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Bilski v. Esper

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

October 22, 2018

JAMES A. BILSKI, Plaintiff,
MARK ESPER, Secretary, Department of the Army, Defendant.


          Danny C. Reeves United States District Judge

         Plaintiffs 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 recover.[1]

         Richard 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.


         1. The 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.

         2. The 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.

         3. 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.

         4. The 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.

         5. 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 trustworthiness.

         6. 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.

         7. The 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.

         8. 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 regulations.

         9. 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).

         10. The 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 ...

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