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).
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.
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")
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").
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."
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
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."
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:
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
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 him verbally with no one else present. Id. at 167: 10-14; 168: 17-169: 3.
40. Cross testified that he did not report to Vectrus what he suspected was "illegal" or "immoral" conduct by Spann because "[Vectrus] had no business knowing that.... "[t]hat would be like giving [Cross] classified information ... instead of giving it to the proper authorities, CID." Cross Dep. 94: 15-23.
41. On August 21, 2013, Fluor notified Vectrus that it had completed the investigation of purported NISPOM violation involving classified material found in a work instruction document, produced its findings to Vectrus, and "directed that [Vectrus] now conduct [its] own investigation and provide [Fluor] a corrective action plan by 30 August." Tucker Email, August 21, 2013, ECF No. 124-1 at 44-45.
42. Vectrus' Mission Systems security specialist, Eric Schultz, conducted the investigation from August 22-28, 2013, and with respect to Cross, found the following:
Schultz Report, ECF No. 124-1 at 51.
43. Schultz made the following determination regarding Cross following his investigation:
Id. at 54-55.
44. On August 29, 2013 at 10:05, Michael Hobbs, Vectrus' deputy program manager, sent an email to Program Manager Diaz (and copied other Vectrus personnel, Michael Schneider, Venola Riley, senior HR manager, Schultz, and Larry Maker) regarding the investigation and stated, inter alia, that "[o]verall, the findings were in line with Fluor's investigation to some degree." Hobbs Email, August 29, 2013, ECF No. 124-1 at 39-40. Hobbs copied Schultz' findings concerning Cross and the other "subjects" into the email. Id. at 41. He also listed "recommended corrective [personnel] actions," including that Cross' employment be terminated. Id. at 43.
45. That same morning at 10:44, Riley forwarded Hobbs' email to Douglas Brown, HR supervisor. Riley Email, August 29, 2013, ECF No. 124-1 at 39. Later that morning at 11:47, Brown emailed Riley stating, "Based on the investigation conducted by Fluor Security and all pertinent statements and documentation reviewed, HR recommends the following action for all employees involved:" and listing "termination of employment" for Cross. Brown Email, August 29, 2013, ECF No. 124-1 at 22-26.
46. Two days later, on August 31, 2013, Spann was interviewed by Bridget Bailey regarding "Case Number: SYS-25813 & SYS-29713." Bailey asked Spann to describe the current working environment at the screening cell; he answered describing "issues with Gary Blanchard" and mentioned "reports of NISPOM violations recently," then stated:
Interview Information Sheet, ECF No. 159-30.
47. On September 4, 2013, Brown emailed Melanie White, Employee Relations analyst, "requesting Termination for Mr. Paul Cross for [the following] violation[s]." Brown Email, September 4, 2013, ECF No. 137-1 at 2. Brown noted that "Termination is supported by: Program Manager, Richard Diaz and HR Manager, Venola Riley." Id.
48. On September 10, 2013, White emailed Brown asking him to "[p]lease explain why Mr. Cross was sent forward for termination but [other] employees were recommended for either suspension or FWW." White Email, September 10, 2013, ECF No. 124-1 at 19-20. Brown responded:
Id. at 19.
49. On September 12, 2013, White emailed Yolanda Adrian and Jessica Parafiniuk at Vectrus headquarters stating, "LOGCAP requests approval to terminate employment of Paul Cross..." and "I agree with this termination request." White Email, September 12, 2013, ECF No. 137-1 at 1.
50. Vectrus terminated Cross' employment effective September 13, 2013 and notified Cross of his termination by email dated September 13, 2013. Cross Dep. 282: 8-12.
51. On September 15, 2013, Cross emailed Plaintiff Wascher saying, "Yeah, I found out a couple of days ago that they fired me. I really don't [think] of it as them screwing me so much as I screwed myself. I only have one person to blame for what happened ... me." Cross Email, September 15, 2013, ECF No. 129-34 at 34; Cross Dep. 19: 13-1.
52. In email correspondence dated September 18, 2013, Cross told Wascher, "Kinda worried a wee bit. I'm pretty sure they got me dead to rights on the termination and doubt they'd lose on a wrongful termination suit. There is solid evidence of my wrongdoing." Cross Email, September 18, 2013, ECF No. 129-34 at 35. Cross then asked Wascher to "hold off right now on pursuing" any lawsuit alleging a wrongful termination on Cross' behalf. Id.
A motion for summary judgment serves the purpose of testing whether a trial is required. Heideman v. S. Salt Lake City, 348 F.3d 1182, 1185 (10th Cir. 2003). The Court shall grant summary judgment if the pleadings, depositions, answers to interrogatories, admissions, or affidavits show there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A fact is material if it might affect the outcome of the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The moving party bears the initial responsibility of providing to the Court the factual basis for its motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "The moving party may carry its initial burden either by producing affirmative evidence negating an essential element of the nonmoving party's claim, or by showing that the nonmoving party does not have enough evidence to carry its burden of persuasion at trial." Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002). Only admissible evidence may be considered when ruling on a motion for summary judgment. World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir. 1985).
The non-moving party has the burden of showing there are issues of material fact to be determined. Celotex, 477 U.S. at 322, 106 S.Ct. 2548. That is, if the movant properly supports a motion for summary judgment, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing a genuine factual issue for trial. Fed. R. Civ. P. 56(e); Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) ("[t]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.") (emphasis in original) (citation omitted); see also Hysten v. Burlington N. & Santa Fe Ry., 296 F.3d 1177, 1180 (10th Cir. 2002). These specific facts may be shown "`by any of the kinds of evidentiary materials listed in Rule
Vectrus argues that Cross fails to demonstrate genuine issues of material fact supporting his claims for wrongful discharge in violation of public policy and for outrageous conduct. The Court will address each claim in turn.
"To avoid summary judgment on his claim of wrongful discharge in violation of public policy," Cross is "required to adduce sufficient evidence to create a genuine issue of material fact on each element of the tort." Mowry v. United Parcel Serv., Inc., 280 Fed.Appx. 702, 707 (10th Cir. 2008) (citing Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998)). A plaintiff makes a prima facie case of wrongful discharge against public policy by presenting evidence:
Barlow v. C.R. England, Inc., 703 F.3d 497, 507 (10th Cir. 2012) (citing Roe v. Cheyenne Mountain Conference Resort, Inc., 124 F.3d 1221, 1235 (10th Cir. 1997) and Martin Marietta Corp. v. Lorenz, 823 P.2d 100, 109 (Colo. 1992) (en banc)). In the context of a "whistleblower" action such as that alleged here, the elements of the claim are:
Kearl v. Portage Envtl., Inc., 205 P.3d 496, 499 (Colo. App. 2008) (citing Lorenz, 823 P.2d at 109 and Lathrop v. Entenmann's, Inc., 770 P.2d 1367, 1373 (Colo. App. 1989)). "[U]nder the third prong, in order to survive summary judgment, a plaintiff must `present evidence that [his] termination was causally connected to [his exercise
Vectrus does not dispute that Cross has satisfied the first two prongs of a wrongful discharge claim. Reply 5. Vectrus argues instead that the statutes/regulations under which Cross reported alleged unlawful conduct did not apply to the Plaintiffs and/or did not further Colorado's public policy, and Cross has failed to raise genuine issues of material fact demonstrating causation. Cross counters that the statutes/regulations on which he bases his claim are sufficient under Colorado law, and that his termination was pretext for retaliation as demonstrated by inconsistencies in the investigation and the fact that others engaged in the same conduct but were not terminated.
In Bleil v. Williams Prod. RMT Co., LLC, 911 F.Supp.2d 1141, 1150, 1152 (D. Colo. 2012), the Honorable Lewis T. Babcock found that two Colorado statutes, on which the plaintiff relied for his wrongful discharge claim, did not apply such that the statutes could not have been violated under the facts alleged. See also Farmer v. Central Bancorporation, Inc., 761 P.2d 220, 221 (Colo. App. 1988) (the plaintiff admitted that he could have engaged in the allegedly "unlawful" conduct without violating the statute). Vectrus relies on these cases for its position that the regulations Cross identifies in support of his wrongful discharge claim do not apply to the facts alleged.
Cross has identified Army Regulation 381-12, DOD Directive 5240.06, and 10 U.S.C. § 802 as the public policies which support his claim. Resp to Interrogatory 11, ECF No. 129-1 at 8-9. Without rebuttal or objection from Vectrus, Cross describes these policies in his response brief as follows:
Resp. 35-36. The Court finds Cross' description consistent with the content of Army Regulation 381-12
The Court finds that the Army regulation and DOD directive apply to Cross as an employee of a defense subcontractor, such that if he were to violate them, he might "be subject to discipline." See, e.g., DOD Directive 5240.06 (stating that the purposes of the directive include "[e]stablish[ing] that civilian employees under their respective jurisdictions who violate specific provisions of this issuance may be subject to appropriate disciplinary action under regulations governing civilian employees."), ECF No. 129-53; see also Executive Order 13526 (revoking Executive Order 13292
The Court agrees with Judge Blackburn's analysis and findings and will follow them here to conclude that Army Regulation 381-12 and DOD Directive 5240.06 "meet the requirements stated in" Mariani, 916 P.2d at 525 ("In limited circumstances... we agree with the jurisdictions that hold there may be other sources of public policy such as administrative regulations and professional ethical codes."). The Colorado Supreme Court emphasized that any non-legislative sources identified as bases for a wrongful discharge claim must "serve the interests of the public rather than the interests of the profession," "may not concern merely technical matters," and "must provide a clear mandate to act or not to act in a particular way." Id. Here, the Court easily concludes that military regulations or directives mandating a report of unauthorized access to classified information, particularly as they are applied at a U.S. military base in a country known for training and harboring persons desiring to harm the United States, meet the requirements set forth in Mariani.
Moreover, the Court concludes that Colorado recognizes both state and federal mandates as "public policy" that properly supports a wrongful discharge claim. For example, in Martin Marietta Corp. v. Lorenz, 823 P.2d 100, 111 (Colo. 1992), the Colorado Supreme Court recognized that a federal criminal statute mandating truthfulness and accuracy in governmental reports served as a basis for a wrongful discharge claim; in Kearl v. Portage Envtl., Inc., 205 P.3d 496, 499 (Colo. App. 2008), the court held that "Colorado has a clearly expressed public policy against terminating an employee in retaliation for the employee's good faith attempt to prevent the employer's participation in defrauding the [federal or state] government"; and, in Herrera v. San Luis R.R. Co., 997 P.2d 1238, 1241 (Colo. App. 1999), the court held that a complaint sufficiently alleged a wrongful discharge claim by asserting he suffered retaliation for seeking benefits under the Federal Employers' Liability Act. Although there is no case directly answering whether Colorado itself "has a public policy in the enforcement of the regulation [and] directive" at issue in this case, as Vectrus contends, the Court finds that Mariani does not require such showing but, rather, requires only those limitations quoted above.
Therefore, as the Court concludes that Cross has sufficiently identified public policy under the requirements of which he allegedly suffered retaliation (see Mariani, 916 P.2d at 524 ("The identification of the statutory or constitutional provisions that qualify as clear expressions of public policy is a matter for judicial determination.")), the Court will proceed to determine whether Cross has raised genuine issues of material fact demonstrating his conduct that was mandated by the policies caused his termination.
First, temporal proximity may be considered in determining whether Cross' protected conduct caused his termination on September 13, 2013. See Barlow v. C.R. England, Inc., 703 F.3d 497, 509 (10th Cir. 2012). Even were Cross to rely solely on the alleged "July or August 2013" reports to Spann, Daniel, and military oversight officers that Brown, Fluor Security Specialist, was given access to interviews held by investigators Salazar and Hall without the military's approval, the Court finds the temporal proximity of one-and-a-half to two months between the report and his
Second, "Colorado law requires that an employer `was aware, or reasonably should have been aware' that the employee's actions were legally protected." Barlow, 703 F.3d at 508 (quoting Lorenz, 823 P.2d at 109). Here, Vectrus contends that Cross fails to raise material factual issues demonstrating that the individual(s) who made Cross' termination decision knew of his protected activity.
The record reflects that Fluor officials, Brown and Keenan, conducted an investigation in July 2013 revealing that Cross first reported on July 18, 2013 that he had never used a thumb drive to retrieve classified documents from the Centrix/BATS computer system, then after Cross learned later that day that the thumb drive contained classified information, he completed a second statement asserting that he did, in fact, use a thumb drive to retrieve documents for Conklin, which included classified information, "without fully reviewing what was on it." See Investigation Report, ECF No. 124-1 at 7; Cross Statements, ECF No. 129-34 at 38-39. Following its investigation, Fluor instructed Vectrus to "conduct [its] own investigation and provide [Fluor] a corrective action plan by 30 August." Tucker Email, August 21, 2013, ECF No. 124-1 at 44-45.
Vectrus' Mission Systems security specialist, Eric Schultz, conducted the investigation from August 22-28, 2013 and determined that Cross "deliberately disregarded security requirements, displayed negligence in the handling of classified information and obstructed the course of an official investigation by providing false and misleading information." On August 29, 2013, Deputy Program Manager Hobbs sent an email to Program Manager Diaz (and copied to HR Manager Riley) summarizing Schultz' report and recommending personnel corrective actions for all employees involved, including termination of employment for Cross.
September 9, 2013 Email, ECF No. 137-1 at 18 (emphasis added).
Venola Riley, now known as Venola Scott, provided a declaration asserting that "neither [she] nor [her] HR department were involved in the investigation that ultimately led to [Cross'] termination." Declaration of Venola Scott, September 28, 2017 ("Scott Decl.") ¶ 20, ECF No. 123. Further, Scott declares:
Id. ¶ 26. Scott finally attests that when her department "sent forward the request for authorization to terminate Cross, we were not (and could not have been) motivated in any way by any alleged `whistleblowing' activity, because we were not aware of any such activity." Id. ¶ 30.
To support his position that material factual issues exist concerning whether the decision makers knew about his protected activity, Cross references an August 21, 2013 email from Diaz to Scott, Hobbs, Schultz, and Maker instructing them to "corroborate in this [NISPOM] investigation and together come up with the final report and recommended actions." ECF No. 124-1 at 44. Cross also points to an interview of Spann two days after Hobbs and Brown emailed the findings and recommendations of the Vectrus investigation, at which Spann mentioned the investigation and stated, "Some people will get counseled including Security Investigator Lead Paul Cross, which is a surprise, but he lied about something so HR says we're doing [a final written warning]."
The record — including Hobbs' August 29, 2013 email recommending termination, Brown's September 4, 2013 email noting Cross' termination request is supported by Diaz and Scott, and Brown's September 9, 2013 email noting that "the project ... recommended termination" — makes clear that the termination decision came initially from program management and was later confirmed by HR and Employee Relations. See also September 12, 2013 Email (in referencing the findings of the NISPOM investigation, Melanie White stated that "the program ... recommended termination."). Thus, Cross must show factual issues as to whether Diaz and/or Hobbs knew he engaged in protected activity.
Importantly, Cross testified that he did not report any potential security violations to Vectrus management other than to Spann and Daniel. The fact that Diaz instructed Hobbs and others on August 21, 2013 to work together to complete an investigation into NISPOM violations and to recommend corrective actions does not demonstrate that Vectrus management knew Cross had reported possible security violations. However, Spann's knowledge about the investigation's findings (including that Cross "lied") just two days after the recommendations were made demonstrates that Spann had discussed the findings with someone who knew them; Spann testified that person was "Venola Riley" (Scott) who purportedly told him "things were wrapping up, and that something happened with Paul Cross and Fluor was directing pretty much the punishments and that we were probably going to do a Final Written Warning on him. And that she told me I was gonna get one too." Deposition of Brandon Spann, March 20, 2017 ("Spann Dep.") 218: 13-219: 15. Scott testified not only that she did not speak with Spann about the investigation, but also that he lied in saying she did. Deposition of Venola Scott, May 18, 2017 ("Scott Dep.") 80: 5-16. The Court finds this dispute raises a material issue of fact as to with whom Spann discussed the NISPOM investigation
Furthermore, Cross testified without rebuttal that Jim Brown "lied" by reporting that Cross recanted his statement to Fluor only after it was discovered that the thumb drive contained classified information, when "in reality" Cross asked to revise his statement when he remembered that he had, in fact, retrieved documents for Conklin, and Brown told him, "Oh, that's no problem. We'll just tear up the old statement. It's not a big deal." Cross Dep. 261: 1-262: 5.
Finally, Cross argues that he and Spann committed essentially the same conduct, but only he was terminated.
The Court is not persuaded by this final argument, primarily because the evidence reflects Cross' and Spann's conduct were not the same and they cannot be reasonably compared. For example, where the Fluor investigator initially asked Cross whether he used a thumb drive to access documents on BATS/Centrix (ECF No. 129-34 at 38), there is no indication that Spann was initially asked whether he had used a thumb drive and denied it. See ECF No. 137-1 at 5, 7. In addition, the evidence shows that the material Spann retrieved by thumb drive was not classified and his retrieval of the material was directed and approved by military oversight. Id. at 7. Conversely, the material Cross downloaded on his personal thumb drive contained classified information and he retrieved it at the request of Conklin, another security investigator. See ECF No. 137-1 at 16. Cross testified that he had been previously directed by Daniel to retrieve materials from the BATS onto his thumb drive but, again, Cross admits that the documents were not classified. The Court finds Cross fails to raise a material factual issue in this regard.
On March 9, 2016, the Court issued an order dismissing all of the Plaintiffs' claims for outrageous conduct except those relating to "the impairment of Cross' security clearance" and the "transfers of Walker and Wascher to dangerous forward operating bases." Order, ECF No. 35. Here, Vectrus argues Cross has not met his burden to demonstrate genuine issues of material fact demonstrating any action taken on his security clearance was "outrageous."
To prove outrageous conduct under Colorado law, a plaintiff must demonstrate: (1) the defendant engaged in extreme and outrageous conduct; (2) the defendant engaged in the conduct recklessly or with the intent of causing the plaintiff severe emotional distress; and (3) the plaintiff incurred severe emotional distress which was caused by the defendant's conduct. Culpepper v. Pearl Street Bldg., Inc., 877 P.2d 877, 882 (Colo. 1994) (en banc). Vectrus' actions must be
Churchey v. Adolph Coors Co., 759 P.2d 1336, 1350 (Colo. 1988) (citing Rugg v. McCarty, 173 Colo. 170, 476 P.2d 753, 756 (1970)). "Proof of the tort of outrageous conduct must consist of either an extreme act, both in character and degree, or a pattern of conduct from which the ineluctable conclusion is the infliction of severe mental suffering was calculated or recklessly and calculously inflicted." Gard v. Teletronics Pacing Sys., Inc., 859 F.Supp. 1349, 1354 (D. Colo. 1994). Although "the question of whether conduct is outrageous is generally one of fact to be determined by a jury, it is first the responsibility of a court to determine whether reasonable persons could differ on the question." Coors Brewing Co. v. Floyd, 978 P.2d 663, 666 (Colo. 1999) (quoting Culpepper, 877 P.2d at 883).
David Cleary, Army industrial security specialist, who worked at BAF from October 20, 2013 to June 24, 2014, testified that Vectrus "put a derog, which is a derogatory statement, on Mr. Cross' security clearance" that "could lead to an investigation or loss of a clearance."
Andrew Albright, DOD director of plans, training, mobilization, and security at BAF from March 2013 to March 2014, testified that when a "derog" is entered on a security clearance, the manager can "revoke, locally suspend, or do nothing but just report the derog," and in Cross' case, "they went straight to revoke." Albright Dep. 94: 9-20. Albright explained, "if a contractor gets ... terminated with a revoked clearance ... [t]hat person is now in no man's land, no person's land, until another company picks them up." Id. 94: 24-95: 5. He also confirmed that the "derog" was not reported to military oversight, but should have been. Id. 95: 12-96: 3.
Brian Wilson, Fluor senior security manager, testified that defense contractors have reporting requirements to the Defense Security Services ("DSS"), which maintains the contractors' "facility clearance" and "JPAS records," and "conducts audits on the company to ensure industrial security and NISPOM compliance." Wilson Dep. 90: 13-20. According to Wilson, NISPOM requires contractors to report adverse information regarding an employee in the JPAS on a wide variety of issues, including classified information "spills." Id. 93: 20-94: 1. He also attested that the uploading of an adverse action report into the JPAS does not revoke a person's security clearance; however, a company can revoke its sponsorship of a person's security clearance. Id. 93: 11-16.
The NISPOM, in effect at the time relevant to this case, required contractors "to report certain events that have an impact on the status of the facility clearance (FCL), that impact on the status of an employee's personnel security clearance (PCL), that affect proper safeguarding of classified information, or that indicate classified information has been lost or compromised." NISPOM § 1-300, ECF No. 129-30 at 26. It also required contractors to "report adverse information ... concerning any of their cleared employees" to the "CSA" or cognizant security agency. Id. § 1-302(a). A report on a "culpable individual" shall contain "[a] statement of the administrative actions taken against an employee ... when individual responsibility for a security violation can be determined and ... [t]he violation involved a deliberate disregard of security requirements." Id. § 1-304.
Vectrus argues that it was required by NISPOM to report the adverse information on Cross' record on JPAS and that Cross admits such requirement.
Nevertheless, the Court finds that Cross has failed to raise any material factual issues demonstrating that Vectrus' "failure" to report the adverse information to military oversight is "outrageous." First, there is no documentary evidence showing Vectrus was required to do so. Second, the evidence reflects that Vectrus reported adverse information on JPAS for all employees involved in the NISPOM investigation, and there is no evidence that any failure to report this information to the military affected the other employees, including Blanchard who was also terminated. ECF No. 129-32. Third, to survive summary judgment on this claim, Cross must present evidence "that the defendant[ ] engaged in outrageous conduct with the specific intent of causing severe emotional distress or that the defendant[ ] acted recklessly with the knowledge that there was a substantial probability that their conduct would cause severe emotional distress." Culpepper v. Pearl St. Bldg., Inc., 877 P.2d 877, 883 (Colo. 1994) (emphasis added). Cross testified that "as a result of his experience with Vectrus," he suffered "[a] little bit of emotional" trouble, including "[a] little bit of sleeplessness, [l]ack of trust in pretty much anybody, [and] [a] little bit of depression every now and then." Cross Dep. 313: 23-314: 8. Nothing in the evidence raises an issue as to whether Vectrus recklessly or specifically intended to inflict severe emotional distress on Cross by reporting the NISPOM violation on JPAS.
Accordingly, the Court finds that Plaintiffs have failed to show material factual issues demonstrating that Vectrus' conduct rises to the level of "outrageousness" (i.e., "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community") necessary to overcome summary judgment. See Martensen v. Koch, No. 13-cv-02411-REB-CBS, 2014 WL 3057172, at *7-*8 (D. Colo. July 7, 2014) ("The level of outrageousness necessary to satisfy the first element of the tort of intentional infliction of emotional distress is `extremely high.' The `defendant's conduct must be more than unreasonable, unkind or unfair; it must truly offend community notions of acceptable conduct.'") (quoting Grandchamp v. United Air Lines, Inc., 854 F.2d 381, 383 (10th Cir. 1988), cert. denied, 489 U.S. 1080, 109 S.Ct. 1534, 103 L.Ed.2d 838 (1989), and Archer v. Farmer Bros. Co., 70 P.3d 495, 499 (Colo. App. 2002)).
Id. at *8; see also Christen-Loper v. Bret's Elec., LLC, 175 F.Supp.3d 1213, 1226 (D. Colo. 2016) (allegations that the defendant terminated the plaintiff's employment knowing she was in the hospital on suicide watch were sufficient to state plausible claim for outrageous conduct).
Cross has failed to demonstrate genuine issues of material fact as to whether Vectrus caused him severe emotional distress and, thus, the Court will grant summary judgment on Cross' third claim for relief. However, the Court finds material factual issues exist concerning whether Vectrus retaliated against Cross by terminating him after he reported potential security violations.
THEREFORE, Defendant Vectrus Systems Corporation's Motion for Summary Judgment as to Plaintiff Paul Cross' First and Third Claims for Relief [
ECF No. 129-52 at 10. Vectrus contends that this regulation was never included in the BOA and, thus, it was not "applicable" to Vectrus employees. However, unlike 10 U.S.C. § 2409, the regulation does not appear to contain language stating that it applies only to contracts or subcontracts that are compliant with § 1-14(a).
ECF No. 129-33 at 3; see also 129-32. Cross admitted that Vectrus was required by NISPOM to "file a report in JPAS." Cross Dep. 289: 9-18.
