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Bilski v. Esper

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

October 22, 2018

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


          Danny C. Reeves United States District Judge

         This Court granted the defendant partial summary judgment on June 25, 2018, dismissing the plaintiffs' claim of retaliation (Count II) under the Age Discrimination in Employment Act (“ADEA”). [Record No. 46] Following a bench trial on the remaining claim (Count I), the plaintiffs moved to set aside the order dismissing the claim of retaliation. [Record No. 61] The plaintiffs' motion will be denied for the reasons discussed below.

         I. BACKGROUND

         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].[1" name="FN1" id="FN1">1] Therefore, the Court will not repeat them in detail here.

         This case arises from events occurring at the Blue Grass Army Depot (“BGAD”) in Richmond, Kentucky. [Record No. 35');">35');">35');">35, p. 2');">p. 2] Plaintiffs Bilski and Herald were employed at BGAD, and 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. [Record Nos. 116; 35');">35');">35');">35, p. 3] Grounds for removal from the AA&E program include drug or alcohol abuse, mental instability or 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. [Id.]

         Bilski applied for a promotion to the position of Physical Security Specialist but was not selected. [Record No. 1 ¶ 20-22] Bilski was over forty years-old and the candidate who was selected was under forty years-old at the time of the decision. [Id. at ¶24-25] Herald claims that he overheard a conversation involving Donald McKeehan, the individual making the hiring decision, discussing how he wanted to go with the “younger guy” because the “older guy” was close to retirement. [Id. at ¶ 28] Bilski filed an EEO complaint of promotion non-selection with the Department of the Army and Herald filed a complaint of retaliation. [Id. at ¶¶ 29, 32] The Joint Munitions Command (“JMC”) which oversees BGAD, conducted a routine periodic assessment to ensure the security of all sensitive categorized AA&E. [Record No. 35');">35');">35');">35, p. 7] The JMC concluded that certain inspections and testing the plaintiffs were responsible for was not being conducted properly. [Id.]

         Bilski and Herald were temporarily detailed to a non-AA&E Public Works position because of the JMC's findings until a further inquiry into their reliability and trustworthiness was completed. [Id.] An internal investigation 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. [Record Nos. 1 ¶ 42; 35');">35');">35');">35-17; 35');">35');">35');">35-18] Stephen Sharp, Deputy Commander of the BGAD, met with Bilski and Herald prior to making his final decision to mitigate their proposed removal to a ten-day suspension. [Record No. 7-1, p. 4');">p. 4] Sharp proposed that, if Bilski and Herald dropped their complaints, the proposed termination would be reduced to a Letter of Concern (“LOC”). [Id.] Sharp's testimony further indicated that he offered the settlement because it was a way to “take one more thing off his plate” and avoid the costs associated with EEO complaints. [Record No. 62, p. 50-51] Bilski and Herald did not agree to the settlement offer and were issued ten-day suspensions. [Record Nos. 35');">35');">35');">35-19; 35');">35');">35');">35-20]

         Following the plaintiffs' removal from the AA&E program, a contractor discovered tampering with the alarms, indicating someone had installed a key that caused a secure/access switch to remain on at all times. [Record No. 35');">35');">35');">35-21, p. 5] An investigation was opened by Fort Knox Criminal Investigation Division. It issued a report, indicating probable cause existed to believe the plaintiffs committed the offense of Wrongful Damage to Government Property. [Record No. 35');">35');">35');">35-21] The plaintiffs access to BGAD was revoked and the BGAD Commander issued a decision finally and indefinitely suspending them from federal service. [Record Nos. 35');">35');">35');">35-22; 35');">35');">35');">35-23]


         The plaintiffs filed this action on August 24, 2016. [Record No. 1] Count I alleged age discrimination against Bilski under the Age Discrimination Employment Act of 1967 (“ADEA”). [Id. at ¶56] Both plaintiffs asserted claims of retaliation in Count II of their Complaint. [Id. at ¶63');">63] The Court granted partial summary judgment, dismissing Bilski and Herald's claims of retaliation. [Record No. 46] In resolving this issue, the Court concluded that the plaintiffs: (1) did not present direct evidence of retal iation; (2) did not establi sh a causal connection between the protected conduct and the adverse action; and (3) “even if a causal connection could be shown by the plaintiffs, their claims fail under the McDonnell Douglas burden-shifting approach.” [Record No. 46, p. 16]

         The Court held a bench trial on September 4, 2018, regarding Bilski's age discrimination claim. A ruling is being issued regarding that remaining claim concurrently with this opinion. The plaintiffs subsequently filed the present motion to set aside the judgment which dismissed the retaliation claim. [Record No. 61]


         A. Newly Discovered Evidence

         The plaintiffs assert that the Court should reconsider its previous order dismissing the plaintiff's retaliation claims based on newly discovered evidence. More specifically, they rely on the following: (1) Sharp's testimony during the bench trial which they claim establishes “a direct causal link between the filing of the EEO complaints by the plaintiffs and Sharp's offer of no disciplinary action if the plaintiffs agreed to drop their EEO complaint” ...

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