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English v. Small Business Administration

United States District Court, D. Colorado

August 7, 2019

SMALL BUSINESS ADMINISTRATION, and LINDA MCMAHON, Administrator of the Small Business Administration, Defendants.


          Marcia S. Krieger Senior United States District Judge

         THIS MATTER comes before the Court pursuant to the Defendants' (collectively “the SBA”) Motion for Summary Judgment (# 45), Mr. English's pro se [1] response (# 48), and the SBA's reply (# 51).


         The Court attempts[2] to summarize the pertinent facts here and elaborates as necessary in its analysis.

         Mr. 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.

         The 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 Mr. English.

         Ms. 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.

         Mr. 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.[3] 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.

         From 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).

         During this period, Ms. Vigil also recommended that Mr. English be disciplined on three separate occasions.[4]

         First incident

         First, 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 instructed.

         Ms. 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 him.)

         Second incident

         In 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.”

         The 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 “self-removal.”

         In 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 e-mail that:

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.[5]

         Consistent 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[6]) 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.”)

         In May 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.

         Third incident

         On 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 follows:

MS. VIGIL: . . . Why did we miss them?
MR. ENGLISH: The agent didn't submit the correct ...

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