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Chapman v. United States Air Force

United States District Court, D. Nebraska

June 24, 2019

STEVE K. CHAPMAN, Plaintiff,
v.
UNITED STATES AIR FORCE, and DR. HEATHER WILSON, as Secretary of the United States Air Force; Defendants.

          MEMORANDUM AND ORDER

          Laurie Smith Camp, Senior United States District Judge

         This matter is before the Court on the Motion for Summary Judgment, ECF No. 10, filed by Defendants United States Air Force (USAF) and Dr. Heather Wilson, Secretary of the USFA. For the reasons stated below, the Motion for Summary Judgment will be granted.

         BACKGROUND

         Unless otherwise indicated, the following facts are those stated in the parties' briefs supported by pinpoint citations to admissible evidence in the record, in compliance with NECivR 56.1[1] and Federal Rule of Civil Procedure 56.

         Plaintiff Steve Chapman, an African American male, was employed with the USAF 557th Weather Wing, 2d Weather Group, 2d Systems Operations Squadron (2 SYOS) at Offutt Air Force Base (Offutt AFB) until he voluntarily departed his position at Offutt AFB in October 2017. At all relevant times, Colonel Steven Dickerson was the Wing Commander of the 557th Weather Wing and Colonel Donald Shannon was the Commander of the 2d Weather Group Command office. The 2d Weather Group is composed of six preliminary subordinate units, including the 2 SYOS.

         In June 2014, Lieutenant Colonel Jason Blackerby became Commander of the 2 SYOS and Chapman's first-level supervisor. Blackerby was Commander of the 2 SYOS until June 29, 2016, when he left for another position in Washington, D.C. In June 2016, Lieutenant Colonel John McMillen became Commander of the 2 SYOS.

         New employees at Offutt AFB were required to complete No. FEAR Act training within 90 days of employment, either through in-house or computer-based training, and all employees were required to complete refresher training every two years. The training informed employees that they must contact an Equal Employment Opportunity (EEO) counselor within 45 days of an allegedly discriminatory act or personnel action. In 2015-2017, EEO posters were also posted in various places around Offutt AFB. The EEO poster in the 557th Weather Wing, 2d Weather Group Command office was displayed on an information board in an area where most employees entered the building. The EEO poster contained information on the civilian complaint process, including the requirement to consult with an EEO counselor within 45 days. The poster directed employees to the EEO webpage and Equal Opportunity (EO) office where they could find more information on making a complaint. In 2016-2017, an EO office handout was also available to help employees understand the EEO process.

         In 2016-2017, the EO office processed EEO complaints at Offutt AFB. The process began with an informal complaint. At the informal stage of the process, the employee could elect to attempt to resolve the matter through alternative dispute resolution or through the traditional EEO counseling processes. If the parties reached an agreement through mediation, a binding settlement agreement was signed by the parties. If the matter could not be resolved informally, the employee could file a formal complaint of discrimination but only as to the allegations first raised at the informal stage. The EO office did an initial review of the formal complaint and then, after receiving advice from the Air Force Legal Operations Agency, the relevant Wing Commander determined whether to accept or dismiss the formal complaint.

         Chapman filed three EEO claims with the EO office. On December 1, 2015, Chapman contacted an EO counselor and filed an informal complaint (8F1C16001) alleging discrimination because of his race; retaliation; and a hostile work environment. Specifically, Chapman alleged Blackerby unfairly counseled Chapman for failure to treat others with dignity and respect, and for detraction from effective operations of the unit. Chapman also alleged that Blackerby and Robert Williams, the Director of Operations, created a hostile work environment by perpetrating these accusations. On March 30, 2016, during the informal stage, a settlement agreement was reached and signed by all parties. Chapman never contacted the EO office to allege any breach of this agreement.

         On July 19, 2017, Chapman filed a second informal complaint (8F1C17003) alleging the security guards at the Offutt AFB entrance discriminated against him because of his race and color. The alleged harassment continued through August 2017. Chapman Aff., ECF No. 20, Page ID 125. Following an investigation, Chapman did not file a formal complaint of discrimination and the claim was closed on December 23, 2017.

         In 2017, Dickerson initiated a Commander Directed Investigation (CDI) into allegations[2] that Chapman misused government property and time for personal use by using his government computer during work hours to write a book and abused his authority as a supervisor by holding a meeting regarding his book. Pl. Br., ECF No. 19, Page ID 116-17. On September 21, 2017, Chapman was notified of the CDI and his computer was seized. He was not issued another computer until September 24, 2017. On October 3, 2017, Chapman was interviewed as part of the investigation.

         When Chapman voluntarily departed his position at Offutt AFB in October 2017, he and McMillen agreed that his last day would be October 28, 2017. Chapman Aff., ECF No. 20, Page ID 126. Yet Chapman was informed that he was banned from entering the 557th Weather Wing building on October 13, 2017, making it impossible for him to out-process, return items belonging to the USAF, retrieve his personal items, or say farewell to his co-workers. Id. at 168. Chapman arranged to meet EO office employees to turn over the items belonging to the USAF. Id.

         On November 21, 2017, Chapman received a letter stating that the allegations forming the basis of the CDI were “not substantiated.” On January 5, 2018, Chapman's attorney contacted the EO office to request an investigation into an alleged pattern of harassment and discrimination. Bianco Aff., ECF No. 21, Page ID 171. Chapman's attorney sent a follow-up letter on January 9, 2018, ECF No. 20, Page ID 162. On February 7, 2018, the EO office received an informal complaint (8F1C18001) from Chapman's attorney, ECF No. 11-1, Page ID 66-77. The informal complaint referenced a performance rating given to Chapman by Blackerby in May 2016. The EO office asked Chapman‘s attorney to clarify the allegations in the complaint.

         On February 15, 2018, Chapman's attorney replied that “from 2015 to Mr. Chapman's departure in late 2017, the office culture was not conducive with a healthy working environment and was in fact hostile to Mr. Chapman.” Bianco Letter, ECF No. 11-1, Page ID 78. The correspondence stated that Blackerby made false allegations against Chapman that led to the EEO complaint in December 2015, and that Blackerby refused to grant Chapman's request for workplace accommodations. The letter also referenced the CDI that was conducted to determine whether Chapman had misused government property and time.

         On April 26, 2018, the EO office sent a Notice of Final Interview and Right to File a Formal Complaint of Discrimination. On May 9, 2018, Chapman filed a formal EEO complaint with the EO office. On June 12, 2018, a Final Agency Decision was issued dismissing Chapman's formal complaint as untimely because he did not contact an EO counselor within 45 days of the alleged discriminatory events or actions. At no time did Chapman request an extension of the 45-day deadline.

         Chapman filed a Complaint with this Court on September 10, 2018, and filed an Amended Complaint on December 12, 2018, ECF No. 5. Chapman's Amended Complaint alleges race discrimination, retaliation, and hostile work environment in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et. seq., and failure to accommodate under the Rehabilitation Act of 1973, 29 U.S.C. § 701, et. seq. Defendants seek summary judgment on all four causes of action because Chapman failed to exhaust administrative remedies, specifically by failing to contact an EEO counselor within 45 days of the alleged discriminatory event or ...


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