Cejka v. Vectrus Sys. Corp.

• Decision Date: 14 February 2018
• Docket Number: Civil Action No. 15–cv–02418–MEH
• Citation: 292 F.Supp.3d 1175
• Parties: Victor CEJKA, James Walker, Steven Wascher, Jamie Lytle, and Paul Cross, Plaintiffs, v. VECTRUS SYSTEMS CORPORATION, f/k/a Exelis Systems Corporation, Defendant.
• Court: U.S. District Court — District of Colorado

292 F.Supp.3d 1175

Victor CEJKA, James Walker, Steven Wascher, Jamie Lytle, and Paul Cross, Plaintiffs,

v.VECTRUS SYSTEMS CORPORATION, f/k/a Exelis Systems Corporation, Defendant.

Civil Action No. 15–cv–02418–MEH

United States District Court, D. Colorado.

February 14, 2018

Julian C. Wierenga, Steven Michael Hartmann, Terrence Joseph Sheahan, Freeborn & Peters–Chicago, Chicago, IL, Raymond W. Martin, Wheeler Trigg O'Donnell, LLP, Denver, CO, for Plaintiffs.

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 Manager, 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...