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 PLAINTIFF PAUL CROSS' FIRST AND THIRD CLAIMS FOR
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 Plaintiff Paul Cross' (“Cross”)
first and third claims for relief. The Court finds Cross has
raised genuine issues of material fact regarding whether
Vectrus wrongfully discharged him, but he has failed to do so
demonstrating that Vectrus engaged in outrageous conduct.
Therefore, the Court grants in part and denies in part
Court makes the following findings of fact viewed in the
light most favorable to Cross, who is the non-moving party in
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
Plaintiff Paul Cross was hired by Vectrus effective January
28, 2010 as a lead security investigator on the LOGCAP
program. Deposition of Paul Cross, January 30, 2017
(“Cross Dep.”) 111: 4-7.
Prior to working for Vectrus, Cross served in the U.S. Air
Force Security Police and the U.S. Army. Id. 17:
3-9; 60:14 - 61:2.
Vectrus, Cross, along with other security investigators (or
“screeners”) including 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
manager, who reported to Richard Diaz (“Diaz”),
security investigators, including Cross, 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. Albright Dep. 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. Deposition of Victor Cejka, January
26, 2017 (“Cejka Dep.”) 109: 23 - 110: 16.
While the screening cell was supervised by Spann, Cejka also
reported to the military oversight officer, Sergeant First
Class John Salinas (“SFC Salinas”). Cejka Dep. 121:
January or February 2013, Spann told a group of “leads,
” including Cross, “If I want somebody to have
access to BATS, you will . . . allow them access, and I
don't [care] if they're a foreign national or
whatever. If they're from Fluor, you give them
access.” Cross Dep. 170: 5-18. Cross refused, then
reported Spann's directive to another security lead, two
screening cell managers, and Daniel. Id. 170: 19-22;
171: 13 - 173: 19. He also reported the directive to military
oversight. Id. 174: 2-18.
April or May 2013, Vectrus Human Resources (“HR”)
personnel asked Cross to complete a statement in response to
a complaint from Agron Fana, biometrics clerk, following a
meeting at which Gary Blanchard, security supervisor,
“counseled” Fana about his error in
“merging two BAT dossiers”; Cross was also
present in the meeting. Cross Dep. 48: 11 - 49: 15. Cross
responded to HR in or about July 2013 by email (id.
254: 19 - 255: 4), and at the bottom of the statement, Cross
wrote, “Look, I need to talk to you in person,
face-to-face, because I have some information about other
stuff going on that involves Agron Fana specifically and
Kevin Daniel. . . . [p]lease get ahold [sic] of me as soon as
you can.” Id. 49: 15-24.
Cross testified that HR personnel never responded to his
request and, thus, he did not know who to trust at Vectrus.
Id. 95: 8-22.
Cross had wished to discuss with HR his belief that “in
2011 and 2012 Agron Fana had been issuing badges and doling
out privileges to [third country national] friends of his
without authorization from the U.S. military. Kevin Daniel
and Brandon Spann knew of this but swept it under the rug and
allowed Agron Fana to remain working at the FPSC in a trusted
position.” He suspected that the same conduct was
happening in 2013. Id. 255: 5-24.
Cross also testified that he confronted Spann about Spann
giving information from the screening cell to Fluor
officials, particularly to Jim Brown, Fluor security
specialist, since all such information was “proprietary
knowledge . . . for the U.S. government” and “we
are not allowed to talk to any other company, civilian or
otherwise, about it, especially without military
oversight's approval.” Cross Dep. 96: 12 - 97: 25.
Cross brought this matter also to the attention of Daniel,
Specialist Siewell (who worked in military oversight), and
SFC Salinas. Id. 99: 23 - 100: 12.
Cross provided to military oversight a report he received
from Plaintiff Jamie Lytle that another Vectrus employee,
Carl Lynch, was permitting drugs, alcohol, and prostitutes to
come on base through the “turnstiles” at the
entrance. Id. 196: 24 - 197: 7; 198: 4-21. He
“never mentioned Brandon Spann” when discussing
drugs or prostitution to the different agencies to which he
reported. Id. 193: 25 - 194: 7.
or about July or August 2013, some security investigators
reported to Cross that another security investigator, Marc
Salazar, was conducting “secret interviews and
interrogations in his office . . . at the direction of
Brandon Spann.” Cross Dep. 41: 16-23.
Cross testified that one day thereafter, he saw Jim Brown
leave Salazar's office, look at Cross nervously, and
leave through the back door. Cross asked Salazar, “What
was Jim Brown doing in there with the interpreter and the
subject you were interviewing?” He answered,
“Well, he was participating in the interview.”
Cross said, “Well, you know we have to get military
oversight approval [because before we have anybody, even FBI,
participating in the interview, we have to get their
approval].” Salazar said, “Well, Brandon Spann
authorized that.” Cross attests that he immediately
went to Brandon Spann and asked him if military oversight had
approved Jim Brown's attendance in the interview. Spann
“kind of looked away and hesitated and then back”
to Cross and said, “Yeah, he-he authorized it.”
Id. 42: 2-22.
Cross testified that immediately thereafter, he went to
military oversight - “a DOD civilian by the name of
Siebert, Seaquest, something like that [Specialist Siewell] -
and asked him, “Sir, did you authorize Jim Brown from
Fluor to participate in an interview today with Marc
Salazar?” Siewell answered, “No. I've never
even heard of that.” Cross asked, “Have you ever
authorized that?” Siewell said no, he had not.
Id. 42: 23 - 43: 8; 98: 14 - 99: 8.
Cross then went straight to Kevin Daniel and reported what he
saw and heard saying, “We're not allowed to do
that. We can't have anybody participating in interviews
outside of the screening cell unless military oversight
approves.” Daniel responded that he would talk to
Brandon Spann and make sure it did not happen again.
Thereafter, Daniel and Spann “avoided” Cross and
rarely talked to him. Cross got the feeling that he
“had stumbled onto something” and that Spann and
Daniel were “up to something, ” so Cross felt he
had to “watch [his] back.” Id. 43: 9-22.
Cross testified that he also saw Brown come out of the office
of another security investigator, Bernard Hall, whose office
was located across from Cross' office. Hall told Cross
that Brown had attended the interview at Spann's
direction and without the approval of military oversight.
Id. 215: 15 - 216: 14.
Salinas testified that Cross came to him in or about July
2013 and reported that Spann Brown had been sitting in on
interviews that involved Fluor employees. SFC Salinas
confirmed that to protect the integrity of the investigation,
only the screener, interviewee, translator, and Salinas were
authorized to sit in screening interviews. Deposition of John
Salinas, November 30, 2016 (“Salinas Dep.”) 44:
7-8; 45: 20 - 46: 21; 137: 20 - 138: 2. After Salinas
“briefed” the proper procedure, Spann told SFC
Salinas that he “was going to take care of his people
his way.” Id. 140: 2-7. SFC Salinas had no
knowledge that the reported conduct occurred again.
Id. 141: 3-8.
or about the same time that Cross reported to Daniel what he
perceived to be unauthorized access by Fluor to Salazar's
interviews, Cross also reported his belief that Salazar
“pencil-whipped” his dossiers (i.e., input
incorrect or no information obtained during the interview),
conducted improper or unnecessary interviews, and failed to
conduct his share of screening interviews. Cross Dep. 144: 21
- 145: 14; 148: 2-16.
Cross testified that after reporting to military oversight
the interviews at which Brown attended and other perceived
problems, he went back to Spann's and Daniel's office
to inform them that he had made the reports. Id.
214: 17 - 215: 14.
July 17, 2013, Vectrus security supervisor Gary Blanchard
notified Fluor security that he found material inside a
“work instructions” document identified as
“secret” or “classified.” Report, ECF
Fluor security manager, Jeremiah Keenan, conducted an
investigation of this report, which raised potential
violations of the National Industrial Security Program Manual
(“NISPOM”), during which he interviewed and
procured witness statements from several Vectrus employees,
including Cross. Id.
July 18, 2013 at 11:51, Cross completed a statement
concerning his conduct with respect to a “training
document . . . on how to join multiple dossiers in
BAT.” July 18, 2013 Statement, ECF No. 129-34 at
38. Cross stated that he created the document on “the
share drive” in the “Centrix” system, added
some “screen shots of BAT dossiers” as examples,
and put copies of the document in “screeners' sub
folders, ” but did not put the document on a thumb
drive, did not make a copy of the document off of Centrix,
and never plugged his thumb drive into the Centrix system.
Id. Cross states that he gave Keenan and Jim Brown
(who apparently assisted with the investigation) his thumb
drive at their request. Cross Dep. 274: 17-22.
Later that day at 16:17, Cross completed a second statement
concerning the same training document. July 18, 2013
Statement, ECF No. 129-34 at 39. In this statement, Cross
I can't remember 100% because it was very hectic at the
time but if I remember correctly, Jackie needed the document
to use for training to show the bio-clerks the proper way to
join dossiers. This was about the time that one of the other
Bio-Clerks had made a slight mistake on the proper procedure
for joining multiple dossiers. I thought I had just given it
to her on Centrix, but looking back, I think that I did
indeed give her a copy on my thumb drive for some reason. I
plugged my thumb drive into BAT and retrieved the document
without fully reviewing what was on it. I then gave the thumb
drive to Jackie. Afterwards, I thought that I had completely
deleted the file on the thumb drive and had only my toolbox
and some TV shows on it.
Id. Cross states that he created this statement
after Keenan and Brown returned to his office saying there
was a training document on the thumb drive; Cross “had
to think about it for a second . . . and “go back and
kind of - kind of retrace [his] steps” because he
“honestly didn't think that [he] put it on the
thumb drive.” Cross Dep. 275: 9-21. Cross went to Brown
and Keenan, who were at the copy machine, and told them that
he had forgotten but remembered copying the document onto the
thumb drive and asked whether he could change his statement.
Brown or Keenan answered that it was “no problem”
and “we'll just tear this up, ” referring to
his first statement. Id. 276: 1-11.
Cross recalled later that about a week or two prior to
utilizing the thumb drive for Conklin, Daniel had directed
him to use a thumb drive to retrieve and copy training
documents from the Centrix system. Cross Dep. 34: 23 - 36:
11; 39: 19 - 40: 16. Although Cross protested that he
previously had been “chewed once for doing that,
” Daniel “assured him that it was okay.”
Id. 105: 14 - 106: 5.
or about August 2013, Plaintiff 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. Deposition of Steven Wascher, January 23, 2017
(“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,
next morning, Plaintiff Lytle told Wascher that Conklin had
approached him saying that someone had deleted information
from Wascher's reports. Id. 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.
Wascher reported the missing information to Cross, who told
him to put the information back into the report, file it, and
save a copy of the report. Id. 114: 13-22. Wascher
did so, then sent an email to Cross, Tom 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.
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 security 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.
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:
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 also
learned later from Siewell that the deletions were, in fact,
made from Rivera's computer. Id. 133: 5-17.
Cross recalls that he first learned about the deletion of
Wascher's report when Wascher “had come in to talk
to” him. Cross Dep. 119: 1-5. Cross asserts that he did
not report his suspicion that either Spann or Daniel deleted
the information from Wascher's report, because he
“was fired while [he] was on R&R before [he] could
talk to anybody.” Id. 122: 25, 123: 1-6.
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