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September 11, 1984

Ronda COBB, Plaintiff,
UNITED STATES MERCHANT MARINE ACADEMY, U.S. Secretary of Transportation and the Department of Naval Science at the United States Merchant Marine Academy, Defendants.

The opinion of the court was delivered by: WEXLER


WEXLER, District Judge.

 This is an action for employment discrimination brought by a female Merchant Marine Academy cadet who was denied a commission in the U.S. Naval Reserve because she was pregnant at the time she applied. Defendants have moved for summary judgment.

 In May 1983 the Naval Reserve denied plaintiff a commission on the ground that plaintiff was pregnant at the time, and also on the ground that plaintiff has a history of severe dysmenorrhea (menstrual pain). Plaintiff contends that this denial of a commission constituted illegal gender-based discrimination insofar as it was based upon pregnancy, and that the allegation that plaintiff suffers from severe dysmenorrhea is unsubstantiated. Since plaintiff is no longer pregnant, plaintiff underwent an induction physical on May 14, 1984. The Navy Medical Command, however, has requested that plaintiff undergo a second gynecological exam, due to plaintiff's past medical history. On August 17, 1984, plaintiff's attorney informed defendants' attorney that plaintiff would agree to a second exam, upon certain conditions.On August 22, 1984, plaintiff's attorney informed the Court that plaintiff had decided not to submit to a second examination, due to an inability to reach agreement with the government on the conditions under which the exam take place.

 Plaintiff's claim is based in part upon 42 U.S.C. Section 2000d, which provides that "[n]o person in the United States shall, on the ground of race, color, or national origin, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." Plaintiff can have no relief under this provision. First, the provision does not deal with gender-based discrimination. Second, the provision deals with programs and activities receiving Federal financial assistance, rather than with agencies of the government itself, such as the U.S. Naval Reserve or Merchant Marine Academy. Soberal-Perez v. Heckler, 717 F.2d 36 (2d Cir.1983).

 Plaintiff's claim is also based in part upon 42 U.S.C. Section 2000e-16, which protects federal employees against discrimination based on sex. Under 42 U.S.C. Section 2000e(k), the term "on the basis of pregnancy, childbirth, or related medical conditions. . . ." However, 42 U.S.C. Section 2000e-16 does not apply to uniformed members of the armed forces. Gonzalez v. Department of Army, 718 F.2d 926 (9th Cir.1983). Plaintiff, however, argues that:

 In essence, the [Merchant Marine] Academy has a duality of purpose and its graduates depart with a "hybrid" career orientation. Their primary goal (and that of the Academy) is to pursue meaningful careers in the top echelons of the maritime industry. Their further motivation is to stand ready (during a six-year period) to assist in the defense of our nation during times of war or national emergency. Midshipmen are not "Navy" careerists (unlike their counterparts at the Naval Academy at Annapolis). Rather, they must fulfill certain requirements by serving a six-year stint in a special Merchant Marine branch of the Naval Reserve open only to graduates of the Academy. This Reserve status has a dual purpose: to provide for readiness in time of national crisis and to sharpen the skills of Academy graduates as they enter the private sector. . . .

 Plaintiff argues that this alleged "duality of purpose" renders 42 U.S.C. Section 2000e-16 applicable to Merchant Marine cadets applying to the Naval Reserve. Plaintiff relies on Hunter v. Stetson, 444 F. Supp. 238 (E.D.N.Y.1977). There, plaintiff was a civilian technician performing certain functions for the New York Air National Guard, who was required to be a member of the Guard as a condition for his employment. Plaintiff alleged that his military rank in the Guard was reduced by a colonel who was plaintiff's superior in both military and civilian status, because plaintiff had assisted a fellow dual-status employee in bringing a discrimination suit against the colonel. The Court, in holding that a cause of action was stated under 42 U.S.C. Section 2000e-16, stated:

 . . . I read the complaint as alleging improper action on the part of plaintiff's civilian employers; i.e., exploiting their dual status as plaintiff's military and civilian superiors to pervert the military decision-making process. And this was allegedly done with the intent of furthering goals in the realm of civilian employment; i.e. discouraging the processing of discrimination complaint.

 . . . .

 However, in the context of the peculiar factual situation presented here, I think that the complaint states a cause of action cognizable under Title VII. Plaintiff contends that the act which precipitated a reduction in his military rank . . . was committed within the scope of his civilian employment, and that it is only by virtue of the fact that his superiors in the Guard wear two hats that they were able to mete out punishment in the form of a reduction in military rank. In other words decision-making in the military has allegedly been polluted by the retaliatory motive with respect to the civilian sphere. . . . Plaintiff further contends that the military disciplinary action has had an impact on his civilian employment, an apparently tenable claim in view of the dual status of plaintiff with respect to the Guard.

 Id. at 239-240.

 The Hunter case is not on point.In Hunter, the plaintiff and defendant had a relationship which was at least in part civilian in nature. In the instant case, by contrast, plaintiff seeks to join the Naval Reserve in a purely military capacity. The fact that plaintiff's service in such a military capacity would be of benefit to her in the private sector in her relations with employers other than the Naval Reserve, is irrelevant. Consequently, we hold that the complaint does not state a cause of action against the Navy under 42 U.S.C. Section 2000e-16.

 We further hold that the complaint does not state a cause of action against the Academy under 42 U.S.C. Section 2000e-16, as plaintiff was a mere student and not an "employee" of the Academy.

 Plaintiff's complaint is based primarily upon the Fifth Amendment. In Crawford v. Cushman, 531 F.2d 1114 (2d Cir.1976), a Marine Corps regulation mandating the discharge of pregnant marines was held violative of the Due Process Clause of the Fifth Amendment, including the equal protection component thereof. The Court explained that it was irrational for the Marine Corps to discharge pregnant persons while not discharging other persons with temporary disabilities, that it was irrational to discharge all pregnant marines without an individualized determination of fitness, and that the regulation penalized the decision to bear a child by those marines whose mobility and readiness would not be reduced either during the months preceding birth or during their careers after birth.

 In the instant case, the Naval Reserve denies a commission to all persons with temporary disabilities, and not just to pregnant persons. Consequently, the policy in question here is not under-inclusive in the manner in which the policy involved in Crawford was. Further, the commissioning of a pregnant person would inevitably lead to a serious risk of the government incurring expenses for sickpay, hospitalization, and disability. While it might not be rational to discharge all pregnant persons, it does not follow that it is irrational to refuse to commission pregnant persons in the first place. When a person has once been commissioned, that person has to a certain degree a legitimate expectancy that her services will continue. Such an expectancy may render it irrational to discharge all pregnant persons without individualized determinations of fitness.A person who has not yet been commissioned, by contrast, does not have a legitimate expectancy of being commissioned. Given the serious risk of incurring expenses involved in the commissioning of a pregnant person, it is rational to refuse to commission all pregnant persons. Further, a policy of refusing to commission all pregnant persons imposes less of a burden upon the right to proecreate than does a policy of dismissing all persons who become pregnant. A person who has not yet been commissioned has a variety of career options available to her, of which the Naval Reserve is only one. A person who is already in the service, by contrast, has committed herself to one particular career path, and so faces the threat of an enormous penalty if confronted with a regulation requiring that she be dismissed if she becomes pregnant.

 We need not discuss the precise standards to be applied in evaluating a claim that a military policy constitutes illegal gender-based discrimination under the Due Process Clause of the Fifth Amendment. Suffice it to say that the Supreme Court, while warning that "[a]nnounced degrees of "deference" to legislative judgments, just as levels of "scrutiny" which this Court announces that it applies to particular classifications made by a legislative body, may all to readily become facile abstractions used to justify a result," Rostker v. Goldberg, 453 U.S. 57, 69-70, 101 S. Ct. 2646, 2654, 69 L. Ed. 2d 478 (1981), has stated that judicial deference to legislative authority (and hence presumably judicial deference to analogous executive authority as well) "is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged." Id., 453 U.S. 70, 101 S. Ct. 2655. In the instant case, we find that the Naval Reserve policy of not commissioning pregnant persons is not only rational, but is rational to such a degree as to make it unequivocally clear that the policy is not violative of the Fifth Amendment Due Process Clause.

 For the above reasons, we conclude that the Navy did not act unconstitutionally in denying plaintiff a commission on the ground of her pregnancy.

 With respect to plaintiff's claim that she is currently being denied a commission without substantial reason, we can only say that the Navy has made an entirely reasonable request that plaintiff undergo a second physical exam, which plaintiff has unreasonably refused to comply with. It is not for this Court or for plaintiff to dictate to the Navy regarding the procedures to be used in evaluating the medical condition of applicants for a commission.

 We need not discuss the issue of whether a federal court has the power to order that a person be commissioned in the Naval Reserve.

 Appended to this decision are a set of letters submitted by attorneys for both sides.

 Defendants' motion for summary judgment is granted. The Clerk shall enter judgment in favor of defendants and against plaintiff, denying plaintiff all relief.




 August 9, 1984

 Hon. Leonard Wexler

 United States District Judge

 1000 Hempstead Turnpike

 Uniondale, New York 11553

 RE: Ronda Cobb v U.S. Merchant Marine

 Academy, et al

 Index No. CV 83-4271 (EDNY)

 Dear Judge Wexler:

 We confirm that pursuant to recent discussions between our office and Assistant United States Attorney Thomas Roberts that our client, Ronda Cobb, has agreed to undergo a second gynecological examination at the office of Dr. E. F. Sternen in Euclid, Ohio on August 23, 1984 at 11:30 a.m. We further confirm defendants' commitment to grant plaintiff a commission in the Merchant Marine Naval Reserve upon her certification as "physically qualified" by Dr. Sternen, pursuant to the statements of Assistant United States Attorney Thomas Roberts at the oral argument held before Your Honor on July 16, 1984.

 We further note that defendants have consented to plaintiff's request that a female representative of our law firm be present during the examination, and further that Mrs. Cobb will be fully reimbursed for out-of-pocket mileage expenses in connection with her trip to Euclid from Toledo for the examination.

 Respectfully yours,


 BY /s/Paul H. Levinson



 cc: Thomas Roberts

 Assistant United States ...

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