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Bilski v. Esper

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

June 25, 2018

JAMES A. BILSKI, et al., Plaintiffs,
MARK ESPER, Secretary, Department of the Army,[1] Defendant.


          Danny C. Reeves United States District Judge.

         This matter is pending for consideration of Defendant Secretary of the Army's (“the Secretary”) partial motion to dismiss and motion for summary judgment. For the reasons outlined below, the partial motion to dismiss will be denied. However, the defendant's motion for summary judgment will be granted in part, and denied, in part.


         The Court's Memorandum Opinion and Order entered on August 14, 2017, outlines the relevant facts. Therefore, the Court will not repeat all of the particulars here. In summary, this case arises out of events at the Blue Grass Army Depot (“BGAD”) in Richmond, Kentucky. [Record No. 35');">35');">35');">35');">35');">35');">35');">35, 2');">p. 2] Plaintiffs James Bilski and Charles Herald were employed as Electronics Mechanics in the Intrusion Detection System (“IDS”) Maintenance Section, Directorate of Emergency Services, at BGAD. [Record No. 1 ¶ 16] As part of the IDS Maintenance Section, the plaintiffs were responsible for the installation, maintenance, modification, and repair of the IDS Equipment for Category I and II ammunitions and explosive storage facilities, also known as igloos. [Record No. 35');">35');">35');">35');">35');">35');">35');">35, p. 3] The plaintiffs were required to possess security clearances and be qualified under the Army's Arms, Ammunition & Explosives (“AA&E”) Program as a condition of their employment. [Id.] 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 assurances that personnel with character traits that raise significant doubt regarding their honest and stability are not afforded access. [See Record No. 35');">35');">35');">35');">35');">35');">35');">35-3.] Grounds for removal from the AA&E program include any “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. at subsection d]

         Bilski applied for a promotion to the position of Electronic Security Assessment Officer. If promoted to this position, he would oversee the Electronic Mechanics and have supervisory responsibilities regarding maintenance of the IDS in Early 2014. [Record No. 35');">35');">35');">35');">35');">35');">35');">35, p. 4] Bilski interviewed for the position but was not selected. [Record No. 1, ¶ 20-22] He was over 40 years of age at the time. [Id. at ¶ 25] The individual selected (Chris Willoughby) was under 40 years of age. [Id. at ¶ 24] Thereafter, Herald allegedly overheard a conversation between BGAD Police Chief Richard Bobo and Donald McKeehan. [Id. at ¶ 28] Bilski filed a formal complaint of discrimination after learning of this conversation from Herald. [Id. at ¶ 29]

         In April 2015, the Joint Munitions Command (“JMC”), which oversees BGAD, conducted a periodic inspection and found that IDS inspection/testing (for which the plaintiffs were responsible) was not being conducted properly. [Record No. 35');">35');">35');">35');">35');">35');">35');">35, p. 7');">p. 7] Bilski and Herald 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.] The plaintiffs were formally removed from the AA&E program after the inquiry was completed. [Id.] A few days later, the plaintiffs were notified that the Director of Emergency Services had proposed their outright removed from federal service for failing to meet a condition of employment, failing to observe written regulations and procedures, and for delay in carrying out instructions. [Record Nos. 1, ¶ 42; 35');">35');">35');">35');">35');">35');">35');">35-17; 35');">35');">35');">35');">35');">35');">35');">35-18] Shortly thereafter, Deputy Commander Sharp issued a decision on their removal in which he sustained all charged in the proposed removal. [Record Nos. 35');">35');">35');">35');">35');">35');">35');">35-19; 35');">35');">35');">35');">35');">35');">35');">35-20] However, Sharp determined that, based on prior performance and absence of prior discipline, the plaintiffs had the potential for rehabilitation in positions not involved with AA&E, and mitigated their proposed removal to a 10-day suspension, followed by reassignment to duties not involving access to AA&E. [Id.]

         A private contracting company discovered tampering with the alarms in several igloos and a building a month later. [Record No. 35');">35');">35');">35');">35');">35');">35');">35-21] Specifically, it was discovered that someone had intentionally wired resistors to stop communication between the igloos and the security desk, and a “defeat key” caused the secure/access switch to remain secure at all times. [Id. at 5] The Federal Bureau of Investigation and the Army's Fort Knox Criminal Investigation Division (“CID”) were notified and CID opened an investigation in late October 2015. [Id.] The report found probable cause existed to believe the plaintiffs committed the offense of Wrongful Damage to Government Property when they failed to conduct maintenance of critical storage facilities and bypassed the alarms using “defeat keys.” [Id.]

         The plaintiffs' access to BGAD was revoked on November 24, 2015 by BGAD Commander Colonel Hudson. Hudson based this decision on his judgment that their actions posed a bona fide risk to Government property and interests. [Record Nos. 35');">35');">35');">35');">35');">35');">35');">35-22; 35');">35');">35');">35');">35');">35');">35');">35-23] Deputy Commander Sharp proposed their indefinite suspension from federal service that same day. [Record Nos. 35');">35');">35');">35');">35');">35');">35');">35-24; 35');">35');">35');">35');">35');">35');">35');">35-25] BGAD Commander Hudson indefinitely suspended the plaintiffs from federal service on January 14, 2016. [Record Nos. 35');">35');">35');">35');">35');">35');">35');">35-26; 35');">35');">35');">35');">35');">35');">35');">35-27]

         The United States Attorney's Office for the Eastern District of Kentucky notified the plaintiffs on August 22, 2016, that they would not be pursuing criminal charges because the government “[did] not believe there [was] sufficient evidence to prove criminal conduct beyond a reasonable doubt.” [Record No. 35');">35');">35');">35');">35');">35');">35');">35-28] The letter noted, however, that the evidence indicated that the plaintiffs “likely failed to follow governing regulations, procedures, and/or protocols in discharging their duties, and that their conduct likely undermined the integrity of the security system protecting the Blue Grass Army Depot's munitions and other inventory.” [Id.]

         The plaintiffs promptly filed suit following receipt of the U.S. Attorney's letter. [Record No. 1] The Verified Complaint names as defendants the Secretary of the Army, BGAD Commander Lee G. Hudson, Deputy Commander Stephen L. Sharp, and BGAD employees Christopher L. Willoughby and Donald McKeehan. [Id.] Count I alleges age discrimination against Plaintiff Bilski under the Age Discrimination Employment in Act of 1967. [Id. at ¶¶ 8 and 56] Count II asserts claims of unlawful retaliation against both plaintiffs based upon their ten-day suspension without pay, alleged abuse of the criminal justice system, and the plaintiffs' indefinite suspension form federal service. [Id. at ¶63] The defendants seek compensatory damages, lost wages in the form of past and future earnings, injunctive relief in the form of reinstatement and promotion, and attorney's fees. [Id. at 14-15]

         The United States Department of the Army timely filed a motion to dismiss, in part, on behalf of all defendants on November 14, 2016. [Record No. 6] The Court dismissed the plaintiffs' claims against all the individual defendants, and dismissed the plaintiffs' retaliation claims in Count II to the extent they are based on the plaintiffs' removal from the AA&E program. [Record No. 14] Additionally, the Court dismissed the plaintiffs' demand for compensatory damages and their demand for a jury trial. [Id.] The Secretary has now filed a partial motion to dismiss and motion for summary judgment on the remaining claims. [Record No. 35');">35');">35');">35');">35');">35');">35');">35]


         The defendant's argument that the plaintiffs retaliation claims are non-justiciable under Dep't of the Navy v. Egan, 484 U.S. 518 (1988) contests the Court's subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure. A 12(b)(1) motion “can either attack the claim of jurisdiction on its face, in which case all allegations of the plaintiff must be considered as true, or it can attack the factual basis for jurisdiction, in which case the trial court must weigh the evidence and the plaintiff bears the burden of proving that jurisdiction exists.” DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004).

         Conversely, summary judgment is appropriate when there are no genuine disputes regarding any material facts and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Chao v. Hall Holding Co., 285 F.3d 415');">285 F.3d 415, 424 (6th Cir. 2002). A dispute over a material fact is not “genuine” unless a reasonable jury could return a verdict for the nonmoving party. That is, the determination must be “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986); see Harrison v. Ash, 539 F.3d 510, 516 (6th Cir. 2008).

         A party moving for summary judgment bears the burden of demonstrating conclusively that no genuine issue of material fact exists. CenTra, Inc. v. Estrin, 2');">538 F.3d 402, 412 (6th Cir. 2008). Once the moving party has met his burden of production, the nonmoving party must come forward with significant probative evidence to defeat a properly supported motion for summary judgment. Chao v. Hall Holding Co., 285 F.3d 415');">285 F.3d 415, 424 (6th Cir. 2002). In deciding whether to grant summary judgment, the Court views all the facts and inferences drawn ...

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