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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 PLAINTIFF PAUL CROSS' 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 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 Vectrus' motion.

         FINDINGS OF FACT

         The Court makes the following findings of fact viewed in the light most favorable to Cross, who is the non-moving party 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. 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.

         5. 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.

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

         7. The 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.

         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. Albright Dep. 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. Deposition of Victor Cejka, January 26, 2017 (“Cejka Dep.”) 109: 23 - 110: 16.

         10. While the screening cell was supervised by Spann, Cejka also reported to the military oversight officer, Sergeant First Class John Salinas (“SFC Salinas”).[4] Cejka Dep. 121: 15-21.

         11. In 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.

         12. In 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.

         13. 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.

         14. 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.

         15. 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.

         16. 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.

         17. In 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.

         18. 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.

         19. 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.

         20. 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.

         21. 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.

         22. SFC 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.

         23. At 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.

         24. 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.

         25. On 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 No. 124-1.

         26. 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.

         27. On 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.”[5] 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.

         28. 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 asserted:

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.

         29. 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.

         30. In 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.

         31. 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.

         32. The 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.

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

         34. 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.

         35. 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 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.

         36. 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.

         37. 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.

         38. 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.

         39. 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 ...


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