Bilski et al v. United States Department of the Army et al
Filing
46
MEMORANDUM OPINION & ORDER: 1) 35 Partial Motion to Dismiss is DENIED. 2) 35 Motion for Summary Judgement is GRANTED in part and DENIED in part a) plas' claims in Count II are DISMISSED w prejudice, b) Pla Bilski's age discrimination claim in Count I remains pending. Signed by Judge Danny C. Reeves on 6/25/2018.(SCD)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
(at Lexington)
JAMES A. BILSKI, et al.,
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Plaintiffs,
V.
MARK ESPER, Secretary, Department of
the Army,1
Defendant.
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Civil Action No. 5: 16-322-DCR
MEMORANDUM OPINION
AND ORDER
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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.
I.
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, 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
1
Mark Esper was sworn into office as Secretary of the Army on November 20, 2017. He is
substituted as the defendant in this action pursuant to Rule 25(d) of the Federal Rules of Civil
Procedure.
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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, 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. 35-3.] 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,
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
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were responsible) was not being conducted properly. [Record No. 35, 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; 35-17; 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. 35-19; 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. 35-21] 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.]
-3
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. 35-22; 35-23]
Deputy Commander Sharp proposed their indefinite suspension from federal service that same
day. [Record Nos. 35-24; 35-25] BGAD Commander Hudson indefinitely suspended the
plaintiffs from federal service on January 14, 2016. [Record Nos. 35-26; 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. 35-28] 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
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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]
II.
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, 424 (6th Cir. 2002). A dispute over a material fact is not “genuine”
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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, 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, 424 (6th Cir. 2002). In
deciding whether to grant summary judgment, the Court views all the facts and inferences
drawn from the evidence in the light most favorable to the nonmoving party. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
III.
A.
Justiciability of Count II
The parties reargue what this Court has already decided in the previous Memorandum
Opinion and Order entered on August 14, 2017. [Record No. 14] Specifically, the Court held:
Applying Hale and taking into consideration authority from the other circuits,
the Court will grant the defendant’s Rule 12(b)(1) motion, in part. Specifically,
the Court finds that the Army’s decision to remove the plaintiffs from the AA&E
program, which includes access to both classified and sensitive nationalsecurity information, must be reserved to the Executive Branch. However, the
Court denies the Rule 12(b)(1) motion with respect to the plaintiffs’ suspensions
without pay and removal from federal service.
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Id. at p. 12. The Secretary now seeks to expand the Court’s justiciability ruling to cover
all of the decisions made by the command staff at BGAD. [See Record No. 35, pp. 18-27]
And the plaintiffs appear to argue that Egan does not apply to any of the decisions made,
including the decisions the Court has already determined to be reserved to the Executive
Branch. [See Record No. 43, pp. 2-9.]
The Secretary bases his argument that Egan applies to the plaintiffs’ 10-day suspension
by arguing that the suspensions were “premised, in large part, on the BGAD Deputy
Commander’s determination that the plaintiffs ‘placed the security of the [AA&E] at risk along
with the safety of personnel on the installation.’” [Record No. 35, pp. 23-24] He further argues
that the Deputy Commander based the suspension decisions on a finding regarding the
plaintiffs’ reliability and trustworthiness in a position of responsibility that involved work on
Intrusion Detection System Equipment for Category I and II explosive storage facilities. [Id.
at p. 24] The Secretary contends that the Deputy Commander’s assessment is “clearly a
national security based determination” which involves “predictive judgment” to the future
trustworthiness of the plaintiffs, rehabilitative potential, and determination which course of
action is the most appropriate “to promote the efficiency of the service.” [Id.] However, the
decision to suspend the plaintiffs for 10-days does not appear to be based on a judgment on an
individual’s “propensity to disclose classified information,” which requires predictive
judgment less amenable to review by “an outside nonexpert body.” Hale v. Johnson, 845 F.3d
224, 230 (6th Cir. 2016) (quoting Egan, 484 U.S. at 529). Instead, the decision to suspend the
plaintiffs for 10-days appears to be punitive, based on a failure to meet conditions of
employment and for violating regulations. [See Record Nos. 35-19; 35-20.] The “predictive
judgment” that must be left to the Executive Branch appears to play more of a role in the
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decision to reassign the plaintiffs to a non AA&E positions, which the Court has already
decided is unreviewable under Egan.
The Secretary next argues that the BGAD’s Commander’s decision barring the
plaintiffs’ access to BGAD and their indefinite suspension is also unreviewable under Egan.
But for the reasons previously stated, Egan does not apply to these decisions. The Court does
not doubt that the decision barring access to BGAD involves some level of predictive
judgment. However, Egan apples to predictive judgment about the propensity to divulge
sensitive or classified information. Here, both plaintiffs were reassigned to positions that did
not allow them access to the AA&E restricted areas. Further, the decision barring the plaintiffs
appear to be in response to the criminal investigation and concerns regarding base security.
[See Record Nos. 35-22; 35-23] Egan does not categorically reserve for the Executive Branch
any and all decisions with security implications. See Hart, 845 F.3d at 230 (distinguishing
between national-security information and national-security concerns). The same reasons
equally apply to the Deputy Commander’s decision to indefinitely suspend the plaintiffs. The
underlying reasoning for the decisions appear to be the criminal investigation and the
Commander’s decision barring the plaintiffs’ access to BGAD. [See Record Nos. 35-24; 3525.] These decisions do not appear to be based on predictive judgment of their propensity to
divulge sensitive or classified information.
B.
Bilski’s Age Discrimination Claim
The ADEA prohibits an employer from failing or refusing to hire, discharging, or
discriminating “against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual's age.” 29 U.S.C. § 623(a)(1). A
plaintiff may establish a violation of the ADEA by either direct or circumstantial evidence.
-8
Geiger v. Tower Automotive, 579 F.3d 614, 620 (6th Cir. 2009).
“Direct evidence of
discrimination is that evidence which, if believed, requires the conclusion that unlawful
discrimination was at least a motivating factor in the employer's actions.” Wexler v. White’s
Fine Furniture, Inc., 317 F.3d 564, 570 (6th Cir. 2003) (en banc) (citation and internal
quotation marks omitted). “Circumstantial evidence, on the other hand, is proof that does not
on its face establish discriminatory animus, but does allow a factfinder to draw a reasonable
inference that discrimination occurred.” Id. Regardless of the type of evidence submitted, the
burden of persuasion remains on ADEA plaintiffs to demonstrate “that age was the ‘but-for’
cause of their employer's adverse action.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 17778 (2009). “For an employer to take an adverse action ‘because of age’ means ‘that age was
the “reason” that the employer decided to act.’” Scheick v. Tecumseh Public School, 766 F.3d
523, 529 (6th Cir. 2014) (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 350)
Bilski relies entirely on circumstantial evidence. Under the McDonnell Douglas
burden-shifting approach, he must first establish a prima facie case of age discrimination. See
Geiger, 579 F.3d at 622 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). If
Bilski succeeds in this endeavor, the burden of production shifts to the Secretary to articulate
a nondiscriminatory reason for the adverse employment action. See Ercegovich v. Goodyear
Tire & Rubber Co., 154 F.3d 344, 350 (6th Cir. 1998). If the Secretary satisfies his burden,
Bilski must show that the Secretary’s asserted reason is pretext. Id.
To satisfy the elements of a prima facie case of age discrimination based on the
defendant’s failure to select him for the position, Bilski must show that: (i) he was a member
of a protected class; (ii) he was qualified for the position; (iii) he was considered for and denied
the position; and (iv) an similarly qualified individual who was not a member of the protected
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class was selected for the position. See White v. Columbus Metro. Hous. Auth., 729 F.3d 232,
240 (6th Cir. 2005) (citing Nguyen v. City of Cleveland, 229 F.3d 559, 562-63 (6th Cir. 2000)).
Bilski’s burden at the prima facie stage is “not onerous” and “poses a burden easily met.”
Cline v. Catholic Dioceses of Toledo, 206 F.3d 651, 660 (6th Cir. 2000) (citing Texas Dep’t of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Bilski satisfies the elements of a prima facie case of age discrimination. The defendant
does not argue that Bilski has failed in his burden but turns to the second stage of the
McDonnell Douglas burden-shifting approach and puts forth a legitimate age natural reasons
for the employment decision. [See Record No. 35, p. 29-32.] The Secretary meets his burden
of production by alleging that the selection of Willoughby over Bilski was a result of the
candidates’ performance in the interview process, Willoughby’s experience working in a
leadership position, and Willoughby’s relevant course work in physical security. [See Record
Nos. 35, p. 29; 45, p. 9; 45-1, p. 4.]
Bilski argues that, “other than McKeehan’s unverified statement, there is no evidence
that the so-called legitimate reason was anything other than pretextual.” [Record No. 43, p.
11] He contends that had McKeehan followed BGAD regulations to use a selection panel,
“there would be direct evidence that the so-called reason for the selection of Willoughby over
Bilski was legitimate, not pretextual.” [Id.] This argument does not lead to the conclusion
that the Secretary failed to meet his production burden.2 See Allen v. Highlands Hosp. Corp.,
545 F.3d 387, 395-96 (6th Cir. 2008) (holding that because the plaintiffs believe the proffered
reason to be false does not lead to the conclusion that the defendant failed to meet its
2
A selection panel was not required under the relevant hiring regulations in place at the time
of the hiring decision. [See Record Nos. 45-1, p. 3; 45-2, p. 7]
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production burden); see also Burdine, 450 U.S. at 254 (“the defendant need not persuade the
court that it was actually motivated by the proffered reasons.”).
Turning to pretext, Bilski may avoid summary judgment by producing “sufficient
evidence from which the jury may reasonably reject the employer’s explanation.” Allen, 545
F.3d at 396 (quoting Manzer v. Diamond Shamrock Chem. Co., 29 F.3d 1078, 1083 (6th Cir.
1994)). “A plaintiff can refute the legitimate, nondiscriminatory reason that an employer offers
to justify an adverse employment action ‘by showing that the proffered reason (1) has no basis
in fact, (2) did not actually motivate the defendant’s challenged conduct, or (3) was insufficient
to warrant the challenge conduct.’” Provenzano v. LCI Holdings, Inc., 663 F.3d 806, 815 (6th
Cir. 2011) (quoting Wexler, 317 F.3d at 576).
The Secretary contends that McKeehan based his decision to select Willoughby over
Bilski on the candidates’ performance in the interview process, Willoughby’s experience
working in a leadership position, and Willoughby’s relevant course work in physical security.
Bilski offers several reasons to support a finding of pretext: (i) his qualifications as compared
to Willoughby; (ii) a past performance evaluation; and (iii) an alleged overheard conversation
between Chief Bobo and McKeehan in which they discussed selecting a younger candidate.
[See Record No. 43, pp. 12-16]
Bilski’s contends pretext can be found by looking at the qualifications of Bilski and
Willoughby. To prevail, he must show he “was a plainly superior candidate, such that no
reasonable employer would have chosen the latter applicant over the former, or (2) plaintiff
was as qualified as if not better qualified than the successful applicant, and the record contains
‘other probative evidence of discrimination.’” Provenzano, 663 F.3d at 815 (quoting Bartlett
v. Gates, 421 F. App’x. 485, 490-91 (6th Cir. 2010)). Bilski only provides conclusory and
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subjective statement that he was the better candidate. See Record No. 43-12 (“This position
was awarded to a candidate Chris Willoughby who is 23 years my junior with less relevant
education and experience.”). He provides no evidence that he “was a plainly superior
candidate” such that no reasonable employer would have chosen Willoughby over him. Thus,
to present a triable issue of fact as to pretext for the qualification justification, Bilski is required
to show that he was as qualified as, if not better qualified than, Willoughby, along with proof
of “other probative evidence of discrimination.” See Provenzano, 663 F.3d at 816.
Bilski argues that he was as qualified as Willoughby by directing attention to the
resume review sheets and their close scores. [See Record No. 43-13.] Even though Bilski
takes issue with what appears to be McKeehan crossing out Bilski’s score in section 3 from an
8 to a 7, it also appears that McKeehan crossed out Willoughby’ score in section 3 which
resulted in a 7. [Id.] Either way, reviewing the qualifications of both candidates, it appears
that Bilski was as qualified as Willoughby for the position. Therefore, Bilski must offer proof
of “other probative evidence of discrimination.” And although Bilski alleges that a past work
evaluation is evidence of discrimination, this argument falls flat. Simply because he was rated
as a good employee by his former boss does not show that his non-selection to the position
was discriminatory.
Next, Bilski contends that the conversation Herald allegedly overheard between Chief
Bobo and McKeehan is evidence of discrimination.3 In determining whether discriminatory
comments are sufficient circumstantial evidence of discrimination in a particular case, the
3
The defendant does not contest that this conversation would be inadmissible hearsay.
However, the statement could likely come in under Rule 801(d)(2)(D) of the Federal Rules of
Evidence.
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Court must consider factors such as the identity of the speaker, the nature and substance of the
comments, and the temporal proximity of the comments to the challenged decision. See Griffin
v. Finkbeiner, 689 F.3d 584, 595 (6th Cir. 2012) (citing Ercegovich, 154 F.3d at 354-57.
Comments may qualify as evidence of discrimination if the speaker was “in a position to
influence the alleged decision.” Id. And where discriminatory statements are “made by a
person in a position to influence the alleged employment decision, they will be relevant unless
they are so isolated and ambiguous as to be nonprobative.” Diebel v. L&H Resources, LLC,
492 F. App’x 523, 532-33 (6th Cir. 2012); see also Griffin, 689 F.3d at 596.
Here, the alleged statements overheard by Herald about choosing the younger candidate
is sufficient circumstantial evidence. McKeehan was the decision maker in Bilski’s nonselection. His alleged statement was not ambiguous: he expressed a desire to hire a younger
candidate over a candidate who was close to retirement. It must be noted that Herald did not
know the exact date this occurred or who the conversation was about. [See Record No. 35-7,
p. 15-16 (“Well, I went to go walk in there and I heard him talking, and he was talking about,
‘I’m going to hire this guy, because the other one’s about to retire soon.’ And I didn’t know
what he was talking about.”; p. 17 (no names were used in the conversation, Herald did not
see the resumes); p. 18 (there was nothing else at the time that indicated that the conversation
was about Willoughby and Bilski); p. 19 (Herald never asked McKeehan or Bobo who they
were speaking about).] It was not until over a month later Herald realized who he thought they
were talking about during the conversation. [Id. at p. 17] But while the exact time of the
statement is not evident from the record, the alleged conversation was said to have occurred
during the relevant hiring time frame. Viewing the facts in a light most favorable to Bilski,
the close nature of the timing of the conversation to his non-selection further supports the
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relevancy of the statements. A reasonable trier of fact could infer from the candidates
qualifications, the nature of the conversation, Mckeehan’s position related to the hiring
decision, and timing of the conversation, that age was a but-for cause for Bilski’s nonselection.
C.
Bilski’s and Herald’s Retaliation Claims
The only surviving retaliation claims relate to the plaintiffs’ 10-day suspension, barring
the plaintiffs from BGAD, and their indefinite suspension.4
The plaintiff’s claims are
evaluated under the McDonnell Douglas burden-shifting approach because they do not present
any direct evidence of retaliation. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Further, they bear the initial burden under this approach of presenting a prima facie case of
retaliation. A.C. ex rel. J.C. v. Shelby Cnty. Bd. of Educ., 711 F.3d 687, 697 (2013) (citing
DiCarlo v. Potter, 358 F.3d 408, 414 (6th Cir. 2004)). To present a prima facie case, the
plaintiffs must establish: (i) they were engaged in a protected activity; (ii) the defendant knew
of this protected activity; (iii) the defendant took an adverse action against the plaintiffs; and
(iv) there was a causal connection between the protected activity and the adverse action. Id.
(citing Gribcheck v. Runyon, 245 F.3d 547, 550 (6th Cir. 2001)). “The burden of establishing
a prima facie case in a retaliation action is not onerous, but one easily met.” Id. (citing Nguyen
v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000)).
4
The Secretary contends that the plaintiffs’ 10-day suspension and final removal from federal
service is not before this court. [See Record No. 35, p., 7.] The plaintiffs’ have properly pled
a claim for retaliation for the 10-day suspension. [See Record No. 1, ¶¶ 62-63.] Regarding
the removal from federal service, this event took place after the Complaint was filed and the
plaintiffs have not alleged nor argued throughout this action that this was retaliation. [See
Record Nos. 1; 7; 43.]
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If the plaintiffs successfully present a prima facie case of retaliation, the burden shifts
to the defendant to show by a preponderance of the evidence that there was a legitimate,
nondiscriminatory reason for the adverse action. DiCarlo, 358 F.3d at 414-15; see also Nixon
v. Greenup Cnty. Sch. Dist., 890 F. Supp. 2d 753, 759-60 (E.D. Ky. 2012). And if they make
such a showing, the burden then shifts back to the plaintiffs to establish that the defendant’s
proffered reason for the adverse action was a pretext. DiCarlo, 358 F.3d at 414-15.
The parties do not dispute that the plaintiffs have shown the first three elements of their
retaliation claim. The only dispute is whether the plaintiffs have shown causation. As noted,
the only surviving retaliation claims relate to the plaintiffs’ 10-day suspension, barring the
plaintiffs from BGAD, and their indefinite suspension. “To show causation, ‘a plaintiff must
produce sufficient evidence from which an inference could be drawn that the adverse action
would not have been taken’ in the absence of the protected conduct. Weigel v. Baptist Hosp.
of East Tennessee, 302 F.3d 367, 381 (6th Cir. 2002) (quoting Nguyen 229 F.3d at 563).
“Although no one consideration is dispositive, ‘[a] causal link may be shown through
knowledge combined with closeness in time.’” Id. (quoting Johnson v. Univ. of Cincinnati,
215 F.3d 561, 582 (6th Cir. 2000)
Here, the first alleged adverse action (removing plaintiff from their work area and
temporarily reassigning them) occurred over a year after the protected conduct (filing the age
discrimination complaint). No temporal proximity exists between the protected conduct and
the first alleged adverse action. See Nguyen, 229 F.3d 566-67 (“[P]revious cases that have
permitted a prima facie case to be made based on proximity of time have all been short periods
of time, usually less than six months.” (internal quotation marks omitted)). Even if a causal
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connection could be shown by the plaintiffs, their claims fail under the McDonnell Douglas
burden-shifting approach.
The Secretary meets his burden of production by alleging that legitimate
nondiscriminatory reasons exist for the plaintiffs’ 10-day suspension, barring from BGAD,
and indefinite suspension. For 10-day suspension, the Deputy Commander found by a
preponderance of the evidence that the plaintiffs failed to meet conditions of employment,
failed to observe written regulations and procedures where safety persons or property was
endangered, and delayed in carrying out instructions. [See Record Nos. 35-19; 35-20.]
Regarding the BGAD Commander barring plaintiffs’ access, they were barred from entering
BGAD because of a pending criminal investigation for wrongful damage to government
property and a determination that they posed “a bona fide risk to Government property and
interests.” [See Record Nos. 35-22; 35-23.] Finally, the indefinite suspensions were allegedly
based on the ongoing criminal investigation and the suspension of access to BGAD. [See
Record Nos. 35-24; 35-25.] This represent legitimate nondiscriminatory reasons for the
actions taken.
The plaintiffs offer no genuine issue of material fact concerning the validity of the
Secretary’s explanation for the actions taken. Thus, under the McDonnell Douglas framework,
the plaintiffs have not carried the burden of demonstrating that the Secretary’s
nondiscriminatory explanations are pretexual. Because the temporal proximity alone is not
enough to show a causal connection here, and because the plaintiffs have failed to provide
sufficient evidence of retaliatory conduct, they have not met the fourth element of their prima
facie case. And assuming they could meet the fourth element, the plaintiffs have failed to
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demonstrate pretext for the Secretary’s actions. As a result, summary judgment will be granted
on the plaintiffs’ retaliation claims.
IV.
Based on the foregoing analysis, it is hereby
ORDERED as follows:
1.
The defendant’s partial motion to dismiss [Record No. 35] is DENIED.
2.
The defendant’s motion for summary judgement [Record No. 35] is
GRANTED, in part, and DENIED, in part, as follows:
a)
The plaintiffs’ claims in Count II are DISMISSED, with
b)
Plaintiff Bilski’s age discrimination claim in Count I remains
prejudice.
pending.
This 25th day of June, 2018.
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