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Bilski v. McCarthy

United States District Court, E.D. Kentucky, Central Division, Lexington

August 14, 2017

RYAN D. MCCARTHY, Acting Secretary, Department of the Army, [1] Defendants.


          Danny C. Reeves United States District Judge

         This matter is pending for consideration of the defendant's motion to dismiss a portion of the claims contained in the Complaint. [Record No. 6] For the reasons described herein, the motion will be granted, in part, and denied, in part.

         I. Background

         The Blue Grass Army Depot (“BGAD, ” or “the Depot”), located in Richmond, Kentucky, supplies arms and munitions to Army installations in the southeastern United States-approximately 20-25% of the United States Army. [Record No. 6-1 at 4] The Depot stores and maintains both chemical and conventional munitions, including “sensitive Category I and II munitions” such as “ready-to-fire” Stinger missiles. [Id.] The Depot is the primary supplier of Arms, Ammunition & Explosives (“AA&E”) for Army special forces worldwide. [Id.] In accordance with its mission, the Depot operates 24 hours a day, 365 days a year, ready on short notice to supply Army forces heading into combat. [Id.]

         a. Electronics Mechanics Positions

         Plaintiffs James Bilski and Charles Herald were formerly employed as Electronics Mechanics at BGAD. [Record No. 1 at ¶16] Their duties included “installation, maintenance, modification, and repair” of the classified Intrusion Detection System (“IDS”) that protects the storage facilities (“igloos”) for the Category I and II munitions and explosives. [Record No. 6-1 at 2-4] The IDS protects not only the munitions themselves (which sometimes contain classified components) but also “BGAD's systems for communicating, storing and discussing classified information, which can include materials such as the emergency operating plans for theft and the recovery of chemical weapons and the plans for the IDS protecting AA&E and chemical weapons.” [Id. at 4-5] Details regarding “the exact numbers, specific place, and manner of storing and securing AA&E, ” which includes the IDS, are sensitive and/or classified. [Id. at 5]

         As a condition of their employment (that is, for their specific duties), the plaintiffs were required to possess security clearances and be qualified under the Army's AA&E Program.

[Id. at 5] Army regulations dictate that Commanders/directors [] be selective in assigning personnel to duties involving control of all categories of AA&E. Only personnel who are mature and stable and have shown a willingness and capability to perform assigned tasks in a dependable manner will be assigned to duties[] which involve responsibility for the control, accountability, and shipment of all categories of AA&E.

[Record No. 6-1 at 5-6 (quoting Army Regulation (“AR”) 190-11, ¶ 2-11)] Accordingly, individuals under consideration for taking part in the AA&E program “are required to undergo a rigorous security screening designed to provide the commander reasonable assurance that personnel with character traits that raise significant doubt as to their honesty and stability are not afforded access.” [Id. at 6] The security screening for civilian employees includes, at a minimum, “(1) [a] personal interview of the individual conducted by his or her immediate commander or supervisor; (2) a personnel records check; (3) a law enforcement/security records check; and (4) a records check of local civilian law enforcement agencies, if permitted by law.” [Id.] Once approved, employees are required to undergo annual medical evaluations and are subject to psychological screenings when deemed necessary. [Id.] The security check for AA&E employees is repeated every three years. [Id. (citing AR 190-11, ¶ 2-11.e)]

         Grounds for removal from the AA&E program include drug or alcohol abuse, mental instability, and “any other character trait, a record of conduct, or adverse information, which, in the commander's/director's/manager's judgment, would be prejudicial to reliability or trustworthiness.” [Id. (citing AR 190-11, ¶ 2-11.d)] Defendants suggest that the touchstone for removal is “when doubt exists as to their reliability and trustworthiness.” [Id. (citing AR 190-11, ¶ 2-11.b(4))] Plaintiffs Bilski and Howard underwent AA&E screening as recently as April 2013 and were approved. [Id. at 6-7]

         b. Promotion Denial

         Prior to March 5, 2014, Bilski applied for a promotion to the position of Electronic Security Assessment Officer. [Record No. 1 at ¶¶19-20, 22] He interviewed for the position on March 5, 2014, but was not selected for the promotion when a decision was made the following month. [Id.; Record No. 6-1 at 2] Bilski was over 40 years of age at the time he was not selected for the promotion. [Record No. 1 at ¶25] The individual selected for the position was under 40 years of age. [Id. at ¶24] At the time, Bilski had over 20 years' experience in federal service, while the individual selected for the promotion had over six years' experience. [Id. at ¶¶26-27] Moreover, Bilski had served more than 13 years as an Electronics Mechanic and/or Electronics/Mechanical Mechanic, whereas the individual selected for the promotion had served just under six years as an Electronics Mechanic. [Id.]

         c. EEO Complaint

         Herald overheard a conversation in March 2014 between two supervisory individuals stating that they wished to go with the “younger guy” for the Electronic Security Assessment Officer position because the other individual (Bilski) was “close to retirement.” [Id. at ¶28] Herald informed Bilski of what he had heard and Bilski proceeded to file a formal complaint of promotion non-selection with the Department of the Army. [Id. at ¶29, 31] Herald, who provided a witness statement in June 2014 in support of Bilski's complaint, later filed his own complaint alleging retaliation. [Id. at ¶32]

         The plaintiffs allege that they experienced “significant and persistent retaliation in the form of reassignments, suspensions without pay, and criminal investigation” as a result of their complaints. [Id. at ¶34] As one example, in mid-November 2014, Bilski witnessed the official with whom he had interviewed for the promotion “pound his fist on a truck making a loud noise in an attempt to intimidate [him].” [Id. at 35] On April 22, 2015, Bilski was detailed to the Directorate of Public Works, with no reason given, and was required to surrender his keys and credentials to the restricted areas, including his password for the IDS computer system. [Id. at 36] On April 29, 2015, Herald was likewise reassigned to the Directorate of Public Works, until an “AR 190-11 Chapter 2” inquiry into his reliability and trustworthiness could be performed. [Id. at ¶38]

         d. Joint Munitions Command Assessment

         Defendant Secretary of the Army (“the Secretary” or “the Army”) tells a different story, providing a non-retaliatory reasons for the plaintiffs' reassignments. According to the Secretary, the Joint Munitions Command (“JMC”), which oversees BGAD, “conducts periodic assessments known as the Program/Process Evaluation to ensure the security of all sensitive categorized AA&E in accordance with Army Regulation 190-11.” [Record No. 6-1 at 7] In April 2015, a JMC inspector found that IDS inspection/testing (for which the plaintiffs were responsible) was not being conducted properly on the Category I and II munitions igloos, as required by AR 190-11, ¶ 3-6m. [Id.] The inspector also found that inspection documentation was not being maintained per installation policy. [Id.] Accordingly, “the IDS Maintenance Section failed the periodic JMC program evaluation.” [Id.] The Secretary asserts that the failed assessment is the reason Bilski and Herald were suspended from their duties as Electronics Mechanics. [Id.] They were temporarily detailed to non-AA&E Public Works positions “until an AR 190-11, Chapter 2, inquiry into their reliability and trustworthiness could be completed.” [Id.]

         e. Internal Investigation

         An internal investigation (or AR 190-11, Chapter 2, inquiry) thereafter commenced. Less than two months after Bilski and Herald's reassignment, the investigation concluded that the plaintiffs had

failed to conduct sufficient preventative maintenance check[s] in a timely manner on alarmed igloos as required by AR 190-11; DES SOP #11 and supervisor memorandums. Records show a pattern of Mr. Bilski and Mr. Herald delaying preventative maintenance checks to the end of the six month cycles and failing to complete all required preventative maintenance checks within the six month cycles as required. Mr. Bilski and Mr. Herald were unable to provide any documentation to account for time in the performance of their duties. The IDS preventative maintenance checks were assessed as non-compliant with AR 190-11 in a JMC Process Evaluation completed April 22, 2015. Inspector found CAT I and II igloo IDS inspections/testing not being conducted per AR 190-11 CH 3 para 3-5m. The IDS preventative maintenance inspection/documentation paperwork was not maintained per installation policy.

         [Record No. 6-1 at 8 (quoting Exh. I “Investigative Summary dated June 10, 2015”)]

         Bilski and Herald were formally removed from the AA&E program in accordance with AR 190-11, ¶ 2-11(d)(7) on July 22, 2015. [Id.] The stated reason for their removal was that they were “considered prejudicial to reliability and trustworthiness.” Further, they would “be denied access in the restricted/AA&E areas based on [their] records of conduct and adverse information substantiated from the inquiry.” [Id.]

         Five days later, Bilski was notified that the Director of Emergency Services had proposed his outright removal from federal service. [Id. at 42; see also Record No. 6-1 at 7] The Director recommended that Bilski and Herald be removed from federal service for

(1) failing to meet a condition of employment based on their removal from the AA&E program; (2) failing to observe written regulations and procedures where safety of persons or property is endangered for failing to inspect and test the IDS systems in category I and II igloos; and (3) delay in carrying out instructions due to a pattern of delay in conducting preventative maintenance until the end of the inspection cycle.

         [Record No. 6-1 at 9] Plaintiffs responded to the recommended removal both orally in writing. [Id.] Thereafter, the BGAD Deputy Commander sustained the charges against the plaintiffs, but “determined that based on their prior performance and absence of prior discipline, [Bilski and Herald] had the potential for rehabilitation in positions not involved with AA&E.” [Id.] The Deputy Commander mitigated the plaintiffs' proposed removal ...

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