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Cejka v. Vectrus Systems Corp.

United States District Court, D. Colorado

February 14, 2018

VICTOR CEJKA, JAMES WALKER, STEVEN WASCHER, JAMIE LYTLE, and PAUL CROSS, Plaintiffs,
v.
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.

         Plaintiffs 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).[1] 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.

         FINDINGS OF FACT

         The 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.[2]

         1. On 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.

         2. 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.

         3. On June 20, 2008, Vectrus entered into a subcontract with Fluor, titled “Blanket Ordering Agreement, ” to provide support for the LOGCAP program in Afghanistan (the “BOA”).

         4. 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.

         5. At 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”)[3] and reported to Brandon Spann (“Spann”), senior security supervisor, who reported to Kevin Daniel (“Daniel”), regional mManager, who reported to Richard Diaz, program manager.

         6. 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”).[4] Deposition of Victor Cejka, January 26, 2017 (“Cejka Dep.”) 121: 15-21.

         7. The 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.

         8. The 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.

         9. The 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.

         10. 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.

         11. In 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.

         12. On 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.

         13. In 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. Id.

         14. 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.

         15. In 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.

         16. 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, 112: 1.

         17. 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: 21.

         18. The 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.

         19. Wascher reviewed the previous day's report and discovered that the information Daniel had given him was missing. Id. 114: 4-12.

         20. 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.

         21. 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: 14-24.

         22. The 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: 3-19.

         23. 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: 2.

         24. At 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.

         25. 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.

         26. 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.

         27. SFC 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.

         28. 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.

         29. 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.

         30. 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.

         31. 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.

         32. 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. Id.

         33. 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.

         34. 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 - 188: 24.

         35. 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.

         36. 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.

         37. 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.

         38. 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.

         39. On 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.

         40. On 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, ...


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