Former Deputy Commandant files $15M Lawsuit under Veterans' Rights protections

&emsp;&emsp;In addition to the ongoing lawsuit by the Service Disabled, Veteran-Owned Small Business (SDVOSB) Center for Applied Innovation, LLC (CAI) on the grounds it violated procurement rules in selection and intent to award a Diversity, Equity and Inclusion (DEI) Training contract, the Virginia Military Institute (VMI) now faces a $15 Million lawsuit from former VMI Deputy commandant, Col. (Ret) Todd Allan Pegg. &emsp;&emsp;The Civil Complaint, Todd Allan Pegg vs Virginia Military Institute and Commonwealth of Virginia, Case No. CL23000044-00, filed in the Rockbridge County Circuit Court on January 18, 2023, alleges VMI first discriminated, then retaliated, against Col. Pegg citing numerous serious violations of the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA"), 38 U.S.C. §§ 4301-4335, pursuant to 38 U.S.C. § 4323(b)(2). Col. Pegg is also demanding a Jury Trial to hear his case. &emsp;&emsp;According to Cornell Law School's Legal Information Institute, the purpose of the USERRA is to protect "active and reserve military members from discrimination by their employers for their military participation and requires employers to rehire some employees who become deployed." And "to prevent employers from discriminating against military employees whether it's by firing them, keeping them from elevating, or making their more difficult than for others in similar roles. Any discriminatory action will be considered a violation of the Act if the military service was a 'motivating factor' of the action." &emsp;&emsp;Col. Pegg's Civil Complaint consists of two counts. &emsp;&emsp;In Count I, Col. Pegg alleges VMI willfully violated the USERRA claiming "VMI discriminated against Col. Pegg by failing to rehire him, failing to prevent a hostile work environment of which they had ample notice, and retaliating against Col. Pegg." The Count also alleges Col. Pegg "engaged in numerous protected activities by reporting the above issues regarding certain rights assured to him under USERRA" and that he continuously reported the issues to the VMI Inspector General (IG) and other offices following his return from deployment. A protected activity is one workers may engage in without fear of retaliation by supervisors or employers such as the complaints Col. Pegg made to the VMI IG, VMI Human Resources (HR), and others claimed in his complaint. VMI's Inspector General and Title IX coordinator is a member of the Special Staff working directly for Maj. Gen. Wins. Human Resources falls under Maj. Gen. Win's Chief of Staff. &emsp;&emsp;In Count II, retaliation in violation of USERRA, Col. Pegg's complaint alleges that both before his deployment, and while trying to return to his position as Deputy Commandant for Operations, Plans, and Training, VMI retaliated against him for seeking his rights under the USERRA. In addition to this retaliation the Civil Complaint also alleges that during the time of his deployment VMI failed to provide Col. Pegg all the necessary contributions to his retirement account. Each of these instances constitute additional USERRA violations. &emsp;&emsp;Col. Pegg alleges the dispute that resulted in his filing a lawsuit started at the beginning of 2021 when Col. Pegg alerted the VMI leadership and HR he would likely be receiving orders for deployment on active duty related to his military service in the forthcoming months. During his approximately 16 years working at VMI Col. Pegg previously deployed while a VMI employee and had other individuals in the exact role in which he was serving be deployed. Those employees, Col. Pegg says, were covered with a contract hire, and properly reinstated upon their return. Col. Pegg previously deployed to serve his Country in the Virginia National Guard and returned to his position at VMI without issue. These previous deployments and Col. Pegg's notification to VMI, however, occurred before Col. (Ret) Adrian T. Bogart, III was hired as Commandant near the end of VMI's Spring Semester of 2021. &emsp;&emsp;Col. Bogart was hired following the resignation of Gen. Peay as Superintendent and Maj. Gen. Wins being installed in his place. Col. Bogart had never been employed by VMI prior to 2021, but Col Pegg worked at VMI is various capacities since 2005 and in January of 2021, he received the VMI Achievement Award for his "steadfast dedication and commitment to the Virginia Military Institute". A former VMI senior administrator told The Cadet that Col. Pegg started in the Physical Plant as an engineer. Carried on by his love of VMI, he moved from his P2 job into positions assisting the Commandant's Staff and ROTC - working as an instructor, Tactical Officer (TAC), and night Officer-in-Charge (OC), then taking on more administrative roles until his departure for deployment. &emsp;&emsp;In June 2021, Col. Pegg received orders activating him for deployment with the Virginia National Guard and notified VMI of as he'd done for his prior deployments. Col. Pegg's service with the Virginia National Guard had previously been a point of pride for VMI. The Institute boasted of his service in congratulating Col. Pegg when he assumed command of the 329th as one of the most deployed units in the Virginia National Guard. &emsp;&emsp;At the time of this most recent deployment, covered in the lawsuit, VMI again expressed high praise for Col. Pegg's deployment as commander of the 329th Regional Support Group to do base security and general support for Operation Inherent Resolve. VMI again boasted of Col. Pegg's deployment as an example of the Institute's support of the nation and core mission of producing citizen-soldiers. According to VMI's official Facebook at the time, "Pegg, deputy commandant for operations, has embodied the VMI ideal of the citizen-soldier since his graduation and commissioning, holding concurrent successful civilian and military careers for nearly 30 years." &emsp;&emsp;For his part, at the time, Col. Pegg was equally complimentary of VMI as quoted in the same Facebook post, "I enlisted in the guard when I was a cadet, commissioned in 1992, and I've been in the Virginia Guard since. This will be my fifth mobilization as a Virginia Guardsman. This will be my second deployment while on full-time staff at VMI, and VMI has always been very supportive. We talk citizen-soldier a whole lot, and I'm very glad that we also do it." &emsp;&emsp;The Facebook and related VMI publications at the time also quoted Col. Pegg expressing how much he looked forward to retiring from the Virginia National Guard and returning to VMI, stating, "When I come home, my current mandatory retirement date is only a few months after that, so I expect this would probably be my last assignment and my last deployment. And though it's been part of what I've done for my whole life and I'll miss it, this is a good final assignment. I've been in a position where I can build a solid team and make sure they're the right folks, take them downrange and do something that's important, and that's not a bad final assignment." For its part, VMI praised Col. Pegg as "a role model to cadets" &emsp;&emsp;In early July of 2021, Col. Pegg informed Col. Bogart, Commandant of Cadets and Pegg's boss, of his forthcoming deployment and his desire to return to serve VMI as Col. Bogart's Deputy Commandant for Operations, Plans and Training. This time, the reaction was different from his previous deployments. &emsp;&emsp;According to the court complaint, Col. Pegg encountered a change in VMI's attitude toward him and his deployment with the National Guard. "Col. Bogart made it very clear that he did not wish Col. Pegg to return to his position", say the Court documents. Col. Pegg recounts that Col. Bogart "was enraged" about his "pushback on various changes and other actions Bogart implemented since assuming the position of Commandant." Col. Pegg claims Col. Bogart also threatened him stating "I know people all over the Army," and further threatened to call "your boss's boss's boss" in order to not "put up with some colonel." Col. Pegg also claims Col. Bogart threatened his retirement benefits with claims of undue influence over both the military and VMI, including the Army G1 [personnel] responsible for all pay, promotions, and retirement functions. These threats allegedly included the senior officers Col. Pegg was about to be assigned to Iraq. According to Col. Pegg's Court filing, "Bogart repeatedly made it clear in advance that if Col. Pegg left for deployment, he would not be welcomed back by VMI after his deployment ended." Col. Pegg also claims that, during the incident with Col. Bogart, that Col. Bogart "shouted at Col. Pegg, was red in the face, and pointed his finger repeatedly in a jabbing motion toward Col. Pegg". &emsp;&emsp;Following this interaction with Col. Bogart, Col. Pegg notified the VMI IG that he suspected VMI was moving towards committing a USERRA violation and claims to have recounted the entirety of his interactions with Col. Bogart to the IG. Col. Pegg further claims he informed the IG that he felt that the environment at VMI was discriminatory and hostile, fearing VMI would not rehire him upon his return from deployment. &emsp;&emsp;Col. Pegg began his deployment on or about July 9, 2021, and served until about July 30, 2022. He claims VMI was aware at all times of both his deployment dates and his intent to return to his position at VMI. Col. Pegg also claims he notified Col. Bogart and VMI of his intent to return to employment with VMI, including identifying a tentative return to work date in July 2022, after consultations with VMI HR. &emsp;&emsp;Col. Pegg states he was, therefore, surprised to receive an email from a VMI representative indicating that "they were trying to figure out where to put him" when he returned from deployment. He responded by requesting VMI provide any factors or conditions VMI addressed based on his IG reports. VMI allegedly acknowledged Col. Pegg's reporting but took no action because they classified the reports as "not formal". No investigation occurred. &emsp;&emsp;In an attempt to explore Col. Pegg's allegations regarding the IG complaint he submitted, The Cadet submitted a request to VMI under the Freedom of Information Act (FOIA)asking for complaints to the VMI IG including the complaint number or other designation, subject of the complaint, person or department the complaint was lodged against and the final disposition of the complaint, any action taken and authority who approved the disposition of the complaint. VMI responded requesting $1,345.30 for 30 hours of the IG's time at an hourly rate of $42.90 and one hour of the FOIA officer's time at $58.30 for review of responsive records to ensure compliance with the federal Family Education Rights and Privacy Act (FERPA) and to ensure that all records are subject to disclosure under the Virginia FOIA statute. VMI Added that "depending on the volume of responsive records, the time the FOIA officer spends for review may be greater or less than one hour. If greater, you will be billed for the additional time. If less than one hour, you will be refunded the difference." The Cadet is currently evaluating the fee. &emsp;&emsp;Col. Peggs's job was then given to Commander Julie Shank, USN (Ret.) as a conventional state employee hire rather than a temporary contract hire. Col. Pegg now alleges CDR Shank was selected for the position without following Commonwealth of Virginia hiring procedures. VMI informed Col. Pegg he would not be reinstated into his position, and that the replacement hire had a 2022-2023 employment contract in place. Col. Pegg claims he then received a registered letter from VMI stating that he must accept an assignment as an assistant commandant, a position with drastically reduced supervisory authority, reduced compensation and limited potential for advancement. According to his Court filing, Col. Pegg considered this "a slap to the face". As these actions relate to USERRA, Cornell Law School's Legal Information Institute states, "Another important provision requires employers to rehire most veterans after returning from service. In fact, the employee must be rehired at a position and pay equal to that as if the employee never left, and this means some employers must rehire the employees on better terms than they left." &emsp;&emsp;On or about December 12, 2022, according to the complaint, Valerie Stores, Director Human Resources, "submitted a letter to Col. Pegg indicating that Col. Pegg had not submitted an application for rehire." Under a FOIA, The Cadet requested VMI provide Col. Pegg's employment contract with VMI including all changes and modifications from his first contract until the date of the request. None of the employment-related correspondence between Col. Pegg and VMI covered in the lawsuit were provided by VMI in its response, but the records do show Col. Pegg was "terminated" on October 31, 2022 with the decisions approved by VMI officials. Other records released under the FOIA show a long history of VMI renewing Col. Pegg's employment contract and providing him pay increases. The Cadet is continuing to work toward obtaining the additional documents from the employment record for future reporting. &emsp;&emsp;Col. Pegg had a notable VMI cadetship and, subsequently, a successful military career. During his graduation ceremony from VMI in 1992, Col. Pegg received the Jackson-Hope Medal for graduating at the top of his class. He began employment with VMI in 2005 as an ROTC Instructor followed by larger and more active roles at VMI culminating in his Deputy Commandant position before deployment. Two classes, the Class of 2024 and Class of 2025, remember Col. Pegg fondly, with one cadet remarking that "he was known as the 'Crazy Colonel' that always kept up with the Rats with a pack and 20-pound B.A.R. strapped over his shoulder." &emsp;&emsp;Much of Col. Pegg's Court complaint describes increasing conflict with Col. Bogart. According to the documentation, this began soon after Col. Bogart assumed the position of Commandant at VMI, when "Upon his arrival, Col. Bogart attempted to make numerous personnel changes but had difficulty in doing so because employees of VMI are employees of the Commonwealth. Col. Bogart's activities rankled the department and several employees began vocalizing growing concern." None of these points of friction were detailed in the complaint, but multiple sources, including former high ranking VMI officials confirmed to The Cadet that Col. Pegg was not only an applicant for the position of Commandant that Col. Bogart was ultimately hired to fill by Maj. Gen. Wins for, but was on the list recommended to be hired as Commandant by the selection group at the time. &emsp;&emsp;Under a FOIA, The Cadet requested application packets by the candidates for the Commandant position Col. Bogart currently holds. The FOIA also requested emails or other correspondence from Maj. Gen. Wins, or sent on his behalf, to any member of the selection committee for the position of Commandant that Col. Bogart was eventually selected for on the subject of any of the applicants and the selection process to include, without limitation, Col. Bogart. Additional documentation The Cadet requested included records of the committee to include, without limitation, applicant packets submitted, scoring or other evaluation sheets, listing of selection committee members, selection criteria, recommendations for selection (including any versions of they changed before the final selection of Col. Bogart) as well as records showing the final decision, who made the selection, and rationale for the selection. VMI did not provide these records to The Cadet's within the FOIA's 5-day response period and invoked the available 7-day extension with the justification that meeting the FOIA 5-day requirment would be difficult "due to turnover among records custodians" and so more time was needed to fill The Cadet's request. &emsp;&emsp;Under a separate FOIA, VMI did provide The Cadet Col. Bogart's employment contract with what they attested contained all changes and modifications. These record show Col. Bogart's current pay is $147,750.00 compared to Col. Pegg's last published pay rate, according to records provided by VMI, of $89,853.75 as of June 2021. Both employment contracts contain provisions that VMI can terminate their employment with or without cause. &emsp;&emsp;The instances cited of conflict between Col. Bogart, members of the Commandant's staff, alumni, and even many within the Corps of Cadets are well known on a variety of issues. Col Bogart, however, is not without his defenders, including Maj. Gen. Wins and others. &emsp;&emsp;A source for some of the most laudable praise about Col. Bogart's performance as Commandant and the extensive changes he and Maj. Gen. Wins' administration brought to VMI is contaned in an "After Action Review [AAR] of Cadre and Hell Week – Initial Impressions", dated August 28, 2022 prepared by Mr. Thomas Baltazar '79. In addition to the report itself obtained by The Cadet under a FOIA request, The Cadet also requested " a copy of Mr. Baltazar's employment contract to conduct the AAR project." VMI responded that the "…assessment was performed on a volunteer basis, so no records exist relating to an employment contract." When The Cadet contacted the report's author to inquire if he was paid for the report and, if so, by whom, Mr. Baltazar responded "I'm not quite sure how you obtained my AAR, a report that was provided in confidence to the Administration as a volunteer observer/alumnus and not meant for public consumption." He also stated he did not grant permission to quote him on any content for the AAR. &emsp;&emsp;Prior to reporting on the AAR in this article, The Cadet conferred with FOIA experts at The Virginia Press Association's FOIA Hotline legal experts, Virginia Coalition for Open Government (VCOG), the National Freedom of Information Coalition (NFIC), and the Commonwealth of Virginia FOIA Council. The VPA FOIA Hotline confirmed, "Virginia FOIA does not contain any provisions limiting the subsequent use of a public record." The VCOG and NFIC supported this position confirming, "once a document is released through the FOIA, there are no prohibitions on its use." The Virginia FOIA Council representative concurred from their experience. A number of alumni and others critical of the current VMI administration have had their emails to the Board of Visitors, Maj. Gen. Wins and others at VMI, including their personal email addresses, released under FOIA to media organizations by VMI and those organizations subsequently further released them or used them for their own purposes. In this case The Cadet's use of the AAR is precise to directly inform the public and contribute to their critical thinking on the specific issues at VMI to which the records relate. &emsp;&emsp;As Mr. Baltazar stated in the opening of his report, "At the invitation of the Commandant of Corps of Cadets, COL (ret) Adrian Bogart, I was asked to observe and comment on Cadre Week and Hell Week conducted from 13-28 August 2022." &emsp;&emsp;Mr. Baltazar presents his report as comprehensive, although, as he notes, "Unforeseen events prevented me from attending the entire Cadre Week training. Consequently, I was only able to observe events beginning on 18 August 2022." Despite the short observation time, Mr. Baltazar concluded that "While focusing on this task, I found that these two weeks are tied to almost every aspect of the Institute and, where appropriate, I have also provided my observations on those related issues." He gave high praise for the changes to VMI brought about by Col. Bogart and Maj. Gen. Wins, and commented on the modern VMI ethos. Among them: &emsp;&emsp;The essence of the Corps remains strong…Duty, Honor, Brotherhood. That said, there is a keen awareness, by both the Administration and the Corps, of the many challenges facing VMI, not only from those who attack the raison d'etre of the Institute but broader, societal issues that have impacted this year's and potentially future enrollment. The people I spoke with are committed to making the Corps stronger and more resilient, and to ensuring the longevity of VMI.&emsp;&emsp;There is broad acknowledgement of and gratitude for the positive changes brought on by the new Administration. The presence and engagement of leadership, at every level, is seen as a significant and positive change that signals a new and welcomed relationship of the Administration and the Corps. &emsp;&emsp;According to Mr. Baltazar, his "initial Impression report represents the compilation of 1st-hand observations, interviews with Cadets (including the Honor Court President and Vice-President for Education and Defense, E/D/H/I/Band Company Commanders, Regimental CO, XO, and R-2 (basketball athlete), 3rd Battalion SGM (football athlete), I Company OGA Representative, OGA and CEA Presidents, RDC Vice-President, and Cadet Chaplains), Athletic Department Liaison, International Studies Director, Track & Field, Men's & Women's Soccer, Basketball, and Football head coaches, and ME Dept Head." &emsp;&emsp;The AAR sharply criticized the previous administration under Gen. Peay and others for creating a lack of trust at VMI, concluding, "The most serious challenge uncovered is one centered on Trust. Myriad factors, most especially the deleterious effects of COVID-19 on team-building/bonding and barracks discipline and a disengaged prior 1st Class, coupled with the perceived lack of attention and respect of the Corps by the last Administration [Gen. Peay, his former Commandants and staff], have led to a breakdown in trust." The AAR report also covered the pronounced rift between athletics and the Corps: &emsp;&emsp;I had the opportunity to speak with the head coaches of Football, Men's Basketball, Men's Soccer, Men's Track & Field, and Woman's Soccer. All were very aware of and attentive to the permit/non-permit rift…real or perceived. As such, the football coach has adopted a 'Win the Hill' motto to emphasize the importance of closing the gap and embracing the core tenets of VMI – discipline, team, physical fitness…as these traits have a direct impact on sport performance. This sentiment is mirrored by every coach that I had the opportunity to speak with.&emsp; &emsp;&emsp;Mr. Baltazar's ultimate conclusion from his several days at VMI performing the AAR for Col. Bogart was, "The Institute remains strong and is once again, moving in the right direction. The current condition did not occur overnight and it will not be resolved overnight. I am committed to assisting you achieve of your vision of producing educated and honorable citizen-leaders and commend you on your progress thus far." &emsp;&emsp;Mr. Baltazar did acknowledge that, "my comments, observations, and recommendations from the above may not necessarily reflect broader Old Corps (privates) attitudes as they had not yet returned to barracks. I also recognize that my observations are necessarily superficial and would consequently require a much deeper analysis to gain a more holistic picture of the issue and attendant solutions." &emsp;&emsp;In this environment of these opposing views and other issues at VMI, Col. Pegg's lawsuit is moving forward with his demand for a trial by jury. &emsp;&emsp;In a reemployment case such as the one initiated by Col. Pegg, VMI bears the burden of proving that it met its obligations to reemploy the employee after a period of military service. In discrimination and reprisal cases, the employee must initially prove that his or her military status or prior USERRA activity was at least a motivating or substantial factor in the agency action, and, if Col. Pegg meets this burden, VMI must then prove that it would have taken the action for a valid reason despite the appellant's protected status. Those technical areas are likely where the first battle between VMI and Col. Pegg will occur. &emsp;&emsp;The Cadet continues to seek full disclosure of the relevant issues in this matter to include on-going FOIA requests. To date, although The Cadet offered to accept incremental responses to its FOIAs requests, VMI invoked a 7-day extension to fill those records requests claiming it was a "voluminous request". A sample of the records VMI requested an extension to locate and provide include such documents as Bios for Col. Pegg, CDR Shank and Col Bogart. Also outstanding are records of the position selection committee or other process resulting in the hiring of Col. Pegg's replacement at VMI; Col. Pegg's correspondence with the VMI HR office regarding his deployment; Col. Pegg's correspondence with Col. Bogart, regarding Col. Pegg's deployment and position at VMI; correspondence between Col. Pegg and VMI's HR Director ; correspondence between VMI's HR Director , and other members of the VMI Faculty and staff on the subjects of Col. Pegg's deployment, return and re-hire, complaints filed and the current civil action; VMI policies, General Orders or other applicable governing documents relating to VMI's application of the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA"); and other records relevant to Col. Pegg's allegations and VMI's actions. &emsp;&emsp;The Cadet prides itself in providing objective information from all available sources, and the Editorial Staff eagerly awaits the fulfillment of pending FOIA requests to provide the most objective, up-to-date, and complete information to readers of The Cadet. &emsp;&emsp;Regardless of the next steps in the case, the serious issues raised by Col. Pegg's lawsuit, covering many facets of the administration and the VMI experience itself, will move further into the light as the Court action moves forward. VMI has 21 days to file a response from the date the Court documents were served. According to Court Documents, Col. Pegg's service of the lawsuit on the Commonwealth and VMI occured on or about February 2, 2023. VMI's response is due at the end of February. The Cadet will continue its coverage in future articles and as more information is obtained from VMI and other sources. &emsp;&emsp;(Our printed media readers can access the documents referenced in this article at: http://cadetnewspaper.org/wp-content/uploads/2023/02/Pegg_ALL.pdf