United States District Court, D. Nebraska
STEVE K. CHAPMAN, Plaintiff,
UNITED STATES AIR FORCE, and DR. HEATHER WILSON, as Secretary of the United States Air Force; Defendants.
MEMORANDUM AND ORDER
Smith Camp, Senior United States District Judge
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.
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
and Federal Rule of Civil Procedure 56.
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
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.
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.
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.
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.
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.
2017, Dickerson initiated a Commander Directed Investigation
(CDI) into allegations 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
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
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.
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.
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.
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 ...