Cejka et al v. Vectrus Systems Corporation, et al
ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF PAUL CROSS' FIRST AND THIRD CLAIMS FOR RELIEF granting in part and denying in part 118 Defendant Vectrus Systems Corporations Motion for Summary Judgment as to Plaintiff Paul Cross First and Third Claims for Relief by Magistrate Judge Michael E. Hegarty on 02/14/2018. Cross Third Claim for Relief is dismissed with prejudice. (mdave, ) Modified on 2/14/2018 to edit text (mdave, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-02418-MEH
JAMIE LYTLE, and
VECTRUS SYSTEMS CORPORATION, f/k/a Exelis Systems Corporation,
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
Claim III was limited in scope by the Court’s March 9, 2016 order granting in part
Defendants’ motion to dismiss. See ECF No. 35.
Vectrus engaged in outrageous conduct. Therefore, the Court grants in part and denies in part
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
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.
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.
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”).
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.”)
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.
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
Unless cited, these facts are undisputed by the parties.
The “cell” was also known as “ECP-1,” or Entry Control Point 1, which was the primary
foot traffic gate for BAF. Approximately 6,500 to 7,300 persons would pass through the gate on a
daily basis. Deposition of David Cleary, Dec. 1, 2016 (“Cleary Dep.”) 27: 22 – 28: 4.
reported to Kevin Daniel (“Daniel”), regional manager, who reported to Richard Diaz (“Diaz”),
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.
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.
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.
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.
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.
SFC Salinas was the military oversight officer at the FPSC during most relevant times in
this case; however, at other relevant times, James Fox was the military oversight officer.
Id. 174: 2–18.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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
The acronym “BAT” here also stands for “Biometric Automated Toolset,” which is the
“collection device[ ] that will take a retina [print] and fingerprint . . . every fingerprint that’s been
taken around the globe is stored in one database in West Virginia.” Mot. 7; Albright Dep. 22: 5–13.
deleted the file on the thumb drive and had only my toolbox and some TV shows on
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.
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:
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.
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.
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.
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.
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.
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:
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.
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.
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.
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.
Vectrus’ Mission Systems security specialist, Eric Schultz, conducted the investigation from
August 22–28, 2013, and with respect to Cross, found the following:
Conklin was instructed by Spann to update the “Biometric Badging” work instruction
and used a version given to her by Security Officer Lead Ivy Davis (unassociated
with this investigation). Conklin requested assistance from Cross who provided her
with a personally owned USB storage device containing a previously generated work
instruction which had screen capture images he had taken from BATS sometime in
2012. Cross provided a written statement initially denying Conklin’s assertion that
he provided her with the information, a USB storage device or had ever inserted a
USB storage device into a BATS computer. An inspection of the USB storage device
by Fluor Security provided evidence to refute Cross’ claim. Cross then recanted his
previous written statement admitting to providing Conklin with the aforementioned
information. A complete inspection of all other Security Investigators’ assigned
computers by Fluor Security yielded negative results for classified information or the
utilization of USB storage devices.
Schultz Report, ECF No. 124-1 at 51.
Schultz made the following determination regarding Cross following his investigation:
Cross. Paul (Security Investigator Lead) - Per DoD 5220.22-M Chapters 1-304(a.),
5-100, 5-500, 5-600, 8-100, 8-105(c.). 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. Cross initially claimed in a written statement that he had never copied
information from a BATS computer or utilized a USB storage device to pass
information to Conklin. During a subsequent interview and inspection of his
personally owned USB storage device Cross redacted his original statement and said
he had taken information from BATS and placed it on his personally owned USB
storage device and passed it to Conklin. Cross acted with negligence when he
utilized a personally owned USB storage device to download classified information
from a Government owned IS.
Id. at 54–55.
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.
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.
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:
Other than that, we’re doing okay. Working past the NISPOM violation issue, sorting
that out. 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]
FWW [final written warning].
Interview Information Sheet, ECF No. 159-30.
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.
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
[Cross] mishandled classified information and utilized an unauthorized storage
device; and unlike the others, the employee obstructed an official investigation by
providing false information, which was later found through a subsequent interview
and inspection of his storage device. Based on the [ ] employee’s department and
position title, the Project found these actions inexcusable and recommended
Id. at 19.
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.
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.
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.
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 (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 (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.
The non-moving party has the burden of showing there are issues of material fact to be
determined. Celotex, 477 U.S. at 322. 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 (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
56(c), except the mere pleadings themselves.’” Pietrowski v. Town of Dibble, 134 F.3d 1006, 1008
(10th Cir. 1998) (quoting Celotex, 477 U.S. at 324). “[T]he content of summary judgment evidence
must be generally admissible and . . . if that evidence is presented in the form of an affidavit, the
Rules of Civil Procedure specifically require a certain type of admissibility, i.e., the evidence must
be based on personal knowledge.” Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1122 (10th Cir.
2005). “The court views the record and draws all inferences in the light most favorable to the nonmoving party.” Pepsi-Cola Bottling Co. of Pittsburg, Inc. v. Pepsico, Inc., 431 F.3d 1241, 1255
(10th Cir. 2005).
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.
Wrongful Discharge in Violation of Public Policy
“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 F. App’x 702, 707 (10th Cir.
May 29, 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
 that the employer directed the employee to perform an illegal act as part of the
employee’s work-related duties or prohibited him from performing a public duty or
exercising an important job-related right or privilege;  that the action directed by
the employer would violate a specific statute on the public health, safety or welfare,
or would undermine a clearly expressed public policy relating to the employee’s
basic responsibility as a citizen or his right or privilege as a worker. The plaintiff
must also show  that the employee was terminated as the result of refusing to
perform the act directed by the employer, and  that the employer was aware or
reasonably should have been aware that the employee’s refusal to comply with the
employer’s order was based on the employee’s reasonable belief that the action
ordered was illegal, contrary to clearly expressed statutory policy relating to the
employee’s duty as a citizen, or violative of the employees legal right or privilege
as a worker.
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:
the plaintiff was employed by the defendant;
the defendant discharged the plaintiff; and
(3)(a) the discharge was in retaliation for exercising a job-related right or
performing a specific statutory duty, or
(3)(b) the discharge would undermine a clearly expressed public policy.
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 of a job-related right or performance of a
statutory duty].’” Angell v. Fairmount Fire Prot. Dist., 907 F. Supp. 2d 1242, 1256 (D. Colo. 2012).
“Additionally, the plaintiff must allege that the ‘public policy invoked truly impacts the public in
order to justify interference into an employer’s business decisions.’” Mullin v. Hyatt Residential
Grp., Inc., 82 F. Supp.3d 1248, 1252 (D. Colo. 2015) (quoting Kearl, 205 P.3d at 499).
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
In particular, Army Regulation 381-12, which sets forth the Military Intelligence
Threat Awareness and Reporting Program and implements DOD Directive 5240.06,
“provides policy and responsibilities for threat awareness and education” and
establishes a requirement to report any incident of, among other things, known or
suspected espionage, terrorism, sabotage, subversion, theft or diversion of military
technology, information systems intrusions, and unauthorized disclosure of classified
information. Army Reg. 381-12. It applies to employees of defense contractors such
as Plaintiffs and its purpose is to protect against and report instances of threat,
including information system intrusions and unauthorized access of classified
information. Id. DOD Directive 5240.06, concerning Counterintelligence Awareness
and Reporting, requires reporting situations wherein individuals improperly obtain
or access sensitive or classified information. DOD Directive 5240.06. The Directive
is applicable to civilian employees. Id. And, the Directive states that persons subject
to the UCMJ who violate provisions of the Directive may be subject to discipl[in]e.
(DOD Directive 5240.06 at Encl. 2(5)(e).) Vectrus admits that the DOD Directive
“requires military and contractor employees to report certain enumerated acts which
might tend to show espionage or other improper activities.” (Motion No. 120, p. 17.)
The UCMJ also requires reporting and applies to contractors such as Plaintiffs.
Executive Order 13292 (amending Executive Order 12958), 68 Fed. Reg. 15315,
provides the source for the Army Regulation and the DOD Directive and contains
detailed instructions regarding protection of classified information.
Resp. 35–36. The Court finds Cross’ description consistent with the content of Army Regulation
381-126 and DOD Directive 5240.06, copies of which are attached at ECF Nos. 129-52 and 129-53.
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 132927),
75 F.R. 707, § 5.5(b) (officers and employees of the United States Government, and its contractors,
shall be subject to sanctions if they violate any provision of the Order or the implementing
directives). In LaBrecque v. L3 Commc’n Titan Corp., No. 05-cv-00642-REB, 2007 WL 1455850,
For example, Army Regulation 381-12, § 1-14, includes the following provision titled,
“Contractors and contract management personnel”:
Contractors and contract management personnel will proceed as follows:
a. Army contracting officers or contracting officer representatives will ensure that
threat awareness and reporting requirements are included in future classified
contracts or on DD Form 254 (Department of Defense Contract Security
Classification Specification), as appropriate.
b. The contracting officers or contracting officer representatives will ensure Army
contractors with security clearances comply with threat awareness and reporting
requirements specified by this regulation.
c. Persons employed by Army contractors will report threat-related incidents,
behavioral indicators, and other matters of CI interest specified in chapter 3, to the
facility security officer, the nearest military CI office, the Federal Bureau of
Investigation, or the Defense Security Service.
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).
Plaintiffs argue without rebuttal that Executive Order 13292 provided the “source” for the
Army regulation and DOD directive. Resp. 42.
at *5 (D. Colo. May 16, 2007), aff’d sub nom, Sydnes v. United States, 523 F.3d 1179 (10th Cir.
2008), the Honorable Robert E. Blackburn “discern[ed] one or more genuine issues of material fact
relevant to the plaintiffs’ claim alleging that they were discharged by Titan in violation of public
policy,” where the plaintiffs alleged they were terminated by a defense contractor not long after
reporting what they perceived to be a regulatory violation in providing a civilian with access to
classified information. Five days after his order, Judge Blackburn “supplemented” the order
“find[ing] and conclud[ing] that the rule, directive, and Executive Order at issue here are public
policies that are legally sufficient bases for the plaintiffs’ wrongful discharge claim under Colorado
law because the rule, directive, and Executive Order meet the requirements stated in Rocky
Mountain Hosp. & Med. Serv. v. Mariani, 916 P.2d 519, 525 (Colo. 1996).” 2007 WL 1520110, *1
(D. Colo. May 21, 2007). Judge Blackburn did not describe the “rule, directive, and Executive
Order” in either of his opinions, but the Court notes the public docket in that case reveals the
plaintiffs relied on an Air Force Instruction 33-211 and DOD Directive 5200.1 regarding the
reporting of unauthorized access to classified information, similar to the Army regulation and DOD
directive at issue in this case. See LaBrecque, No. 05-cv-00642-REB, ECF No. 105 at 11-12.
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
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
termination sufficient to demonstrate a material issue of fact as to causation. Id. (citing cases
demonstrating that a one-and-a-half-month period is sufficient to establish prima facie causation,
but a three-month period, without more, is not).
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
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.8 ECF No. 124-1 at 39–43. Riley
forwarded that email to HR Supervisor Doug Brown, who an hour later, sent an email back to Riley
summarizing the content of Hobbs’ email and including a somewhat revised list of recommended
personnel corrective actions, but keeping the recommendation to terminate Cross. Id. 22–27. Doug
Brown later explained to Vectrus Employee Relations Analyst Melanie White that Cross
mishandled classified information and utilized an unauthorized storage device; and
unlike the others, the employee obstructed an official investigation by providing
false information, which was later found through a subsequent interview and
inspection of his storage device. Based on the [ ] employee’s department and
position title, the Project found these actions inexcusable and recommended
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.
Vectrus refers to Doug Brown as “the employee who made the recommendation that Cross
be terminated.” Reply 11. However, the evidence reflects that Hobbs’ email containing a
recommendation to terminate Cross was forwarded to Brown an hour before Brown sent his email
containing the same recommendation. ECF No. 137-1 at 21, 38.
Further, Scott declares:
While Mr. Brown was an HR employee of mine, his recommendations were based
solely on the Fluor investigation and the Vectrus investigation (conducted by Eric
Schultz) and their conclusion that Cross had initially falsely denied improperly using
a “thumb” drive, but then changed his statement and admitted it.
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
investigation9 and as to whether Spann, to whom Cross reported potential security violations in
allowing Brown access to classified information, had involvement in the investigation leading to
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.
Cross also testified that he witnessed Spann and Brown “talk[ing] all the time” (Cross Dep.
96: 22 – 97: 5), and saw Spann, Daniel, and Brown meeting “a lot” (id. 162: 9–13). Cross asserted
that “I’ve walked in and they’re all three together, and as soon as I walk in, they stop talking and
look at me like I was interrupting.” Id. 162: 21–24.
Finally, Cross argues that he and Spann committed essentially the same conduct, but only
he was terminated.10 The record reflects a September 9, 2013 email from White to Doug Brown
following his request for approval of Cross’ termination asking Brown to “[p]lease explain why Mr.
Cross was sent forward for termination but the following employees were recommended for either
suspension or FWW.” ECF No. 137-1 at 18–19. White listed all of the employees involved in the
investigation, except Blanchard and including Spann. Id. Doug Brown responded that “unlike the
others, [Cross] obstructed an official investigation by providing false information, which was later
found through a subsequent interview and inspection of his storage device.” Id. at 18. Cross
contends that the evidence reflects Spann engaged in the same conduct, but was not 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
Notably, Cross references Fluor’s “final report and recommendation regarding the
NISPOM Investigation,” but cites only to Bates numbers. See Resp. 18. There is no indication that
a copy of such report is attached to Plaintiffs’ brief or is part of the record. In addition, a copy of
Plaintiffs’ deposition exhibit 109, which was used in Scott’s deposition and which is allegedly a
statement by Spann indicating he had “forgotten” that he directed an employee to use a thumb drive
to access documents from the BATS, is not attached to the briefing. The Court notes that the current
record consists of thousands of pages of documents and neither party has made it “easy” for the
Court to access the cited material. A district court is not obligated to comb the record to make a
party’s argument for him. Mitchell v. City of Moore, Okla., 218 F.3d 1190, 1199 (10th Cir. 2000).
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.11
In sum, the Court finds Cross raises a genuine issue of material fact as to whether Spann, to
whom he reported potential violations of Army Regulation 381-12 and DOD Directive 5240.06, was
involved with the investigation leading to Cross’ termination and whether Jim Brown, who
conducted Fluor’s investigation and who was the target of Cross’ reports, manipulated the findings
of the investigation such that Cross’ conduct was inaccurately reported.
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.”12
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
In addition, the Court finds that Cross’ email, in which he takes responsibility for the
termination of his employment from Vectrus, should be considered by a jury in assessing his
credibility. See ECF No. 129-34 at 34.
The Court notes that Vectrus cites to several pages of the “DelConte Depo” that were not
attached to its motion: 74–75, 83, 94, 102–104, and 114–115. See Mot. 17; ECF No. 129-28.
However, Plaintiffs filed a copy of the entire deposition transcript for Koji Del Conte. ECF No.
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. Generally, the case is one in which the recitation of the facts
to an average member of the community would arouse his resentment against the
actor, and lead him to exclaim, “Outrageous!”
Churchey v. Adolph Coors Co., 759 P.2d 1336, 1350 (Colo. 1988) (citing Rugg v. McCarty, 476
P.2d 753, 756 (Colo. 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.”13 Cleary Dep.
142: 12–25. Cleary attested that it was improper for Vectrus or Fluor to give no notification to the
military regarding the NISPOM violations and “derog” because “[w]e should have done an
investigation. And, we would have made a determination because we are the information owners
[of the IP address contained on Cross’ thumb drive].” Id. 143: 13–22. At the time Cleary learned
of the derog, he determined that an investigation was “not warranted” because the system was not
“compromised,” and the Army “sent something in” to ensure Cross would qualify if he reapplied.
It is undisputed that the “derog” or “adverse information” was put into the Joint Personnel
Adjudication System (“JPAS”), which contains information regarding defense contract employees’
Id. 144: 16 – 145: 4.
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. §
Vectrus argues that it was required by NISPOM to report the adverse information on Cross’
record on JPAS and that Cross admits such requirement.14 While these arguments may be true, they
do not end the story. Cross contends that Vectrus did not notify the military about the adverse
report, as it was “required” to do. Cross Dep. 289: 19 – 290: 2. Cleary testified that, had Vectrus
reported the “derog” to military oversight, it would have conducted its own investigation as
“owners” of the “classified information.” Cleary Dep. 143: 13–22. But, both Wilson and Koji Del
Conte (Vectrus security manager) testified, and the NISPOM states, that reports must be made only
to “the CSA.” See NISPOM § 1-302 (a) (report adverse information to CSA); Del Conte Dep. 82:
18–25 (“The cognizant security activity for a military is the customer on the military installation.
Then off the military installation is the DSS.”); Wilson Dep. 90: 13–20 (reporting requirement is to
DSS). Cross provides nothing rebutting this requirement, nor any policy or regulation demonstrating
a requirement that Vectrus report the NISPOM violation and/or adverse information to military
The report allegedly made on Cross’ security clearance information in JPAS was:
Cross, Paul - Subject 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. Subject initially
claimed in a written statement that he had never copied information from a
BIOMETRIC AUTOMATED TOOLSET computer or utilized a USB storage device
to pass information to Conklin. During a subsequent interview and inspection of his
personally owned USB storage device Cross redacted his original statement and said
he had taken information from BIOMETRIC AUTOMATED TOOLSET and placed
it on his personally owned USB storage device and passed it to Conklin. Cross acted
with negligence when he utilized a personally owned USB storage device to
download classified information from a Government owned IS.
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.
oversight at the base.
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 (1989), and Archer v. Farmer Bros. Co., 70 P.3d 495, 499
(Colo. App. 2002)).
Conduct deemed sufficiently outrageous by Colorado courts includes allegations that
a defendant Catholic priest, acting as a marriage counselor, engaged in sexual
relations with a married woman who sought marriage counseling from him
(Destefano v. Grabrian, 763 P.2d 275 (Colo. 1988)); an unlicensed psychologist
reporting that plaintiff had sexually abused his children, despite significant evidence
to the contrary (Montoya ex rel. Montoya v. Bebensee, 761 P.2d 285 (Colo. App.
1988)); and defendants who refused ambulance service to plaintiff’s critically ill
wife, causing her death (DeCicco v. Trinidad Area Health Ass’n., 573 P.2d 559
(Colo. App. 1977)).
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 [filed October 2, 2017; ECF No. 118]
is granted in part and denied in part as set forth herein. Cross’ Third Claim for Relief is
dismissed with prejudice.
Dated at Denver, Colorado, this 14th day of February, 2018.
BY THE COURT:
Michael E. Hegarty
United States Magistrate Judge
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