United States District Court, D. Colorado
OPINION AND ORDER GRANTING MOTION FOR SUMMARY
S. Krieger Senior United States District Judge
MATTER comes before the Court pursuant to the
Defendants' (collectively “the SBA”) Motion
for Summary Judgment (# 45), Mr.
English's pro se  response (# 48),
and the SBA's reply (# 51).
Court attempts to summarize the pertinent facts here and
elaborates as necessary in its analysis.
English, a black male, was employed by the SBA as a Surety
Bond Guarantee Specialist at the SBA's offices in Denver,
Colorado. He began his employment in or about 2005 and
continued until his employment was terminated on September
23, 2016. At all pertinent times, Mr. English's direct
supervisor was Jennifer Vigil, and Ms. Vigil's supervisor
was Peter Gibbs.
record includes allegations of various workplace unfairness
dating back to 2011 or earlier, but it appears that the
chronology relevant to this matter began in April 2013, when
Ms. Vigil issued what is known as her annual “line of
succession, ”. This a list of SBA staff that are
authorized to act on her behalf in her absence. Mr. English
had considerable seniority in the office, but he was on a
lengthy leave of absence at the time. Thus Ms. Vigil did not
include him on the list. At some point he returned, Mr.
English and Ms. Vigil discussed the absence of Mr.
English's name on the list. Ms. Vigil indicated that
“she saw no need to change” the list to include
Mr. English. Ms. Vigil re-issued her line of succession in
April 2014, adding an additional employee, but again omitted
Vigil testified that, around this point in time, she
perceived that Mr. English's workplace behavior and job
performance began to change. She has previously rated him as
an exceptional employee on quarterly performance reviews, but
beginning in April 2014, she criticized aspects of his
performance. She commented to that effect in his quarterly
review, and Mr. English disagreed.
English does not appear to dispute that April 2014 was an
inflection point in the course of his employment, and in
certain places in the record, Mr. English identifies April
18, 2014 as the beginning of his dispute with Ms.
Vigil. Around that point in time, Mr. English
also accused that Robert Gomez, one of his co-workers, of
creating a hostile working environment. Among other things,
Mr. English alleges that Mr. Gomez used profanity when
speaking to him and that Mr. Gomez bragged about having
assaulted a female co-worker at a prior job. Mr. English
complained about Mr. Gomez' conduct to Ms. Vigil, but Mr.
English contends that nothing was done about his complaint.
Ms. Vigil testified to an EEO investigator that she verbally
counselled Mr. Gomez about his use of profanity and that the
SBA re-investigated Mr. Gomez's background but could not
substantiate Mr. English's claims that Mr. Gomez had
committed a workplace assault.
that point on, Mr. English's working relationship with
Ms. Vigil (and, ultimately, Mr. Gibbs) deteriorated. It is
sufficient to note that between then and late 2015, Mr.
English filed an array of complaints, formal and informal,
internally and externally, accusing Ms. Vigil, Mr. Gibbs, and
various other SBA officials of discriminating and retaliating
against him, of creating a hostile working environment, and
various other transgressions. During that same period of
time, Ms. Vigil performed quarterly performance evaluations
of Mr. English, rating him as an overall score of 3 (meets
expectations) or even a score of 2 (below expectations).
this period, Ms. Vigil also recommended that Mr. English be
disciplined on three separate occasions.
in February 2015, Ms. Vigil proposed suspending Mr. English
for 5 days based on two incidents. One arose in December 2014
when Mr. English failed to perform an assigned task by the
time specified and did not inform Ms. Vigil of that fact. The
second incident arose in February 2015 when Mr. English
e-mailed that he was taking sick time for a day but did not
call and speak personally to Ms. Vigil as she had previously
Vigil's recommendation of a suspension was reviewed by
Linda Rusch, an SBA official, in July 2015. Ms. Rusch found
that the sick time incident may have been the result of an
honest misunderstanding of the procedure by Mr. English, and
she dismissed that charge. But she found that the December
2014 incident was supported by the evidence. Ms. Rusch
imposed a letter of reprimand, an admonishment that would
remain in Mr. English's personnel file for up to one year
and which could serve as a justification for increased
punishment if Mr. English engaged in additional misconduct
during that period. (Mr. English responded by filing
complaints and grievances against Ms. Rusch and others
concerning this and all other instances of discipline against
December 2015, Ms. Vigil proposed suspending Mr. English for
30 days. In October 2015, citing a low performance evaluation
she had recently given Mr. English, Ms. Vigil informed Mr.
English that his authorization to telework would be suspended
beginning November 2, 2015. On November 3, 2015, Mr. English
did not appear at the office for his scheduled shift. Ms.
English contacted him and directed him to report to work, and
Mr. English refused. He then e-mailed an HR representative,
stating that he felt “unsafe being in the office with
[Ms. Vigil] and her team, ” because she is
“volatile, hostile, and harassing.” Mr. English
invoked the self-removal provisions of the collective
bargaining agreement and refused to come into work
“until this is investigated.”
Court pauses here to explain the reference to a
“self-removal.” Employees at the SBA are
represented by a union and are subject to a collective
bargaining agreement. The terms of that agreement include a
section concerning workplace safety and health. That section
provides that “any bargaining unit employee who is
assigned duties which he or she reasonably believes could
possibly endanger his or her health or safety may notify the
appropriate supervisor of the situation.” If the
supervisor and the employee “[cannot] agree that a
reasonable belief exists that unhealthy or unsafe conditions
prevent immediate continued work on the assignment, the
matter shall be referred immediately to the next higher level
of supervision.” Pending consideration of the matter,
“the assignment shall be deferred” and the
employee “shall not be placed on sick or annual leave
or leave without pay, or AWOL status, nor shall that employee
be considered to be insubordinate.” An employee's
invocation of this provision is labeled a
response to Mr. English's invocation of the self-removal
process, HR representatives contacted Mr. English to get more
information about his concerns about Ms. Vigil, particularly
whether she had physically or verbally assaulted him or
threatened him with violence. Mr. English responded via
Jennifer Vigil is provoking and volatile. I've requested
a witness to any meetings with her and I've been ignored.
When we met Thursday, she seems to want to argue. When she
called me with threats of disciplinary action this morning,
it was argumentative. I'm very uncomfortable being in her
presence, I don't know what she will do. . . . To me,
that is a very threatening environment.
with the self-removal policy, Mr. English's invocation of
self-removal was forwarded to Frank Lalumiere, an SBA
official having supervisory oversight over Ms. Vigil. On
November 5, 2015, Mr. Lalumiere advised Mr. English that his
self-removal was not based on a reasonable belief of a health
or safety risk (insofar as the collective bargaining
agreement specifically required that self-removals be based
on objectively-reasonable safety and health
concerns) and directed Mr. English to come into
work immediately. It is not clear whether Mr. English
complied with Mr. Lalumiere's instructions, but the Court
assumes that he did. Ms. Vigil's recommendation of a
suspension is also based on several instances in which she
alleged that Mr. English engaged in unprofessional behavior
towards her and others. For example, when she instructed him
that his telework schedule had been terminated and that he
should appear in person at work, Mr. English responded asking
“if she thought I was her child.” (Mr. English
admits making that statement, offering only the justification
that “I was provoked.”)
2016, Mr. Gibbs found that Mr. English had committed the
misconduct identified by Ms. Vigil and upheld her
recommendation that Mr. English be suspended for 30 days.
April 22, 2106, Ms. Vigil had a conversation via instant
message concerning some of Mr. English's work that had
not been properly processed. That conversation reads as
MS. VIGIL: . . . Why did we miss them?
MR. ENGLISH: The agent didn't submit the correct