Petition for Writ of Certiorari — Estate of Colon ex rel. Martinez v. United States

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97-227 AUG 5 1997

No. OFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1996

ALEXIS COLON, Estate of the Decedent by Personal

Representative Peaches Martinez, LUIS COLON,

PEACHES MARTINEZ and ALEXANDER MARTINEZ,

Petitioners,

UNITED STATES OF AMERICA, WADDELL, Lt. Col.,

TYRONNE S. LEONARD, Staff Sergeant, McDONALD,

Staff Sergeant, DAX ARIES, Sergeant,

Respondents.

Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

Doris BESIKOF

Law Orrfice OF Doris BEsSIKOF

1000 South Birch Street

Denver, Colorado 80222

(303) 753-9999

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Should the Feres doctrine bar claims by a member

of the military for injuries due to sexual harassment, by

her fellow service members?

2. Is it a denial of equal protection of the law to bar

claims of a military service member for injuries due to

sexual harassment and retaliation under the Feres doc-

trine, when claims related to racial harassment have not

been Feres-barred?

3. Are sexual harassment and retaliation for report-

ing sexual harassment activities incident to military ser-

vice?

4. Does the superior rank of a sexual harasser jus-

tify barring a victim’s claims against him under the Feres

doctrine?

5. Should the Feres doctrine be held inapplicable

when it immunizes conduct for personal motives rather

than for a military purpose?

6. Should the Feres doctrine be overturned or lim-

ited?

PARTIES TO THE PROCEEDING

PETITIONERS/PLAINTIFFS:

The Estate of Decedent ALEXIS COLON by Personal

Representative Peaches Martinez

LUIS COLON

PEACHES MARTINEZ

ALEXANDER MARTINEZ

RESPONDENTS/DEFENDANTS:

THE UNITED STATES

WADDELL, LT. COL. U.S. ARMY

TYRONNE S. LEONARD, SSGT, U.S. ARMY

JOHN ROBERT McDONALD

DAX ARIES

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TABLE OF CONTENTS

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CONSTITUTIONAL PROVISIONS, STATUTES AND

ee ne

STATEMENT OF THE CASE.............05. errr

REASONS FOR GRANTING THE WRIT ...........

Cres e als So ea hae ee ye see ee 0:

Nene nn ee each vee eae App.

OPINION OF THE FIFTH CIRCUIT May 7,

REA TS ge Ly 0 App.

ORDER FROM THE WESTERN DISTRICT OF

TEXAS June 19, 1996

(Dismissal of Claims Against Defendant

SOR Se ee ee App.

ORDER FROM THE WESTERN DISTRICT OF

TEXAS

(Dismissal of Claims Against Defendant

SUN a oa v0.0 65 oan Sewn sone eres ers ses App.

MEMORANDUM DECISION AND ORDER

FROM THE NORTHERN DISTRICT OF

CALIFORNIA

May 10, 1994

(Dismissal of Claims Against Defendants

Wemeeeees ONG LOOMATG)... «2... cece cee eees App.

MEMORANDUM DECISION AND ORDER

FROM THE NORTHERN DISTRICT OF

CALIFORNIA

February 22, 1994

(Dismissal of Claims Against Defendant the

ey NaN aaa eas kcs gestae ees App.

TABLE OF CONTENTS - Continued

Page

TEXT: ALEXIS COLON SUICIDE NOTE

ee | Arr re ere Ter Teer cer rere eee App. 50

WRITTEN REPRIMAND TO ALEXIS COLON

AMG. 20, TORE 6 60s Ka prec gnreens eee ensawnnen App. 52

STATEMENT REPORTING SEXUAL HARASS-

DRICE TE FAee CURA oc cate ccnccccnss App. 55

FT. HOOD COMMAND POLICY NO. 22

Ns IS gis cis ak wees eesea keer App. 58

TABLE OF AUTHORITIES

Page

CASES:

Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 777 (1945) .... 12

Brooks v. United States, 337 U.S. 49, 51, 60 S.Ct. 918,

OEP TI oii ioc codes hans cae cease esses 12

Brown v. Barry, 3 U.S. 365, 367, 3 Dall 365, 1 L.Ed.

Bits /t eee e ere eer rete ee ee 12

Brown v. United States, 739 F.2d 362 (8th Cir. 1984),

cert. den., 473 U.S. 904, 105 S.Ct. 3524 (1985)....9, 10

Chappell v. Wallace, 462 U.S. 296 (1983)............ 8, 11

Dreier v. United States, 106 F.3d 844 (9th Cir. 1996),

SS Bid TA CO Cae, Bie ohio oe Ke eh vee eeses 9

Durant v. Neneman, 884 F.2d 1350 (10th Cir. 1989),

cert. den., sub nom. Neneman v. Tassin, 493 U.S.

1024, 110 S.Ct. 728 (1990); Neneman v. Durant,

£53 US. BOGK, 110 GAL. Fae Ceres 5 oh coer cnc cceses 9

Feres v. United States, 340 U.S. 135 (1950)........ passim

Frontiero v. Richardson, 411 U.S. 677, 680, 686

(IOI occ kncaeees ob 6s acer ba eed een ee ebaevane anes 10

Johnson v. United States, 704 F.2d 1431 (9th Cir.

1983), aff'd, 704 F.2d 1431 (9th Cir. 1983)........... 9

Lutz v. Secretary of the Air Force, 944 F.2d 1477, 1486

a Cit TOP N iia oncvas csc cenwinesssveeeeeesne ses 10

Miller v. United States, 42 F.3d 297 (5th Cir. 1995) ..8, 11

Ordahl v. United States, 601 F.Supp. 96 (D.Montana

SOD «oc incvnccedssansscenancsceneuaeeewenendseeess 9

Parker v. United States, 611 F.2d 1007 (5th Cir. 1980) ..... 9

Schlesinger v. Ballard, 419 U.S. 498 (1975)..........-- 10

TABLE OF AUTHORITIES - Continued

Sheridan v. United States, 108 S.Ct. 2449, 2455

(19GBD 0 ick civicesasseede iennteeeeee ete ee 6

Steffan v. Aspin, 8 F.3d at 62 (D.C. Cir. 1993) (citing

Rostker v. Goldberg, 453 U.S. 57 (1981), rev’d on

other grounds en banc, sub nom. Steffan v. Perry, 41

F.3d 677 (D.C. Cir. 1994), cert. den., 471 U.S.

1653, 105 SCX. ZED Clts i ckacaweeeeasieeuscess 14

Stubbs v. United States, 744 F.2d 58 (8th Cir.

BOGE) a gk os 6 v.90 0649560464saes ceesweeee een 6, 9, 10

Taber v. Maine, 67 F.3d 1029 (2d Cir. 1995), 45 F.3d

DIO CISGS) givin kc cess cncdvancndendtkeaevel eee )

United States v. Johnson, 107 S.Ct. 2063, 2069, 481

U.S. COG, GOS (HOG) occ ccecvscasestevetis suse 11

United States v. Shearer, 473 U.S. 52, 105 S.Ct. 3039,

B7 L.Ed. 36 CUPS «vnc cccksscsicnicbaeca eee 11

United States v. Stanley, 107 S.Ct. 3054, 483 U.S. 669

CROPS o.oo nn 00000665666 dnge beset ebeeieee 11

United States v. Virginia, 116 S.Ct. 2264, 2284 fn. 19,

135 L.BG.26 7S CHOPS). 6c ce ceed cediensen ieee 11

Wilkes v. Dinsman, 12 L.Ed. 619 (1849)............... 11

STATUTES:

28 USL. TZSGIE) concn cece ciscevsssatinatianteieie 2

2B USA... TBAB 6 osvcccccsccccensesidipeceuseura 3, 12

2B UGA... DOP B< va a s-000ckdes teveeessen enue eee 4, 6

2B US... BPO: 0004 c0cekedieden ty scese eee 4,7

10 USA. Fb 6 occvcseveversen dcr riecte ee 4, 12

Vii

TABLE OF AUTHORITIES - Continued

Page

RULEs:

Command Policy NO. 22.0.0 csccccesescvscsesases ae

CONSTITUTION:

United States Constitution

tr oot Cree ica es oa ene 2. 7

oy ath eh ohare ea eee 2,7

eee SS ee ee Ee mee NY

PETITION FOR A WRIT OF CERTIORARI

The Estate of Alexis Colon, by Personal Representa-

tive Peaches Martinez, her husband Luis Colon, and her

parents Peaches Martinez and Alexander Martinez peti-

tion for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Fifth Circuit in

this case.

OPINIONS BELOW

The May 7, 1997 opinion of the United States Court of

Appeals for the Fifth Circuit and the orders from the

Northern District of California and the Western District

of Texas which it affirms are not reported.

JURISDICTION

The order sought to be reviewed was entered May 7,

1997 by the United States Court of Appeals for the Fifth

Circuit. No petitions for rehearing were filed. This Court

has jurisdiction of this Petition, under 28 U.S.C. 1254(1).

CONSTITUTIONAL PROVISIONS,

STATUTES AND REGULATIONS INVOLVED

The Constitution:

AMENDMENT I.

Congress shall make no law respecting an estab-

lishment of religion, or prohibiting the free exer-

cise thereof; or abridging the freedom of speech,

or of the press; or the right of the people peace-

ably to assemble, and to petition the Govern-

ment for redress of grievances.

AMENDMENT V.

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a pre-

sentment or indictment of a grand Jury, except

in cases arising in the land or naval forces, or in

the Militia, when in actual service in time of War

of public danger; nor shall any person be subject

for the same offence to be twice put in jeopardy

of life or limb; nor shall be compelled in any

criminal case to be a witness against himself,

nor be deprived of life, liberty or property, with-

out due process of law; nor shall private prop-

erty be taken for public use without just

compensation.

AMENDMENT XIV. Section 1.

All persons born or naturalized in the United

States and subject to the jurisdiction thereof are

citizens of the United States and of the State

wherein they reside. No State shall make or

; enforce any law which shall abridge the privi-

leges or immunities of citizens of the United

States or shall any State deprive any person of

life, liberty, or property, without due process of

law; nor deny to any person within its jurisdic-

tion the equal protection of the laws.

Statutes:

28 U.S.C. 1254(1).

Cases in the courts of appeals may be reviewed

by the Supreme Court by the following

methods: (1) By writ of certiorari granted upon

the petition of any party to any civil or criminal

case, before or after rendition of judgment or

decree.

28 U.S.C. 1346(b).

[T]he district courts . . . shall have exclusive

jurisdiction of civil actions on claims against the

United States for money damage accruing on

and after January 1, 1945 for injury or loss of

property, or personal injury or death caused by

the negligent or wrongful act or omission of any

employee of the Government while acting

within the scope of his office or employment,

under circumstances where the United States, if

a private person would be liable to the claimant

in accordance with the law of the place where

the act or omission occurred.

28 U.S.C. 2672.

The head of each Federal agency or his

designee, in accordance with regulations pre-

scribed by the Attorney General, may consider,

ascertain, adjust, determine, compromise and

settle any claim for money damages against the

United States for injury or loss of property or

personal injury or death caused by the negligent

or wrongful act or omission of any employee of

the agency while acting within the scope of his

office or employment, under circumstances

where the United States, if a private person,

would be liable to the claimant in accordance

with the law of the place where the act or omis-

sion occurred.

28 U.S.C. 2679(d)(1).

Upon certification by the Attorney General that

the defendant employee was acting within the

scope of his office or employment at the time of

the incident out of which the claim arose, any

civil action or proceeding commenced upon

such claim in a United States district court shall

be deemed an action against the United States

under the provisions of this title and all refer-

ences thereto, and the United States shall be

substituted as the party defendant.

10 U.S.C. 502.

I ___, do solemnly swear (or affirm) that I

will support and defend the Constitution of the

United States against all enemies, foreign and

domestic; that I will bear true faith and alleg-

iance to the same; and that I will obey the orders

of the President of the United States and the

orders of the officers appointed over me,

according to regulations and the Uniform Code

of Military Justice. So help me God.

Rules:

Sexual harassment is a form of sex discrimina-

tion . . . [it includes] verbal or physical contact

of a sexual nature. Sexual harassment occurs

when: (1) Submission to or rejection of such

conduct is made either explicitly or implicitly a

term or condition of a person’s job, pay, or

career.

(3) such conduct interferes with an individ-

ual’s performance or creates an intimidating,

hostile, or offensive environment...

a. Sexual harassment... will not be tolerated.

d. Individuals will not be intimidated,

harassed, or retaliated against for exercising

their lawful rights to address their concerns.

Ft. Hood, Texas, Command Policy No. 22, App. 58.

STATEMENT OF THE CASE

Specialist 4th Class Alexis Colon, now deceased, and

her husband, Luis Colon were members of the Army,

stationed at separate Fort Hood, Texas, Dental Clinics

when the events leading to this case occurred. From

December, 1991, until she died, Alexis Colon was sexually

harassed at work and after work at Fort Hood Dental

Clinic, No. 5. The harassment was so severe that Alexis

experienced anxiety, weight loss, sleeplessness and

depression. After she objected to the harassing conduct

by McDonald and Aries, they retaliated against her in the

workplace. She and her husband then reported the

harassment Alexis was experiencing to their Sergeant

Major. She gave a written statement which described

being propositioned for sex, being spoken to about group

sex, vaginal odor, necrophilia and other lewd comments

by McDonald and which described having Aries place his

hands on her neck, run his fingers through her hair and

kiss her on the cheek. App. 55-57.

Luis and Alexis were informed by the Sergeant Major

that the two harassers would be moved out of the area

where she was assigned. Instead they remained in the

work place; and within two days of her complaint to the

Sergeant Major Alexis was accused of being a sexual

harasser and of conduct unbecoming a solder. Respon-

dents Waddell and Leonard issued Colon a written repri-

mand which threatened her with prosecution under the

UCM] and required her to teach a class on sexual harass-

ment to her co-workers. App. 51-54. Within hours of the

accusations and reprimand, twenty-six year old Alexis,

who had an exemplary record as a soldier, committed

suicide, leaving behind a note which makes it clear that

she was so devastated that she was “too weak to face

these people.” She had been made to feel “too weak and

ashamed to live.” App. 50.

The Army subsequently admitted that Alexis’ work

place was not a healthy environment, that a noncommis-

sioned officer’s sexually oriented comments to her had

constituted sexual harassment; were offensive and had

contributed to a hostile work environment. When the

petitioners gave administrative notice of their tort claims,

the Army denied them, citing Stubbs v. United States, 744

F.2d 58 (8th Cir. 1984) and claiming that the Feres doctrine

barred any recovery for the admitted sexual harassment

which had led to Colon’s death.

September 8, 1993, petitioners filed suit, bringing

claims against the United States under 28 U.S.C. 2672, et

seq., the FTCA, for its negligence and wrongful acts and

omissions, see, Sheridan v. United States, 108 S.Ct. 2449,

2455 (1988). Petitioners also brought claims against indi-

vidual defendants Waddell, Leonard, McDonald and

Aries under common law for malicious conduct leading

to Colon’s wrongful death and under Bivens for violation

of their Liberty, Property, Due Process and Equal Protec-

tion rights, under Amendments I, V and XIV and under

42 U.S.C. 2000, which is reflected in Command Policy No.

22, App. 58. Petitioners’ allegations of what occurred, as

well as the following facts are substantially uncontested:

Sexual harassment is contrary to the stated objectives of

the U.S. Army to support the Constitution of the United

States and to abide by the Uniform Code of Military

Justice. It is a violation of the Army’s laws and policies;

and it was not part of Alexis Colon’s, or any defendant's

military duties or job description. It serves no conceivable

military purpose. It is not part of military discipline and

it is not reasonable conduct, incident to military service.

Sexual harassment is not necessary to the furtherance of

any military activity.

The United States, Waddell and Leonard filed no

Answers and no Affidavits in support of their motions to

dismiss. Waddell filed an Affidavit opposition to

McDonald’s petition for certification under 28 U.S.C.

2679(d)(1), that his conduct toward Colon was within the

scope of his employment. Four orders were entered in

response to motions by the various defendants, granting

dismissal of all of petitioners’ common law, FTCA and

Bivens claims, based on Feres v. United States, 340 U.S. 135

(1950). None of these orders addresses the plain language

of the FTCA, or petitioners’ fundamental rights. Order as

to the United States, App. 37; Waddell and Leonard, App. 29,

McDonald, App. 10, Aries, App. 4. The order concerning

McDonald finds that he was motivated by a personal

obsession and pursued his own personal gratification,

outside the scope of his duties, when he harassed Colon;

but even though McDonald is denied scope certification,

all of petitioners’ claims against him are barred by Feres.

App. 21, 24.

May 7, 1997, in a summary opinion, the Court of

Appeals for the Fifth Circuit held that “However disturb-

ing plaintiffs’ accusations might be, we do not have juris-

diction to hear them . . . [C]riticisms of the policies

embodied in Feres and Chappell are beside the point.”

App. 2, 3. The court cited Miller v. United States, 42 F.3d

297, 303 (5th Cir. 1995) which holds that concern for

preserving military discipline is “the most important con-

sideration in any single case.” App. 3. Petitioners, who

respectfully believe that the Constitution and constitu-

tional rights are more important considerations than def-

erence to a breakdown of military discipline now file this

Petition.

REASONS FOR GRANTING THE WRIT

The Fifth Circuit has decided important questions of

federal law concerning the rights of a member of the

military injured by sexual harassment. It has declared

that under Feres v. United States, 430 U.S. 15 (1950), it

lacks subject matter jurisdiction because Colons’ claims

are attempts to collect money damages for an injury

incident to active duty military service and has refused to

consider petitioners’ allegations, leaving them with no

remedy. Important questions of federal law concerning

the fundamental civil rights of a military woman who is

sexually harassed have not been, but should be settled by

this Court.

The various circuits are unsettled in their interpreta-

tions of claims by service members, as to what constitutes

a claim for an “injury incident to military service” that is

barred by the Feres doctrine. Since 1950, the inception of

the doctrine, circuit courts have struggled to analyze and

apply the Feres holding, often issuing opinions that are

not easily usable as clear precedent. Claims for death or

injury due to drunkenness that causes a soldier to fall

into a ditch or crash his car are not barred by the Feres

doctrine as incident to service. Dreier v. United States, 106

F.3d 844 (9th Cir. 1996), 95 F.3d 1435 (9th Cir. 1996); Taber

v. Maine, 67 F.3d 1029 (2d Cir. 1995), 45 F.3d 598 (1995).

Claims related to auto accidents involving service mem-

bers, Durant v. Neneman, 884 F.2d 1350 (10th Cir. 1989);

Parker v. United States, 611 F.2d 1007 (5th Cir. 1980); the

military’s failure to follow its own regulations, Johnson v.

United States, 704 F.2d 1431, 1439-40 (9th Cir. 1983), Ordahl

v. United States, 601 F.Supp. 96, 100 (D.Montana 1986);

and claims against military personnel who participated in

racial harassment, Brown v. United States, 739 F.2d 362,

368, 369 (8th Cir. 1984) have not been barred under Feres.

But illegal, non-military, sexual harassment and retalia-

tion that drove Alexis Colon to such despair that she lost

her life have been deemed “incident to service” and Feres-

barred. App. 4, 10, 22, 23, 29 and 37.

The facts of this case are most closely approximated

by Stubbs, at 774 F.2d 58, which contains an inherent

denial of equal protection, but nevertheless has been

relied upon by Respondents and discussed in orders

granting dismissal. App. 42. Stubbs was issued in 1984, by

an Eighth Circuit that was divided on the subject of Feres.

A few months prior to holding that Dawn Stubbs’ suicide

rather than face further sexual harassment and retaliation

was “incident to service,” a different panel of the circuit

held that tort claims against participants in the mock

lynching of an African American soldier were not Feres-

barred. Even though Frontiero v. Richardson, 411 U.S. 677,

680, 686 (1973) and Schlesinger v. Ballard, 419 U.S. 498

(1975) had previously made it clear that military women

were entitled to equal protection of the law; the outcomes

in Stubbs and Brown demonstrate that in 1984, the right to

be free of sexual harassment was not considered of equal

importance with the right to be free of racial harassment.

The presence of the flawed Stubbs holding as cited

autherity in these proceedings, indicates that in 1997,

there is still a need for this court to address the right of

military women to equal protection of the law.

The rank of a sexual harasser or a victim of sexual

harassment should not determine the availability of a

remedy for civil rights violations, if all are equal under

the law. Yet, when Major Lutz’ claims against the ser-

geants who harassed her were permitted, Lutz v. Secretary

of the Air Force, 944 F.2d 1477 (9th Cir. 1991); and Special-

ist Colons’ claims against sergeants who harassed her are

barred, constitutional protections are available to some

but not others, based on rank. The Fifth Circuit’s refer-

ence to the Brown racial harassment case and its dismissal

of claims against superior officers disregards the portion

of the ruling that permitted claims against direct

harassers as “participants” without mention of their rank.

Visladua ch ahh eas Pe St tees arena IE

App. 2. Brown, at 739 F.2d 369. The message of the hold-

ing in this case, is that a member of the military is free to

sexually harass anyone subordinate to him in the chain of

command and the victim will have no recourse. Where

there has been a denial of equal protection, as here, it is

the duty of the courts to fashion a remedy. United States v.

Virginia, 116 S.Ct. 2264, 2284 fn. 19, 135 L.Ed.2d 735

(1996).

The Feres doctrine is a rule of negligence law. That is

its original purpose. It was never intended to determine

civil rights or sexual harassment issues. In 1950 there

were relatively few women in the military and sexual

harassment issues were not before the Court or the pub-

lic, as they are today. Since 1950, Feres has been so

broadly and subjectively expanded that it has effectively

become a presumptive bar to claims by members of the

military which few can overcome, regardless of the merit

of their cases. The case by case analysis contemplated in

United States v. Shearer, 473 U.S. 52, 59, 105 S.Ct. 3039,

3043, 87 L.Ed. 36 (1985) has fallen by the wayside. Miller

at 42 F.3d 303.

The Fifth Circuit’s dismissal of Colons’ claims

extends the Feres doctrine beyond the holdings in Chap-

pell v. Wallace, 462 U.S. 294 (1983) and United States v.

Stanley, 107 S.Ct. 3054, 483 U.S. 669 (1987), even though,

“ |. [N]o holding can be broader than the facts before

the court.” Id., Stanley, at 483 U.S. 680. Under the facts of

this case, Petitioners’ claims do not touch on sensitive

military affairs. It would enhance, rather than intrude on

military discipline to address the rights at issue in this

case. Sexual harassment has no place in the “specialized

society” that is the military. Any sort of unity, commit-

ment or esprit de corps that is strengthened by sexual

harassment is intolerable. United States v. Johnson, 107

S.Ct. 2063, 2069, 481 U.S. 690 (1987), refers to the spe-

cialized environment of the military as necessary to its

function and deserving of deference from the judiciary.

However, protection of sexual harassers is a discrimina-

tory affront to the Constitution and to rights of a military

woman who must tolerate such an environment.

The petitioners’ common law tort claims are an exam-

ple of the well recognized right of access to the courts by

a service member who has suffered injury and oppression

by those in authority, based on considerations other than

“public ends.” Wilkes v. Dinsman, 12 L.Ed. 619, 636 (1849).

This common law right was not disturbed by Chappell,

462 U.S. at 305, fn.2. Unlike military drug experimenta-

tion in Stanley, at 107 S.Ct. 3063, 483 U.S. 683, sexual

harassment is not necessary to the furtherance of any

activity incident to military service. Petitioners’ claims

should be permitted to stand.

The Feres doctrine should be overturned. The plain

language of the statute, 28 U.S.C. 2672, et seq., refers to

claims, not to any claim but that of service members.

Brooks v. United States, 337 U.S. 49, 51, 60 S.Ct. 918, 919

(1949). The Court has gone beyond the intent of the

legislature, which should have limited it, by over expand-

ing Feres. Brown v. Barry, 3 U.S. 365, 367, 3 Dall 365, 1

L.Ed. 638 (1797). There would be no adverse effect on the

military due to petitioners’ claims, under the language of

the FTCA statute, strictly construed. Petitioners’ allega-

tions are sufficient to invoke the court’s jurisdiction

under 28 U.S.C. 1346(b). As long as the facts are sufficient

ee ed ee ee eee —s

cares

Di bleh e

to invoke a court’s jurisdiction, it “must entertain the

suit” and use any available remedy where a wrong of

constitutional proportions has been done. Bell v. Hood, 327

U.S. 678, 681-82, 66 S.Ct. 773, 775-76, 777 (1945).

Judicial deference to the military enables it to be a

haven for civil rights violations that defy our Constitution

and that would not be countenanced elsewhere in our

society. Such deference is adverse to the balance inherent

in our democracy, where it is the function of the military to

uphold the Constitution. 10 U.S.C. 502. Former Chief Jus-

tice Warren spoke eloquently about the balance between

fundamental rights and deference to the military:

On the whole, it seems to me plain that the

Court has viewed the separation and subordina-

tion of the military establishment as a compel-

ling principle. When this principle supports an

assertion of substantial violation of a precept of

the Bill of Rights, a most extraordinary showing

of military necessity in defense of the Nation

has been required for the Court to conclude that

the challenged action in fact Squared with the

injunctions of the Constitution. While situations

may arise in which deference by the Court is

compelling, the cases in which this has occurred

demonstrate that such a restriction upon the

scope of review is pregnant with danger to indi-

vidual freedom. Fortunately, the Court has gen-

erally been in a position to apply an exacting

standard. Thus, although the dangers inherent

in the existence of a huge military establishment

may well continue to grow, we need have no

feeling of hopelessness. Our tradition of liberty

has remained strong through recurring crises.

We need only remain true to it.

[OJur citizens in uniform may not be stripped of

basic rights simply because they have doffed

their civilian clothes.

Warren, The Bill of Rights and the Military, 37

N.Y.U.L.Rev. 181, 188 (1962).

CONCLUSION

The petitioners claims should stand, without the

impediments of the Feres doctrine. “There is no ‘military

exception’ to the Constitution.” Steffan v. Aspin, 8 F.3d at

62 (D.C. Cir. 1993) (citing Rostker v. Goldberg, 453 U.S. 57,

67 (1981), rev'd on other grounds en banc, sub nom. Steffan v.

Perry, 41 F.3d 677 (D.C. Cir. 1994), cert. den., 471 U.S. 1053,

105 S.Ct. 2113 (1995).

Respectfully submitted,

Doris BESIKOF

Law Orrice or Doris BESIKOF

1000 South Birch Street

Denver, Colorado 80222

(303) 753-9999

App. 1

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-50233

Summary Calendar

ALEXIS COLON, Estate of Decedent by

Personal Representative Peaches Martinez,

Luis Colon; PEACHES MARTINEZ;

ALEXANDER MARTINEZ; LUIS COLON,

Plaintiffs-Appellants,

versus

UNITED STATES OF AMERICA; WADDELL,

Lieutenant Colonel; TYRONNE S. LEONARD,

Staff Sergeant; McDONALD, Sergeant;

AXIES, Sergeant,

Defendants-Appellees.

Appeal from the United States District Court

for the Western District of Texas, Waco

(W-95-CV-67)

(Filed May 7, 1997)

Before HIGGINBOTHAM, WIENER, and BENAVIDES,

Circuit Judges.

App. 2

PER CURIAM:*

The plaintiffs brought this suit on behalf of them-

selves and Alexis Colon, a member of the armed forces

stationed at Fort Hood. The complaint alleges that Colon

committed suicide after being subjected to sexual harass-

ment by her superiors. According to the plaintiffs, not

only was Colon a victim of harassment, but the individ-

ual defendants retaliated against her for reporting their

harassment by wrongly accusing Colon herself of engag-

ing in sexual harassment.

However disturbing the plaintiffs’ accusations may

be, we do not have jurisdiction to hear them. The Federal

Tort Claims Act, 28 U.S.C. §§ 2671 et seg., does not waive

governmental immunity when a member of the armed

forces on active duty seeks money damages based on an

injury suffered while performing military tasks at a mili-

tary base and inflicted by superior officers. Feres v. United

States, 340 U.S. 135 (1950); Schoemer v. United States, 59

F.3d 26, 28-29 (5th Cir.), cert. denied, 116 S. Ct. 519 (1995).

Even a case touted by the plaintiff, Brown v. United States,

739 F.2d 362, 369 (8th Cir. 1984), cert. denied, 473 U.S. 904

(1985), in which enlisted men subjected a black private to

a mock lynching, recognized that a plaintiff’s “claims

against the United States and his superior officers for

failing to prevent the incident, and against his superior

officers for failing to perform a proper investigation, are

barred by the Feres doctrine.” The Supreme Court has

* Pursuant to Local Rule 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 Local Rule

47.5.4.

App. 3

similarly held that the reasoning in Feres serves to bar

Bivens claims. Chappell v. Wallace, 462 U.S. 300 (1983).

As we have recognized in the past, criticisms of the

policies embodied in Feres and Chappell are beside the

point. “The Feres doctrine has been reaffirmed by the

Supreme Court many times since its inception in the face

of strong criticism of the equity of the rule.” Miller v.

United States, 42 F.3d 297, 307 (5th Cir. 1995). We are

bound to follow that precedent.

AFFIRMED.

App. 4

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

WACO DIVISION

ESTATE OF ALEXIS COLON, §

Decedent, by Personal

Representative PEACHES

MARTINEZ, LUIS COLON,

PEACHES MARTINEZ, and

ALEXANDER MARTINEZ,

individually, CIVIL ACTION NO.

Plaintiffs, aie

Vv.

THE UNITED STATES OF

AMERICA, LIEUTENANT

COLONEL WADDELL, STAFF

SERGEANT THRONE S.

LEONARD, SERGEANT

MCDONALD and SERGEANT

ARIES.

Defendants.

MMMM MMmMmMmMmMMm MMMM MM MM

ORDER

(Filed Jun. 19, 1996)

Came on this date to be considered the Motion to

Dismiss and for Judgment on the Pleadings filed by

Defendant Dax Aries (“Aries”) in this case. Having

reviewed Defendant’s motion and Plaintiff’s response,

the Court has determined it is meritorious and should be

granted.

This case arises out of the unfortunate death of

Alexis Colon (“Colon”) by a self-inflicted gunshot wound

App. 5

on April 29, 1992. At the time of her death, Colon was a

Specialist on active duty in the United States Army. She

was stationed at Fort Hood, Texas and was assigned as a

Dental Technician at Dental Clinic #5. Plaintiffs, Colon’s

surviving family, assert that Colon was sexually harassed

from the time she arrived at Fort Hood in December 1991,

which ultimately resulted in her death. The final straw,

according to Plaintiffs’ complaint, was when Colon was

reprimanded after having filed a complaint of sexual

harassment with her superior officer.

The other Defendants in this action, including the

United States of America, were dismissed from this suit

either by this Court and by the District Court for the

Northern District of California, where the case was origi-

nally filed. As was found in those previous orders, plain-

tiffs’ claims against Defendant Aries are barred by the

Feres doctrine. See Feres v. United States, 340 U.S. 135

(1950).

The Feres doctrine is a judicially created

exception to the broad waiver of immunity

established by the FTCA. The essence of the

doctrine is that “the Government is not liable

under the Federal Tort Claims Act for injuries to

servicemen where the injuries arise out of or are

in the course of acting incident to service.”

Miller v. United States, 42 F.3d 297, 300 (5th Cir. 1995),

quoting Feres v. United States, 340 U.S. at 159. Under this

doctrine, the Court evaluates whether the injured service-

man was injured while working in the course of his

service, rather than analyzing whether the one who

injured him was operating within the scope of his

employment.

App. 6

A serviceman whose injuries arise out of or occur in

the course of his service is precluded from suing not only

the Government, but also his superior officers,! as well as

fellow servicemen and civilian personnel.? The doctrine

precludes suits under the Federal Tort Claims Act, as

well as suits under Title VII,* suits claiming deprivations

of constitutional rights,5 and suits based upon state tort

claims.®

In determining whether a serviceman’s injuries were

incident to his military service, the Court must examine

the totality of the circumstances in light of the rationale

behind the Feres doctrine. Schoemer v. United States, 59

F.3d 26 (5th Cir. 1995); Miller v. United States, 42 F.3d at

403. The three major elements that the Court evaluates

include the serviceman’s duty status, the site of his injury,

and the activity he was performing when injured. Parker

v. United States, 611 F.2d 1007 (5th Cir. 1980). See also

Schoemer v. United States, 59 F.3d at 28.

‘While no single factor is necessarily dispositive,

our applications of the Parker test —- and, indeed,

the results of our cases decided before Parker’s

exposition of it - demonstrate that the duty

1 See Chappell v. Wallace, 462 U.S. 294 (1983).

2 See United States v. Stanley, 483 U.S. 667 (1987).

3 See United States v. Shearer, 473 U.S. 52 (1985).

4 See Stinson v. Hornsby, 821 F.2d 1537 (11th Cir. 1987), cert.

denied, 488 U.S. 959 (1988); Johnson v. Alexander, 572 F.2d 1219

(8th Cir.), cert. denied, 439 U.S. 986 (1978); Spain v. Ball, 928 F.2d

61 (2d Cir. 1991); and Gonzalez v. Dept. of the Army, 718 F.2d 926

(9th Cir. 1983).

5 See Chappell v. Wallace, 462 U.S. 294 (1983).

6 See Holdiness v. Stroud, 808 F.2d 417 (5th Cir. 1987).

App. 7 ’

status of the service member is usually consid-

ered the most indicative of the nature of the

nexus between him and the [G]overnment at the

time of injury and is therefore the most impor-

tant factor.

Miller v. United States, 42 F.3d at 301, quoting Adams v.

United States, 728 F.2d 736, 739 (5th Cir. 1984)

As noted in the previous Order granting Defendant

McDonald’s motion to dismiss,

the allegations of Plaintiffs’ complaint reflect

that Colon was on active duty during the times

relevant to this action, that the vast majority of

the events occurred on Fort Hood, and that the

majority of the events occurred while Colon was

at her regular assignment at the dental clinic.

Even if the Court were to conclude that most of

the incidents of sexual harassment occurred off-

base and while Colon was not on active duty,

the Feres doctrine would still bar Plaintiffs’

claims. The primary incident which Plaintiffs

assert led to Colon’s death was the allegedly

retaliatory reprimand given to her by Defendant

Aries, the resulting accusation and investigation

of sexual harassment against her, and the even-

tual reprimand from her superior officers. Were

these claims permitted to continue, it would

necessarily involve an intrusion into military

decisions regarding the discipline of its person-

nel. As the Shearer court noted, the location of

the act is “not nearly as important as whether

the suit requires the civilian court to second-

guess military decisions, and whether the suit

might impair essential military discipline... . ”

United States v. Shearer, 473 U.S. at 57 (citations

omitted). Unlike a claim arising out of a car

App. 8

accident or some similar claim of negligence,

“the claim here would require Army officers ‘to

testify in court as to each other’s decisions and

actions.’ ” Id., quoting Stendel Aero Engineering

Corp. v. United States, 431 U.S. 666, 673 (1977).

To permit this type of suit would mean that

commanding officers would have to stand

prepared to convince a civilian court of the

wisdom of a wide range of military and

disciplinary decisions; for example, whether

to overlook a particular incident or episode,

whether to discharge a serviceman, and

whether and how to place restraints on a

solider’s [sic] off-base conduct. But as we

noted in Chappell v. Wallace, such “ ‘such

complex, subtle, and professional decisions

as to the composition training, . . . and

control of a military force are essentially

professional military judgments.’ ” 462 U.S.,

at 302, 103 S.Ct., at 2366... .

Id., quoting Gilligan v. Morgan, 413 U.S. 1, 10, 93

S.Ct. 2440, 2446, 37 L.Ed.2d 407 (1973). Plain-

tiff’s claims are, therefore, barred.

Order entered January 30, 1996 at 16-17.

Plaintiffs further argue that dismissal of the claims

against Defendant Aries is inappropriate due to the

“obstruction, delay and multiplication of proceedings”

resulting from Defendant Aries’ failure to timely file an

answer. The Court has already addressed this issue in

connection with Defendant Aries’ Motion to Set Aside

Entry of Default and for Leave to File Out of Time

Answer. Accordingly, it is

App. 9

ORDERED that Defendant Aries’ Motion to Dismiss

and for Judgment on the Pleadings is GRANTED.

SIGNED this 18th day of June, 1996.

/s/ Walter S. Smith, Jr.

WALTER S. SMITH, JR.

United States

District Judge

App. 10

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

WACO DIVISION

ESTATE OF ALEXIS COLON, § CIVIL ACTION NO.

Decedent, by Personal W-95-CA-067

Representative PEACHES

MARTINEZ, LUIS COLON,

PEACHES MARTINEZ, and

ALEXANDER MARTINEZ,

Individually,

Plaintiffs,

THE UNITED STATS OF

AMERICA, LIEUTENANT

COLONEL WADDELL, STAFF

SERGEANT TYRONNE S.

LEONARD, SERGEANT

MCDONALD and SERGEANT

ARIES,

MMMM MmMmMmMmMmMmMm Mm Mm Mm MM MM MM

Defendants.

ORDER

(Filed Jan. 30, 1996)

This case arises out of the unfortunate death of

Alexis Colon (“Colon”) by a self-inflicted gunshot wound

on April 29, 1992. At the time of her death, Colon was a

Specialist on active duty in the United States Army. She

was stationed at Fort Hood, Texas and was assigned as a

Dental Technician at Dental Clinic #5. Plaintiffs assert

that Colon was sexually harassed from the time she

arrived at Fort Hood in December 1991, which ultimately

- )

ES Fe eee et Ce ee ee ae eee

App. 11

resulted in her death. The factual basis for Plzintiffs’

claim is that Colon filed a complaint of sexual harassment

with her superior, Sergeant Major Hutchens, against Ser-

geants McDonald and Aries. On April 29, 1992 Colon was

informed by Lieutenant Colonel Waddell, the officer in

charge of the dental clinic, and Sergeant Leonard that a

written reprimand was being issued against her for sex-

ual harassment. She was threatened with disciplinary

measures if additional incidents of sexual harassment

occurred, and she was directed to teach a class on sexual

harassment. She took her own life later that day.

This case was originally filed in the United States

District Court for the Northern District of California.

After the filing of various dispositive motions, the Cali-

fornia court dismissed the United States and Defendants

Waddell and Leonard from this action. The case was then

transferred to the Western District of Texas. The only

remaining Defendants, therefore, are Sergeants

McDonald and Aries.

Plaintiffs’ claims appear to be as follows: (1) a com-

mon law claim for some sort of wrongful death, sexual

harassment or some form of intentional infliction of emo-

tional distress;! (2) negligence under the Federal Tort

1 The Plaintiffs are not precise as to the nature of this cause

of action. The Original Complaint states,

The malicious conduct of defendants Waddell,

Torrance, Aries and McDonald, jointly and severally,

was the direct and proximate cause of the death of

plaintiff Alexis Colon and of the damages suffered by

App. 12

Claims Act; and (3) a deprivation of Colon’s constitu-

tional rights.?

Sergeant McDonald has moved to dismiss the claims

against him under the authority of the Feres doctrine. See

Luis Colon. Alexander Martinez and Peaches

Martinez.

A. Alexis Colon suffered severe emotional and

physical distress and ultimately lost her life;

B. Plaintiff Luis Colon has endured and in the

future, will continue to endure extreme griei,

pain and suffering and loss of enjoyment of life;

and has lost the care, companionship, society,

services, support and consortium of his beloved

wife;

C. Peaches and Alexander Martinez have lost

the support, society, companionship and services

of their daughter, Alexis Colon; and have

endured and in the future, will continue to

endure mental and emotional grief, pain and

suffering and loss of enjoyment of life.

Original Complaint, paragraphs 33-34.

In their response and objection to Defendant McDonald’s

Memorandum in Support of defenses of absolute and qualified

immunity and failure to state a claim, the Plaintiffs note,

“Plaintiffs’ first cause of action is plead as a wrongful death

claim and not a personal injury claim.” Plaintiff’s Response, p.

7. However, Plaintiffs subsequently note in the same pleading

that their first cause of action properly includes the elements of

a claim for intentional infliction of emotional distress. Id. p. 9.

2 As with their first cause of action, this third cause of

action is not exactly a model of clarity. Plaintiffs assert every

kind of Constitutional violation that could occur, including

deprivation of life, liberty and due process, as well as a violation

of Colon’s equal protection rights. Plaintiffs additionally cite to

Title VII as-forming the basis for their third claim.

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App. 13

Feres v. United States, 340 U.S. 135 (1950). He has also

requested a review of the United States’ decision to deny

scope certification under 28 U.S.C. § 2679(d)(3). The

United States has moved for summary judgment as to this

issue. Having reviewed the parties’ briefs, the applicable

authority, and the summary judgment proof presented,

the Court is persuaded the United States’ motion for

summary judgment should be granted, Defendant

McDonald’s cross-motion for summary judgment should

be denied, and Defendant McDonald’s motion to dismiss

for lack of subject matter jurisdiction and motion to dis-

miss for failure to state a cause of action and for judg-

ment on the pleadings should be granted.

I. SUMMARY JUDGMENT

Summary Judgment should be granted if “the plead-

ings, depositions, answers to interrogatories, and admis-

sions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a

matter of law.” Fed. R. Civ. P. 56(c). A material fact is in

genuine dispute if the evidence would allow a jury to

return a verdict for the non-moving party. Anderson v.

Liberty Lobby, 477 U.S. 242, 248 (1986).

The initial burden to demonstrate the absence of a

genuine issue of material fact is on the moving party.

Celotex v. Catrett, 477 U.S. 317, 325 (1986). This burden can

be satisfied by establishing that there is an absence of

evidence to support an essential element of the non-

moving party’s case. Id. Upon such a showing, the bur-

den shifts to the non-moving party to establish that there

App. 14

is a genuine issue. Id. at 324. “[T]he plain language of

Rule 56(c) mandates the entry of summary judgment,

after adequate time for discovery and upon motion,

against a party who fails to make a showing sufficient to

establish the existence of an element essential to that

party’s case, and on which that party will bear the burden

of proof at trial.” Id. at 322.

Il. DISMISSAL

A motion to dismiss under Rule 12(b)(6) “is viewed

with disfavor and is rarely granted.” Kaiser Aluminum and

Chemical Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d

1045, 1050 (5th Cir. 1982), cert. denied, 459 U.S. 1105

(1983), quoting 5 C. Wright and A. Miller, Federal Practice

and Procedure § 1357 at 598 (1969). It is well settled that “a

complaint should not be dismissed for failure to state a

claim unless it appears beyond doubt that the Plaintiff

can prove no set of facts in support of his claim which

would entitle him to relief.” Conley v. Gibson, 355 U.S. 41,

45-46 (1957); Boudeloche v. Grow Chemical Coatings Corp.,

728 F.2d 759, 762 (5th Cir. 1984); Kaiser, 677 F.2d at 1050.

When considering such a motion, the complaint must be

liberally construed in the plaintiff’s favor, and all facts

pleaded in the complaint should be accepted as true.

Campbell v. Wells Fargo Bank, N.A., 781 F.2d 440, 442 (5th

Cir. 1986), cert. denied, 476 U.S. 1159 (1986). “The question

therefore is whether in the light most favorable to Plain-

tiff and with every doubt resolved in his behalf, the

complaint states any valid claim for relief.” 5 Wright and

Miller, Federal Practice and Procedure, Section 1357 at 601.

re wen ee ee ee

App. 15

II. DISCUSSION

A. Westfall Act. Congress, in response to the

Supreme Court opinion in Westfall v. Erwin, 484 U.S. 292,

108 S.Ct. 580 (1988), expanded the immunity of federal

employees under the Federal Tort Claims Act. 28 U.S.C.

§ 2679. Under the so-called Westfall Act, a federal

employee enjoys absolute immunity from suit for com-

mon law torts committed while acting within the scope of

employment.® See Arthur v. United States, 45 F.3d 292 (9th

Cir. 1995). This immunity does not apply to actions

brought against an employee for violations of the Consti-

tution or laws of the United States. 28 U.S.C. § 2679(b)(2).

Therefore, Plaintiffs’ claim that Defendant McDonald vio-

lated the Constitutional rights of Colon are unaffected by

the United States’ motion for summary judgment.

3 The statute provides:

The remedy against the United States provided by

sections 1346(b) and 2672 of this title for injury or loss

of property, or personal injury or death arising or

resulting from the negligent or wrongful act or

omission of any employee of the Government while

acting within the scope of his office or employment is

exclusive of any other civil action or proceeding for

money damages by reason of the same subject matter

against the employee whose act or omission gave rise

to the claim or against the estate of such employee.

Any other civil action or proceeding for money

damages arising out of or relating to the same subject

matter against the employee or the employee’s estate

is precluded without regard to when the act or

omission occurred.

28 U.S.C. § 2679(b)(1).

eee LLL LLL

App. 16

If a suit is brought against a federal employee, the

Attorney General makes the determination of whether

the employee was acting within the scope of his office or

employment. 28 U.S.C. § 2679(d)(1).* If so, then the

United States is substituted as the party defendant and

the suit proceeds as any other against the United States

under the Federal Tort Claims Act. If the Attorney Gen-

eral refuses to certify that an employee was acting within

the scope of his office or employment, the employee may

then request the court to make such a certification and to

substitute the United States as the party defendant.> The

Attorney General’s decision regarding certification is con-

cd clusive unless challenged. Green v. Hall, 8 F.3d 695, 698

(9th Cir. 1993), cert. denied, __ U.S. __, 115 S.Ct. 58

4 The statute provides:

Upon certification by the Attorney General that the defendant

employee was acting within the scope of his office or

employment at the time of the incident out of which the claim

arose, any civil action or proceeding commenced upon such

claim in a United States district court shall be deemed an action

against the United States under the provisions of this title and

all references thereto, and the United States shall be substituted

as the party defendant.

5 The statute provides, in pertinent part:

In the event the Attorney General has refused to certify scope of

office or employment under this section, the employee may at

any time before trial petition the court to find and certify that

the employee was acting within the scope of his office or

employment. Upon such certification by the court, such action

or proceeding shall be deemed to be an action or proceeding

brought against the United States under the provisions of this

title and all references thereto, and the United States shall be

substituted as the party defendant.

ip Pass: stig shleend

— a wT

App. 17

(1994). The party challenging the Attorney General's cer-

tification decision bears the burden of disproving it-by a

preponderance of the evidence. Id. See also Williams v.

United States, 71 F.3d 502 (5th Cir. 1995).

In order to determine whether an employee's actions

were within the scope of employment under the Westfall

Act, the Court must apply the law of the state in which

the employee’s conduct occurred. Garcia v. United States,

62 F.3d 126 (5th Cir. 1995). Texas law is, therefore, appli-

cable to this case.

Under Texas law, the scope of employment deter-

mination is analyzed under the theory of respondeat

superior. Id., citing Mata v. Andrews Transport, Inc., 900

S.W.2d 363, 366 (Ex.App. - Houston [14th Dist.] 1995)

(“employers may be held liable for negligent acts by their

employees under a theory of respondeat superior only if

the employee’s actions are in the course and scope of

their employment”). The employee’s act need not have

been expressly authorized by the employer, but must

have been:

(1) within the general authority given him;

(2) in furtherance of the employer’s business;

and

(3) for the accomplishment of the object for

which the employee was employed.

Mata v. Andrews Transport, Inc., 900 S.W.2d at 366. An

employer may be liable for an employee's acts even if

those acts are expressly contrary to the employer's

orders, so long as the employee’s act “was within the

general scope of his authority.” Country Roads, Inc. v. Witt,

737 S.W.2d 362, 364 (Tex.App. - Houston [14th Dist.]

App. 18

1987, no writ). However, the employer is not responsible

for the acts of an employee who deviates from the perfor-

mance of his duties for his own, personal purposes.

Drooker v. Saeilo Motors, 756 S.W.2d 394, 397 (Tex.App. -

Hosuton [sic} [1st Dist.] 1988, writ denied). See also Viking

v. Circle K Convenience Stores, 742 S.W.2d 732, 734

(Tex.App. — Houston [1st Dist.] 1987, writ denied) (“An

employer is not liable for actions that an employee takes

in his own interests and not to further the purpose of

carrying out the master’s business”).

In order to determine whether- Defendant

McDonald's actions were within the scope of his employ-

ment, it is first necessary to ascertain what acts he

allegedly performed. Thus, the Court must analyze not

only the allegations of Plaintiffs’ complaint, but the affi-

davits and statements attached to the parties’ summary

judgment motions. The original complaint identifies

Defendant McDonald as “the Sergeant who is named by

plaintiff decedent in her written statement as subjecting

her to harassment and lewd talk.” Original Complaint,

paragraph 13. The pleadings and summary judgment

proof presented establish the following:

1. “McDonald was assigned as the supply sergeant

for the clinic and was responsible for maintaining and

dispensing supplies.” Declaration of Henry T. Waddell,

Jr., Exhibit A to United States’ Motion for Summary Judg-

ment.

2. “Specialist Colon was assigned as a preventative

dentistry specialist and was responsible for cleaning teeth

and carving fillings.” Id.

App. 19

3. On one occasion, Defendant McDonald gave

Colon a ride to an appointment, during which Defendant

McDonald talked about various sexual encounters he had

with other female Army personnel. He additionally ques-

tioned Colon about her sexual encounters. Statement of

Alexis Colon, Exhibit B to Plaintiff’s Original Complaint.

4. On another occasion, while Colon was waiting

for her husband t? pick her up from work, Defendant

McDonald joined her and again discussed his sexual

encounters. He ended the conversation by stating “I bet-

ter stop before I get in trouble for sexual harrasment

[sic].” Id.

5. On a separate occasion, Defendant McDonald

made lewd comments about the women’s softball team

while gathered with other employees at the clinic’s con-

ference room. Defendant McDonald also said that males

were better at softball than women. Id.

6. When new Chairs were delivered to the clinic, all

personnel were assigned to remove the left-over trash.

Defendant McDonald said to leave the lightweight trash

for the females, “so they will have something to do.” Id.

7. Another conversation occurred in the dental

clinic conference room regarding necrophilia, which

caused Defendant McDonald to laugh. Id.

8. Defendant McDonald and Colon had a friendly

relationship outside of the dental clinic, and were friends

before McDonald became a sergeant. Exhibits B and D to

United States’ motion for summary judgment.

App. 20

8. On April 24, 1992, Defendant McDonald and

Colon had an altercation regarding the delivery of sup-

plies. Colon questioned when supples would be delivered

to Bay 1, and Defendant McDonald told her he would put

her list at the bottom if she continued asking him every

ten minutes for supplies. When the exchange became

heated, Sergeant Aries told Colon to “At Ease.” When

Colon continued to talk, Sergeant Aries said he would

give her an Article 15 if she did not “At Ease.” Colon

approached Defendant McDonald later that day to again

attempt to explain the Bay 1 supply situation, and Defen-

dant McDonald told her that voicing her opinion could

get her in trouble. Id.; Statement of John R. McDonald,

Exhibit B to United States’ Motion for Summary Judg-

ment.

9. Later the same day, Colon told Defendant

McDonald that he was being paged, but he ignored her.

Statement of Alexis Colon.

10. On April 27, 1992, Colon filed a charge of sexual

harassment against Sergeants McDonald and Aries. Both

the sergeants and Colon were questioned, and corrective

action was taken against both Colon and Defendant

McDonald. Affidavit of John R. McDonald attached to

Defendant McDonald’s Response to United States’

Motion for Summary Judgment.

As noted, an employer is liable for the actions of his

employee under Texas law when those actions are for the ~

purpose of furthering his employer’s business rather than

some business of his own. Viking v. Circle K Convenience

Stores, 742 S.W.2d at 734. In this case, if all of the allega-

tions of Plaintiffs’ complaint are presumed as true, the

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App. 21

actions of Defendant McDonald served no purpose but

that of personal gratification.

Defendant McDonald cites to Bushell v. Dean, 781

S.W.2d 652 (Tex.App. -— Austin 1989), rev'd on other

grounds, 803 S.W.2d 711 (Tex. 1991) as support for his

contention that he was acting within the course and scope

of his duties. In Bushell, the plaintiff was subjected to

offensive sexual invitations and touching by her direct

supervisor, who then increased her work load when she

spurned him. Due to an angry altercation, the plaintiff

resigned her position. The plaintiff brought suit for

assault, intentional infliction of emotional distress, and

sexual harassment. The court determined that the actions

taken by the supervisor in retaliating against the plaintiff

were within his general authority and furthered the

object for which he was hired.

The facts of the present case are more similar to those

reported in Kelly v. Stone, 898 S.W.2d 924 (Tex.App. -

Eastland 1989, writ denied), in which the plaintiff also

sought damages for intentional infliction of emotional

distress and assault arising out of a claim of sexual

harassment. In the Kelly case, the plaintiff was subjected

to lewd comments and offensive touching by a manager

in her office. However, as in the present case, the man-

ager was not her direct supervisor but did hold a position

of authority over her. Also, the plaintiff and the manager

had a relationship outside of the office. Finally, although

the plaintiff reported the harassment to her supervisor,

no action was taken by the company and the plaintiff

eventually resigned her position. In distinguishing Bush-

ell, the Kelly court noted:

App. 22

McArthur was hired to manage and super- i

vise the “office services division” of the Cooper-

ative. McArthur’s duties at the Cooperative did

not include the use or threat of physical force or

physical conduct against employees, nor did

Stone ever direct McArthur to assault or inflict

emotional distress on Kelly. There is no evidence

to show that McArthur’s conduct was in the

furtherance of the Cooperative’s business or for

the accomplishment of the object for which

McArthur was employed. While a manager can

be expected to communicate with his subordi-

nates, McArthur’s comments to Kelly about his

desires that they belonged together in this life,

his comments about his marital problems, and

his comments about Kelly’s attire were not work

related. Additionally, McArthur’s assault

against Kelly, the daily intercom calls to Kelly,

and the audiotape that McArthur gave Kelly

were not within the scope of general authority

given to McArthur by the Cooperative.

When only the evidence supporting the

jury’s finding is considered, the record clearly

shows that McArthur was motivated by his per-

sonal obsession and that he pursued his own

personal gratification. This was not in the fur-

therance of the Cooperative’s business. More-

over, McArthur turned aside from his duties

with the Cooperative to pursue purely personal

interests. When he did so, McArthur ceased to

act in the course and scope of his employment.

Kelly v. Stone, 898 S.W.2d at 928-929.

As can be seen from the foregoing, the vast majority

of the sexually oriented comments made by Defendant

McDonald apparently occurred at times when he was not

App. 23

working at the dental clinic or apparently on break. As

the Attorney General has denied certification, the burden

is upon Defendant McDonald, who is contesting that

decision, to prove by a preponderance of the evidence

that he was working in the course and scope of his

employment at all times relevant to the allegations in this

lawsuit. This he has failed to do. Defendant McDonald

has offered nothing to establish that the comments were

made during the course of clinic meetings or other regu-

larly scheduled work-related events, or that such com-

ments were so common-place as to be a part of the day-

to-day operation of the clinic. As in the Kelly case, it is

clear that as to the sexually oriented conversations,

Defendant McDonald was “motivated by his personal

obsession and that he pursued his own personal gratifica-

tion.” Id. at 929.

The only “factual” events that occurred while Defen-

dant McDonald was apparently on-the-job, were the

altercation regarding the delivery of supplies and the

investigation of Colon’s complaints. There is nothing in

the complaint to link the supply event with Plaintiff's

claims of sexual harassment other than that it was also

mentioned in her charge against the Sergeants. Further,

Sergeant Aries was the individual who threatened to take

corrective action against Colon, not Defendant

McDonald. As to the sexual harassment investigation, it

was initiated by Colon, not Defendant McDonald. There

is additionally nothing to indicates that Defendant

McDonald was responsible for. the outcome of the investi-

gation of Colon’s sexual harassment complaint, beyond

denying the charges and accusing her of willing partici-

pation in the sexually-explicit conversations. Defendant

App. 24

McDonald has failed to carry his burden of proving that

the actions of which he is accused occurred during the

course and in the scope of his employment. Therefore, the

Court is allowed to rely upon the presumption of correct-

ness that is afforded the Attorney General’s decision. As

a result, the United States’ Motion for Summary Judg-

ment will be granted and Defendant McDonald’s Petition

for Scope Certification and Cross Motion for Summary

Judgment will be denied.

B. Feres Doctrine. Whether the proper Defendant is

Defendant McDonald or the United States, Plaintiffs’

claims are barred by the Feres Doctrine. Feres v. United

States, 340 U.S. 135 (195 [sic]}).

The Feres doctrine is a judicially created

exception to the broad waiver of immunity

established by the FTCA. The essence of the

doctrine is that “the Government is not liable

under the Federal Tort Claims Act for injuries to

servicemen where the injuries arise out of or are

in the course of acting incident to service.”

Miller v. United States, 42 F.3d 297, 300 (5th Cir. 1995),

quoting Feres v. United States, 340 U.S. at 159. Under this

doctrine, the Court evaluates whether the injured service-

man was injured while working in the course of his

service, rather than analyzing whether the one who

injured him was operating within the scope of his

employment.

A serviceman whose injuries arise out of or occur in

the course of his service is precluded from suing not only

App. 25

the Government, but also his superior officers,® as well as

fellow servicemen and civilian personnel.” The doctrine

precludes suits under the Federal Tort Claims Act,® as

well as suits under title VII,9 suits claiming deprivations

of constitutional rights,!° and suits based upon state tort

claims.?!

In determining whether a serviceman’s injuries were

incident to his military service, the Court must examine

the totality of the circumstances in light of the rationale

behind the Feres doctrine. Schoemer v. United States, 59

F.3d 26 (5th Cir. 1995); Miller v. United States, 42 F.3d at

403. The three major elements that the Court evaluates

include the serviceman’s duty status, the site of his injury,

and the activity he was performing when injured. Parker

v. United States, 611 F.2d 1007 (5th Cir. 1980). See also

Schoemer v. United States, 59 F.3d at 28.

While no single factor is necessarily dispositive,

our applications of the Parker test - and, indeed,

the results of our cases decided before Parker's

exposition of it - demonstrate that the duty

status of the service member is usually consid-

ered the most indicative of the nature of the

6 See Chappell v. Wallace, 462 U.S. 294 (1983).

7 See United States v. Stanley, 483 U.S. 667 (1987).

8 See United States v. Shearer, 473 U.S. 52 (1985).

9 See Stinson v. Hornsby, 821 F.2d 1537 (11th Cir. 1987), cert.

denied, 488 U.S. 959 (1988); Johnson v. Alexander, 572 F.2d 1219

(8th Cir.), cert. denied, 439 U.S. 986 (1978); Spain v. Ball, 928 F.2d

61 (2d Cir. 1991); and Gonzalez v. Dept. of the Army, 718 F.2d 926

(9th Cir. 1983).

10 See Chappell v. Wallace, 462 U.S. 294 (1983).

11 See Holdiness v. Stroud, 808 F.2d 417 (5th Cir. 1987).

App. 26

nexus between him and the [G]overnment at the

time of injury and is therefore the most impor-

tant factor.

Miller v. United States, 42 F.3d at 301, quoting Adams v.

United States, 728 F.2d 736, 739 (5th Cir. 1984).

In this case, the allegations of Plaintiffs’ complaint

reflect that Colon was on active duty during the times

relevant to this action, that the vast majority of the events

occurred on Fort Hood, and that the majority of the

events occurred while Colon-was at her regular assign-

ment at the dental clinic. Even if the Court were to

conclude that most of the incidents of sexual harassment

occurred off-base and while Colon was not on active

duty. The Feres doctrine would still bar Plaintiffs’ claims.

The primary incident which Plaintiffs assert led to

Colon’s death was the allegedly retaliatory reprimand

given to her by Defendant Aries, the resulting accusation

and investigation of sexual harassment against her, and

the eventual reprimand from her superior officers. Were

these claims permitted to continue, it would necessarily

involve an intrusion into military decisions regarding the

discipline of its personnel. As the Shearer court noted, the

location of the act is “not nearly as important as whether

the suit requires the civilian court to second-guess mili-

tary decisions, and whether the suit might impair essen-

tial military discipline. ... ” United States v. Shearer, 473

U.S. at 57 (citations omitted). Unlike a claim arising out of

a car accident or some similar claim of negligence, “the

claim here would require Army officers ‘to testify in court

as to each other’s decisions and actions.’ ” Id., quoting

Stencel Aero Engineering Corp. v. United States, 431 U.S.

666, 673 (1977).

shite G0 teeSladoubistiicte

App. 27

To permit this type of suit would mean that

commanding officers would have to stand pre-

pared to convince a civilian court of the wisdom

of a wide range of military and disciplinary

decisions; for example, whether to overlook a

particular incident or episode, whether to dis-

charge a serviceman, and whether and how to

place restraints on a soldier’s off-base conduct.

But as we noted in Chappell v. Wallace, such

“ ‘such complex, subtle, and professional deci-

sions as to the composition, training, . . . and

control of a military force are essentially profes-

sional military judgments.’” 462 U.S., at 302,

103 S.Ct., at 2366... .

Id., quoting Gilligan v. Morgan, 413 U.S. 1, 10, 93 S.Ct.

2440, 2446, 37 L.Ed.2d 407 (1973). Plaintiff’s claims are,

therefore, barred. In light of the foregoing, it is unnecess-

ary to reach Defendant McDonald’s request to dismiss

based upon qualified immunity. Accordingly, it is

ORDERED that the United States’ Motion for Sum-

mary Judgment is GRANTED and that Defendant

McDonald’s Cross Motion for Summary Judgment and

Petition for Scope Certification are DENIED. It is further

ORDERED that Defendant McDonald’s Motion to

Dismiss for Lack of subject Matter Jurisdiction and

Motion to Dismiss for Failure to State a Cause of Action

and for Judgment on the Pleadings are GRANTED and

Plaintiffs’ claims against him are DISMISSED. It is fur-

ther

ORDERED that Defendant McDonald’s Motion to

dismiss for Failure to State a Cause of Action and Motion

for Judgment on the Pleadings Based on Qualified Immu-

nity is DENIED as moot.

App. 28

The only remaining Defendant in this action is Ser-

geant Aries. Return of service as to this Defendant was

executed on October 7, 1994, however; he has not filed an

answer or otherwise appeared in this action. Accordingly,

it is

ORDERED that Plaintiffs file a motion for default

judgment against Defendant Aries within eleven days

from entry of this Order or this Defendant will be dis-

missed from this action for failure to prosecute.

SIGNED this 30th day of January, 1996.

/s/ Walter S. Smith, Jr.

WALTER S. SMITH, JR.

United States

District Judge

App. 29

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

ESTATE OF ALEXIS COLON,

)

et al., ) No. C-93-3320

Plaintiff, ) WHO

MEMORANDUM

DECISION

THE UNITED STATES AND ORDER

OF AMERICA, et al., ) Giled May 10, 1994)

Defendants. )

)

In this action for sexual harassment brought by plain-

tiffs, estate of Alexis Colon, Luis Colon (decedent Alexis

Colon’s husband), and Peaches and Alexander Martinez

(decedent's parents), against the United States of America

and Lieutenant Colonel Henry T. Waddell, Staff Sergeant

Tyronne S. Leonard, Sergeant McDonald and Sergeant

Aries all of the U.S. Army, seeking recovery for the death

of Alexis Colon, defendants Waddell and Leonard have

filed a motion to dismiss for lack of subject matter juris-

diction under Rule 12(b)(1) of the Federal Rules of Civil

Procedure. For the reasons hereinafter stated, defendants’

motion to dismiss is granted.

This action arose from the circumstances surrounding

the death of Alexis Colon on April 29, 1992, by a self-

inflicted gunshot wound. At the time of her death, Alexis

Colon was a Specialist on active duty in the United States

Army, assigned to duty as a Dental Technician at Dental

App. 30

Clinic # 5 at Fort Hood, Texas. Plaintiffs allege that from

December of 1991, until her death, Alexis Colon was

sexually harassed in the workplace by Sergeants

McDonald and Aries.

On April 27, 1992, Alexis and Luis Colon reported

the sexual harassment by the two sergeants to a superior,

Army Sergeant Major Hutchens, and they were told by

Sergeant Major Hutchens that the two men would be

moved out of the area where Alexis Colon was assigned.

Instead, on April 29, 1993, Lieutenant Colonel Waddell,

the officer in charge of the dental clinic, and Sergeant

Leonard called Alexis Colon into Lt. Colonel Waddell’s

office. There, Alexis Colon was issued a written repri-

mand for “conduct unbecoming a soldier in the form of

sexual harassment” and she was threatened with disci-

plinary measures should additional incidents of sexual

harassment occur. She was also directed to teach a class

on sexual harassment. (See Complaint, Exhibit D.) Later

that day, on April 29, 1993, Alexis Colon shot and killed

herself.

Plaintiffs filed a notice of claim with the Army on

May 3, 1993. The claim was rejected on May 13, 1993. On

September 8, 1993, plaintiffs filed their claim in this

Court. On February 22, 1994, the Court granted defen-

dant United States’ motion to dismiss the complaint

against the United States, pursuant to the Feres doctrine.!

1 The Feres doctrine provides that a soldier may not recover

under the Federal Tort Claims Act for injuries that “arise out of

or are in the course of activity incident to service.” Feres v.

United States, 340 U.S. 135, 146 (1950).

ee es

aN Te

a Na RL aR ta ae le a RE CERN

eo "I

App. 31

Now, two of the individual defendants, Lieutenant Colo-

nel Waddell and Sergeant Leonard, have moved to dis-

miss plaintiffs’ claims against them for lack of subject

matter jurisdiction.

II.

Plaintiffs have asserted two bases of jurisdiction for

their action against Lieutenant Colonel Waddell and Ser-

geant Leonard: 28 U.S.C. § 1331 (federal question); and 28

U.S.C. § 1343(a)(4) (civil rights and elective franchise).?

As is discussed at length below, subject matter jurisdic-

tion is lacking for each of the asserted jurisdictional

bases.

1. Subject Matter Jurisdiction Under 28 U.S.C.

§ 1343(a)(4) (Civil Rights and Elective Franchise).

28 U.S.C. § 1343(a)(4), entitled “Civil rights and elec-

tive franchise,” provides:

The district courts shall have original jurisdic-

tion of any civil action authorized by law to be

commenced by any person .. . [t]o recover dam-

ages or to secure equitable or other relief under

any Act of Congress providing for the protec-

tion of civil rights, including the right to vote.

~ 2 The plaintiffs have conceded that neither the Military

Claims Act nor the Federal Torts Claims Act provides a

jurisdictional basis for suit against the individual defendants.

App. 32

28 U.S.C. § 1343(a)(4). Section 1343(a) does not, by itself,

create a right of action, but instead confers jurisdiction

for the district court to hear damage cases based on an

alleged violation of an underlying federal civil rights

statute.

Plaintiffs’ Third Claim for relief is brought ‘under

Title VII, 42 U.S.C. § 2000(e), et seq. The Ninth Circuit has

held, however, that Title VII does not apply to uniformed

members of the military. Gonzales v. Department of ‘the

Army, 718 F.2d 926, 928-29 (9th Cir. 1983). The court

stated: .

In light of [the case law], the legislative history,

and the pertinent statutory language, we hold

that section 717(a) does not make Title VII of the

Civil Rights Act of 1964 applicable to uniformed

members of the armed forces. Accordingly, the

district court’s holding that appellant has no

right of action under Title VII is affirmed.

Id.

Plaintiffs argue that Gonzales is based only upon an

analysis of semantics, and urge the Court to rely on Hill v.

Berkman, 635 F. Supp. 1228, 1237-39 (E.D.N.Y. 1986). In

Hill, Judge Weinstein held that uniformed members of the

armed services are covered by Title VII. Although plain-

tiffs may disagree with the reasoning of Gonzales, it is the

law of the Ninth Circuit, and this Court is bound to

follow it. Additionally, Hill v. Berkman, upon which the

3 Furthermore, every Court of Appeals that has addressed

this issue has held that Title VII is not applicable to uniformed

members of the armed services. See Doe v. Garrett, 903 F.2d 1455,

App. 33

plaintiffs rely, has been abrogated by the Second Circuit.

See Roper v. Department of the Army, 832 F.2d 247, 248 (2d

Cir. 1987) (“While these arguments [in Hill] carry weight,

we cannot agree to the extension of Title VII te uniformed

members of the armed forces.”)

Thus, as plaintiffs have no right of action under Title

VIL, Section 1343(a) does not confer jurisdiction on the

Court.

2. Subject Matter Jurisdiction Under 28 U.S.C.

§ 1331 (Federal Question).

Plaintiffs’ remaining jurisdictional basis is 28 U.S.C.

§ 1331 (federal question jurisdiction). Plaintiffs have

alleged causes of action against Waddell and Leonard

under Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971), which provides a

cause of action to recover damages against individual

defendants for constitutional violations. Plaintiffs’ Bivens

claims, however, are barred by the Feres doctrine.

The Feres doctrine provides that a soldier may not

recover under the Federal Tort Claims Act for injuries

that “arise out of or are in the course of activity incident

to service.” Feres v. United States, 340 U.S. 135, 146 (1950).

In Chappell v. Wallace, 462 U.S. 296 (1983), and United

1461 (11th Cir. 1990), cert. denied, 111 S.Ct. 1102 (1991); Stinson v.

Hornsby, 821 F.2d 1537, 1541 (11th Cir. 1987), cert. denied, 488 U.S.

959 (1988); Roper v. Department of the Army, 832 F.2d 24, 248 (2d

Cir. 1987); Johnson v. Alexander, 572 F.2d 1219, 1223-24 (8th Cir.

1978), cert. denied, 439 U.S. 986 (1978); Taylor v. Jones, 653 F.2d

1193, 1200 (8th Cir. 1981).

App. 34

States v. Stanley, 483 U.S. 669 (1987), the Supreme Court

extended the Feres doctrine to Bivens actions by service

members against other service members.

In Chappell, five enlisted men in the Navy attempted

to maintain a suit against their superior officers (includ-

ing three noncommissioned officers) for racial discrimi-

nation. The Supreme Court unanimously rejected the

plaintiffs’ claim, concluding that “the unique disciplinary

structure of the Military Establishment and Congress’

activity in the field constitute ‘special factors’ which dic-

tate that it would be inappropriate to provide enlisted

military personnel a Bivens-type remedy against their

superior officers.” Id. at 304 (citation omitted). Therefore,

the Court held “that enlisted miliary [sic] personnel may

not maintain a suit to recover damages from a superior

officer for alleged constitutional violations.” Id. at 305. In

United States v. Stanley, 483 U.S. 669 (1987), the court

clarified its ruling in Chappell by holding that “no Bivens

remedy is available for injuries that ‘arise out of or are in

the course of activity incident to service.’” Id. at 684

(quoting Feres, 340 U.S. at 146).

Thus, the Court must determine if the injuries Alexis

Colon allegedly suffered at the hands of Lieutenant Colo-

nel Waddell and Sergeant Leonard were “incident to ser-

vice.” The Supreme Court has identified several factors

for evaluating whether conduct is “incident to service,”

including whether the suit would require the court to

second guess military decisions, see Stencel Aero Engineer-

ing Corp. v. United States, 431 U.S. 666, 673, and whether

the suit would impair essential military discipline, see

Chappell v. Wallace, 462 U.S. 296, 300, 304 (1983).

App. 35

Plaintiffs argue that sexual harassment cannot be

defined as “incident to service,” and, thus, plaintiffs’

Bivens claims against Lieutenant Colonel Waddell and

Sergeant Leonard are not barred by the Feres doctrine.

Plaintiffs claim that Lieutenant Colonel Waddell and Ser-

geant Leonard charged Alexis Colon with conduct

unbecoming a soldier in retaliation for reporting sexual

harassment. Thus, plaintiffs’ Bivens claims against Lieu-

tenant Colonel Waddell and Sergeant Leonard are based

on the decision by these two defendants to discipline

Alexis Colon. The exercise of disciplinary power falls

within the scope of Feres.

Plaintiffs’ reliance on Lutz v. Secretary of the Air Force,

944 F.2d 1477 (9th Cir. 1991), is misplaced. In Lutz, the

court allowed the plaintiff, a former Air Force Major, to

maintain a Bivens action against two of her subordinates.

The court noted that the plaintiff's complaint had “also

asserted claims against her superiors and the Secretary of

the Air Force for failing to discipline the sergeants and

imposing discipline on her without adequate pro-

cedures|.]” 944 F.2d at 1485. Because those claims had

been dismissed and were not before the court, the court

had only to deal with the “narrow question” of whether

Lutz’s injuries at the hands of the sergeants were incident

to the service. Id. In regard to the claims against Lutz’s

superiors and the Secretary of the Air Force, the court

stated: “We note parenthetically that such claims (for

negligent supervision or challenging disciplinary deci-

sions) have been found to fall squarely within the prohib-

ited zone protected by Feres.” Id. at 1485 n. 8 (citations

omitted).

App. 36

The actions of Lieutenant Colonel Waddell and Ser-

geant Leonard, because they dealt with the discipline of a

subordinate, “fall squarely within the prohibited zone

protected by Feres.” Id. Therefore, plaintiffs cannot main-

tain the Bivens claims against Lieutenant Colonel Waddell

and Sergeant Leonard, and the Court does not have fed-

eral question jurisdiction. As the Court has also deter-

mined that it does not have civil rights and elective

franchise jurisdiction, defendants’ motion to dismiss

must be granted.

Accordingly,

IT IS HEREBY ORDERED that Defendant Waddell

and Leonard’s motion to dismiss for lack of subject mat-

ter jurisdiction under Rule 12(b)(1) of the Federal Rules of

Civil Procedure is GRANTED.

Dated: May 9, 1994.

/s/ William H. Orrick

William H. Orrick

United States District Judge

App. 37

DO NOT PUBLISH OR INCLUDE IN DATABASE

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

ESTATE OF ALEXIS COLON, )

et al., ) No. C-93-3320

Plaintiff, ) WHO

“a ) MEMORANDUM

| ) DECISION

THE UNITED STATES OF ) AND ORDER

AMERICA, et al., (Filed Feb. 22, 1994)

Defendants. )

)

In this action brought by plaintiffs, Estate of Alexis

Colon, Luis Colon (decedent Alexis Colon’s husband),

and Peaches and Alexander Martinez (decedent's par-

ents), against the United States of America, Lieutenant

Colonel Henry T. Waddell, Staff Sergeant Tyronne S.

Leonard, Sergeant McDonald and Sergeant Aries, seeking

recovery under the Federal Tort Claims Act (“FTCA”) for

the death of Alexis Colon, the question raised by the

United States’ motion to dismiss is whether plaintiffs’

claim against the United States! under the FTCA is barred

1 At the time the United States brought its motion, none of

the four individual defendants had been served, so the United

States coifined its motion to addressing plaintiffs’ complaint as

it pertained to defendant United States. Thus, the Court’s order

only applies to the plaintiffs’ claims against the United States,

and the Court does not address the issue of whether the Feres

doctrine bars claims against the individual defendants.

App. 38

by the Feres doctrine.? For the reasons hereinafter stated,

the United States’ motion to dismiss is granted.

‘.

This action arose from the circumstances surrounding

the tragic death of Alexis Colon on April 29, 1992, by a

self inflicted gunshot wound. At the time of her death,

Alexis Colon and her husband, Luis Colon, were serving

on active duty in the United States Army. Alexis Colon

was a Specialist, assigned to duty as a Dental Technician

at Dental Clinic #5 at Fort Hood, Texas.

Plaintiffs allege that from December of 1991 to the

date of her death, Alexis Colon was sexually harassed in

the workplace by Sergeants McDonald and Aries. The

sexual harassment included lewd verbal comments and

sexual invitations from Sergeant McDonald, and touching

of Alexis Colon’s hair and kissing of her cheek by Ser-

geant Aries. The harassment was so severe, according to

the complaint,3 that Alexis Colon experienced anxiety,

weight loss, sleeplessness, and depression.

On April 27, 1992, Alexis and Luis Colon reported

the sexual harassment by the two sergeants to a superior,

Army Sergeant Major Hutchens, and they were told by

2 The Feres doctrine provides that a soldier may not recover

under the FTCA for injuries that “arise out of or are in the

course of activity incident to service.” Feres v. United States, 340

U.S. 135 (1950).

3 At this stage of the proceedings, the Court accepts all

factual allegations in the complaint as true for the purposes of

this motion to dismiss.

App. 39

Sergeant Major Hutchens that the two men would be

moved out of the area where Alexis Colon was assigned.

Instead, on April 29, 1993, Lieutenant Colonel Waddel,

officer in charge of the dental clinic, and Sergeant

Tyronne Leonard called Alexis Colon into Lt. Colonel

Waddell’s office. There, Alexis Colon was issued a writ-

ten reprimand for “conduct unbecoming of a soldier in

the form of sexual harassment,” and she was threatened

with disciplinary measures should additional incidents of

sexual harassment occur. She was also directed to teach a

class on sexual harassment. (See Complaint, Exhibit D.)

Later that day, on April 29, 1993, Alexis Colon shot

and killed herself. She left behind a note that said, among

other things, that she was “too weak and ashamed to face

these people” and “too weak and ashamed to live.” (See

Complaint, Exhibit F.)

Plaintiffs filed a notice of claim under the FTCA with

the Army on May 3, 1993. The claims were rejected on

May 13, 1993, in a letter which cited the Feres doctrine.

On September 8, 1993, plaintiffs filed their claim in this

Court.

II.

The United States has moved to dismiss plaintiffs’

claims against the United States for lack of subject matter

jurisdiction under Rule 12(b)(1) of the Federal Rules of

Civil Procedure. The plaintiffs have asserted four bases of

jurisdiction: the Federal Tort Claims Act (FTCA), 28

U.S.C. §§ 1346(b), 2671-2680; 28 U.S.C. § 1331 (Federal

App. 40

question); 28 U.S.C. § 1343(a)(4) (Civil rights and elective

franchise); and the Military Claims Act, 10 U.S.C. § 2733.

The United States asserts that subject matter is lacking for

each of the asserted jurisdictional bases.

The United States is correct that neither federal ques-

tion jurisdiction, civil rights and elective franchise juris-

diction, nor the Military Claims Act provide a basis for

jurisdiction.

While 28 U.S.C. § 1331 (Federal question) and 28

U.S.C. § 1343(a)(4) (Civil rights and elective franchise) do

provide congressional grants of jurisdiction, neither stat-

ute contains a waiver of sovereign immunity. The United

States is a sovereign, and, therefore, is immune from suit

unless if has expressly waived such immunity and con-

sented to be sued. See, e.g., United States v. Shaw, 309 U.S.

495, 500-501 (1940). Where a suit has not been consented

to by the United States, dismissal of the action is

required. Hutchinson v. United States, 677 F.2d 1322, 1327

(9th Cir. 1982). “It is axiomatic that the United States may

not be sued without its consent and that the existence of

such consent is a prerequisite for jurisdiction.” United

States v. Mitchell, 463 U.S. 206, 212 (1983).

Neither Section 1331 nor the Section 1343(a)(4) of 28

United States Code contains a waiver of sovereign immu-

nity so these statutes, by themselves, cannot confer juris-

diction. See, e.g., Gilbert v. DaGrossa, 756 F.2d 1455, 1458

(9th Cir. 1985) (“28 U.S.C. § 1331 merely provides that the

district court shall have original jurisdiction in all civil

actions arising under the Constitution, laws, or treaties of

App. 41

the United States . . . It cannot by itself be construed ‘as

constituting a waiver of the government’s defense of

sovereign immunity.”)

The Military Claims Act provides a statutory basis

for the head of each military service to pay administrative

claims arising out of certain in-scope activities of service

personnel. The Military Claims Act provides neither a

congressional grant of jurisdiction for filing suit in dis-

trict court nor an express waiver of sovereign immunity.

Thus, the Military Claims Act cannot confer jurisdiction

on the plaintiffs.

Unlike the preceding three statutes, the FTCA does

expressly waive sovereign immunity. The United States,

however, contends that Alexis Colon’s claim under the

FTCA is barred by the Feres doctrine, which provides that

a soldier may not recover under the FTCA for injuries

that “arise out of or are in the course of activity incident

to service.” Feres v. United States, 340 U.S. 135, 146 (1950).

Three rationales have been identified as the basis for

the Feres doctrine: (1) the distinctively federal nature of

the relationship between the government and members of

its armed forces, which argues against subjecting the

government to liability based on the fortuity of the situs

of the injury; (2) the availability of alternative compensa-

tion systems; and (3) the fear of damaging the military

structure.” Atkinson v. United States, 825 F.2d 202, 204 (9th

Cir. 1987) (citing Stencel v. Aero Eng’g Corp. v. United

States, 431 U.S. 666, 671-72 (1977)).

App. 42

Feres has been strongly criticized over the years,

including fairly recently in Justice Scalia’s strongly

worded dissent-in United States v. Johnson, 481 U.S. 681,

700 (1987) (Scalia, J., dissenting) (“Feres was wrongly

decided and heartily deserves the ‘widespread, almost

universal criticism’ it has received”) (quoting In re “Agent

Orange Product Liability Litigation, 580 F. Supp. 1242, 1246

(E.D.N.Y. 1984)). However, the Ninth Circuit, in “reluc-

tantly” affirming a dismissal based on the Feres doctrine,

has noted that the “overall trend” is for broad deference

to things military and broad application of the Feres doc-

trine. Persons v. United States, 925 F.2d 292, 293-95 (9th Cir.

1991).

The Supreme Court has stated that “[t]he Feres doc-

trine cannot be reduced to a few bright-line rules.” United

States v. Shearer, 473 U.S. 52, 57 (1985). Thus, with no

bright-line guidance, the Ninth Circuit has adopted the

“intellectually unsatisfying” practice of “comparing-fact

patterns in previous cases with that in the case before

them in an effort to produce the most appropriate out-

come.” McAllister v. United States, 942 F.2d 1473, 1477 (9th

Cir. 1991).

The United States, in light of the above approach,

argues that the outcome of dismissal is compelled in this

case because of the factual similarity to Stubbs v. United

States, 744 F.2d 58 (8th Cir. 1984), cert. denied, 471 U.S.

4 1053 (1985). As in this action, Stubbs involved a claim for

the wrongful death of a young female soldier who killed

herself after being sexually harassed by a military supe-

rior.

' ™

App. 43

In Stubbs, the decedent was a private assigned to Fort

Leonard Wood, Missouri. She was ordered to the latrine

by her drill sergeant, for what she thought would be last

minute cleaning before she left for the Christmas holi-

days. Instead, the drill sergeant told her that if she had

sexual intercourse with him he would make the remain-

der of her stay at Fort Leonard Wood easier, but if she

refused it would be rougher on her. He also touched her

breasts and genital area against her will. She refused his

advances and left for the holidays. On the morning she

was to return to Fort Leonard Wood, she told her sister

she would not return to the base to subject herself to

further sexual harassment, and killed herself with a shot-

gun blast to the head.

The appeals court focused on three factors in deter-

mining whether a relevant relationship existed between

the service member’s activity and the military service.

The court concluded that the first two factors, the duty

status of the service member at the time of the injury and

the location of the injury, weighed in favor of applying

Feres. The third factor that the court considered was

“whether the activity out of which the action arose served

some military purpose or mission.” Id. at 60 (citing Brown

v. United States, 739 F.2d 362, 368 (8th Cir. 1984)). The

court did not delve into this factor closely, stating that

“[w]hile the sexual harassment certainly served no mili-

tary purpose, we believe that, on balance-with the other

two factors, a relevant relationship between Stubbs’ activ-

ity at the time of the incident and her military service has

been shown.” Id.

The court went on to analyze the deleterious effect on

military discipline if the plaintiffs were allowed to

App. 44

maintain the suit against the United States. The court

noted that:

The trial would undoubtedly question the inter-

action between an officer and this subordinate.

Moreover, at least part of Stubbs’ cause of action

is premised on allegations that military supe-

riors were aware of sexual harassment of female

enlisted personnel on the base, and yet did

nothing to prevent it. It is also alleged that the

military establishment would have resisted any

claims of sexual harassment leveled at its non-

commissioned officers and would have labeled

Stubbs a troublemaker had she complained

about the incident. The claim thus appears to be

that the United States created the atmosphere

which ultimately led to Stubbs’ suicide. This

claim would directly question the disciplinary

decisions of superior officers in failing to pre-

vent the incident and in creating a situation

where enlisted personnel are discouraged from

making complaints. All of these inquiries go to

the heart of military decisionmaking and disci-

pline, and thus are barred by Feres.

Id. at 60-61.

In the United States’ view, the Feres doctrine resulted

in dismissal of the Stubbs case, and Stubbs controls this

case, so the Court must dismiss this case.

Plaintiffs, however, do not concede that Stubbs con-

trols. They argue that Stubbs was wrongly decided

because sexual harassment is not a legitimate military

activity, and thus, Alexis Colon’s death as a result of

harassment and retaliation for reporting it, is not “inci-

dent to service.” (See Pl.’s Opp. at 13.) In support of this

contention, plaintiffs rely primarily on two cases: Lutz v.

rrr er steeneneiicccirineeltiiaeiei ree eenett

App. 45

Secretary of the Air Force, 944 F.2d 1477, 1487 (9th Cir.

1991), and Brown v. United States, 739 F.2d 362 (8th Cir.

1984).

In Lutz, the Ninth Circuit case, the plaintiff was a

former air force major who brought an action against

former subordinates, asserting Bivens and common law

claims based on subordinates’ breaking into her office

after hours, taking her personal papers and mail, and

disseminating them to other military personnel with the

intent to injure her reputation and career. The subordi-

nates appealed the district court’s refusal to grant their

motion to dismiss on the grounds of Feres intra-military

immunity. The_Ninth Circuit denied immunity to the

individual defendant subordinates, stating that the court,

“like the district court, cannot fathom how [the activities

of the subordinates] can be construed to be ‘activities

incident to service.’ ”. Id. at 1486.

In Brown, the second case that the plaintiffs strongly

rely on, the action arose from the attempted suicide of a

black national guardsman who was subjected to a mock

lynching at an on-base party. His mother/conservator

brought suit under the FTCA. The Eighth Circuit in

Brown, applying the same analysis as in Stubbs and con-

sidering whether the activity out of which the action

arose served some military purpose or mission, con-

cluded that “[t]he activity in this case - a racially tinged

mock hanging of a fellow soldier - served no conceivable

or remote military purpose.” Id. at 368. Therefore, the

Court denied the individual perpetrators of the mock

lynching immunity under Feres.

App. 46

Based on Lutz and Brown, the plaintiffs argue that the

sexual harassment of Alexis Colon cannot conceivably

have served any military purpose. Thus, they argue, her

death was not “incident to service,” and Feres is inappli-

cable.

Despite plaintiffs’ arguments, their claims against the

United States must be dismissed under the Feres doctrine.

However, this decision is not compelled by Stubbs,4 but

rather by Lutz and Brown, the very opinions the plaintiffs

relied upon.

In Brown, the court analyzed the plaintiff’s claims

against various individuals and placed them in three

categories: “(1) the failure to prevent the hanging inci-

dent, (2) the actual participation by certain individuals in

* The United States is correct that Stubbs is very factually

similar to the instant case. However, the Stubbs opinion is by no

means convincing in its conclusion that the sexual harassment

itself had a relationship to a military purpose or mission. A

careful examination of the language of Stubbs showed that the

court dodged the issue of what was, exactly, the relationship of

the sexual harassment to any military purpose or mission. The

court even noted the problem of trying to enunciate a

relationship, but then glossed the problem over by stressing the

fact that Stubbs was on duty and the harassment took place on

base: “[w]hile the sexual harassment certainly served no

military purpose, we believe that, on balance with the other two

factors, a relevant relationship between Stubbs’ activity at the

time of the incident and her military service has been shown.”

744 F.2d at 60.

Thus, insofar as Stubbs granted Feres immunity to the

individual perpetrator of the sexual harassment, there are

problems in the Stubbs court’s analysis. The Stubbs court did

reach the correct result in dismissing the claims against military

superiors and the United States, as Lutz and Brown demonstrate.

ie lal ee

App. 47

the hanging incident, and (3) the failure to perform a

proper investigation of the incident.” 739 F.2d at 369. The

court found that the first and third claims, if litigated,

would have a damaging effect on the military disciplin-

ary structure, stating that the [sic] such claims “strike [ ]

precisely at the type of command relationship between a

service member and his or her superior officers that is at

the heart of military structure” and “strike [ ] directly at

military decisionmaking with respect to a disciplinary

matter.” Id. Thus, the court in Brown dismissed the plain-

tiff’s claims against the United States and against the

guardsman’s superior officers as barred by the Feres doc-

trine, and only sprared the claims against the individual

defendants.

In Lutz, the court noted that Lutz’s complaint had

“also asserted claims against her superiors and the Secre-

tary of the Air Force for failing to discipline the sergeants

and imposing discipline on her without adequate pro-

cedures.” 944 F.2d at 1485. Because those claims had been

dismissed and were not before the court, the court had

only to deal with the “narrow question” of whether

Lutz’s injuries at the hands of the sergeants were incident

to the service. In regard to the claims against Lutz’s

superiors and the secretary of the Air Force, the court

stated: “We note parenthetically that such claims (for

negligent supervision or challenging disciplinary deci-

sions) have been found to fall squarely within the prohib-

ited zone protected by Feres.” Id. at 1485 n. 8 (citations

omitted). Thus, in Lutz, as in Brown, the court only held

that suits against the individual participants in the inci-

dent were not barred by Feres.

App. 48

In the instant case, the plaintiffs’ second claim for

relief states that Alexis Colon’s suffering and death, and

the other plaintiffs’ injuries, were “a direct and proximate

result of the wrongful acts and omissions of the defen-

dant United States set forth herein.” (Complaint { 36.)

Essentially, the claims against the united States are (1)

failure of the military to enforce its own policy and

regulations against sexual harassment, (2) failure of the

military to prevent the sexual harassment of Alexis

Colon, (3) retaliation against Alexis Colon by subjecting

her to unjust and pretextual disciplinary action, and (4)

failure to adequately investigate the sexual harassment

and retaliation.

Under controlling precedent, all these claims “fall

squarely within the prohibited zone protected by Feres.”

944 F.2d at 1485 n. 8. The manner in which the military

chooses to implement policies against sexual harassment,

or how the military chooses to discipline (or not to disci-

pline) sexual harassers, goes to the heart of military deci-

sionmaking. In the wake of considerable public dialogue

about sexual harassment in the military, it may well be

that Congress and the public will effectuate changes in

military decisions with regard to sexual harassment, but

the Feres doctrine bars this Court from entering the fray.

App. 49

Accordingly,

IT IS HEREBY ORDERED THAT:

1. The United States’ motion to dismiss plaintiffs’

action against the United States for lack of jurisdiction is

GRANTED.

Dated: February __, 1994.

Feb. 18, 1994

/s/ Wiliam H. Orrick

William H. Orrick

United States District Judge

App. 50

TEXT OF ALEXIS COLON’S SUICIDE NOTE

(A copy of this note appears in the Record as Exhibit F to

Plaintiffs’ Complaint)

I love you Lou and I always will. You have always

been a good person and a good husband. I just

wished .. . [illegible] wife. But I was always faithful to

you remember that. Don’t mess up your life like I messed

up mine. Don’t do anything foolish like me. Don’t jepord-

ize [sic] your career and your life just because of me. I am

too weak and ashamed to face those people and you. Try

to live a long and healthy life and forget about me. Find

someone else that is worthy of you, I’m not worth it. Iam

too weak and ashamed to live. Living is too much pres-

sure for me and I want out. This is a cowards way and I

an a coward. I pray that God will forgive me and my

stupidity. I can’t look at myself in the mirror. All I see is

disgust with myself. Please pray for me Lou please. I will

always love you Lou. Please forgive me. Dear God I ask

for your forgiveness. Please have mercy on my soul.

Please have mercy on my soul. Don’t do anything foolish

Lou.

MOP ce

ND ala te 8B ah lS De tas AA th

AL wt SSO Rat Has a)

App. 51

A FORM 4858

(A copy of this form appears in the Record as Exhibit D to

Plaintiffs’ Complaint)

DATA REQUIRED BY THE PRIVACY ACT OF 1974

AUTHORITY: 5 USC 301, 10 USC 3012(G).

PRINCIPAL PURPOSE: To record counseling date pertain-

ing to service members.

[Illegible]

DISCLOSURE: Disclosure is voluntary, but failure to pro-

vided the information may result in recording of a nega-

tive counseling session indicative of the subordinate’s

lack of a desire to solve his or her problems.

PART I - BASIC DATA

1. NAME (Last, First, MI)

COLON, ALEXIS

5. UNIT

USA DENTAC

2. SOCIAL SECURITY NO.

547-67-2157

3. GRADE

E-4

4. SEX

App. 52

PART II - OBSERVATIONS

8. DATE AND CIRCUMSTANCES

On 29 April 1992 a formal counseling session was

held in the OIC’s office, DC 05, Fort Hood, Texas.

Present in the session were SPC Alexis Colon,

SSG Leonard, and LTC Waddell.

You are being counseled on conduct unbecoming

of a soldier in the form of sexual harassment. State-

ments are attached.

9. DATE AND SUMMARY OF COUNSELING

You are being formally counseled that this type of

behavior is not and will not be tollerated [sic] in the

United States Army, USA Dentac Fort Hood, and

DC5. You will immediately cease and desist any and

all forms of sexual harassment.

You are directed to contact the post EEO office to

arrange for a representative to attend the class you,

SPC Colon, will present to the clinic on Friday, 8 May

1992 at 1530 hours on sexual harassment.

Any additional incidents of sexual harassments

will be immediately dealt with and disciplinary mea-

sure may be taken, to include UCMJ actions.

A copy of this will be place [sic] in your file at the

clinic and a copy given to you.

YOU ARE BEING COUNSELED ON YOUR (DUTY PER-

FORMANCE) (MISCONDUCT), IF THIS CONDUCT

CONTINUES IT COULD BE CAUSE FOR SEPARATION

ACTION. IF SEPARATED FOR YOUR DUTY PERFOR-

MANCES, THE LEAST FAVORABLE CHARACTER OF

DISCHARGE YOU COULD RECEIVE IS A GENERAL

DISCHARGE. IF SEPARATED FOR MISCONDUCT, YOU

COULD RECEIVE AN UNDER [sic] OTHER THAN

App. 53

HONORABLE CONDITIONS DISCHARGE, BOTH MAY

CAUSE UNDUE HARDSHIPS IN CIVILIAN LIFE AND

MAY REFLECT ON YOUR ELIGIBILITY FOR VET-

ERANS’S BENEFITS, ELIGIBILITY FOR REENTRY INTO

THE ARMED FORCES AND ACCEPTABILITY FOR

EMPLOYMENT IN THE CIVILIAN COMMUNITY.

DISPOSITION INSTRUCTIONS

This form will be destroyed upon: reassignment (other than

rehabilitative transfers), separation ETS, or upon retirement.

PART III - AUTHENTICATION

10. NAME, GRADE, SIGNATURE OF COUNSELOR

/s/ Tyronne S. Leonard E-6

TYRONNE S. LEONARD

DATE 29 APR 92

11. I acknowledge having been counseled by the

above individual and understand the reason for

this counseling session. I concur/nonconcur

[initialed “AMC”] that the information above

accurately reflects this counseling session. I

nonconcur for the following reasons:

NO COMMENTS AS OF NOW

12. NAME, GRADE, SIGNATURE OF INDIVID-

UAL COUNSELED

/s/ Alexis M. Colon SPC/E-4

DATE 29 APRIL 92

13. IF COUNSELED INDIVIDUAL REFUSES TO SIGN

COUNSELING NOTES, COUNSELOR WILL INI-

TIAL THIS BLOCK.

App. 54

PART IV - REHABILITATION

14. REHABILITATION RESULTS/COMMENTS

[BLANK]

15. NAME, GRADE, SIGNATURE OF INDIVIDUAL

COUNSELED [BLANK]

DATE [BLANK]

16. NAME, GRADE, SIGNATURE OF COUNSELOR

[BLANK]

DATE [BLANK]

PART V - UNIT COMMANDER INTERVIEW

17. INTERVIEW RESULTS AND RECOMMENDATION

[BLANK]

18. NAME, GRADE, SIGNATURE OF UNIT COM-

MANDER

[BLANK]

DATE [BLANK]

ee a oa mts ald a

ee ee ee ee ee

App. 55

EXHIBIT

I HAD AN APPOINTMENT AND I DID NOT HAVE MY

CAR: SGT McDONALD GAVE ME A RIDE IN HIS CAR.

HE TOLD ME ABOUT THE RELATIONSHIP BETWEEN

HIM AND PFC WOODS AND PFC PALMER. HE SAID

SOMETHING ABOUT HOW PFC PALMER TOLD

-EVERYBODY ABOUT HIM AND HER. HE ALSO TOLD

ME HOW PFC PALMER’S VAGINA SMELLED. AFTER

THAT CONVERSATION. HE ASKED ME IF I HAD SEX

WITH TWO MEN. I WAS SURPRISED HE ASKED THAT,

I FIRMLY TOLD HIM NO. I WAS WAITING FOR MY

HUSBAND TO PICK ME UP AT THE BACK DOOR AT

DC #5. SGT McDONALD SAT NEXT TO ME AND TOLD

ME THAT HE HAD SEX WITH A FAMILY MEMBER

WIFE AND SAID IT WAS GOOD. HE ALSO TOLD ME

HE HAS NEVER HAD SEX WITH A SOLDIER THAT

WAS A WIFE OF ANOTHER SOLDIER. THIS ALSO

MADE ME FEEL UNCOMFORTABLE. SGT McDONALD

TALKED MUCH ABOUT IT AND SAID I BETTER STOP

BEFORE I GET IN TROUBLE FOR SEXUAL HARRAS-

MENT. IN THE CONFERENCE ROOM HE TALKED

ABOUT THE DENTAC FEMALE SOFTBALL TEAM. HE

SAID SOMETHING ABOUT HE LIKES TO GO TO SEE

TITS (BREASTS) BOUNCE AROUND. HE ALSO SAID

THAT MALES ARE BETTER AT SOFTBALL THAN

FEMALES. DURING THE TIME DC #5 WAS GETTING

NEW CHAIRS - AS SGT ZELINSKI TOLD ME TO

WATCH THE FRONT DESK. EVERYBODY ELSE WAS

TAKING OUT THE TRASH THAT WAS LEFT IN THE

CLINIC. THERE WERE SOME BLUE LIGHTWEIGHT

TRASH LARGE AND SMALL. PVT .. . [ILLEGIBLE]

TRASH AND SGT McDONALD SAID SOMETHING

LIKE DON’T TAKE THOSE. LEAVE THAT FOR THE

FEMALES SO THEY WILL HAVE SOMETHING TO DO.

THE EVENTS AND CONVERSATIONS TOOK PLACE AT

App. 56

DENTAL CLINIC #5 BETWEEN DEC. 91 THROUGH

APR OF 1992, SGT ARIES KISSED MY CHEEKS AND IT

MADE ME FEEL UNCOMFORTABLE. HE KISSED MY

CHEEK AGAIN THAT SAME WEEK. I ASKED HIM

POLITELY NOT TO DO IT ANYMORE BECAUSE I DID

NOT WANT PEOPLE TO GET THE WRONG IDEA AND

IF MY HUSBAND FINDS OUT HE WOULD BE

FURIOUS. SGT ARIES WOULD PLACE HIS HAND ON

THE BACK OF MY HEAD AND RUN HIS FINGERS IN

MY HAIR. A CONVERSATION WAS GOING ON IN THE

CONFERENCE ROOM ABOUT HOW THE WORLD IS

BECOMING A TERRIBLE PLACE BECAUSE OF DRUGS,

SEXUAL ABUSE, ETC. SGT JONES WAS TALKING

ABOUT SOMETHING THAT HAPPENED IN THE

NEWS. SGT JONES SAID THAT A MORTICIAN WAS

CAUGHT HAVING SEX WITH A DEAD WOMAN IN

THE WOODS. SGT ARIES AND SGT McDONALD

LAUGHED. SGT ARIES SAID IF SHE WAS FINE HE-

WOULD HAVE SEX WITH A DEAD BODY. MR. TAYLOR

SAID, “YOU WOULD, THAT’S SICK. I HAVE SEEN SGT

ARIES KISS AND RUN HIS FINGERS THROUGH SOME

OF THE FEMALES’ HAIR AT DC #5. I WAS AT SUPPLY

TRYING TO EXPLAIN WHY BAY 1 USED A LOT MORE

SUPPLIES THAN THE OTHER BAYS. WHILE I WAS

EXPLAINING TO SGT McDONALD, HE SAID, “IF YOU

KEEP ASKING EVERY 10 MINUTES I’LL PUT YOUR

LIST AT THE BOTTOM. DURING THIS SITUATION SGT

ARIES TOLD ME TO AT EASE_AND I STOPPED. [ILLEG-

IBLE] WAS TRYING TO GIVE AN EXPLANATION OF

THE SITUATION. SGT ARIES TOLD ME TO AT EASE OR

ELSE HE WAS GOING TO GIVE ME AN ARTICLE 15.

DURING THE TIME I WAS AT SUPPLY TRYING TO

EXPLAIN TO SGT McDONALD ABOUT BAY 1 SUPPLY

SITUATION. HE TOLD ME THAT IF I ASK EVERY TEN

MINUTES HE WOULD PUT MY LIST AT THE BOTTOM.

{ DID NOT ASK HIM FOR SUPPLIES EVERY TEN MIN-

UTES. I ASKED ONLY ONCE OR TWICE A DAY THAT

App. 57

WEEK. I WAS ONLY CONCERNED FOR THE PEOPLE

IN BAY 1. WE HAVE HAD TO BORROW FROM THE

OTHER BAYS. LATER THAT MORNING I

APPROACHED SGT McDONALD AND SAID SOME-

THING TO THE EFFECT THAT I JUST WANTED TO

GIVE HIM AN EXPLANATION OF THE SITUATION

BAY 1 HAS IN SUPPLIES. HE TOLD ME THAT VOICING

MY OPINIONS WOULD GET ME IN TROUBLE. LATER

THAT MORNING SGT ZELINSKI WAS PAGING SGT

McDONALD SEVERAL TIMES. SGT McDONALD WAS

OUTSIDE HELPING TO GIVE A JUMP START TO A

CAR. WHEN HE CAME IN THE CLINIC. I TOLD HE

SGT ZELINSKI WAS PAGING HIM AND HE IGNORED

ME. I ONLY DID IT OUT OF CONSIDERATION

BECAUSE IT MIGHT HAVE BEEN IMPORTANT.

/s/ Alexis M. Colon

PFC/E-4

END OF MESSAGE

App. 58

EXHIBIT

TO PLAINTIFF’S COMPLAINT

DEPARTMENT OF THE ARMY

HEADQUARTERS III CORPS AHO FORT HOOD

FORT HOOD, TEXAS 76544-5000

COMMAND POLICY

NUMBER 22

[LOGO] [LOGO]

FZF-GA-EO (600-20) 30 March 1992

MEMORANDUM FOR SEE DISTRIBUTION

SUBJECT: Sexual _Harassment-Pelicy-

PURPOSE. The purpose of this policy is to define

sexual harassment and to emphasize the importance of

establishing an environment free of sexual discrimina-

tion.

APPLICABILITY. This policy applies to all military,

family members, and civilian employees and contract

personnel assigned to or employed by any III Corps unit,

or Fort Hood staff office, [illegible] organization and

activity assigned, attached, or supported by Fort Hood.

BACKGROUND.

a. Sexual harassment is a form of sex discrimination

that [illegible] other verbal or physical contact of a sexual

nature, sexual harassment occurs when:

(1) submission to or rejection of such conduct is

made either explicitly or implicitly a term or condition of

a person’s job, pay, or career, or

App. 59

(2) submission to or rejection of such conduct

by a person is used as a basis for career or employment

decisions affecting that person, or

(3) such conduct interferes with an individual's

performance or creates an intimidating, hostile, or offen-

sive environment.

b. Any person in a supervisory or command posi-

tion who uses or condones implicit or explicit sexual

behavior to control, influence, or affect the career, pay, or

job of a military member or civilian employee is engaging

in sexual harassment.

POLICY.

a. Sexual harassment violates acceptable standards

of honesty, integrity, and impartiality and will not be

tolerated.

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.