United States District Court, D. Colorado
VICTOR CEJKA, JAMES WALKER, STEVEN WASCHER, JAMIE LYTLE, and PAUL CROSS, Plaintiffs,
VECTRUS SYSTEMS CORPORATION, f/k/a Exelis Systems Corporation, BRANDON SPANN, and KEVIN DANIEL, Defendants.
ORDER ON MOTIONS TO DISMISS
Michael E. Hegarty, United States Magistrate Judge.
Before the Court are Defendant Vectrus Systems Corporation’s Motion for Partial Dismissal [filed December 15, 2015; docket #6] and Defendants Spann’s and Daniel’s Amended Motion for Dismissal Pursuant to Rule[s] 12(b)(1), 12(b)(2), and 12(b)(6) [filed January 25, 2016; docket #22]. This matters are fully briefed, and the Court finds that oral argument (not requested by the parties) would not materially assist the Court in adjudicating the motions. For the following reasons, Spann’s and Daniel’s motion is granted pursuant to Fed.R.Civ.P. 12(b)(2) and Vectrus’ motion is granted in part and denied in part as set forth herein.
Plaintiffs initiated this employment action against Defendants on October 30, 2015. Essentially, they allege claims against Defendant Vectrus Systems Corp. (“Vectrus”) for common law retaliatory termination (Claim I) and for violation of 10 U.S.C. § 2409, the Department of Defense whistleblower statute (Claim II); a claim against all Defendants for common law outrageous conduct (Claim III); and a claim against the individual Defendants, Brandon Spann (“Spann”) and Kevin Daniel (“Daniel”) for intentional interference with contract and/or prospective business advantage (Claim IV).
The following are factual allegations (as opposed to legal conclusions, bare assertions, or merely conclusory allegations) made by Plaintiffs in the operative Complaint and pertinent to the present motion, which are taken as true for analysis under Fed.R.Civ.P. 12(b)(6) pursuant to Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Vectrus is a federal contractor that has numerous contracts and subcontracts with various departments of the federal government throughout the United States and abroad. Vectrus entered into a subcontract with Fluor Corporation (“Fluor”) to provide certain services to the Department of Defense at BAF, which is a U.S. military base inside a combat zone, and at other U.S. military bases in Afghanistan. Vectrus’ subcontract was subsequently amended or modified (hereinafter referred as the “Contract”). Fluor has the prime contract with the Department of Defense.
Plaintiffs were employed by Vectrus as security investigators in its Personnel Services Department at BAF. Cross was the lead security investigator. Plaintiff Victor Cejka (“Cejka”) was assigned by Vectrus to the Contract, specifically its Logistics Civilian Augmentation Program (LOGCAP) IV Project Task Order 005 in Afghanistan (the “Program”), from August 13, 2012 to December 12, 2013. Plaintiff James Walker (“Walker”) was assigned by Vectrus to the Program from January 7, 2013 to July 12, 2014. Plaintiff Steven Wascher (“Wascher”) was assigned by Vectrus to the Program from January 2013 to June 2014. Plaintiff Jamie Lytle (“Lytle”) was assigned by Vectrus to the Program from August 13, 2012 to December 12, 2013. Plaintiff Paul Cross (“Cross”) was assigned by Vectrus to the Program from June of 2010 to September 13, 2013.
In the summer and fall of 2013, Plaintiffs worked together in the Vectrus Personnel Services Department at BAF as part of the Program. The Personnel Services security investigators at BAF, including Plaintiffs, were responsible for conducting interviews and investigations required for the issuance of badges and for maintaining the investigation information in the Biometric Automated Toolset (“BAT”) computer database. The U.S. government maintains the BAT database in conjunction with its European allies. The biometric tracking and identification information that is maintained in the BAT system includes fingerprints, iris scans and facial photos. The BAT system is critical to the U.S. Military’s efforts to combat insurgent forces in Afghanistan that are interspersed within an indigenous population. The maintenance of accurate information in the BAT system is vital to the security of BAF and the U.S. Military’s other bases in Afghanistan.
According to the Fluor Desktop Guidelines, the duties of investigators are as follows:
Investigator. Conducts initial, bi-annual, and exit or directed interviews of host and foreign nationals who apply for or leave employment on U.S. military installation; supervises Identification Card Office; enters data into biometric HUMINT screening database; collects biometrics and conduct enrollments; other duties as assigned/required within the FPSC operational realm; accurately complete the work and records associated with their work assignments as specified by this DTG and submit them to the Personnel Services Supervisor on a regular basis for review and approval.
The security investigators also are required to report to their supervisors and the military any possible criminal conduct or other threats to the safety or security of the base or personnel.
In the summer 2013, the Vectrus Personnel Services Department at BAF (“FPSC”) was supervised by Cross in his capacity as lead investigator, who reported to Vectrus’ Senior Security Supervisor, Defendant Brandon Spann (“Spann”), who in turn reported to Vectrus’ Regional Security Manager, Defendant Kevin Daniel (“Daniel”), who ultimately reported to Vectrus’ Country Manager Richard Diaz (“Diaz”). The military oversight person for FPSC was Sergeant First Class John Salinas (“SFC Salinas”).
Starting in August 2013, Plaintiffs observed Spann and other Vectrus employees engaging in what they perceived to be security violations and other wrongful behavior. Plaintiffs contemporaneously prepared a day-by-day timeline which described in detail the activities they discovered and actions they took to report the wrongdoing and to assist the U.S. Military’s investigation of the alleged wrongdoing by Vectrus employees. For example, Plaintiffs discovered that Spann permitted an unauthorized person who did not have security clearance, a Fluor employee named James Brown (“Brown”), to participate in interviews, screenings, and interrogations of Host Country Nationals and Third Country Nationals. Cross reported this information to Daniel, and Cross and Wascher also reported it to military oversight, SFC Salinas.
Plaintiffs also discovered that an investigation report on BAT prepared by Wascher had been altered to remove the information that had been provided by Daniel pertaining to a sexual relationship one of his friends was having with the target of the investigation, as well as other information that implicated members of Vectrus management or their friends. Wascher reported this incident to the lead investigator, Cross, who reported it to Spann and Daniel, and instructed Wascher to resubmit a complete report. However, Spann reprimanded Cross and ordered him and the other investigators to stop any discussions of deletions or alterations on BAT.
Plaintiffs did some further review and learned that other investigation reports had been either deleted from BAT or altered. They reported this information to Spann but no action was taken. Plaintiffs also reported it to military oversight, SFC Salinas. Plaintiffs understood that tampering with investigation reports was a very serious violation because it compromised the integrity of the BAT system, which threatened the security at BAF and the other U.S. military bases in Afghanistan.
In early September 2013, Salinas initiated a military investigation and Wascher provided a statement at the military’s request. Shortly thereafter, Wascher was asked to investigate unauthorized identification cards in the possession of Turkish workers and the lack of the required documentation in their BAT dossiers. Spann confronted Wascher and attempted to convince him to drop that investigation. Spann had a close relationship with two Turkish contractors and was allegedly having a sexual relationship with the daughter of the owner of one of the contractors. Plaintiffs believe Spann’s efforts were intended to protect members of Vectrus management and possibly the Turkish contractor, since it was their understanding that Spann had previously attempted to protect the Turkish contractor by improperly directing investigators to back off of an investigation into human trafficking allegations involving the use of young Turkish male sex slaves by said contractor on the base and by giving the contractor advance notice of raids by the military.
Shortly after he confronted Wascher, Spann told Plaintiffs that he had persuaded the military head of BAF, known as “Garrison Command, ” to replace SFC Salinas as military oversight for FPSC. Thereafter, SFC Salinas was replaced by James Fox. Spann directed Plaintiffs not to provide statements or assist in the military’s investigation without approval of Vectrus’s HR department. However, Plaintiffs continued to cooperate with the military’s investigation. On September 20, 2013, Salinas met with Plaintiffs and advised them that the military was continuing to investigate the information they had provided.
On September 24, 2013, Spann announced that Vectrus had terminated Cross for purportedly violating Vectrus’ rules of conduct by disclosing classified information and making a false statement during an investigation. Plaintiffs believe that, because Cross was the lead investigator, Spann and others at Vectrus hoped his termination would send a message to the other investigators and stop them from any further cooperation with the military’s investigation.
During this time period - September to October 2013 - other Vectrus employees began bringing what they perceived to be wrongful conduct to Plaintiffs’ attention, and Plaintiffs observed other alleged illegal activities by Vectrus managers. For example, one employee described to Plaintiffs certain activities of Spann, Daniel, Carl Lynch (“Lynch”), and another investigator, Gary Blanchard (“Blanchard”), including control of drugs, alcohol and prostitutes on base, and transferring or terminating uncooperative employees who would not go along with their activities. The employee ___ also showed Plaintiffs text messages allegedly indicating unauthorized activity with classified information.
Plaintiffs also observed that two security investigators, Marc Salazar (“Salazar”) and Robert Redd (“Redd”), who were close friends of Spann and Daniel, were conducting alleged improper and harassing/abusive interviews, improperly cherry-picking files to investigate, using only certain interpreters, and creating inaccurate and incomplete investigation reports. Plaintiffs reported this information to Vectrus’s HR department, which took no steps to stop these activities.
Plaintiffs also provided information concerning these activities to military oversight (Fox) and SFC Salinas. At the military’s request, Plaintiffs gave interviews to the Criminal Investigation Division (“CID”), U.S. Army Counter-Intelligence Unit (“CI”), the Air Force Office of Special Investigations (“OSI”), and the Judge Advocates General’s Office (“JAG”).
Plaintiffs discovered alleged improprieties with respect to investigation reports prepared by Salazar including inadequate reports to support issuance of badges (including that over 100 BAF badges had been printed without necessary investigations or paperwork), portions of reports deleted from BAT, and alerts being put on dossiers by Salazar using the name of Sergeant Justine Shahan (Military Oversight Non-Commissioned Officer in Charge) without her knowledge. They reported these activities to Thomas Robin (“Robin”), Security Supervisor for Vectrus, but no action was taken.
Throughout this time period, Plaintiffs met frequently with SFC Salinas at his request to update him with further information on these reported activities as it became available. On October 18, 2013, Plaintiffs attended a meeting at BAF Brigade Headquarters with SFC Salinas, Andrew Albright (a GS15 civilian counterpart to the Commander of the Garrison), and Command Sergeant Major Paul Bianco. Plaintiffs gave statements and discussed the seriousness of the reported conduct, including particularly the perceived threat to the integrity of the BAT system. Albright told Plaintiffs that CI was not moving on the information and, therefore, the military had decided to call in the FBI and NSA to investigate. Plaintiffs were ordered to continue reporting to SFC Salinas as their point of contact and to keep the matters discussed in the military’s investigation confidential.
Plaintiffs observed further conduct by Vectrus management employees, including observing an uncleared person given access to the FPSC database room, an uncleared person (the daughter of the owner of a Turkish construction company) given access to Spann and Daniels’ supervisor’s administrative office, unauthorized Fluor employees sitting in on investigations, Spann accessing the military oversight office during restricted hours without authorization, Spann and Fox allegedly coaching a person on how to lie about an incident under investigation, and the perceived cover up of a harassment investigation that involved the severe (near death) beating of the complaining female. During this time period, Plaintiffs gave several interviews to CI and CID regarding the various incidents as requested and continued to provide updates to SFC Salinas.
On October 20, 2013, Plaintiffs were told that Fox was leaking information (including their initial statements given to OSI) to Spann and Daniel. Plaintiffs and the other security investigators had been repeatedly threatened and admonished by Spann, Daniel, Salazar, and Redd not to cooperate with SFC Salinas’s investigation and to only go through the Vectrus company chain of command.
On October 29, 2013, Wascher was transferred to Forward Operating Base (“FOB”) Marmol. Daniel and two others met Wascher at the airport gate - Daniels stated he was “there to make sure Wascher got on his flight.” At the end of October 2013, Walker was transferred to FOB Shank. Daniel had Robin call him when the aircraft carrying Walker took off from BAF, and again when it landed at FOB Shank to confirm that Walker was gone from BAF. These FOBs are much more dangerous than BAF in that they took incoming rockets on a daily basis. Plaintiffs believe Spann and Daniel ordered these transfers hoping Wascher and Walker would resign rather than accept the transfers; and knowing Wascher and Walker would lose their seniority and that, even if they did not resign, their positions would be eliminated in the next draw-down, despite the fact that their BAF seniority would have protected them but for the transfers.
At 2:00 a.m. on November 5, 2013, the military conducted a base-wide raid at BAF and apprehended eight Vectrus employees: Daniel, Spann, Lynch, Salazar, Redd, Artan Fana, Agron Fana, and Shajaida Rivera. These eight individuals were removed from the Contract and from Afghanistan, and their security clearances were revoked. Plaintiffs have learned that these eight Vectrus employees were released in Dubai the next day. Plaintiffs are unaware whether their employment was terminated by Vectrus.
Multiple other Vectrus employees assigned to BAF have been terminated or resigned in conjunction with the military’s investigation following the Plaintiffs’ whistleblowing activity. Brown, a Fluor Country Security Officer, also was removed from the Contract and from Afghanistan, and had his security clearance revoked by the military. In addition, Fox was removed from his position as the FPSC military oversight and SFC Salinas was reinstated to that position. On information and belief, at least 20 Vectrus employees and others were removed from the Contract and BAF, and had their security clearances revoked.
Plaintiffs continued to relay additional information they learned to the military investigators, including that Wascher received a complaint regarding a prostitution ring, the possession of electronic devices, and other conduct implicating Salazar and Blanchard. In addition, two supervisors were observed discussing their effort to gather laptop computers to keep them from the military investigation. Plaintiffs also learned that FPSC personnel had been given advance warning of the military raid and told to hide anything incriminating. Finally, an interpreter advised of an investigation concerning selling documents and coaching local nationals on how to answer questions in interviews.
Plaintiffs believe Vectrus management identified them as the whistleblowers - management pressured Plaintiffs to provide the dossiers on all of the Vectrus employees that had been implicated for alleged illegal activities and other information that had been provided to the military, and directed Plaintiffs not to cooperate with the military investigation but, rather, to proceed only through Vectrus HR or company chain of command.
On November 21, 2013, Plaintiffs learned that Vectrus made a complaint against Cross’ security clearance accusing him of a security violation without notifying the Government as required, which Plaintiffs believe was designed to invalidate Cross’ security clearance and prevent him from being able to find employment in another position requiring a security clearance.
In November and December 2013, Plaintiffs cooperated with interviews by Vectrus Ombudsman (Bridget Bailey) and Employee Relations (Donald Askew); however, they had been ordered by the military not to disclose the information that was the subject of the military’s ongoing investigation. On November 24, 2013, Nadine Guilbeaux, the Vectrus HR representative who had been conducting interviews, was terminated allegedly for having sexual relationships with Spann. Plaintiffs believed that Ms. Guilbeaux had been leaking information from their interviews back to Spann.
Diaz, who as Vectrus’ Country Manager, was the highest ranking Vectrus employee in Afghanistan, spearheaded Vectrus’ internal investigation in November and December 2013 into the activities the Plaintiffs had revealed. However, this internal investigation was not designed to discover and take action against the wrongdoers. Instead, Plaintiffs believe that Diaz - with the assistance of Bridget Bailey and Donald Askew, among others - used the investigation to orchestrate a cover-up specifically intended to cause injury to the Plaintiffs still at BAF because of their whistleblowing and cooperation with the military’s investigation of the wrongful conduct.
On November 29, 2013, Cejka and Lytle received Certificates of Achievement from the military “for outstanding performance, dedication and support for the mission.” When presenting the awards, the military spokesman stated that Cejka and Lytle were the top two investigators country wide in terms of the high quality of their investigations and high production. The Certificates state:
For outstanding performance and continued dedication and support of the Garrison mission at Bagram Airfield. Your tireless efforts and dedication at ECP 1 screening are instrumental in providing an elevated quality of life to the Soldiers, Sailors, Airmen, Marines and civilian personnel assigned to Bagram. We thank you for your untiring support of American troops and civilians serving in harms way.
Cejka and Lytle were terminated by Vectrus on December 12, 2013, less than two weeks after receiving the Certificates of Achievement from the military, for allegedly violating Vectrus’ rules of conduct by making a hand gesture toward another investigator on a single occasion. The complaining employee was Redd, a close friend of Spann, who was removed by the military from the Contract and Afghanistan during the November 5 raid.
On February 7, 2014, Cejka, Walker, Wascher and Lytle received a letter from Andrew Albright, Garrison Command Security Manager at BAF, confirming that they were cooperating individuals in a federal security investigation during the period July 2013 through January 2014 involving their employer at BAF. The letter describes the investigation and the importance of the integrity of the BAT system and states:
Many of the cooperating individuals that assisted Federal Security and Intelligence investigators were reassigned to remote outstations, or terminated by their employer for minor infractions. Unfortunately, the Whistle Blower Protection Act is a slow and cumbersome process.
Following the November 5, 2013 raid, the Bagram FPSC was severely understaffed of security investigators allegedly as the result of the raid and transfers of Wascher and Walker. The remaining investigators at BAF were conducting two to three times the number of interviews recommended in a given day (the recommended level is 10 interviews per day). Vectrus management openly discussed the need to transfer additional security investigators to BAF to assist with the severe overload; however, they stated on numerous occasions that they would not consider transferring Wascher or Walker from the FOBs back to BAF, even though Walker and Wascher were the two most experienced investigators and had expressed a willingness to return.
In June 2014, Vectrus informed Wascher his position was being eliminated in a “draw-down.” Wascher’s seniority should have protected him from the draw-down. After the draw-down, despite having open security investigator positions and being severely understaffed at BAF, Vectrus offered Wascher only a lower position as a Biometric Processing Clerk at substantially less pay. Wascher declined to accept the demotion.
On July 12, 2014, Vectrus informed Walker his position was being eliminated in a “draw-down.” Walker’s seniority should have protected him from the draw-down. After the draw-down, despite having open security investigator positions and being severely understaffed at BAF, Vectrus offered Walker only a lower position as a Biometric Processing Clerk at substantially less pay. Walker declined to accept the demotion.
II. Procedural History
In response to Plaintiffs’ Complaint, Vectrus filed the present motion for partial dismissal, arguing that Plaintiffs’ first and third state law claims are preempted by the Defense Base Act, 42 U.S.C. § 1651 et seq. (“DBA”), but, even if it not, Colorado law does not apply to Plaintiffs’ employment in Afganistan. Alternatively, Vectrus argues that Plaintiffs’ third claim for outrageous conduct fails to state a claim for relief.
Plaintiffs counter that Vectrus should be barred by collateral estoppel from raising its defenses, since two courts in this District have already rejected such defenses. In addition, Plaintiffs contend the DBA applies only to claims for injury or death, not to claims for wrongful discharge or outrageous conduct. Plaintiffs also assert that Colorado law applies to Vectrus, a Colorado employer. Finally, Plaintiffs argue their first and third claims are separate and distinct and, thus, the claim for outrageous conduct is actionable.
Vectrus replies arguing that there is no substantial relationship between Colorado and the wrongs alleged by Plaintiffs and, thus, the state claims should be dismissed. It also contends the DBA governs any “injury” claimed by the Plaintiffs; a forum selection clause is not a “choice of law” provision and does not provide Plaintiffs access to Colorado law; and the alleged facts do not support a claim for outrageous conduct.
In addition, Defendants Spann and Daniel filed an amended motion for dismissal arguing the Court lacks personal jurisdiction over them; the DBA bars the Plaintiffs’ claims; Colorado common law has no application to Plaintiffs’ claims; and, Plaintiffs’ claims of outrageous conduct and intentional interference fail to state claims for relief. Plaintiffs counter with the same arguments as those raised against Vectrus, and, in addition, assert specific (as opposed to general) personal jurisdiction over Spann and Daniel. Spann and Daniel reply arguing Plaintiffs fail to demonstrate they “purposefully directed their activities” at Colorado sufficient to establish personal jurisdiction.
I. Dismissal under Fed.R.Civ.P. ...