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, Defendant.
ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
AS TO PLAINTIFFS JAMES WALKER'S AND STEVEN WASCHER'S
FIRST AND THIRD CLAIMS FOR RELIEF.
Michael E. Hegarty United States Magistrate Judge.
initiated this employment action against Defendants on
October 30, 2015, alleging essentially that they suffered
adverse employment actions in retaliation for reporting what
they believed to be improper conduct affecting security at
Bagram Air Force Base in Afghanistan. Plaintiffs allege
claims against their former employer, Defendant Vectrus
Systems Corp. (“Vectrus”), for common law
retaliatory termination (Claim I); violation of 10 U.S.C.
§ 2409, the Department of Defense whistleblower statute
(Claim II); and common law outrageous conduct (Claim
III). Here, Vectrus seeks summary judgment in
its favor on Plaintiffs James Walker's
(“Walker”) and Steven Wascher's
(“Wascher”) first and third claims for relief. In
addition, the Court will analyze James Walker's second
claim for relief in this order. The Court finds Walker and
Wascher raise genuine issues of material fact regarding their
first claims for relief and Walker raises material issues of
fact concerning his second claim for relief, but the
Plaintiffs fail to demonstrate factual issues regarding their
third claims for outrageous conduct. Accordingly, the Court
grants in part and denies in part Vectrus' motion.
Court makes the following findings of fact viewed in the
light most favorable to Walker and Wascher, who are the
non-moving parties in this matter.
June 27, 2007, Fluor Corporation (“Fluor”)
entered into contract number W52P1J-07-D-0008 (the
“Prime Contract”) with the U.S. Department of the
Army to provide services to the Logistics Civilian
Augmentation Program (“LOGCAP”) in Afghanistan.
Vectrus, previously known as Exelis Systems Corporation and
ITT Systems Corporation, is a Delaware corporation, with its
principal place of business in Colorado Springs, Colorado.
June 20, 2008, Vectrus entered into a subcontract with Fluor,
titled “Blanket Ordering Agreement, ” to provide
support for the LOGCAP program in Afghanistan (the
Plaintiffs James Walker and Steven Wascher were hired by
Vectrus effective January 7, 2013 as security investigators
(or, “screeners”) on the LOGCAP program.
Deposition of James Walker, February 9, 2017 (“Walker
Dep.”) 40: 3-9; Deposition of Steven Wascher, January
23, 2017 (“Wascher Dep.”) 25: 21 - 26: 4.
Vectrus, Walker and Wascher, along with other security
investigators including the Plaintiffs, worked at Bagram Air
Force Base (“BAF”) in Afghanistan in a Force
Protection Screening Cell (“FPSC”) and reported to
Brandon Spann (“Spann”), senior security
supervisor, who reported to Kevin Daniel
(“Daniel”), regional mManager, who reported to
Richard Diaz, program manager.
While the screening cell was supervised by Spann, Walker and
Wascher also reported to the military oversight officer,
Sergeant First Class John Salinas (“SFC
Salinas”). Deposition of Victor Cejka, January 26,
2017 (“Cejka Dep.”) 121: 15-21.
security investigators, including Walker and Wascher,
conducted interviews and investigations required for the
issuance of access badges to over 6, 500 non-military
personnel for daily entry to the military base. Investigators
prepared investigation reports (known as
“dossiers”) which, along with fingerprints, iris
scans, and facial photos, were entered into the Biometric
Automated Toolset System computer database
(“BATS”), a security database maintained by the
Department of Defense (“DOD”) and shared with the
United States' NATO allies. Answer ¶ 30, ECF No.
104; Deposition of Andrew Albright, Dec. 21, 2016
(“Albright Dep.”) 19: 11-25; 22: 5 - 24: 4.
maintenance of accurate information in BATS was vital to the
security of the base and the military's other bases
throughout the world. Id. 26: 2-13; 27: 2-19.
dossiers summarized the security investigations and
recommendations for access to the base (as well as other
privileges such as access to laptops, cell phones, or even in
some instances weapons), but only the military was authorized
to issue access badges. Cejka Dep. 109: 23 - 110: 16.
While Wascher was initially assigned to BAF, he was shortly
thereafter transferred to forward operating base
(“FOB”) Sharana. He had “no
objections” to the transfer, because “it was
where the company needed [him] to go.” Wascher Dep. 54:
16 - 55: 5.
April 2013, Fluor issued a “call form” directing
the descope of security investigator positions at FOB Sharana
and, as a result, Wascher's position was eliminated.
Vectrus offered him the position of biometric clerk at Camp
Spann, a satellite camp at FOB Marmol, which Wascher
acknowledged was a “demotion” that paid about
$30, 000 per year less than his prior position, but he
accepted it and had no objection because “at the time,
I didn't feel it was anything personal. It was the needs
of the company.” Wascher Dep. 56: 3 - 58: 20. In
addition, Wascher's supervisors promised him that, if he
took the position, “as soon as another investigator
position comes open, you know, we'll make sure you get
that spot.” Id. 58: 21-25.
June 3, 2013, a security investigator position opened up at
BAF; Wascher was promoted to the position and transferred
back. Wascher Dep. 62: 3 - 63: 4.
or about the summer 2013, Walker observed that another
security investigator, Marc Salazar, accessed the BATS using
the name and account of a military oversight official,
Sergeant Shahan, without her permission. Walker Dep. 203: 13
- 205: 8. Walker asked Sergeant Shahan whether she had placed
“alerts” on certain people entering the screening
cell, who were noted to meet with Salazar, and she said,
“no.” Id. 205: 4-25. Walker reported
this to military oversight Sergeant Shahan and SFC Salinas.
Wascher also witnessed Salazar using Sergeant Shahan's
name and account to access the BATS system to place alerts on
certain people without Shahan's permission, and he
reported it to Tom Robin. Wascher Dep. 165: 21 - 167: 22.
or about August 2013, Wascher was asked to conduct an
investigation of a person suspected of possessing a cell
phone, which was not allowed on base absent military
approval. Wascher Dep. 107: 8 - 108: 10. Wascher interviewed
the suspect and, during a break, Daniel approached Wascher
and told him that he “knew for a fact” that
“she does have a cell phone” because either
“Agron or Artan [Fana] gave her the phone” to
arrange “meetings” with her during lunch or in
the evenings. Id. 110: 17 - 111: 13; 139: 17-19.
Immediately following the interview with the suspect, Wascher
completed a dossier on the BATS, in which he included the
information Daniel reported to him. Id. 111: 20-25,
Walker was also asked to conduct an interview of a third
country national in relation to the same incident and he
prepared a dossier on the BATS. Walker Dep. 192: 19 - 193:
next morning, Plaintiff Lytle told Wascher that Conklin had
approached him saying that someone had deleted information
from Wascher's reports. Wascher Dep. 112: 15 - 113: 6.
That “someone” according to Conklin was Shajaida
Rivera, biometrics clerk, who allegedly deleted information
at Spann's request. Id. 101: 14-23.
Wascher reviewed the previous day's report and discovered
that the information Daniel had given him was missing.
Id. 114: 4-12.
That same day, Specialist Siewell entered Walker's
office, closed his door, and told Walker to check on his
report from the previous day; Walker saw that several
paragraphs of his dossier on BATS concerning Artan Fana and
Agron Fana were missing. Walker Dep. 194: 8 - 195: 9. Walker
replaced the altered dossier with a complete copy he had
saved and reported the alteration to his supervisor, Tom
Robin. Id. 197: 17 - 198: 7.
Wascher reported the information missing from his report to
his “lead, ” Plaintiff Cross, who told him to put
the information back into the report, file it, and save a
copy of the report. Wascher Dep. 114: 13-22. Wascher did so,
then sent an email to Cross, Robin, Spann, and Daniel
“informing them of the deletion of details in [his]
report, [and] asked them if they could provide an explanation
and what . . . steps would be taken to rectify it.”
Id. 115: 4-11. Only Cross responded to the email
saying he would speak to Spann about the matter, but Wascher
had no knowledge whether Cross ever did. Id. 116:
next day, Wascher sent a second “exact same”
email “to ensure that everyone was receiving the
email.” Id. 116: 1-3. That morning, in the
daily security meeting, the investigators “discussed
reports being altered” in a general sense and that
“everyone should double check their reports when
they're filed to make sure everything's right, in
case there's any alterations.” Id. 119:
Later that day, Wascher and Cross were called to Spann's
office, in which Daniel was also present, and Spann
“yelled” at Cross asking whether Cross was
“telling people that reports had been altered.”
Id. 117: 6-21. When Cross answered that he was
“checking to see what was going on, ” Spann told
him to “never bring it up, never talk about it, drop
the subject immediately.” Id. 117: 22 - 118:
some point thereafter, Wascher was called to a meeting with
Spann and Daniel at which Spann asked Wascher whether he
“was providing statements to the military.”
Id. 46: 2 - 48: 4. Wascher testified he told Spann
and Daniel that Salinas was conducting an investigation into
the alterations of the reports and Spann ordered Wascher not
to cooperate, but when Wascher stated it would be illegal not
to cooperate, Spann “changed his tone and stated that
what he meant to say was that he would go with me to the
meeting and - and help me if I needed it.” Id.
48: 5 - 49: 7.
Wascher states that he did not report the alterations to the
military; rather, Specialist Siewell approached Wascher two
to three days later saying there was going to be an
investigation concerning the alterations. Id. 120:
11 - 121: 21. Wascher later learned that it was likely
Conklin who informed Siewell that she suspected Rivera had
altered the reports. Id. 123: 13-19.
Wascher and Walker also learned later from Specialist Siewell
that the deletions, in fact, occurred at Rivera's
computer terminal. Id. 133: 5-17; Walker Dep. 200:
20 - 202: 8.
Salinas first testified at his deposition that both Cross and
Wascher brought the alterations to his attention in or about
August 2013. Salinas Dep. 43: 9-15; 54: 15 - 55: 13. He
testified later, however, that Wascher reported the problem
to him verbally with no one else present. Id. at
167: 10-14; 168: 17 - 169: 3. Salinas “consider[ed]
this to be a serious matter” due to the nature of the
BATS system, and he reported it to Andrew Albright, DOD
director of plans, training, mobilization, and security at
BAF, and Sergeant Major Bianco, the garrison commander.
Id. 55:14 - 56: 20.
Thereafter, the Air Force OSI (office of special
investigations) and Army CID (criminal investigation command)
interviewed the Plaintiffs and “took over” an
investigation. Deposition of SFC John Salinas, November 30,
2016 (“Salinas Dep.”) 55: 4 - 57: 1. Salinas was
authorized by Garrison Command to monitor the situation and
instructed the security investigators, including Walker and
Wascher, to meet with him periodically if they observed or
experienced “anything out of the ordinary, anything
that wasn't policy.” Id. 57: 7 - 58: 10.
Wascher also testified that he discussed the deletions of his
report with the “Air Force OSI, United States Army
Counter-Intelligence, task force biometrics, Garrison
Commander Albright, Garrison Sergeant Major Bianco, and the
BAF JAG office.” Wascher Dep. 136: 24 - 137: 8. He told
these officials that he believed Rivera deleted the
information at the request of Spann, with whom she was having
a sexual relationship and who was trying to help his friend,
Daniel, who regretted giving the information to Wascher.
Id. 139: 9 - 142: 13.
While he was at BAF, Wascher was approached by Sergeant
Shahan and asked to conduct an interview of two men who had
access to the base through “common access cards”
usually provided only to United States citizens. Wascher Dep.
238: 18 - 239: 7. Wascher brought up the dossiers of the men
on the BATS system, but found very little information input
by his fellow security investigator, Salazar. Id.
239: 7-24. Wascher never interviewed the men because, while
he was preparing to start the interviews, Spann burst into
his office yelling, “What business do you think you
have interviewing these people?” Id. 241: 24 -
242: 20. Wascher reported this incident to the military
agencies on base. Id. 243: 20 - 244: 12.
Walker testified that Spann and Daniel authorized James
Brown, Fluor security manager, to attend “two or
three” of his interviews. Walker Dep. 233: 15 - 234: 6.
Both Walker and Wascher witnessed Brown attend interviews by
other security investigators, including Salazar, Lytle, and
Ed Sapp. Id. 234: 7-12; Wascher Dep. 258: 12 -
259:16, 263: 4-17. They reported this conduct to Cross and
SFC Salinas. Walker Dep. 234: 19-25; Wascher Dep. 262: 3-10.
Wascher testified that some of the interviews related to
reports of Fluor security violations and, thus, it was
improper for Brown to participate in the interviews. Wascher
Dep. 262: 19 - 263: 10.
Wascher observed Fana, Vectrus database administrator, bring
uncleared foreign females into the biometrics room, which was
the most secure room in the building; he heard them have sex
in the room, then saw them leave the room putting their
clothes back on. Wascher Dep. 163: 8-20; 170: 1 - 172: 7.
Wascher reported this conduct to Robin and to the military.
Walker reported to his supervisors at Vectrus and to military
oversight that Spann and Daniel kept at least two
interpreters on staff, although they were not qualified,
because the interpreters would do “favors, ” such
as “get them things at the bazaar at cut rate or get
them alcohol.” Walker Dep. 215: 21- 221: 25.
Wascher reported to Robin and to the military that Spann
ordered him and the other screeners repeatedly to use either
someone else's information or a generic account number to
access the BAT system; Wascher believed such access
constituted a violation of the National Industrial Security
Program Manual (“NISPOM”). Wascher Dep. 187: 20 -
Spann testified that in early October 2013, he knew that
Wascher, Lytle, and Walker were having secret meetings with
SFC Salinas, counterintelligence personnel, and the Army CID.
Deposition of Brandon Spann, March 20, 2017 (“Spann
Dep.”) 306: 4 - 308: 7.
Spann believed that Wascher, Lytle, Cejka, and Walker were
the “worst offenders” of a directive he gave that
the screening cell personnel were required to have a Vectrus
HR representative present when reporting wrongdoing to
military agencies other than military oversight. Id.
295: 17 - 299: 4.
Program Manager Diaz testified that Vectrus employees were
not required to report any wrongdoing they observed or
experienced “up the chain of command, ” meaning
to their supervisors or next-level managers. Deposition of
Richard Diaz, February 15, 2017 (“Diaz Dep.”)
112: 9 - 113: 20. Diaz disagreed that Vectrus personnel at
the screening cell were required to notify Spann or HR before
providing information or statements to the military. 131: 22
- 132: 22.
Based on the Plaintiffs' reports to the military, David
Cleary, Army supervisory intelligence security specialist,
conducted a “15-6, ” or “military”
investigation. Cleary Dep. 38: 15 - 40: 4. SFC Salinas was
“the person [who] would identify something that needed
a deeper look. And [Cleary] was the person [who] would take
the deeper look.” Id. 59: 12-25.
October 12, 2013 and October 19, 2013, Riley/Scott sent
emails to multiple Vectrus employees including Diaz, Doug
Brown, HR supervisor, Michael Hobbs, deputy program manager,
and Larry Maker, operations manager, listing seven positions
at BAF to be “RIF'd”; four were vacant
positions, one position was held by an employee who was to be
“removed, ” and the other two positions were held
by Walker and Wascher who were to be
“transferred.” ECF Nos. 123-11, 123-13.
October 18, 2013, a meeting was held at the Garrison
headquarters among Salinas, Walker, Wascher, Lytle, Cejka,
Andrew Albright, DOD director of plans, training,
mobilization, and security at BAF, Sergeant Major Paul
Bianco, garrison commander, and possibly Major Bradley Cowan
from JAG. Id. 79: 15 - 80: 5. At the meeting,
Walker, Wascher, Lytle, and Cejka summarized information they
had provided previously to Salinas and answered questions
from Albright and Bianco. Id. 82: 12-23; Wascher
Dep. 300: 1-13. According to Wascher, ...