United States District Court, E.D. Virginia, Alexandria Division
M. HILTON UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on Defendant's Motion for
suit arises out of the 852-day unpaid suspension that
Plaintiff Walton Campbell, 57 years-old at the time of the
suspension, was placed on by his employer, the Army Corps of
Engineer's Engineer Research and Development Center (the
"ERDC"). Beginning in 2004, Plaintiff was employed
by the ERDC as a physical scientist at the ERDC s Topographic
Engineering Center (the "TEC") laboratory in
Alexandria, Virginia. Because the TEC laboratory is
designated as a restricted area, and because the TEC works
almost exclusively with classified information, Plaintiff was
required to maintain a Top Secret clearance and access to
Sensitive Compartmented Information.
in February 2 005, Plaintiff's direct supervisor, Mr.
Harwig, began to receive troubling reports from two of
Plaintiff's coworkers, Ms. Kennan and Ms. Hubbard,
regarding Plaintiff s behavior. On one instance the two
women, both of whom Plaintiff alleges to be less than
40-years-old, described to Mr. Harwig behavior which
"sounded to Mr. Harwig like stalking." When
Plaintiff's access to a particular part of the TEC
facility was removed and his interactions with the two women
minimized following this report, Plaintiff complained to his
supervisor and others about the coworkers'
professionalism and mental stability, making several
allegations against the coworkers. Mr. Harwig ultimately
concluded that Plaintiff's allegations were unfounded.
this, Ms. Kennan reported that she felt unsafe around
Plaintiff, and that "Plaintiff had previously commented
that he was a person who sought revenge, knew how to make
bombs, and that he had put chemicals in a former
coworker's drink to give that person diarrhea." Ms.
Kennan also alleged that Plaintiff had attempted to follow
was placed under investigation for misconduct, and informed
that he should avoid all contact with Ms. Kennan and Ms.
Hubbard. Plaintiff alleges that he reported to Mr. Harwig
that he felt threatened by Ms. Kennan and Ms. Hubbard due to
their apparent false accusations against him, and that he
feared for his safety around Ms. Kennan because she had
stated on multiple occasions that she was "a former
Marine, a marksman and a good shot." According to
Plaintiff, Mr. Harwig dismissed Plaintiff's concerns
after this, Plaintiff was detained and interviewed by Fort
Belvoir Police for allegedly violating a restraining order
that Ms. Kennan had taken out against him. The officers found
that Plaintiff was wearing a recording device with a
microphone wired through his shirt sleeve, and he was also in
possession of a digital voice recorder and camera phone with
video capabilities. Plaintiff was then interviewed by the
FBI, during which he admitted to wearing the microphone in an
attempt to record conversations with his coworkers, and
admitted that on a prior occasion he had attempted to record
a conversation with his supervisors.
these events, Plaintiff's access to classified materials
was suspended. TEC Director Mr. Burkhardt made a preliminary
decision to place Plaintiff on administrative suspension,
without pay, pending the outcome of his security review, but
offered Plaintiff an opportunity to rebut the allegations
being made against him first. At a meeting on May 19, 2005,
between Plain-iff, Burkhardt, and Plaintiff's attorney,
Plaintiff did not dispute that he wore a recording device
into a restricted facility on two previous occasions,
possessed numerous recording devices in a restricted
facility, or that he commented about having the ability to
make bombs or about how he was a person who took revenge. At
that same meeting, Plaintiff's attorney warned Mr.
Burkhardt that the Army could face an EEO action if Plaintiff
was suspended without pay.
the May 19 meeting, Mr. Burkhardt officially decided to
suspend Plaintiff without pay pending adjudication of his
security clearance, determining that retaining Plaintiff in a
paid, duty status would be detrimental to national security
interests. Mr. Burkhardt made this decision after speaking
with Plaintiff's colleagues regarding the situation and
reviewing documents pertinent to the allegations. Plaintiff
remained on an indefinite, unpaid suspension for 852 days
while the investigation was pending, from May 27, 2005, until
his clearance was restored on September 26, 2007. In the
interim, Plaintiff was found not guilty of the stalking
charges after defending himself in a jury trial in Fairfax
County. Plaintiff also filed a formal EEO complaint during
this time, which ultimately resulted in a decision finding no
discrimination on March 9, 2014. Plaintiff appealed the
decision to the EEOC's Office of Federal Operations,
which affirmed the decision on December 2, 2016.
filed suit on February 28, 2017, alleging that Defendant
engaged in unlawful age and sex discrimination in violation
of Title VII of the Civil Rights Act and the Age
Discrimination in Employment Act (the "ADEA") by
placing Plaintiff on unpaid suspension rather than providing
paid unclassified work for him during the adjudication of his
security clearance. He also alleged retaliation in violation
of Title VII and the ADEA due to Defendant's alleged
refusal to consider and investigate Plaintiff's claims of
age and sex discrimination that Plaintiff made before he was
placed on indefinite suspension without pay.
VII provides that " [a]11 personnel actions"
affecting federal employees like Plaintiff "shall be
made free from any discrimination based on . . . sex."
42 U.S.C. § 2000e-16(a). Furthermore, the ADEA provides
that * [a]11 personnel actions" affecting employees
"who are at least 4 0 years of age . . .in executive
agencies . . . shall be made free from any discrimination
based on age." 29 U.S.C. § 633a(a). Under either
statute, where a plaintiff does not present direct evidence
of discrimination, he must prove a violation through the
McDonnell Douglas burden-shifting
framework. McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). Under this framework, the plaintiff must
first establish a prima facie case of discrimination
or retaliation. Foster v. Univ. of Md. Eastern
Shore, 787 F.3d 243, 250 (4th Cir. 2015). The burden
then shifts to the employer to produce a legitimate,
non-discriminatory reason for the decision, Id.
Finally, the plaintiff must establish that the employer's
stated reason is merely a pretext. Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 142 (2000).
Plaintiff cannot establish a prima facia case of
either age or sex discrimination. To demonstrate a prima
facie case of discrimination, a plaintiff must show that
(1) he is a member of a protected class, (2) he suffered an
adverse employment action, (3) at the time of the adverse
action the plaintiff was performing at a level that met his
employer's legitimate expectations, and (4) similarly
situated employees outside of the plaintiff's protected
class were treated more favorably. See Coleman v.
Maryland Court of Appeals, 626 F.3d 187, 190 (4th Cir.
"plaintiffs are not required as a matter of law to point
to a similarly situated comparator to succeed on a
discrimination claim, " where a plaintiff relies on
comparators to establish his prima facie claim,
those comparators must be "similar in all relevant
respects, " including "evidence that the employees
dealt with the same supervisor" and "engaged in the
same conduct without such differentiating or mitigating
circumstances that would distinguish their conduct or the
employer's treatment of them for it." Haywood v.
Locke, 387 F. App'x 355, 359 (4th Cir. 2010).
attempts to identify similarly situated comparators by
pointing out that "all other employees whose clearances
had not yet been approved, or had been suspended or revoked,
had remained in paid duty status and assigned duties that did
not require a security clearance." However, of the
seventeen other ERDC employees who lost or were denied access
to classified information, none are similarly situated.
First, the decision maker in Plaintiff's case (Mr.
Burkhardt) was not the decision maker in any of the other
cases. Second, none of the other seventeen employees had