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20-1746-cv

Martinez v. McCarthy

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed 

on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate 

Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a 

document filed with this Court, a party must cite either the Federal Appendix or an 

electronic database (with the notation “summary order”). A party citing a summary order 

must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Court of Appeals for the Second Circuit, held at 

the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, 

on the 22nd day of December, two thousand twenty.

PRESENT: JOSÉ A. CABRANES,

SUSAN L. CARNEY,

MICHAEL H. PARK,

Circuit Judges.

DARLENE MARTINEZ,

Plaintiff-Appellant, 20-1746-cv

v.

RYAN D. MCCARTHY, Acting Secretary, Department 

of the Army, CHARLES MICHELS, and JONATHAN 

WEISBROD,

Defendants-Appellees.

FOR PLAINTIFF-APPELLANT: STEPHEN CIOTOLI, Gattuso & Ciotoli,

Fayetteville, NY.

FOR DEFENDANTS-APPELLEES: KAREN FOLSTER LESPERANCE, Assistant 

United States Attorney, for Grant C. 

Jaquith, United States Attorney, Northern 

District of New York, Albany, NY.
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Appeal from an order of the United States District Court for the Northern District of New 

York (Thomas J. McAvoy, Senior Judge).

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the order of the District Court be and hereby is

AFFIRMED.

Plaintiff-Appellant Darlene Martinez (“Martinez”) appeals from the dismissal of her August 

6, 2019 complaint, which alleged sex- and race-based discrimination, harassment, and retaliation in 

violation of Title VII of the Civil Rights Act of 1964 and New York State Human Rights Law. The 

District Court dismissed the complaint as barred by the doctrine of intra-military immunity, as set 

forth in Feres v. United States, 340 U.S. 135 (1950) (the “Feres doctrine”). The principal issue on appeal 

is whether the District Court erred when it concluded that the Feres doctrine barred Martinez’s Title 

VII employment discrimination claims against the U.S. Army arising out of her employment as a 

“dual status” employee of the Army, a position she took in September 2014 when she left active 

duty and assumed reserve status. In her final civilian-military assignment, a position she held from 

June 2016 to January 2019, Martinez was a “unit administrator” (also known as a “military 

technician”) for her reserve unit. We assume the parties’ familiarity with the underlying facts, the 

procedural history of the case, and the issues on appeal.

In Feres, the Supreme Court held that uniformed members of the armed services may not 

bring suit under the Federal Tort Claims Act for “injuries that ‘arise out of or are in the course of 

activity incident to service.’” Overton v. N.Y. State Div. of Military & Naval Affairs, 373 F.3d 83, 89 (2d 

Cir. 2004) (quoting Feres, 340 U.S. at 146). Since then, the courts have expanded the doctrine to 

apply broadly to bar suits against the government for injuries arising from “‘activit[ies] incident to 

[military] service.’” Id. (quoting United States v. Stanley, 483 U.S. 669, 681 (1987) (alterations original)). 

As relevant here, we have held, “Title VII creates a limited exception to the Feres doctrine that allows 

some lawsuits to be brought pursuant to the provisions of Title VII if the plaintiff is a civilian 

employee of the military.” Id. at 95 (citing Roper v. Dep’t of Army, 832 F.2d 247, 248 (2d Cir. 1987)).

We have twice considered whether the Feres doctrine bars suits brought under Title VII by dualstatus employees like Martinez. Under our precedent, the Feres doctrine bars such suits brought by 

such employees if the challenged conduct is: (1) integrally related to the military’s unique structure; 

or (2) is not purely civilian. Luckett v. Bure, 290 F.3d 493, 498-99 (2d Cir. 2002).

On appeal, Martinez argues that the Feres doctrine does not serve to bar her suit as a “dual 

status” employee. We disagree. 
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A dismissal pursuant to the Feres doctrine goes to a court’s subject matter jurisdiction, id. at 

496,1 and we thus “review the district court's factual findings for clear error and its legal conclusions 

de novo.” Id. (“A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) 

when the district court lacks the statutory or constitutional power to adjudicate it.” (internal 

quotation marks and citation omitted)).

Applying the two-part test we set forth in Luckett, we agree with the District Court that 

Martinez’s “allegations of harassment, discrimination and retaliation are too tightly intertwined with 

her military role in her dual employment and with the command structures and personnel to be 

‘purely civilian.’” Joint App’x 71 (quoting Overton, 373 F.3d at 86). Plaintiff’s complaint describes 

harassment by other reserve members, not civilian co-workers. Her complaint also describes 

hostilities she experienced while engaged in military activities, such as during a “Field Exercise 

Training” in which Defendant-Appellee Weisbrod, a fellow reservist, allegedly left behind active 

duty orders “on purpose to set up [Martinez] to fail.” Joint App’x 16. Following this incident, 

Defendant-Appellee Michels allegedly scolded and humiliated her in front of dozens of soldiers

who, according to Martinez’s complaint, laughed at her and “elevat[ed] [her] trauma. Id. She also 

alleges that Weisbrod and Michels failed her on a mandatory military test even when she passed, 

while they would pass her male counterparts, even when they failed. Id. at 19. She further describes 

how she reported these, and other incidents, to both her civilian and military supervisors, and alleges 

that her military supervisors then failed to “prevent continuing discrimination, harassment, 

retaliation, and physical bullying in the workplace.” Id. at 20. 

As in Overton, another Title VII case involving a dual-status employee where we found that 

“[a]ny attempt surgically to dissect and analyze” the line between the civilian and the military “would 

itself threaten to intrude into [military affairs],” so too would an attempt at wielding a scalpel fail 

here. 373 F.3d at 96. We therefore conclude that because Martinez’s suit “challenges conduct that is 

integrally related to the military’s unique structure,” including the military’s reporting processes, and 

that also because the challenged conduct is not “purely civilian,” the Feres doctrine bars her suit. 

1 The District Court dismissed Martinez’s complaint under Federal Rule 12(b)(6), rather than 

Rule 12(b)(1), but we find no error because Martinez’s claims satisfy neither standard.
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CONCLUSION

We have reviewed all of the arguments raised by Martinez on appeal and find them to be 

without merit. For the foregoing reasons, we AFFIRM the May 5, 2020 judgment of the District 

Court.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk