Griffin v. Jtsi, Inc.
| Decision Date | 06 November 2008 |
| Docket Number | Civ. No. 08-00242 ACK-LEK. |
| Citation | 654 F.Supp.2d 1122 |
| Court | U.S. District Court — District of Hawaii |
| Parties | Jordan GRIFFIN and Cheryl Perdue, Plaintiffs, v. JTSI, INC., United States, and Doe Defendants 2-10, Defendants. |
Earl I. Anzai, Law Offices of Earl I. Anzai, Michael Jay Green, Robin M. Melchor, Honolulu, HI, for Plaintiffs.
Corianne W. Lau, Shannon M.I. Lau, Terry E. Thomason, Alston Hunt Floyd & Ing, Thomas A. Helper, Office of the United States Attorney, Honolulu, HI, for Defendants.
ORDER DENYING DEFENDANT JTSI'S MOTION FOR SUMMARY JUDGMENT PROCEDURAL BACKGROUND
On March 18, 2008, Plaintiffs Jordan Griffin ("Plaintiff Griffin") and Cheryl Perdue ("Plaintiff Perdue") (collectively, "Plaintiffs") filed a First Amended Complaint ("Complaint") against JTSI, Inc. ("Defendant JTSI"), Lee Hayashi ("Mr. Hayashi"), and Doe Defendants 2-10, in the Circuit Court of the First Circuit, State of Hawaii. The Complaint alleges a violation of the Hawaii Whistleblowers' Protection Act, H.R.S. § 378-62 ("Count I"), and wrongful termination in violation of public policy ("Count II").1 Complaint at ¶¶ 42-47.
On May 23, 2008, Mr. Hayashi filed a Notice of Removal in this Court. The Notice of Removal substituted the United States of America as Defendant in place of Mr. Hayashi. Defendant United States of America ("Defendant United States") submitted notice of such substitution on July 25, 2008.
On June 13, 2008, Defendant JTSI filed the instant Motion for Summary Judgment ("Motion") against Plaintiffs on Counts I and II of the Complaint. Defendant JTSI attached the affidavit of H.K. Bruss Keppeler ("Keppeler Affidavit"), the Vice-President and General Counsel for Defendant JTSI, which authenticates Exhibits A-L as true and correct copies of the original documents. Defendant JTSI also attached the affidavit of its attorney Terry E. Thomason ("Thomason Affidavit"), which authenticates Exhibits M-Q as true and correct copies of the original documents. On the same day, Defendant JTSI filed a Separate Concise Statement of Facts in Support of Motion for Summary Judgment ("Motion CSF"). On September 26, 2008, Plaintiffs filed a Memorandum in Opposition to Defendant JTSI's Motion for Summary Judgement ("Opposition"). Plaintiffs attached the declaration of their attorney, Robin Melchor ("Melchor Decl."), authenticating Exhibits 1-4 as true and correct copies of the original documents. Plaintiffs also filed a Concise Statement of Facts in Opposition to Defendant JTSI's Motion for Summary Judgment ("Opposition CSF"). Within the Opposition, Plaintiffs requested the Court deny the Motion or continue the action to permit discovery under Fed.R.Civ.P. 56(f). Opposition at 16.
On September 26, 2008, Defendant United States filed a Statement of No Opposition to the Motion.
On October 3, 2008, Defendant JTSI filed a Reply Memorandum in Support of its Motion for Summary Judgment ("Reply"), along with a Reply Concise Statement of Facts ("Reply CSF").
The Court held a hearing on the Motion on October 16, 2008. Subsequent to the hearing and with the approval of all parties, the Court reviewed in camera the Prime Contract between Science Applications International, Corp., and the United States.
Defendant JTSI is a subcontractor to Science Applications International, Corp. ("SAIC"), a contractor to a prime contract with the United States government ("Prime Contract"). Motion CSF at ¶ 1; Keppeler Affidavit at ¶ 4. Under the Subcontract between Defendant JTSI and SAIC ("Subcontract"), Defendant JTSI's obligations included providing security personnel for the Visitor Control Center ("VCC") of the Nimitz-MacArthur Command Center, United States Pacific Command ("USPACOM"), Camp H.M. Smith, Hawaii. Id. Specifically, JTSI personnel supported the United States by providing access control, monitoring security cameras, and issuing clearance badges. Motion CSF at ¶ 1; Motion Exh. A, Tab 1 at 1.
The government retained the authority to control most aspects of Defendant JTSI's performance under the Subcontract. Although JTSI provided the personnel, the government established the procedures that the JTSI personnel were to follow in performing their security duties at the VCC.3 Motion Exh. A, Tab 1 at 1. Mr. Hayashi was the government official representing Defendant United States as the Physical Security Officer at the VCC. Keppeler Affidavit at ¶ 10. Further, the Subcontract incorporated Federal Acquisition Regulation ("FAR") clause 52.246-6, 48 C.F.R. § 52.246-6, into the Subcontract. Motion Exhibit A, Tab 2 at 2, 6. FAR clause 52.246-6 generally allows the government to inspect all materials furnished and services performed under the Subcontract, and reserves in the government the right to require replacement or correction of services rendered or materials delivered.4 Motion CSF at ¶ 2; 48 C.F.R. § 52.246-6. The Subcontract also reserved in SAIC "the right to direct the removal of any individual assigned to this Subcontract." Motion Exh. A at 4.
In January of 2005, prior to the hiring of Plaintiffs, the government implemented heightened procedures and required all VCC personnel to obtain a Top Secret Security clearance. Opposition Exhs. 3, 4.
Plaintiffs both worked as security personnel for Defendant JTSI at the VCC from 2004-2005. See Complaint at ¶¶ 7-29. Plaintiff Griffin began employment at the VCC on October 11, 2004 and Plaintiff Perdue began employment on July 19, 2004. Complaint at ¶¶ 7-8. Defendant JTSI employed Plaintiffs at-will. See Motion Exhs. D, E.
Sometime before February 10, 2005, Plaintiff Perdue contacted Ginger Jacobs, Defendant JTSI's Human Resource Manager, to report a potential security violation at the VCC by Faith Tominaga, one of Plaintiff Perdue's co-workers. Motion Exhs. O at 9, F at 1-2; see also Opposition Exh. 1 at ¶ 4. Plaintiff Perdue reported that Faith Tominaga was allowing her boyfriend, Sam Baker, allegedly a convicted felon, to enter the VCC without clearance and remain there for Ms. Tominaga's entire shift of work. Id. In response, Ms. Jacobs told Plaintiff Perdue that she would follow up by looking into the issue. Motion CSF at ¶ 7; Motion Exh. G at 1.
On March 19, 20055, Plaintiff Perdue also contacted Heather Payne, the assistant security officer at the VCC under Mr. Hayashi, regarding the situation with Ms. Tominaga, Mr. Baker, and other work-related concerns. Opposition Exh. 1 at ¶ 11; Motion Exh. H. Defendant JTSI contends that Officer Payne simply never responded to Plaintiff Perdue, while Plaintiffs assert that although Ms. Payne was very concerned about the situation, she just never got back to Plaintiffs directly regarding the matter. Motion CSF at ¶ 8; Opposition CSF at ¶ 8.
On or about March 24, 2005, Plaintiff Perdue viewed a copy of a video surveillance tape depicting Mr. Baker in the VCC using a computer with access to confidential information. Opposition Exh. 1 at ¶ 7. The video also showed Mr. Baker and several other friends of Ms. Tominaga in the VCC without clearance or escort. Id. at ¶ 8. On March 25, 2005, Plaintiff Perdue showed the video to Plaintiff Griffin, and Plaintiff Griffin agreed that Ms. Tominaga and Mr. Baker were committing security violations. Id. at ¶¶ 9-10. On that day or before, Plaintiff Griffin also informed Plaintiff Perdue that he had seen Mr. Baker using the VCC security computers in the past, and that there had been recent accesses on Mr. Baker's badge, which Mr. Baker was not allegedly authorized to have. Motion Exh. H at 1.
On March 24 or 25, 2005, Plaintiff Perdue contacted Dana Oania6, Ms. Jacobs replacement as Defendant JTSI's human resource manager, and spoke to her on the phone regarding what Plaintiffs had seen on the video. Motion CSF at ¶ 9; Motion Exh. O at 10. Ms. Oania stated that she was not sure how to handle the problem, but in the meantime, Plaintiffs and a third JTSI employee, Travis Goodwin arranged a meeting with Ms. Oania on April 1, 2005 to discuss the security issues.7 Motion Exh. O at 10; Motion CSF at ¶ 10.
Sometime around March 25, 2005, Plaintiff Griffin, along with Mr. Goodwin, met with Ms. Payne to show her the videotape and discuss the security concerns. Motion Exh. M at 59:1-9; Motion CSF at ¶ 11. Ms. Payne responded by stating that Mr. Hayashi would set up a meeting with all the VCC personnel. Id.
On March 29, 2005, Mr. Hayashi, along with Ron Jarrett, the vice president for Defendant JTSI, met with all the VCC personnel. Motion CSF at ¶ 14; Opposition Exh. 1 at ¶¶ 13-15; Motion Exh. O at 10. In the meeting, Mr. Hayashi did not allow anyone to speak and he explained that he was aware of the security violation. Id. Defendant JTSI contends that Mr. Hayashi explained that it was alright for VCC personnel to bring family members into the VCC on their shifts, but that allowing anyone to use the computers was impermissible. Motion CSF at ¶ 14. Plaintiffs contend that Mr. Hayashi also stated he was not going to do anything about the violations, and further threatened all the VCC personnel by saying that he could have their security clearances revoked, that this job is not for everyone, and that if they did not comply, they should seek employment elsewhere.8 Opposition CSF at ¶ 14; Opposition Exhs. 1 at ¶¶ 14-15, 2 at 67:2-12; Motion Exhs. M at 62:9-15, N at 89:12-16.
Dissatisfied with Mr. Hayashi's statements, Plaintiffs, along with Mr. Goodwin, approached Mr. Jarrett after the meeting, expressing their concerns to him and explaining the contents of the video. Motion CSF at ¶ 17; Opposition Exh. 1 at ¶ 16; Motion Exh. O at 10-11. Mr. Jarrett responded by stating that Defendant JTSI's responsibility was simply to report the matter to the United States.9 Motion Exh. Q at 66:14-16. Plaintiffs contend that Mr. Jarrett was generally disinterested with their concerns. Motion Exhs. N at 90:16-24, 167:1-3, M at 64:8-12.
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