United States District Court, E.D. Kentucky, Central Division, Lexington
JAMES A. BILSKI, Plaintiff,
MARK ESPER, Secretary, Department of the Army, Defendant.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
C. Reeves United States District Judge
James Bilski and Charles Herald filed this action on August
24, 2016. [Record No. 1] The Court held a bench trial on
September 4, 2018, to resolve: (1) the issue of liability
related to Bilski's claim of age discrimination; and (2)
the amount of damages, if any, to which Bilski is entitled to
Bobo, Bluegrass Army Depot (“BGAD”) Police Chief;
Donald McKeehan, Antiterrorism Officer at BGAD; Charles
Herald, previously an Electronics Mechanic at BGAD; Chris
Willoughby, Electronic Security and Assessment Systems
(“ESS”) Physical Security Specialist at BGAD;
Stephen Sharp, Deputy Commander of BGAD; James Vaughn,
Director of Emergency Services and Security Officer at BGAD;
and Plaintiff James Bilski offered testimony during trial.
Having considered all of the evidence presented by the
parties, the Court issues the following Findings of Fact and
Conclusions of Law in accordance with Rule 52(a)(1) of the
Federal Rules of Civil Procedure.
Court incorporates the facts outlined in its August 14, 2017,
Memorandum Opinion and Order [Record No. 14] as well as its
June 25, 2018, Memorandum Opinion and Order [Record No. 46].
Likewise, the legal conclusions contained in those opinions
are incorporated here.
BGAD, located in Richmond, Kentucky, supplies arms and
munitions to Army installations in the southeastern United
States. BGAD stores and maintains both chemical and
conventional munitions, including sensitive Category I and II
munitions. In accordance with its mission, BGAD operates 24
hours a day, 365 days a year, ready on short notice to supply
Army forces heading into combat.
Plaintiff James Bilski was born in 1959. He was employed as
an Electronics Mechanic at BGAD. His 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.
IDS protects the munitions themselves (which sometimes
contain classified components) as well as BGAD's system
for communicating, storing, and discussing classified
information including materials such as the emergency
operating plans for theft and the recovery of chemical
weapons in addition to the plans for the IDS protecting Arms,
Ammunition, and Explosives (“AA&E”) and
chemical weapons. Details regarding the exact numbers,
specific place, and manner of storing and securing AA&E,
which includes the IDS, are sensitive and/or classified.
Employees are required to possess security clearances and be
qualified under the Army's AA&E program as a
condition of employment as an Electronics Mechanic. The
security check for AA&E employees is repeated every three
years. Grounds for removal from the AA&E program include
drug or alcohol abuse, mental instability, and any other
negative 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. The touchstone for removal is when doubt
exists regarding an employee's reliability and
Bilski applied for a promotion to the position of Physical
Security Specialist prior to March 5, 2014. A Physical
Security Specialist may be responsible for installing IDS/
Electronic Security and Assessment Systems
(“ESAS”), managing day-to-day operational and
maintenance functions for government and contract personnel,
promoting program development consistent with advancements in
technology, providing funding input to supervisors, training
personnel, and developing input for annual maintenance and
operational budget requirements. Knowledge of the regulations
governing the position is an essential part of the position
of Physical Security Specialist.
Civilian Personnel Advisory Center (“CPAC”)
approved two applicants for the position of Physical Security
Specialist and provided McKeehan with Bilski's and
Willoughby's resumes. The resumes indicated similar
experience working as electronics mechanics for BGAD.
Bilski's resume presented electronic engineering course
work and experience, but it did not provide any indication of
physical security specific course work. Willoughby did not
list formal electronic engineering education on his resume.
Instead, he presented extensive classes and certifications
related to physical security.
McKeehan conducted individual interviews with Bilski and
Willoughby after reviewing their resumes. Willoughby was
confident in his knowledge of the regulations applicable to
the Physical Security Specialist position while Bilski was
hesitant and not as knowledgeable about the applicable
Willoughby was selected for the position by McKeehan without
the use of a panel. McKeehan selected Willoughby because of
his superior interview (specifically, his knowledge and
confidence of the applicable regulations, and his coursework
in physical security).
position of Physical Security Specialist was a GS-09 position
with potential to qualify or be further promoted to GS-11.
There was no regulation in effect at the time of ...