 Neville filed her original petition for writ of mandamus

on July 1, 2015, one day before the EEOC issued its 2015 PFE

Decision.

STANDARD OF REVIEW

Under federal law, “[t]he district courts shall

have original jurisdiction of any action in the nature

of mandamus to compel an officer or employee of the

United States or any agency thereof to perform a duty

owed to the plaintiff.” See 28 U.S.C. §1361. A district

court awards mandamus “in the exercise of a sound

judicial discretion.” Newsome u. E.E.O.C., 301 F.3d

227, 231 (5th Cir. 2002) (quoting Duncan Townsite

Co. v. Lane, 245 U.S. 308, 311 (1917)). A district

court’s decision not to exercise jurisdiction under the

mandamus statute is reviewed for an abuse of

discretion. Newsome, 301 F.3d at 231. Further:

writ

mandamus

“extraordinary remedy.” Adams v. Georgia

Gulf Corp., 237 F.3d 538, 542 (5th Cir.2001).

“Mandamus is not available to review

discretionary acts of agency officials.” Green u.

Heckler, 742 F.2d 237, 241 (5th Cir. 1984).

Further, in order to be granted a writ of

mandamus, “[a] plaintiff must show a clear

right to the relief sought, a clear duty by the

defendant to do the particular act, and that no

other adequate remedy is available.” U.S. v.

O’Neil, 767 F.2d 1111, 1112 (5th Cir. 1985)

(quoting Green, 742 F.2d at 241).

Id.

We review de novo a district court’s dismissal

under Rule 12(b)(1) for lack of subject matter

jurisdiction. Randall D. Wolcott, M.D., P.A. u.

Sebelius, 635 F.3d 757, 762 (5th Cir. 2011). The

district court must dismiss the action if it finds that it

lacks subject matter jurisdiction. Fed. R. Civ. P.

12(h)(3). “A trial court may find that subject matter

jurisdiction is lacking based on (1) the complaint

alone; (2) the complaint supplemented by undisputed

facts evidenced in the record; or (3) the complaint

supplemented by undisputed facts plus the court’s

resolution of disputed facts.” Wolcott, 635 F.3d at 762

(internal marks and citations omitted).

A district court’s dismissal under Rule 12(b)(6)

is reviewed de novo, accepting all well-pleaded facts

as true and viewing them in the light most favorable

to the plaintiff. Id. at 763. We likewise review

questions of law de novo. Szwak u. Earwood, 592 F.3d

664, 668 (5th Cir. 2009). Reversal is not appropriate

where the district court can be affirmed on any

grounds. Wolcott, 635 F.3d at 763.

We review de novo a district court’s grant of

summary judgment, viewing all evidence in the light

most favorable to the nonmoving party and drawing

all reasonable inferences in that party’s favor. Dediol

v. Best Chevrolet, 655 F.3d 435, 439 (5th Cir. 2011).

Summary judgment is proper when “the movant

shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(a). A genuine

issue of material fact exists “if the evidence is such

that a reasonable jury could return a verdict for the

non-moving party.” Crawford v. Formosa Plastics

Corp., 234 F.3d 899, 902 (5th Cir.2000) (quoting

Anderson v. Liberty Lobby, Inc., All U.S. 242 (1986)).

DISCUSSION

I. Whether the district court erred in finding

the EEOC did not owe Tina Neville a duty to

enforce its judgments against its co-defendants.

After Neville’s case was transferred to the

Western District of Texas, due to the complexity of the

Case and the multiple parties involved, the district

court dismissed all then-pending motions without

prejudice to re-filing in the interests of efficient case

management.

Subsequently, the EEOC, federal

defendants, and the state defendant separately filed

motions to dismiss pursuant to Rules 12(b)(1) and

12(b)(6) of the Federal Rules of Civil Procedure and,

alternatively, for summary judgment. Neville filed a

motion for summary judgment and, alternatively, for

directed verdict.

The district court found that it did not have

jurisdiction over Neville’s mandamus claims and

granted the defendants’ motions to dismiss and

alternative motions for summary judgment. In doing

so, the district court agreed with the EEOC that it did

not have a nondiscretionary duty to attempt to obtain

an agency’s compliance with a final EEOC order after

the employee commenced a civil action in federal

court.

Neville asserts that the EEOC owed her a duty

to take all necessary action to enforce its order and

that the district court erred. Neville also asserts that

the EEOC reassumed any obligation it may have

waived when it acted on her case again. The action to

which Neville refers was merely a letter sent on

January 25, 2017, from the EEOC to various

defendants “reminding them the NDAA [National

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Defense Authorization Act] of 2017 clarifies that

federal employment discrimination claims arising

from activities occurring when National Guard

members are in civilian pay status are indeed covered

by Title VIL”

Under 29 C.F.R. § 1614.503, “[a] complainant

may petition the Commission for enforcement of a

decision issued under the Commission’s appellate

jurisdiction” setting forth “the reasons that lead

the complainant to believe that the agency is

not complying with the decision.” 29 C.F.R.

§ 1614.503(a). The EEOC is then required to

undertake the necessary steps to gain compliance. 29

C.F.R. § 1614.503(b).

Further, Neville had the option of filing a civil

action to enforce compliance or filing a de novo civil

action on the underlying discrimination claim. See

Massingill v. Nicholson, 496 F.3d 382, 384 (5th Cir.

2007).

The EEOC regulations state:

A complainant who has filed an

individual complaint, an agent who has filed a

class complaint or a claimant who has filed a

claim for individual relief pursuant to a class

complaint is authorized under title VII, the

ADEA and the Rehabilitation Act to file a civil

action in an appropriate United States District

Court:

(a) Within 90 days of receipt of the final

action on an individual or class

complaint if no appeal has been filed;

11a

(b) After 180 days from the date of filing

an individual or class complaint if an

appeal has not been filed and final action

has not been taken;

Commission's final decision on an

appeal; or

(d) After 180 days from the date of filing

an appeal with the Commission if there

has been no final decision by the

Commission.

29 C.F.R. § 1614.407.

Additionally, pursuant to employment by the

federal government:

Within 90 days of receipt of notice of

final action taken by a department, agency, or

unit referred to in subsection (a), or by the

Equal Employment Opportunity Commission

upon an appeal from a decision or order of such

department, agency, or unit on a complaint of

discrimination based on race, color, religion,

sex or national origin, brought pursuant to

subsection (a) of this section, Executive Order

11478 or any succeeding Executive orders, or

after one hundred and eighty days from the

filing of the initial charge with the department,

agency, or unit or with the Equal Employment

Opportunity Commission on appeal from a

decision or order of such department, agency,

or unit until such time as final action may be

taken by a department, agency, or unit, an

employee or applicant for employment, if

aggrieved by the final disposition of his

12a

complaint, or by the failure to take final action

on his complaint, may file a civil action as

provided in section 2000e-5 of this title, in

which civil action the head of the department,

agency, or unit, as appropriate, shall be the

defendant.

42 U.S.C. § 2000e-16(c).

Neville filed a petition for enforcement with the

EEOC. But, when the EEOC failed to issue a decision

within 180 days, Neville filed her petition for writ of

mandamus. This court has said that an employee’s

decision to pursue Title VII claims in federal court

typically mandates dismissal of the EEOC complaint

and “precludes the EEOC from entertaining an

appeal of that dismissal.” Walch v. Adjutant Gen.’s

Dep’t of Tex., 533 F.3d 289, 304 n.7 (5th Cir. 2008); see

also 29 C.F.R. §§ 1614.107(a)(3), 1614.409.

Based on this authority, we conclude that the

district court correctly granted the EEOC’s motion to

dismiss and, alternatively, for summary judgment.

II.

Whether the district court erred in

finding that the federal defendants and state

defendant were immune from prosecution

based on the Feres doctrine.

The Feres doctrine of intra-military immunity

precludes members of the military from pursuing

claims against the military or the United States for

injuries that arise out of or in the course of military

service. See Feres v. United States, 340 U.S. 135, 146

(1950). Here, the federal defendants argued, and the

district court agreed, that Neville’s mandamus claims

arose out of or in the course of activity incident to her

13a

military service. Thus, judicial review was precluded.

Further, they assert on appeal that, even if the Title

VII claims arose purely from Neville’s civilian

position, they would still be barred by the Feres

doctrine.

Neville asserts that the Feres doctrine does not

apply because her mandamus claims arose from her

position as a civilian employee. Neville acknowledges

that “the reach of Feres is uncertain in cases

regarding national guard technicians.” (Appellant’s

Brief at 27). Neville cites Overton v. New York State

Div. of Military and Naval Affairs, 373 F.3d 83, 92 (2d

Cir. 2004).

Overton states that “[t]here are at least two

persuasive reasons to conclude that the Feres doctrine

may apply to a lawsuit based on alleged actions taken

while the Guard Technician is being paid as a civilian

employee.” Id. at 92. Those reasons are: (1) “a Guard

Technician’s employment as a civilian is usually in

support of a mission that is ultimately military in

nature;” and (2) “there are concerns about the

intrusive nature of the inquiry that would be

necessary for a federal court to disentangle a

plaintiffs

civilian

and

military

duties

.... The mere process of arriving at correct

conclusions would disrupt the military regime.” Id.,

373 F.3d at 92. (internal marks and citation omitted).

The Overton court then explained that the application

of the Feres doctrine to certain Title VII actions is not

entirely straightforward, as Feres leaves matters

incident to service to the military “in the absence of

congressional direction to the contrary.” Id. at 93.

14a

In Brown v. United States, 227 F.3d 295, 299

(5th Cir. 2000), this court stated that a Guard

technician’s Title VII racial discrimination claim

would be permissible if it involved only actions taken

purely in a civilian capacity. However, this court

noted that categorizing such a claim may be difficult

and that a civilian claim might be military if it

challenged conduct that was “integrally related to the

military’s unique structure.” Id. at 299 n.5 (citing

Mier u. Owens, 57 F.3d 747, 750 (9th Cir. 1995)).

Further, in Brown, the actions were considered

military and the court was not required to determine

which cases would be purely civilian.

In 2008, this court considered whether Feres

barred the discrimination and retaliation claims of a

DST. See Walch, 533 F.3d 289. In a situation where

the classification of a claim is difficult, the court said

it “might turn to factors such as whether the conduct

is integrally related to the military’s unique

structure.” Id. at 299 (internal marks and citations

omitted). Further, the court said, “we find in the

Federal Circuit's opinion a useful listing of the claims

that dual-status employees could not pursue as those

that relate to enlistment, transfer, promotion,

suspension and discharge or that otherwise involve

the military hierarchy.” Id. at 300 (internal marks

and citations omitted). This court then concluded:

Under these precedents, 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.

Some of those decisions might on occasion be

15a

infected with the kinds of discrimination that

Title VII seeks to correct, but in the military

context the disruption of judicially examining

each claim in each case has been held to

undermine other important concerns.

Walch, 533 F.3d at 301.

This court also addressed this matter in

Williams v. Wynne, 533 F.3d 360 (5th Cir. 2008) and

Filer v. Donley, 690 F.3d 643 (5th Cir. 2012).

Specifically, in Filer, this court concluded:

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. Judicial re

examination of such decisions would be

disruptive to the military.

Id. at 649 (internal marks and citations omitted).

Further, the court said:

[Bjecause 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

16a

cohesion. Feres broadly prohibits tort suits

where a service 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.

Id., at 649-50.

As stated by the district court, the events

giving rise to Neville’s claims occurred on Lackland

Air Force Base. Neville performed the same mechanic

tasks of servicing F-16 fighter jets in both her civilian

and military capacities as a DST. The district court

correctly concluded that those tasks are military in

nature and integral to the military mission. Neville’s

petition for writ of mandamus sought to compel the

defendants to, among other things, revise her

performance appraisal, provide personnel training at

Lackland, take disciplinary action against various

military personnel, and restore benefits including in

grade steps and promotions. Based on all of that, the

district court correctly concluded that adjudicating

Neville’s claims would require the court to review

questions of military decision-making barred by the

Feres doctrine.

III. Whether the district court erred when it did

not order separate counsel for the EEOC given

the alleged inherent conflict of interest.

Neville asserts that the district court abused

its discretion by not ordering separate counsel for the

EEOC because the EEOC and the other agencies

involved had differing positions,

The federal

defendants, including the EECO, dispute the claim

that the Department of Justice or the Attorney

17a

General cannot represent multiple federal agencies

simultaneously and assert that there is no conflict of

interest.

Neville cites Rule 1.06 of the Texas

Disciplinary Rules of Professional Conduct for the

proposition that an attorney cannot represent two

parties whose interests are materially and directly

adverse to each other. She asserts that the EEOC is

seeking to enforce its judgment against defendants

who argue the EEOC never had jurisdiction to decide

it in the first place. However, the EEOC argues that

once she filed her petition, it no longer had an

obligation to attempt enforcement.

The Attorney General has “plenary power over

all litigation to which the United States or one of its

agencies is a party.” Marshall v. Gibson’s Prod., Inc.

of Plano, 584 F.2d 668, 676 n.ll (5th Cir. 1978).

Neville has failed to provide any evidence that the

Texas rules somehow override this. Thus, Neville has

failed to demonstrate any abuse of discretion on this

issue.

Accordingly, for the reasons set out herein, we

AFFIRM.

18a

FILED: JUNE 28, 2019

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-50438

D.C. Docket No. 5:16-CV-1231

TINA NEVILLE,

Plaintiff - Appellant

VICTORIA LIPNIC, Acting Chair of the U.S.

Equal

Employment

Opportunity

Commision;

PATRICK M. SHANAHAN, ACTING SECRETARY,

U.S. DEPARTMENT OF DEFENSE; HEATHER

WILSON, Secretary of the Air Force; GENERAL

JOSEPH L. LENGYEL, Chief, National Guard

Bureau;JOHN F. NICHOLS, Major, Adjutant

General-Texas Military,

Defendants - Appellees

Appeal from the United States District Court

for the Western District of Texas

Before CLEMENT, GRAVES and OLDHAM, Circuit

Judges.

JUDGMENT

This cause was considered on the record on

appeal and was argued by counsel.

19a

It is ordered and adjudged that the judgment

of the District Court is affirmed.

IT IS FURTHER ORDERED that plaintiffappellant pay to defendants-appellees the costs on

appeal to be taxed by the Clerk of this Court.

20a

FILED: AUGUST 30, 2019

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-50438

TINA NEVILLE,

Plaintiff — Appellant

VICTORIA LIPNIC, Acting Chair of the U.S. Equal

Employment Opportunity Commission; PATRICK M.

SHANAHAN,

ACTING

SECRETARY,

U.S.

DEPARTMENT

DEFENSE;

HEATHER

WILSON, Secretary of the Air Force; GENERAL

JOSEPH L. LENGYEL, Chief, National Guard

Bureau; JOHN F. NICHOLS, Major, Adjutant

General-Texas Military,

Defendants - Appellees

Appeal from the United States District Court for the

Western District of Texas

ON PETITION FOR REHEARING EN BANC

(Opinion June 28, 2019, 5 Cir..

Before CLEMENT,

Circuit Judges.

GRAVES,

F.3d

and

OLDHAM,

21a

PER CURIUM:

( )

Treating the Petition for Rehearing En Bane

as a Petition for Panel Rehearing, the Petition

for Panel Rehearing is DENIED. No member

of the panel nor judge in regular active

service of the court having requested that the

court be polled on Rehearing En Bane (FED.

R. APP. P. and 51 n CIR. R. 35), the Petition

for Rehearing En Bane is DENIED.

( )

Treating the Petition for Rehearing En. Bane

as a Petition for Panel Rehearing, the Petition

for Panel Rehearing is DENIED. The court

having been polled at the request of one of the

members of the court and a majority of the

judges who are in regular active service and

not disqualified not having voted in favor

(FED. R. APP. P. and 5TH ClR. R. 35), the

Petition for Rehearing En Bane is DENIED.

ENTERED FOR THE COURT:

/s/ James E. Graves. Jr.

UNITED STATES CIRCUIT JUDGE

22a

FILED: MARCH 29, 2018

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

TINA NEVILLE,

§ No. 5:16-CV§ 1213-DAE

Petitioner,

vs.

VICTORIA LIPNIC, in Her Official §

Capacity as Acting Chair of the

United States Equal Employment §

Opportunity Commission, et al.,

Respondents.

ORDER: (1) GRANTING RESPONDENTS’

MOTIONS TO DISMISS AND ALTERNATIVE

MOTIONS FOR SUMMARY JUDGMENT (DKTS.

## 61, 63, 64); (2) DENYING PETITIONER’S

MOTION FOR SUMMARY JUDGMENT AND

ALTERNATIVE MOTION FOR DIRECTED

VERDICT (DKT. # 66); AND (3) INSTRUCTING

THE CLERK’S OFFICE TO ENTER JUDGMENT

AND TO CLOSE THIS CASE

Before the Court are four motions: (1) a Motion

to Dismiss and Alternative Motion for Summary

Judgment filed by Victoria Lipnic, in her official

capacity as the Acting Chair of the United States

Equal Employment Opportunity Commission (the

23a

“EEOC”) on March 6, 2017 (Dkt. # 64); (2) a Motion to

Dismiss and Alternative Motion for Summary

Judgment filed by Defendants Jim Mattis, Secretary

of the United States Department of Defense (the

“DoD”), Heather Wilson, Secretary of the United

States Air Force (the “USAF”),1 and General Joseph

L. Lengyel, Chief of the National Guard Bureau (the

“NGB”) (collectively, “Federal Respondents”), on

March 6, 2017 (Dkt. # 63); (3) a Motion to Dismiss and

Alternative Motion for Summary Judgment filed by

Defendant Major General John F. Nichols, Adjutant

General of the Texas National Guard (the “TXNG” or

“State Respondent”), on March 6, 2017 (Dkt. #61);

and (4) a Motion for Summary Judgment and

Alternative Motion for Directed Verdict filed by

Petitioner Tina Neville (“Petitioner” or “Neville”) on

March 7, 2017 (Dkt. # 66).

On November 20, 2017, this Court held a

hearing on the parties’ motions. At the hearing,

Michael D.J. Eisenberg, Esq. represented Petitioner,

Joseph C. Rodriguez, Esq. represented the EEOC,

Joseph C. Rodriguez, Esq. represented Federal

Respondents, and Matthew A. Deal, Esq. represented

State Respondent. The motions are fully briefed and

ripe for review.

After careful consideration of the memoranda

and exhibits filed in support of and in opposition to

the motions, as well as the arguments advanced at the

hearing, the Court—for the reasons that follow—(1)

GRANTS the EEOC’s Motion to Dismiss and

Alternative Motion for Summary Judgment (Dkt. #

1 Heather Wilson automatically substituted Lisa Disbrow as the

respondent for the USAF pursuant to Federal Rule of Civil

Procedure 25(d).

24a

64); (2) GRANTS Federal Respondents’ Motion to

Dismiss and Alternative Motion for Summary

Judgment (Dkt. # 63; (3) GRANTS State

Respondent’s Motion to Dismiss and Alternative

Motion for Summary Judgment (Dkt. # 61); and (4)

DENIES Neville’s Motion for Summary Judgment

and Alternative Motion for Directed Verdict (Dkt. #

66). The Clerk’s Office is INSTRUCTED to ENTER

JUDGMENT and to CLOSE THIS CASE.

BACKGROUND

Overview

Underlying these motions is an Amended

Petition for Writ of Mandamus (“the Amended Writ

Petition”) filed by Neville on March 22, 2016, in the

United States District Court for the District of

Columbia. (“Am. Pet.,” Dkt. # 32.) Broadly, Neville

seeks a writ of mandamus compelling: (1) the EEOC

to enforce a final decision on a Petition for

Enforcement (“PFE”) that it issued in July 2015; or

(2) Federal Respondents and/or State Respondent to

comply with the 2015 PFE. (Id.)

II.

Factual Background

At all relevant times, Petitioner was employed

as a Dual-Status National Guard Technician (“DualStatus Technician”) at Lackland Air Force Base in

San Antonio, Texas. (Id. at 1-2.)

Dual-Status

Technicians are by statute “employee [s] of the . . .

Department of the Air Force . . . and [civilian]

employee[s] of the United States.” 32 U.S.C.

§ 709(e).2 As a condition to their civilian employment,

2 2 Section 709 states in relevant part:

25a

a Dual-Status Technician must become and remain a

uniformed member of the National Guard. See 32

U.S.C. §§ 709(b), (d)—(e). According to Neville, if for

any reason she lost her affiliation with the National

Guard, within 30 days she would also lose her civilian

position. (Am. Pet. at 2.) At the time the events giving

rise to this action occurred, Neville served in a civilian

capacity as a WG-12 Aircraft Mechanic and in a

military capacity as an Air Force Master Sergeant

(“MSgt.”) in the 149th Fighter Wing at Lackland Air

Force Base. (Id. at 3.)

In March 2006, Neville had a hysterectomy, at

which point endometrial tissue was discovered and

removed from some of her internal organs. (Id. at 4.)

Over the subsequent year and as a result of

complications from this surgery, she submitted

documentation to her supervisor from her physicians

that ordered her to work on light duty. (Id.) Despite

(a) Under regulations prescribed by the Secretary of the

Army or the Secretary of the Air Force, as the case may

be, and subject to subsection(b) of this section persons

may be employed as technicians [.]

(b) A technician employed under subsection (a) shall,

while so employed ... (1) be a member of the National

Guard[.]

adjutants general referred to in section 314 of this title,

to employ and administer the technicians authorized by

this section.

(d) A technician employed under subsection (a) is an

employee of the Department of the Army or the

Department of the Air Force[.]

(e) Notwithstanding any other provision of law and

under regulations prescribed by the Secretary

concerned!.]

32 U.S.C. §§ 709(a)-(e).

26a

being on “light duty,” Neville alleges that her new

supervisor continued to assign her to full duty work

because “guys don’t have hysterectomies.” (Id.: see

also “2013 OFO Decision,” Dkt. # 65-7, Ex. F at 2.)

On June 25, 2007, despite her continued “light

duty” status, Neville’s supervisor—Master Sergeant

(“MSgt”) Pedro Soriano (“Soriano”)—purportedly

assigned her the full duty task of airplane recovery

and tank reconfiguration. (Am. Pet. at 5.) While

attempting to remove a 20-pound ladder leaning

against an airplane, Neville maintains that she

experienced a sudden sharp pain in her back and knee

due to a lack of stomach muscle support from the

surgery. (Id.) Afterwards, Neville took a medical leave

of absence from June 25 or 26, 2007, to May 12, 2008.

(Id.: see also 2013 OFO Decision at 2; “2011 ALJ

Decision,” Dkt. # 62-1 at 10, 33.)

On June 26, 2007, Neville received a

performance evaluation from Soriano. (Am. Pet. at 5.)

Neville alleges that, while the wording of this

appraisal was nearly identical to her 2005-2006

evaluation where she received “Outstanding” ratings,

on this appraisal she only received a rating of “Fully

Successful.” (Id.) Neville claims she questioned

Soriano about this critique and, in response, Soriano

purportedly replied that he would not give an

“outstanding” rating to employees who he and “the

guys did not respect.” (Id.: see also 2013 OFO

Decision at 2.)

Following her injury, Neville filed a claim with

the Department of Labor’s (“DOL”) Office of Workers’

Compensation Program (“OWCP”) for a right knee

and lower back sprain, which the DOL accepted. (2011

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ALJ Decision at 10.) Neville claims that, although she

received her regular base salary (“Continuation of

Pay” or “COP”) for the requisite 45 days after she was

injured, she did not begin to receive OWCP benefits

until January 2008. (Id.)

On May 12, 2008, Neville returned to work in a

light duty status. (Id. at 33.) Although Neville

received a light duty position upon returning to work,

she believed the modified position exceeded her

physical limitations. (Id.) Neville claims that, as a

result, she stopped reporting to work on August 26,

2008.

(Id.) On November 6, 2008, the OWCP

terminated Neville’s benefits on the grounds that she

had abandoned suitable work offered by her employer

without any justification. (Id.) In January 2009,

Neville took disability retirement and retired from her

military and civilian positions at the TXANG. (2011

ALJ Decision at 34.)

III.

Administrative Procedural Background

2011 ALJ Decision

On November 13, 2007, Neville filed an EEOC

complaint alleging that the USAF and the NGB

discriminated against her on the basis of sex (female).

and disability (complications from hysterectomy

surgery). (Am. Pet. at 5; see also “Discrim. Compl.,”

Dkt. # 62-3, Ex. 3.) On January 26, 2011, after several

hearings, an EEOC Administrative Law Judge

(“ALJ”) issued a decision (“2011 ALJ Decision”)3

finding that Neville had established that she had been

subjected to gender discrimination when: (1) on June

25, 2007, Soriano refused to honor her request for

3 (Dkt. #62-1, Ex. 1.)

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light duty, resulting in knee and back injuries; and (2)

on June 26, 2007, Soriano issued an annual

performance appraisal rating of “Fully Successful”

instead of “Outstanding” to Neville. (Am. Pet. at 5; see

also 2011 ALJ Decision at 32.) Further, the ALJ

found that Neville failed to establish that she had

been subjected to disability discrimination. (2011 ALJ

Decision at 24.) As a point of clarification, the ALJ

noted that its finding that Neville failed to establish

“disability [discrimination] was irrelevant to the issue

of whether the [TXANG] discriminated against her

when it failed to accommodate her request for light

duty.” (Id. at 24 n.14.)

In the 2011 ALJ Decision, as a result of the

gender-based discrimination, the ALJ ordered relief

in the form of: (1) back pay with interest and benefits;

(2) non-pecuniary compensatory damages for the

emotional and physical harm she suffered as a result

of the gender discrimination; and (3) attorneys’ fees

and costs in the amount of $63,675.03. (Am. Pet. at

6.) The ALJ also ordered the NGB to amend Neville’s

2006-2007 performance appraisal. (Id-) Finally, the

ALJ ordered the NGB to provide EEO training, post a

notice of discrimination for 12 months, and

recommended that the NGB take disciplinary action

against Soriano. (Id.)

2013 OFO Decision

On August 1, 2013, the EEOC’s Office of

Federal Operations (“OFO”) issued a final decision

(the “2013 OFO Decision”) regarding the appeal. (See

generally 2013 OFO Decision; Scott v. Johanns. 409

F.3d 466, 468 (D.C. Cir. 2005) (noting that “OFO’s

decision amounts to a final disposition, triggering the

29a

right to sue”); see also 29 C.F.R. § 1614.405. The 2013

OFO Decision, inter alia: (1) upheld the ALJ’s decision

finding of gender discrimination; (2) ordered an

increased non-pecuniary award of $150,000 be paid to

Neville within 60 days; (3) ordered the NGB to provide

Neville back pay for the period between June 25, 2007,

and August 26, 2008, as well as attorneys’ fees and

other remedial actions within 60 days; (4) ordered the

NGB to amend Neville’s 2006-2007 performance

within 60 days; (5) ordered the NGB to provide Title

VII training to all management officials at Lackland

Air Force Base; (6) ordered the NGB to take

disciplinary action against responsible management

officials; and (7) ordered the NGB to post a notice of

discrimination. (Am. Pet. at 3, 6, 8; see also 2013 OFO

Decision at 11-14.)

The 2013 OFO Decision outlined Title VII

jurisdiction regarding Dual-Status Technicians under

both the EEOC’s previous decisions and federal court

decisions. (Am. Pet. at 6.) Specifically, the 2013 OFO

Decision noted that the case-by-case determination of

whether a personnel action arose during a DualStatus Technician’s military or civilian capacity “is a

factual determination that must be made by the

Commission for the purpose of deciding whether the

Commission has jurisdiction in a particular case.” (Id.

at 6—7; see also 2013 OFO Decision at 5.) Per Neville,

the 2013 OFO Decision then found that the record

clearly established that gender discrimination

occurred while she was in her federal civilian capacity

during the workweek in her Aircraft Mechanic

position, not during her weekend drill capacity in the

National Guard. (Am. Pet. at 7.) Of relevance, the

2013 OFO Decision affirmed that Neville was on

“light duty” for her civilian work and that she was

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injured while maintaining aircraft in her civilian

position. (Id.) According to the 2013 OFO Decision,

both the discriminatory performance appraisal and

the gender-based harassment occurred while she was

working as a civilian mechanic, and her supervisor

and co-workers committed the discrimination in their

civilian capacities. (Id. at 8.) The 2013 OFO Decision

states that “compliance with the Commission’s

corrective action is mandatory.” (Id.: see also 2013

OFO Decision at 11.) The 2013 OFO Decision

instructed the NGB that it had 60 days to comply with

the decision.

On October 21, 2013, after the 60-day

compliance deadline imposed by the 2013 OFO

Decision, Major General John F. Nichols, Adjutant

General of the Texas National Guard, sent Neville a

letter indicating that, under his authority pursuant to

32 U.S.C. § 709, the EEOC does not have jurisdiction

over Neville’s complaint. (Am. Pet. at 8: see also “Mai.

Gen. Letter,” Dkt. # 62-7, Ex. 7.) His letter stated that

the ALJ’s and the OFO’s determinations of

jurisdiction were improper. (Am. Pet. at 8.) The letter

stated that he would order a military investigation

and render a decision as to Neville’s complaint, as well

as allow Neville an opportunity to respond, before he

made “a final decision from which no further appeal is

authorized.” (Id. at 9.)

2015 PFE Decision

Neville claims that, due to the USAF’s, NGB’s,

and TXANG’s “blatant disregard” of the 2013 OFO

Decision, she filed a petition for enforcement (“PFE”)

of the order with the EEOC on December 17, 2013.

(Id. (citing 29 C.F.R. § 1614.503(a)).) On July 2, 2015,

31a

one day after Neville filed her original petition for writ

of mandamus in federal court, the EEOC issued its

2015 PFE Decision, and for the third time, found that:

(1) at the time of the events underlying Neville’s

claims, she was acting as a federal civilian employee

under the protection of Title VII; (2) the TXANG is a

federal executive agency for purposes of Title VII; and

(4) the TXANG discriminated against Neville based

on her gender. (Am. Pet. at 9; see also 2015 PFE

Decision at 5-16.)

In addition to the requirements of the 2013

OFO Decision, the 2015 PFE Decision ordered the

TXANG to: (1) pay Neville $150,000 in non-pecuniary

compensatory damages, as well as $63,675.03 in

attorneys’ fees and costs, within 30 days; (2)

compensate Neville for all back-pay, with interest and

benefits, for the time between June 25, 2007 and

August 26, 2008, within 30 days; (3) calculate and

compensate Neville for any overtime; (4) amend

Neville’s 2006-2007 performance appraisal; and (7)

provide at least 16 hours of in-person training to all

management officials and employees at Lackland Air

Force Base, 149th Fighter Wing, Flight Line Section,

regarding Title VII responsibilities. (Am. Pet. at 9-10;

see also 2015 PFE Decision at 13-14.) Further, the

2015 PFE Decision ordered the DoD, as head of the

NGB and the USAF, to: (1) consider taking

appropriate disciplinary measures against the

responsible management officials and coworkers

involved in harassing Neville; and (2) to post a notice

of discrimination. (Id. at 9-10; see also 2015 PFE

Decision at 13-14.)

Finally, the 2015 PFE Decision stated that, if

the agencies failed to comply, then Neville “has the

32a

right to file a civil action to enforce compliance with

the Commission’s order prior to or following an

administrative petition for enforcement.” (2015 PFE

Decision at 15 (citing 29 C.F.R. §§ 1614.407, 1614.408,

1614.503(g).) It is undisputed that there has been no

compliance with the 2011 ALJ Decision, the 2013

OFO Decision, or the 2015 PFE Decision. (See

generally Dkt. # 32.)

Respondents’ Positions

The parties generally do not dispute Neville’s

characterization of the factual and procedural posture

of the case. For example, State Respondent states,

inter alia, that it “declined to implement” the 2013

OFO Decision on jurisdictional grounds based on its

belief that Neville’s writ petitions arise from her

service as a Dual-Status Technician. (Dkt. # 61 at 8.)

State Respondent notes that, while the OFO rejected

these jurisdictional arguments and issued a decision

ordering relief in favor of Neville, Maj. Gen. Nichols

properly determined that, under his military

authority, the allegations in Neville’s Title VII

complaint arose from military aspects of her daily

duties as an F-16 crew chief. (Id.) Accordingly, State

Respondent ordered a military investigation within

the National Guard’s Military Discrimination

Complaint System, which was not appealable beyond

that office and which found that Neville’s

discrimination claims were unsubstantiated. (Id. at

9.) State Respondent maintains that it also declined

to comply with the subsequent 2015 PFE Decision for

the same jurisdictional reasons. (Id.) Finally, State

Respondent indicates that it notified the EEOC that

it would not be enforcing the Decisions. (See, e.g.. “TXTAG Letter to EEOC,” Dkt. # 62-8, Ex. 8).)

33a

Similarly, Federal Respondents—the DoD, the

USAF, and the NGB—indicate that they too declined

to enforce the 2013 OFO Decision because Maj. Gen.

Nichols of the Texas National Guard informed the

agencies that he would not implement the Decisions.

(“Fact App’x,” Dkt. # 63-1 at 10-13; see also generally

Maj. Gen. Letter; TX-TAG Letter to EEOC.) Federal

Respondents state that they appealed the 2011 ALJ

Decision to the EEOC on jurisdictional grounds,

arguing that Neville’s claims arose from her military

position. (Fact App’x at 11.) Additionally, Federal

Respondents argued that the relief ordered in the

2015 ALJ decision violated the Eleventh Amendment

because the TXANG is an entity of the State of Texas

protected by sovereign immunity. (Id.) Similarly,

Federal Respondents indicate that they declined to

enforce the 2015 PFE Decision for the same

jurisdictional reasons, and because, in March 2015,

Maj. Gen. Nichols’ military investigation determined

that Neville’s allegations were “unsubstantiated” or

were “[bjeyond the scope of the Air National Guard

Discrimination Complaint System.” (Id. at 13.)

In a slightly different vein, the EEOC argues in

part that—although Neville had a clear right to file

her Original Writ Petition in federal court because the

EEOC undisputedly took more than 180 days to rule

on her PFE—initiating the civil action for mandamus

relief before the 2015 PFE Decision issue effectively

terminated the EEOC administrative process. (Dkt. #

64 at 3.) While the EEOC issued the 2015 PFE

Decision on July 2, 2015, one day after Neville filed

the instant action, the EEOC maintains that “any

alleged right [Neville] had to require that the EEOC

enforce its orders ceased when she filed her lawsuit,”

34a

and therefore, a writ of mandamus against the EEOC

should not issue. (Id. at 3-6.)

IV.

The Instant Action

Neville’s Amended Writ Petition

On March 22, 2016, Neville filed an Amended Writ

Petition in the United States District Court for the

District of Columbia to enforce compliance with the

directives in the 2013 OFO Decision and subsequent

2015 PFE Decision. (Dkt. # 32.) Neville seeks a writ

of mandamus against the EEOC or, alternatively,

Federal Respondents and State Respondent. (Id.)

Neville seeks a writ of mandamus against the

EEOC, compelling the EEOC to: (1) enforce the 2013

OFO Decision and 2015 PFE Decision against Federal

Respondents and State Respondent; (2) recalculate

Neville’s back pay, attorney’s fees, costs, benefits, and

pecuniary award with accrued interest (for Federal

Respondents’ and State Respondent’s purported

unreasonable delay); and (3) pay Neville’s attorneys’

fees and costs related to the instant action. (Am. Pet.

at 17-18.)

In the alternative, Neville seeks a writ of

mandamus against Federal Respondents and/or State

Respondent, compelling them to: (1) respond to the

2015 PFE Decision, specifying how Federal

Respondents and State Respondent will comply with

the 2013 OFO Decision and 2015 PFE Decision; (2)

recalculate Neville’s back pay and benefits with

accrued interest for their unreasonable delay; and (3)

pay Neville’s attorneys’ fees and costs related to the

instant action. (Id. at 18.)

35a

Transfer from the District of Columbia

On November 23, 2016, the Honorable Ketanji

Brown Jackson found that venue was improper in the

District of Columbia. (Dkt. # 50.) Thus, on December

5, 2016, the entire case was transferred to this Court,

where venue is proper and undisputed. (Dkt. #51.)

Due to the complexity of the case and the multiple

parties in the action, on December 6, 2016, the Court

dismissed all then-pending motions without prejudice

to re-filing in the interests of efficient case

management. (Dkt. #53.)

Pending Motions

On March 6, 2017, the EEOC, Federal Respondents,

and State Respondent (collectively, “Respondents”)

separately filed Motions to Dismiss Under Federal

Rules of Civil Procedure 12(b)(1) and 12(b)(6) and

Alternative Motions for Summary Judgment. (Dkts.

## 61, 63, 64.) That same day, Neville filed a Motion

for Summary Judgment and Alternative Motion for

Directed Verdict. (Dkt. # 66.)

LEGAL STANDARD

Dismissal Under Rule 12(b)(1)

Rule 12(b)(1) of the Federal Rules of Civil Procedure

authorizes dismissal of a complaint for lack of subject

matter jurisdiction. Home Builders Ass’n of Miss., Inc,

v. City of Madison. Miss.. 143 F.3d 1006, 1010 (5th

Cir. 1998); see Fed. R. Civ. P. 12(b)(1). Under Rule

12(b)(1), a Court may dismiss a suit “for lack of subject

matter jurisdiction on any one of three separate bases:

(1) the complaint alone; (2) the complaint

supplemented by undisputed facts evidenced in the

36a

record; or (3) the complaint supplemented by

undisputed facts plus the court’s resolution of

disputed facts.” Freeman v. United States. 556 F.3d

326, 334 (5th Cir. 2009) (quoting Williamson v.

Tucker, 645 F.2d 404, 413 (5th Cir. 1981)). “Once a

defendant files a motion to dismiss under Rule

12(b)(1) and challenges jurisdiction, the party

invoking jurisdiction has the burden to establish ~

subject matter jurisdiction.” Arnold v. McHugh. No.

5:15-CV-210, 2016 WL 5661641, at *2 (E.D. Tex. Sept.

30, 2016) (citing Menchaca v. Chrysler Credit Corn.,

613 F.2d 507, 511 (5th Cir. 1980)). “Courts only grant

motions to dismiss when it is clear the claimant can

prove no set of facts in support of its claims that would

entitle it to relief.” Arnold, 2016 WL 5661641, at *2.

“When a Rule 12(b)(1) motion is filed in

conjunction with other Rule 12 motions, the court

should consider the Rule 12(b)(1) jurisdictional attack

before addressing any attack on the merits.”

Ramming v. United States. 281 F.3d 158, 161 (5th Cir.

2001) (quoting Hitt v. City of Pasadena, 561 F.2d 606,

608 (5th Cir. 1977) (per curiam)). Under Rule

12(b)(1), the party asserting jurisdiction has the '

burden of proof. Id.

II.

Dismissal Under Rule 12(b)(6)

Rule 12(b)(6) of the Federal Rules of Civil

Procedure authorizes dismissal of a complaint for

failure to state a claim upon which relief may be

granted. Fed. R. Civ. P. 12(b)(6). In determining

whether a complaint should be dismissed under Rule

12(b)(6), the court limits its review to the contents of

the complaint, documents incorporated into the

complaint by reference, and matters properly subject

37a

to judicial notice. See Tellabs, Inc, v. Makor Issues &

Rights. Ltd.. 551 U.S. 308, 322 (2007). When

evaluating the complaint, “[t]he court accept [s] ‘all

well-pleaded facts as true, viewing them in the light

most favorable to the plaintiff.”’ In re Katrina Canal

Breaches Litig.. 495 F.3d 191, 205 (5th Cir. 2007)

(quoting Martin K. Ebv Constr. Co. v. Dali. Area

Rapid Transit. 369 F.3d 464, 467 (5th Cir. 2004)).

To survive a Rule 12(b)(6) motion to dismiss,

the plaintiff must plead “enough facts to state a claim

to relief that is plausible on its face.” Bell Atl. Corp.

v. Twomblv. 550 U.S. 544, 570 (2007). “A claim has

facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable

inference that the defendant is liable for the

misconduct alleged.” Ashcroft v. Iqbal. 556 U.S. 662,

678 (2009) (citing Twomblv. 550 U.S. at 556). The

inquiry is whether all facts alleged, taken collectively

instead of viewed in isolation, state a plausible claim

for relief. Tellabs. 551 U.S. at 325.

DISCUSSION

For the reasons stated below, the Court does

not have jurisdiction over Neville’s mandamus claims

against the EEOC, Federal Respondents, and State

Respondent. The Court therefore grants the EEOC’s,

Federal Respondents’, and State Respondent’s

Motions to Dismiss and Alternative Motions for

Summary Judgment (Dkts. ## 61, 63, 64), and denies

Neville’s Motion for Summary Judgment and

Alternative Motion for Directed Verdict (Dkt. # 66).

38a

The EEOC’s Motion to Dismiss and Alternative

Motion for Summary Judgment (Dkt. # 64)

Mandamus Claim Against the EEOC

The Court first addresses the mandamus claim

against the EEOC. As the writ is one of “the most

potent weapons in the judicial arsenal,” Will v. United

States, 389 U.S. 90, 107 (1967), “[mjandamus may

only issue when (1) the plaintiff has a clear right to

relief, (2) the defendant has a clear duty to act, and (3)

no other adequate remedy exists.” Randall D. Wolcott,

M.D., P.A. v. Sebelius, 635 F.3d 757, 768 (5th Cir.

2011). “Even when a court finds that all three

elements are satisfied, the decision to grant or deny

the writ remains within the court’s discretion because

of the extraordinary nature of the remedy.” Id.

The EEOC argues, inter alia, that mandamus

should not issue because the EEOC does not have a

clear nondiscretionary duty to attempt to obtain an

agency’s compliance with a final EEOC decision after

the employee has filed a civil action for enforcement

in federal court. (Dkt. # 64.) The EEOC claims that

when Neville filed this mandamus action, she

effectively terminated the administrative process. (Id.

at 3.) The EEOC asserts that, since any obligation the

EEOC had to enforce its decision ceased when Neville

filed the instant suit for mandamus, it does not have

a clear duty to act. Thus, the EEOC contends that

mandamus should not issue and Neville’s mandamus

claim against the EEOC should be dismissed. (Id. at

3-6.) The Court agrees.

A plaintiff who prevails at the EEOC level “may

petition the [EEOC] for enforcement” of its decision, if

the plaintiff believes “that the agency is not complying

39a

with the decision.” 29 C.F.R. § 1614.503. If the EEOC

finds that the agency is not complying with the

decision, the EEOC must attempt to obtain

compliance. Id. Additionally, a plaintiff may either:

(1) file a civil action in federal court to enforce

compliance with the order before or after an

administrative petition for enforcement, or (2) file a

de novo civil action on the underlying discrimination

claim. See 42 U.S.C. § 2000e-16(c); Massingill v.

Nicholson. 496 F.3d 382, 384 (5th Cir. 2007); see also

29 C.F.R. §§ 1614.407, 1614.503(g).

The EEOC’s obligation to “attempt to obtain

compliance” with the 2013 OFO Decision and 2015

PFE Decision ceased when Neville filed this suit for

mandamus. As noted supra, Plaintiff filed a petition

for enforcement with the EEOC, but after the EEOC

failed to issue a decision within 180 days of the date

of the petition, Neville filed the instant suit for

mandamus. (See Dkt. #1.) The filing of a civil action,

either for enforcement or on the underlying

discrimination claim, terminates all EEOC action on

the complaint, including any petition for enforcement.

See 29 C.F.R. §§ 1614.107(a)(3), 1614.409, 1614.410;

Walch v. Adjutant Gens. Den’t of Tex.. 533 F.3d 289,

304 n.7 (5th Cir. 2008) (“A federal employee’s election

to pursue Title VII claims in federal court after the

passage of 180 days with no final agency action

usually mandates the dismissal of his EEO complaint,

and precludes the EEOC from entertaining an appeal

of that dismissal.”).

Because the EEOC does not have a duty to

obtain compliance with the 2013 OFO Decision or

2015 PFE Decision, Neville’s mandamus claim

against the EEOC fails. Thus, the Court GRANTS the

40a

EEOC’s Motion to Dismiss and Alternative Motion for

Summary Judgment. (Dkt. # 64.) Since Plaintiff has

failed to state a claim of mandamus against the

EEOC, the Court need not address the EEOC’s other

arguments as to this claim.

Title VII Claim

Neville asserts for the first time in her response in

opposition to the EEOC’s motion that the EEOC

deprived her of her rights under Title VII.4 (Dkt.# 83

at 7-8.) To the extent that Neville is attempting to

invoke Title VII as a jurisdictional basis for suing the

EEOC, she cannot do so. The Fifth Circuit has

repeatedly held that Title VII does not confer on a

charging party a right of action against the EEOC.

See, e.g., Newsome v. E.E.O.C.. 301 F.3d 227, 232 (5th

Cir. 2002); Gibson v. Miss. Pac. R.R., 579 F.2d 890,

891 (5th Cir. 1978) (“Title VII . . .confers no right of

action against the enforcement agency. Nothing done

or omitted by EEOC affected [plaintiffs] rights. Their

adverse determination could not have precluded, and

in fact did not preclude, the present suit by [plaintiff].

The relief sought of further investigation or action by

the agency would be meaningless.”). To the extent

Neville moves to amend her Amended Writ Petition to

add a Title VII claim against the EEOC, her motion is

DENIED. See Patterson v. Def. POW/MIA Accounting

Agency. No. 5:17-CV-467-XR, 2017 WL 5586962, at *4

(W.D. Tex. Nov. 20, 2017) (finding plaintiff did not

state a valid claim against defendants for an alleged

violation of the Fifth Amendment where plaintiff

4 4 It is unclear whether Neville is attempting to proceed under

Title VII or the Administrative Procedures Act (the “APA”). (See

Dkt. # 83 at 7—9.) In applying a broad interpretation to the

motion, this memo addresses the merits of both claims.

41a

raised the new claim for the first time in their

response to defendants’ motion to dismiss); see also

Davis v. DRRF Tr. 2015—1. No. 5:15-CV-880-RP, 2016

WL 8257126, at *3 (W.D. Tex. Jan. 6, 2016) (declining

to consider plaintiffs claim not raised in original

petition, but raised for first time in response to motion

to dismiss); Hearn v. Deutsche Bank Nat’l Trust Co..

No. 3:13-CV-2417-B, 2014 WL 4055473, at*4 (N.D.

Tex. Aug. 15, 2014) (“[W]hen considering a motion to

dismiss, the Court generally only relies on the

allegations made in the pleadings, and does not base

its decision on allegations raised for the first time in .

. . the plaintiffs response.”); Schieroni v. Deutsche

Bank Nat’l Trust Co.. No. H-10-CV-663, 2011 WL

3652194, at *6 (S.D. Tex. Aug. 18, 2011) (“[N]ew

allegations cannot be raised in response to a motion to

dismiss.”).

APA Claim

In addition to the Title VII claim, Neville seeks

to assert for the first time a claim under the APA. (See

at Dkt. # 83 at 7-8 n.3.) In a footnote, Neville requests

leave to filed a Second Amended Writ Petition,

stating:

[i]f necessary, [Neville], through Counsel,

would ask for leave to amend her complaint to

include a violation of the APA. The

Respondents have been given ample notice

pursuant to the [Federal Rules of Civil

Procedure] in her [Original and Amended Writ

Petition] that the undue delay is a violation of

the APA. Moreover, all pleadings should be

liberally construed.

(Id. at 8 n.3.)

42a

Neville’s request for leave to amend is denied

for two reasons. First, Neville’s request does not

comply with Local Rule CV-7(b) (“Rule CV-7(b)”). Rule

CV-7(b) provides:

(b) Leave to File. When a motion for leave to

file a pleading, motion, or other submission is

required, an executed copy of the proposed

pleading, motion, or other submission shall be

filed as an exhibit to the motion for leave.

Unless otherwise ordered, if the motion for

leave is granted, the clerk shall promptly file

the pleading, motion, or other submission.

After leave is granted, any applicable time

limits triggered by the pleading, motion, or

other submission shall run from the filing of the

pleading, motion, or other submission by the

clerk or otherwise.

Local Rule CV-7. A request for leave to amend,

embodied in a footnote, clearly does not comply with

the mandates set forth in Local Rule CV-7.

In any event, Plaintiff did not demonstrate

“good cause” to amend the scheduling order so that

she could file an amended petition for writ of

mandamus after the deadline for filing amended

pleadings expired. The deadline to amend the

pleadings was February 1, 2017. (Dkt. # 60.) Because

the deadline for the parties to file amended pleadings

has passed, Neville must file a motion for leave to file

a Second Amended Writ Petition and show “good

cause” for modifying the scheduling order under

Federal Rule of Civil Procedure Rule 16. See Fed. R.

Civ. P. 16(b)(4) (stating that a petitioner must show

“good cause” to modify a scheduling order); S&W

43a

Enter., L.L.C. v. S. Trust Bank of Ala.. NA. 315 F.3d

533, 536 (5th Cir. 2003) (“Rule 16(b) governs

amendment of pleadings after a scheduling order

deadline has expired.

Only upon the movant’s demonstration of good

cause to modify the scheduling order will the more

liberal standard of Rule 15(a) apply to the district

court’s decision to grant or deny leave.”). “[T]he four

factors relevant to good cause are: (1) the explanation

for the failure to timely move for leave to amend; (2)

the importance of the amendment; (3) potential

prejudice in allowing the amendment; and (4) the

availability of a continuance to cure such prejudice.”

Rios v. City of Conroe. 674 F. App’x 366, 368 (5th Cir.

2016). Neville has failed to satisfy any of the four

factors. Neville does not explain why she failed to

timely move for leave to amend, the importance of the

amendment, or even consider the potential prejudice

in allowing the amendment.

(See Dkt. # 60.)

Accordingly, Neville’s request for leave to file a Second

Amended Writ Petition is DENIED.

II.

Federal Respondents’ and State Respondent’s

Motions to Dismiss and Alternative Motions for

Summary Judgment (Dkts. ## 63. 61)

The Court now turns to the mandamus claims

against Federal Respondents and State Respondent.

Federal Respondents move to dismiss the mandamus

claims under the Feres doctrine of intra-military

immunity. (Dkt. # 63 at 14-18.) The Feres doctrine of

intra-military immunity precludes members of the

armed forces of the United States from pursuing

claims against the military or United States for

injuries that arose out of or in the course of activity

44a

incident to military service. Feres v. United States.

340 U.S. 135, 146 (1950). Federal Respondents claim

that the mandamus claims are barred under the Feres

doctrine because Neville’s claims arose out of or in the

course of activity incident to her military service. (See

Dkt. # 63 at 6.) Neville, of course, disagrees. Neville

claims that the Feres doctrine is not applicable

because the Title VII claims arose from her position

as a federal civilian employee. (Dkt. # 66.) In support,

Neville notes that, in the 2013 OFO Decision, the ALJ

found:

nothing in the record that.. . indicate [d] any of

the discrimination occurred during [Neville’s]

weekend work in her military capacity.

[Neville] was assigned full duty assignments

instead of light duty assignments while she was

on the flight line attending to returning aircraft

in her civilian [Dual-Status Technician]

position, and she was injured while attending

to returning aircraft in her civil [Dual-Status

Technician] position. The discriminatory

performance evaluation was based on her

civilian [Dual-Status Technician] duties.

Further, the gender-based offensive and

discriminatory comments and demeaning

practical jokes occurred while [Neville]

work[ed]

civilian [Dual-Status

Technician]. Finally, [Neville’s] supervisor

and co-workers committed the discrimination

while ... in their civilian capacities.

(Id. at 14-15; see 2013 OFO Decision at 4-5.)

For the reasons stated below, the Court finds

that the Feres doctrine of intra-military immunity

45a

bars Neville’s claims against Federal Respondents.

While State Respondent did not raise the Feres

doctrine as an independent basis for dismissal, the

Court also finds that the mandamus claim against

State Respondent is barred under Feres. See Millonzi

v. Adjutant Gens. Den’t of Tex.. No. l:17-CV-488-LY,

2018 WL 283754, at *4 n.5 (W.D. Tex. Jan. 2, 2018)

(finding Title VII claim brought against the Adjutant

General’s Department of Texas non-justiciable under

the Feres doctrine); see also Oliver v. Wong. 158 F.

Supp. 3d 1036, 1042 (D. Haw. 2016) (“The Feres

doctrine is equally applicable to the [Texas] Air

National Guard and its Adjutant General.” (citing

Crout v. Washington. 149 F. App’x 601, 603 (9th Cir.

2005)); Uhl v. Swanstrom. 79 F.3d 751 (8th Cir. 1996)

(applying Feres bar to suit by National Guardsman

against his commanding state officer, the Adjutant

General of the Iowa Air National Guard, and the Iowa

Air National Guard). Because the Feres doctrine

operates as a restraint on the Court’s subject matter

jurisdiction, Neville’s claims against Federal

Respondents and State Respondent are dismissed.

See Morris v. Thompson. 852 F.3d 416, 419 (5th Cir.

2017) (finding that the district court should have

dismissed plaintiffs Title VII for lack of subject

matter jurisdiction because the claim was “nonjusticiable under Feres and this court’s precedents”).

The Feres doctrine has been broadly “construed

to immunize the United States and members of the

military from any suit that might intrude upon

military affairs, second-guess military decisions, or

impair military discipline.” Davidson v. United

States, 647 F. App’x 289, 291 (5th Cir. 2016); see

Walch. 533 F.3d at 296 (explaining that the Feres

doctrine is “premised on the disruptive nature of

46a

judicial second-guessing of military decisions”). The

Supreme Court has explained that, “[ojrderly

government requires that the judiciary be as

scrupulous not to interfere with legitimate [military]

matters as the [military] must be scrupulous not to

intervene in judicial matters.” Chappell v. Wallace.

462 U.S. 296, 302 (1983) (quoting Orloff v.

Willoughby. 345 U.S. 83, 93-94 (1953)). In that

regard, the Supreme Court has counseled that

“[civilian courts must, at the very least, hesitate long

before entertaining a suit which asks the court to

tamper with the established relationship between . . .

military personnel and their superior officers; that

relationship is at the heart of the necessarily unique

structure of the Military Establishment.” Chappell.

462 U.S.at 302. “This basic principle inheres in both

Supreme Court and Fifth Circuit decisions involving

suits by members of the military.” Cantu v. Nichols.

No. H-12-CV-0302, 2012 WL 4962115, at *2 (S.D. Tex.

Oct. 16, 2012).

Although Feres dealt with suits under the

Federal Torts Claims Act (the “FTCA”), the Feres

doctrine has been extended to encompass suits

brought by military members under Title VII. See

Brown v. United States. 227 F.3d 295, 299 (5th Cir.

2000). In the Fifth Circuit, the Feres doctrine is

broadly construed to include to Title VII claims

brought by Dual-Status Technicians for injuries

arising out of or in the course of activity incident to

their service in the National Guard. See Schoemer v.

United States. 59 F.3d 26, 29 (5th Cir. 1995) (noting

that “Feres applies both to reservists and National

Guardsmen.”); see also Filer v. Donley. 690 F.3d 643,

648 (5th Cir. 2012) (finding that the Feres doctrine

barred Air Reserve Technician’s Title VII hostile work

47a

environment claim); Millonzi, 2018 WL 283754, at *4

(recommending that Dual-Status Technician’s Title

VII claims be dismissed under Feres).

Generally, the Feres doctrine applies if: (1) the

person was a member of the armed forces of the

United States at the time he or she sustained the

injury; and (2) the injury arose out of or in the course

of an activity incident to military service. Feres, 340

U.S. at 146. The primary issue in this case is whether

Neville’s claims “arose out of or in the course of an

activity incident to military service.” (Dkts. ## 63, 66.)

“The Supreme Court has said that an injury occurs

‘incident to military service’ when it occurs because of

a plaintiffs ‘military relationship with the

Government.’” Fileccia v. Caddo Par. Sch. Bd., No. 15CV-2333, 2017 WL 2350451, at *3 (W.D. La. May 30,

2017) (quoting United States v. Johnson, 481 U.S.

681, 689 (1987)).

Neville claims that the Feres doctrine is not

applicable because the Title VII claims arose from her

position as a federal civilian employee. (Dkt.# 66.)

Federal Respondents dispute that the Title VII claims

arose purely from Neville’s civilian position but argue

that, even if they did, the Feres doctrine bars her

mandamus claims. The Court agrees.

The fact that the incidents occurred while

Neville was nominally serving as a federal civilian

employee does not preclude application of the Feres

doctrine.

“[A] claim may be barred under the

intramilitary immunity doctrine if the action brings

into question command or personnel decisions by

military personnel, notwithstanding the fact that the

plaintiff is a civilian.” McGowan v. Scoggins. 890 F.2d

48a

128, 138 (9th Cir. 1989); see Millonzi, 2018 WL

283754, at *4 (“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.”).

As a general rule, the Feres doctrine applies

when a legal action would require a civilian court to

examine internal military decisions regarding

management, discipline, supervision, and control of

members of the armed forces. United States v.

Shearer. 473 U.S. 52, 57 (1985); see Cantu. 2012 WL

4962115, at *2 (explaining that the Feres doctrine is

designed in large measure prevent civilian courts

from interfering with military discipline and decision

making). Under Feres, “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.” Filer. 690 F.3d at 648. If it is too difficult

to determine whether a claim arise “incident to

service,” the Fifth Circuit considers: (1) the

serviceman’s duty status; (2) the site of his or her

injury; and (3) the activity he or she was performing.

Walch. 533 F.3d at 297; Schoemer. 59 F.3d at 28; see

also Cantu. 2012 WL 4962115, at *3. In determining

whether the Feres doctrine applies, “ [i] t is the

military environment, not the nature of the claim,

that is controlling.” Filer. 690 F.3d at 649.

The events giving rise to Neville’s claims

occurred on Lackland Air Force Base while she

worked as a Dual-Status Technician. (See 2013 OFO

Decision; 2015 PFE Decision.) While working in both

her civilian and military capacities as a Dual-Status

49a

Technician, Neville performed the same mechanic

tasks—servicing F-16 fighter jets—which is military

in nature and integral to the military mission. (Dkt. #

63 at 12.) The parties dispute whether Neville’s duty

status and activities are alone sufficient to

demonstrate that the discrimination occurred

“incident to military service.” The Court, however,

finds that neither of those two factors override the

most important consideration in the Feres analysis,

which is that courts should not interfere into matters

affecting military affairs and personnel management

decisions. See Filer v. Donley. 690 F.3d 643, 649 (5th

Cir. 2012).

The Feres doctrine bars Neville’s claims

against Federal Respondents and State Respondent

because adjudicating Neville’s claims would require

the Court to delve into questions of military decision

making. As noted supra, Neville seeks, inter alia, an

order from this Court requiring Federal Respondents

and/or State Respondent to comply with the 2015 PFE

Decision. (Dkt. # 32.) If Neville’s mandamus claims

against Federal Respondents and State Respondent

are successful, this Court would have to issue an order

compelling Federal Respondents or State Respondent

to: (1) revise Neville’s 2006-2007 performance

appraisal; (2) provide at least 16 hours of in-person

training to all management officials and employees in

the 149th Fighter Wing at Lackland Air Force Base,

regarding their responsibilities with respect to Title

VII with special emphasis on preventing and

responding to harassment and their responsibilities

under the federal sector EEO process; (3) take

appropriate

disciplinary

action

against

the

responsible management officials and coworkers

involved in the harassment of Neville; (4) post a notice

50a

of discrimination; and (5) restore Neville’s benefits,

including Neville’s seniority, sick and annual leave,

health and life insurance, any in-grade step(s) and/or

promotion(s) to which she would have been entitled.

(Dkt. # 65-7, Ex. F; Dkt. # 82 at 15.)

Based on the relief Neville seeks, it is clear that

a decision in Neville’s favor would implicate an

intrusion into the very questions of military hierarchy

that Feres was designed to avoid—namely,

inappropriate judicial encroachment and continuing

judicial surveillance over the management, discipline,

supervision, and control of members of the armed

forces. See Gilligan v. Morgan. 413 U.S. 1, 7—8 (1973)

(finding controversy non-justiciable because the relief

sought required initial judicial review and continuing

judicial surveillance over the training, weaponry, and

orders of the National Guard); Shearer. 473 U.S. at 59

(characterizing plaintiffs claims as “the type[s] of

claims that, if generally permitted, would involve the

judiciary in sensitive military affairs at the expense of

military discipline and effectiveness”).

Because the relief Neville seeks would require

the Court to conduct a highly intrusive inquiry into

military affairs and personnel decisions that are

integral to the military structure, it is clear that a

decision in this case in favor of Neville would clearly

implicate “the admonition in Walch that courts should

not interfere with the military’s decisions about

personnel management.” Filer. 690 F.3d at 649 (5th

Cir. 2012) (finding plaintiffs Title VII hostile work

environment claim barred under Feres because

judicial examination into personnel decisions would

be disruptive to the military); see Millonzi. 2018 WL

283754, at*4 n.5 (finding Title VII claim non-

51a

justiciable, in part, because the court would be forced

to reinstate the plaintiff to her civilian position and

military position in the National Guard); see also

Farmer v. Mabus. 940 F.2d 921, 924 (5th Cir.

1991)(“Suits for injunctive relief, like those for

monetary damages, must be carefully regulated in

order to prevent intrusion of the courts into the

military structure.”).

Based on the policies underlying Feres, the

Court is unable to conclude that military affairs will

be any less affected by a mandamus suit than by a

claim for damages. Because Neville seeks relief that

would constitute inappropriate judicial intrusion into

matters affecting military affairs and personnel

management decisions, the Court concludes that

Neville’s mandamus claims against Federal

Respondents are non-justiciable. See Gilligan v.

Morgan. 413 U.S. 1, 7-8 (1973) (finding controversy

nonjusticiable because the relief sought required

initial judicial review and continuing judicial

surveillance over the training, weaponry, and orders

of the National Guard); Shearer. 473 U.S. at 59

(characterizing plaintiffs claims as “the type[s] of

claims that, if generally permitted, would involve the

judiciary in sensitive military affairs at the expense of

military discipline and effectiveness”); Millonzi. 2018

WL 283754, at *3; see also Wa tson v. Arkansas Nat’l

Guard. 886 F.2d 1004, 1009 (8th Cir. 1989) (finding

Feres doctrine barred claims for injunctive relief

where the plaintiff sought to enjoin the putatively

unlawful personnel decisions made by superior

officers and the Secretary of Defense); Daniel v.

Hagel. 17 F. Supp. 3d 680, 689 (E.D. Mich. 2014) (“As

the EEOC’s order here was tied to one discrete

personnel matter and was collateral to monetary

52a

relief, like Plaintiffs claim for damages, Plaintiffs

claim for injunctive relief is non-justiciable.”).

CONCLUSION

For the reasons stated, the Court GRANTS the

EEOC’s,

Federal

Respondents’,

and

State

Respondent’s Motions to Dismiss and Alternative

Motions for Summary Judgment. (Dkts. ## 61, 63, 64.)

In light of the foregoing, the Court DENIES Neville’s

Motion for Summary Judgment and Alternative

Motion for Directed Verdict. (Dkt. # 66.) The Clerk’s

office is INSTRUCTED to ENTER JUDGMENT

and to CLOSE THIS CASE.

IT IS SO ORDERED.

DATED: San Antonio, Texas, March 29, 2018.

/s/ David Alan Ezra

David Alan Ezra

Senior United States

District Judge

53a

29 CFR 1614.103

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November 20, 2019 issue of the Federal Register.

Title 3 is current through October 8, 2019

Code of Federal Regulations > TITLE 29 —

LABOR > SUBTITLE B - REGULATIONS

RELATING TO LABOR > CHAPTER XIV EQUAL

EMPLOYMENT

OPPORTUNITY

COMMISSION > PART 1614 - FEDERAL

EQUAL

EMPLOYMENT

SECTOR

OPPORTUNITY > SUBPART A - AGENCY

PROGRAM

PROMOTE

EQUAL

EMPLOYMENT OPPORTUNITY

§ 1614.103 Complaints of discrimination covered

by this part.

(a)Individual and class complaints of employment

discrimination and retaliation prohibited by title VII

(discrimination on the basis of race, color, religion, sex

and national origin), the ADEA (discrimination on the

basis of age when the aggrieved individual is at least

40 years of age), the Rehabilitation Act

(discrimination on the basis of disability), the Equal

Pay Act (sex-based wage discrimination), or GINA

(discrimination on the basis of genetic information)

shall be processed in accordance with this part.

Complaints alleging retaliation prohibited by these

statutes are considered to be complaints of

discrimination for purposes of this part.

54a

(b)This part applies to:

(1)Military departments as defined in 5 U.S.C.

102;

(2)Executive agencies as defined in 5 U.S.C.

105;

(3)The United States Postal Service, Postal

Rate Commission and Tennessee Valley

Authority;

(4)A11 units of the judicial branch of the Federal

government having positions in the competitive

service, except for complaints under the

Rehabilitation Act;

(5)The National Oceanic and Atmospheric

Administration Commissioned Corps;

(6)The Government Printing Office except for

complaints under the Rehabilitation Act; and

(7)The Smithsonian Institution.

(c)Within the covered departments, agencies and

units, this part applies to all employees and

applicants for employment, and to all employment

policies or practices affecting employees or applicants

for employment including employees and applicants

who are paid from nonappropriated funds, unless

otherwise excluded.

(d)This part does not apply to:

(l)Uniformed members of the military

departments referred to in paragraph (b)(1) of

this section:

55a

(2)Employees of the General Accounting Office;

(3)Employees of the Library of Congress;

(4)Aliens employed in positions, or who apply

for positions, located outside the limits of the

United States; or

(5)Equal Pay Act complaints of employees

whose services are performed within a foreign

country or certain United States territories as

provided in 29 U.S.C. 213(f).

56a

29 CFR 1614.107

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2019 issue of the Federal Register. Title 3 is current

through October 8, 2019

Code of Federal Regulations > TITLE 29 —

LABOR > SUBTITLE B - REGULATIONS

RELATING TO LABOR > CHAPTER XIV EQUAL

EMPLOYMENT

OPPORTUNITY

FEDERAL

COMMISSION > PART 1614

EMPLOYMENT

EQUAL

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OPPORTUNITY > SUBPART A-AGENCY

PROGRAM

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EMPLOYMENT OPPORTUNITY

§ 1614.107 Dismissals of complaints.

(a)Prior to a request for a hearing in a case, the

agency shall dismiss an entire complaint:

(l)That fails to state a claim under § 1614.103

§ 1614.106(a) or states the same claim that is

pending before or has been decided by the

agency or Commission;

(2)That fails to comply with the applicable time

limits contained in §§ 1614.105, 1614.106 and

1614.204(c), unless the agency extends the time

limits in accordance with § 1614.604(c), or that

raises a matter that has not been brought to the

attention of a Counselor and is not like or

related to a matter that has been brought to the

attention of a Counselor;

57a

(3)That is the basis of a pending civil action in

a United States District Court in which the

complainant is a party provided that at least

180 days have passed since the filing of the

administrative complaint, or that was the basis

of a civil action decided by a United States

District Court in which the complainant was a

party;

(4)Where the complainant has raised the

matter in a negotiated grievance procedure

that permits allegations of discrimination or in

an appeal to the Merit Systems Protection

Board and § 1614.301 or §1614.302 indicates

that the complainant has elected to pursue the

non-EEO process;

(5)That is moot or alleges that a proposal to

take a personnel action, or other preliminary

step to taking a personnel action, is

discriminatory, unless the complaint alleges

that the proposal or preliminary step is

retaliatory;

(6)Where the complainant cannot be located,

provided that reasonable efforts have been

made to locate the complainant and the

complainant has not responded within 15 days

to a notice of proposed dismissal sent to his or

her last known address;

(7)Where the agency has provided the

complainant with a written request to provide

relevant information or otherwise proceed with

the complaint, and the complainant has failed

to respond to the request within 15 days of its

receipt or the complainant's response does not

58a

address the agency's request, provided that the

request included a notice of the proposed

dismissal. Instead of dismissing for failure to

cooperate, the complaint may be adjudicated if

sufficient information for that purpose is

available;

(8)That alleges dissatisfaction with the

processing of a previously filed complaint; or

(9)Where the agency, strictly applying the

criteria set forth in Commission decisions, finds

that the complaint is part of a clear pattern of

misuse of the EEO process for a purpose other

than the prevention and elimination of

employment discrimination. A clear pattern of

misuse of the EEO process requires:

(i)Evidence

filings; and

multiple

complaint

(ii)Allegations that are similar or

identical, lack specificity or involve

matters previously resolved; or

(iii) Evidence of circumventing other

administrative processes, retaliating

against

the

agency's

inhouse

administrative

processes

overburdening the EEO complaint

system.

(b)Where the agency believes that some but not all of

the claims in a complaint should be dismissed for the

reasons contained in paragraphs (a)(1) through (9) of

this section, the agency shall notify the complainant

in writing of its determination, the rationale for that

59a

determination and that those claims will not be

investigated, and shall place a copy of the notice in the

investigative file. A determination under this

paragraph is reviewable by an administrative judge if

a hearing is requested on the remainder of the

complaint, but is not appealable until final action is

taken on the remainder of the complaint.

60a

29 CFR 1614.405

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2019 issue of the Federal Register. Title 3 is current

through October 8, 2019

Code of Federal Regulations > TITLE 29 —

LABOR > SUBTITLE B - REGULATIONS

RELATING TO LABOR > CHAPTER XIV EQUAL

EMPLOYMENT

OPPORTUNITY

COMMISSION > PART 1614 - FEDERAL

EQUAL

EMPLOYMENT

SECTOR

OPPORTUNITY > SUBPART D - APPEALS AND

CIVIL ACTIONS

§ 1614.405 Decisions on appeals.

(a)The Office of Federal Operations, on behalf of the

Commission, shall issue a written decision setting

forth its reasons for the decision. The Commission

shall dismiss appeals in accordance with §§ 1614.107,

1614.403(c) and 1614.409. The decision on an appeal

from an agency's final action shall be based on a de

novo review, except that the review of the factual

findings in a decision by an administrative judge

issued pursuant to § 1614.109(i) shall be based on a

substantial evidence standard of review. If the

decision contains a finding of discrimination,

appropriate remedy(ies) shall be included and, where

appropriate, the entitlement to interest, attorney's

fees or costs shall be indicated. The decision shall

reflect the date of its issuance, inform the

complainant of his or her or her civil action rights, and

be transmitted to the complainant and the agency by

first class mail.

61a

(b)The Office of Federal Operations, on behalf of the

Commission, shall issue decisions on appeals of

decisions to accept or dismiss a class complaint issued

pursuant to § 1614.204(d)(7) within 90 days of receipt

of the appeal.

(c)A decision issued under paragraph (a) of this

section is final within the meaning of § 1614.407

unless a timely request for reconsideration is filed by

a party to the case. A party may request

reconsideration within 30 days of receipt of a decision

of the Commission, which the Commission in its

discretion may grant, if the party demonstrates that:

(1)The appellate decision involved a clearly

erroneous interpretation of material fact or

law; or

(2)The decision will have a substantial impact

on the policies, practices or operations of the

agency.

62a

29 CFR 1614.408

This document is current through the November 20,

2019 issue of the Federal Register. Title 3 is current

through October 8, 2019

Code of Federal Regulations > TITLE 29 —

LABOR > SUBTITLE B - REGULATIONS

RELATING TO LABOR > CHAPTER XIV OPPORTUNITY

EQUAL

EMPLOYMENT

COMMISSION > PART 1614 - FEDERAL

EMPLOYMENT

EQUAL

SECTOR

OPPORTUNITY > SUBPART D - APPEALS AND

CIVIL ACTIONS

§ 1614.408 Civil action: Equal Pay Act.

A complainant is authorized under section 16(b) of the

Fair Labor Standards Act (29 U.S.C. 216(b)) to file a

civil action in a court of competent jurisdiction within

two years or, if the violation is willful, three years of

the date of the alleged violation of the Equal Pay Act

regardless of whether he or she pursued any

administrative complaint processing. Recovery of

back wages is limited to two years prior to the date of

filing suit, or to three years if the violation is deemed

willful; liquidated damages in an equal amount may

also be awarded. The filing of a complaint or appeal

under this part shall not toll the time for filing a civil

action.

63a

29 CFR 1614.503

This document is current through the November 20,

2019 issue of the Federal Register. Title 3 is current

through October 8, 2019

Code of Federal Regulations > TITLE 29 —

LABOR > SUBTITLE B - REGULATIONS

RELATING TO LABOR > CHAPTER XIV ~

EQUAL

EMPLOYMENT

OPPORTUNITY

COMMISSION > PART 1614 - FEDERAL

EQUAL

EMPLOYMENT

SECTOR

OPPORTUNITY > SUBPART E - REMEDIES

AND ENFORCEMENT

§ 1614.503

decisions.

Enforcement

of final

Commission

(a)Petition for enforcement. A complainant may

petition the Commission for enforcement of a decision

issued under the Commission's appellate jurisdiction.

The petition shall be submitted to the Office of

Federal Operations. The petition shall specifically set

forth the reasons that lead the complainant to believe

that the agency is not complying with the decision.

(b)Compliance. On behalf of the Commission, the

Office of Federal Operations shall take all necessary

action to ascertain whether the agency is

implementing the decision of the Commission. If the

agency is found not to be in compliance with the

decision, efforts shall be undertaken to obtain

compliance.

(c)Clarification. On behalf of the Commission, the

Office of Federal Operations may, on its own motion

64a

or in response to a petition for enforcement or in

connection with a timely request for reconsideration,

issue a clarification of a prior decision. A clarification

cannot change the result of a prior decision or enlarge

or diminish the relief ordered but may further explain

the meaning or intent of the prior decision.

(d)Referral to the Commission. Where the Director,

Office of Federal Operations, is unable to obtain

satisfactory compliance with the final decision, the

Director shall submit appropriate findings and

recommendations for enforcement to the Commission,

or, as directed by the Commission, refer the matter to

another appropriate agency.

(e)Commission notice to show cause. The Commission

may issue a notice to the head of any federal agency

that has failed to comply with a decision to show cause

why there is noncompliance. Such notice may request

the head of the agency or a representative to appear

before the Commission or to respond to the notice in

writing with adequate evidence of compliance or with

compelling reasons for non-compliance.

(f) Certification to the Office of Special Counsel.

Where appropriate and pursuant to the terms of a

memorandum of understanding, the Commission may

refer the matter to the Office of Special Counsel for

enforcement action.

(g)Notification to complainant of completion of

administrative efforts. Where the Commission has

determined that an agency is not complying with a

prior decision, or where an agency has failed or

refused to submit any required report of compliance,

the Commission shall notify the complainant of the

right to file a civil action for enforcement of the

65a

decision pursuant to Title VII, the ADEA, the Equal

Pay Act or the Rehabilitation Act and to seek judicial

review of the agency's refusal to implement the

ordered relief pursuant to the Administrative

Procedure Act, 5 U.S.C. 701 et seq., and the

mandamus statute, 28 U.S.C. 1361, or to commence

de novo proceedings pursuant to the appropriate

statutes.

66a

32 USCS § 709

Current through Public Law 116-68, approved

November 8, 2019.

United States Code Service > TITLE 32.

NATIONAL GUARD (§§ 101 — 908) > CHAPTER

7. Service, Supply, and Procurement (§§ 701 —

717)

§ 709. Technicians: employment, use, status

(a)Under regulations prescribed by the Secretary of

the Army or the Secretary of the Air Force, as the case

may be, and subject to subsections (b) and (c), persons

may be employed as technicians in—

(1)the organizing, administering, instructing, or

training of the National Guard;

(2)the maintenance and repair of supplies issued

to the National Guard or the armed forces; and

(3)the performance of the following additional

duties to the extent that the performance of those

duties does not interfere with the performance of

the duties described by paragraphs (1) and (2):

(A)Support of operations

or missions

undertaken by the technician’s unit at the

request of the President or the Secretary of

Defense.

(B) Support of Federal training operations or

Federal training missions assigned in whole or

in part to the technician’s unit.

67a

(C)Instructing or training in the United States

or the Commonwealth of Puerto Rico or

possessions of the United States of—

(i)active-duty members of the armed forces;

(ii)members of foreign military forces

(under the same authorities and restrictions

applicable

active-duty

members

providing such instruction or training);

(iii)Department

personnel; or

(iv)Department

employees.

Defense

contractor

civilian

(b) Except as authorized in subsection (c), a person

employed under subsection (a) must meet each of the

following requirements:

(1)Be a military technician (dual status) as defined

in section 10216(a) of title 10 [10 USCS

§ 10216(a)],

(2)Be a member of the National Guard.

(3)Hold the military grade specified by the

Secretary concerned for that position.

(4)While performing duties as a military

technician (dual status), wear the uniform

appropriate for the member’s grade and

component of the armed forces.

(c)

(1)A person may be employed under subsection (a)

as a non-dual status technician (as defined by

68a

section 10217 of title 10 [10 USCS § 10217]) if the

technician position occupied by the person has

been designated by the Secretary concerned to be

filled only by a non-dual status technician.

(2)The total number of non-dual status

technicians in the National Guard is specified in

section 10217(c)(2) of title 10 [10 USCS §

10217(c)(2)],

(d)The Secretary concerned shall designate the

adjutants general referred to in section 314 of this

title [32 USCS § 314] to employ and administer the

technicians authorized by this section.

69a

42 USCS § 2000e-16

Current through Public Law 116-68, approved

November 8, 2019.

United States Code Service > TITLE 42. THE

PUBLIC HEALTH AND WELFARE (Chs. 1 —

161) > CHAPTER 21. CIVIL RIGHTS (§§ 1981 —

2000h-6)

EQUAL

EMPLOYMENT

OPPORTUNITIES (§§2000e — 2000e-17)

§ 2000e-16. Employment by Federal Government

(a)

Discriminatory

practices

prohibited;

employees or applicants for employment

subject to coverage. All personnel actions affecting

employees or applicants for employment (except with

regard to aliens employed outside the limits of the

United States) in military departments as defined in

section 102 of title 5, United States Code, in executive

agencies as defined in section 105 of title 5, United

States Code (including employees and applicants for

employment who are paid from nonappropriated

funds), in the United States Postal Service and the

Postal Rate Commission [Postal Regulatory

Commission], in those units of the Government of the

District of Columbia having positions in the

competitive service, and in those units of the judicial

branch of the Federal Government having positions in

the competitive service, in the Smithsonian

Institution, and in the Government Printing Office

[Government Publishing Office], the General

Accounting Office [Government Accountability

Office], and the Library of Congress shall be made free

70a

from any discrimination based on race, color, religion,

sex, or national origin.

Equal

Employment

Opportunity

(b)

Commission; enforcement powers; issuance of

rules, regulations, etc.; annual review and

approval of national and regional equal

employment opportunity plans; review and

evaluation of equal employment opportunity

programs and publication of progress reports;

with

consultations

interested

parties;

compliance with rules, regulations, etc.;

contents of national and regional equal

employment opportunity plans; authority of

Librarian of Congress. Except as otherwise

provided in this subsection, the Civil Service

Commission shall have authority to enforce the

provisions of subsection (a) through appropriate

remedies, including reinstatement or hiring of

employees with or without back pay, as will effectuate

the policies of this section, and shall issue such rules,

regulations, orders and instructions as it deems

necessary and appropriate to carry out its

responsibilities under this section. The Civil Service

Commission shall—

(l)be responsible for the annual review and

approval of a national and regional equal

employment opportunity plan which each

department and agency and each appropriate

unit referred to in subsection (a) of this section

shall submit in order to maintain an

affirmative program of equal employment

opportunity for all such employees and

applicants for employment;

71a

(2)be responsible for the review and evaluation

of the operation of all agency equal employment

opportunity programs, periodically obtaining

and publishing (on at least a semiannual basis)

progress reports from each such department,

agency, or unit; and

with

and

solicit

(3)consult

the

recommendations of interested individuals,

groups, and organizations relating to equal

employment opportunity.

The head of each such department, agency, or unit

shall comply with such rules, regulations, orders,

and instructions which shall include a provision

that an employee or applicant for employment

shall be notified of any final action taken on any

complaint of discrimination filed by him

thereunder. The plan submitted by each

department, agency, and unit shall include, but

not be limited to—

(1)provision for the establishment of training

and education programs designed to provide a

maximum opportunity for employees to

advance so as to perform at their highest

potential; and

(2)a description of the qualifications in terms of

training and experience relating to equal

employment opportunity for the principal and

operating officials of each such department,

agency, or unit responsible for carrying out the

equal employment opportunity program and of

the allocation of personnel and resources

proposed by such department, agency, or unit

72a

to carry out its equal employment opportunity

program.

With respect to employment in the Library of

Congress, authorities granted in this subsection to

the Civil Service Commission shall be exercised by

the Librarian of Congress.

employment for redress of grievances; time for

bringing of action; head of department, agency,

or unit as defendant. Within 90 days of receipt of

notice of final action taken by a department, agency,

or unit referred to in subsection 717(a) [subsec. (a) of

this section], or by the Civil Service Commission upon

an appeal from a decision or order of such department,

agency, or unit on a complaint of discrimination based

on race, color, religion, sex or national origin, brought

pursuant to subsection (a) of this section, Executive

Order 11478 [42 USCS § 2000e note] or any

succeeding Executive orders, or after one hundred and

eighty days from the filing of the initial charge with

the department, agency, or unit or with the Civil

Service Commission on appeal from a decision or

order of such department, agency, or unit until such

time as final action may be taken by a department,

agency, or unit, an employee or applicant for

employment, if aggrieved by the final disposition of

his complaint, or by the failure to take final action on

his complaint, may file a civil action as provided in

section 706 [42 USCS § 2000e-5], in which civil action

the head of the department, agency, or unit, as

appropriate, shall be the defendant.

(d) Section 2000e-5(f) through (k) of this title

applicable to civil actions. The provisions of

73a

section 706(f) through (k) [42 USCS §§ 2000e-5(f)-(k)],

as applicable, shall govern civil actions brought

hereunder, and the same interest to compensate for

delay in payment shall be available as in cases

involving nonpublic parties. [.]

(e) Government agency or official not relieved

of responsibility to assure nondiscrimination in

employment or equal employment opportunity.

Nothing contained in this Act [title] shall relieve any

Government agency or official of its or his primary

responsibility to assure nondiscrimination in

employment as required by the Constitution and

statutes or of its or his responsibilities under

Executive Order 11478 [42 USCS § 2000e note]

relating to equal employment opportunity in the

Federal Government.

(f) Application of Lilly Ledbetter Fair Pay Act.

Section 706(e)(3) [42 USCS § 2000e-5(e)(3)] shall

apply to complaints of discrimination in compensation

under this section.

74a

29 CFR 1614.405

This document is current through the November 20,

2019 issue of the Federal Register. Title 3 is current

through October 8, 2019

Code of Federal Regulations > TITLE 29 —

LABOR > SUBTITLE B - REGULATIONS

RELATING TO LABOR > CHAPTER XIV EQUAL

EMPLOYMENT

OPPORTUNITY

COMMISSION > PART 1614 - FEDERAL

EMPLOYMENT

EQUAL

SECTOR

OPPORTUNITY > SUBPART D - APPEALS AND

CIVIL ACTIONS

§ 1614.405 Decisions on appeals.

(a)The Office of Federal Operations, on behalf of the

Commission, shall issue a written decision setting

forth its reasons for the decision. The Commission

shall dismiss appeals in accordance with §§ 1614.107,

1614.403(c) and 1614.409. The decision on an appeal

from an agency's final action shall be based on a de

novo review, except that the review of the factual

findings in a decision by an administrative judge

issued pursuant to § 1614.109(i) shall be based on a

substantial evidence standard of review. If the

decision contains a finding of discrimination,

appropriate remedy(ies) shall be included and, where

appropriate, the entitlement to interest, attorney's

fees or costs shall be indicated. The decision shall

reflect the date of its issuance, inform the

complainant of his or her or her civil action rights, and

be transmitted to the complainant and the agency by

first class mail.

75a

(b)The Office of Federal Operations, on behalf of the

Commission, shall issue decisions on appeals of

decisions to accept or dismiss a class complaint issued

pursuant to § 1614.204(d)(7) within 90 days of receipt

of the appeal.

(c)A decision issued under paragraph (a) of this

section is final within the meaning of § 1614.407

unless a timely request for reconsideration is filed by

a party to the case. A party may request

reconsideration within 30 days of receipt of a decision

of the Commission, which the Commission in its

discretion may grant, if the party demonstrates that:

(1)The appellate decision involved a clearly

erroneous interpretation of material fact or law; or

(2)The decision will have a substantial impact on

the policies, practices or operations of the agency.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.