Cejka et al v. Vectrus Systems Corporation, et al
ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFFS JAMES WALKER'S AND STEVEN WASCHER'S FIRST AND THIRD CLAIMS FOR RELIEF granting in part and denying in part 120 Defendant Vectrus Systems Corporations Motion for Summary Judgment as to Plaintiff Steven Waschers and James Walkers First and Third Claims for Relief by Magistrate Judge Michael E. Hegarty on 02/14/2018. Walkers and Waschers third claims for relief are dismissed with prejudice. (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
PLAINTIFFS JAMES WALKER’S AND STEVEN WASCHER’S FIRST AND THIRD
CLAIMS FOR RELIEF
Michael E. Hegarty, United States Magistrate Judge.
Plaintiffs initiated this employment action against Defendants on October 30, 2015, alleging
essentially that they suffered adverse employment actions in retaliation for reporting what they
believed to be improper conduct affecting security at Bagram Air Force Base in Afghanistan.
Plaintiffs allege claims against their former employer, Defendant Vectrus Systems Corp.
(“Vectrus”), for common law retaliatory termination (Claim I); violation of 10 U.S.C. § 2409, the
Department of Defense whistleblower statute (Claim II); and common law outrageous conduct
(Claim III).1 Here, Vectrus seeks summary judgment in its favor on Plaintiffs James Walker’s
(“Walker”) and Steven Wascher’s (“Wascher”) first and third claims for relief. In addition, the
Court will analyze James Walker’s second claim for relief in this order. The Court finds Walker and
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.
Wascher raise genuine issues of material fact regarding their first claims for relief and Walker raises
material issues of fact concerning his second claim for relief, but the Plaintiffs fail to demonstrate
factual issues regarding their third claims for outrageous conduct. Accordingly, the Court grants in
part and denies in part Vectrus’ motion.
FINDINGS OF FACT
The Court makes the following findings of fact viewed in the light most favorable to Walker
and Wascher, who are the non-moving parties in this matter.2
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”).
Plaintiffs James Walker and Steven Wascher were hired by Vectrus effective January 7, 2013
as security investigators (or, “screeners”) on the LOGCAP program. Deposition of James Walker,
February 9, 2017 (“Walker Dep.”) 40: 3–9; Deposition of Steven Wascher, January 23, 2017
(“Wascher Dep.”) 25: 21 – 26: 4.
At Vectrus, Walker and Wascher, along with other security investigators including the
Plaintiffs, worked at Bagram Air Force Base (“BAF”) in Afghanistan in a Force Protection
Screening Cell (“FPSC”)3 and reported to Brandon Spann (“Spann”), senior security supervisor, who
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
reported to Kevin Daniel (“Daniel”), regional mManager, who reported to Richard Diaz, program
While the screening cell was supervised by Spann, Walker and Wascher also reported to the
military oversight officer, Sergeant First Class John Salinas (“SFC Salinas”).4 Deposition of Victor
Cejka, January 26, 2017 (“Cejka Dep.”) 121: 15–21.
The security investigators, including Walker and Wascher, conducted interviews and
investigations required for the issuance of access badges to over 6,500 non-military personnel for
daily entry to the military base. Investigators prepared investigation reports (known as “dossiers”)
which, along with fingerprints, iris scans, and facial photos, were entered into the Biometric
Automated Toolset System computer database (“BATS”), a security database maintained by the
Department of Defense (“DOD”) and shared with the United States’ NATO allies. Answer ¶ 30,
ECF No. 104; Deposition of Andrew Albright, Dec. 21, 2016 (“Albright Dep.”) 19: 11–25; 22: 5 –
The maintenance of accurate information in BATS was vital to the security of the base and
the military’s other bases throughout the world. Id. 26: 2–13; 27: 2–19.
The dossiers summarized the security investigations and recommendations for access to the
base (as well as other privileges such as access to laptops, cell phones, or even in some instances
weapons), but only the military was authorized to issue access badges. Cejka Dep. 109: 23 – 110:
While Wascher was initially assigned to BAF, he was shortly thereafter transferred to
forward operating base (“FOB”) Sharana. He had “no objections” to the transfer, because “it was
daily basis. Deposition of David Cleary, Dec. 1, 2016 (“Cleary Dep.”) 27: 22 – 28: 4.
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.
where the company needed [him] to go.” Wascher Dep. 54: 16 – 55: 5.
In April 2013, Fluor issued a “call form” directing the descope of security investigator
positions at FOB Sharana and, as a result, Wascher’s position was eliminated. Vectrus offered him
the position of biometric clerk at Camp Spann, a satellite camp at FOB Marmol, which Wascher
acknowledged was a “demotion” that paid about $30,000 per year less than his prior position, but
he accepted it and had no objection because “at the time, I didn’t feel it was anything personal. It
was the needs of the company.” Wascher Dep. 56: 3 – 58: 20. In addition, Wascher’s supervisors
promised him that, if he took the position, “as soon as another investigator position comes open, you
know, we’ll make sure you get that spot.” Id. 58: 21–25.
On June 3, 2013, a security investigator position opened up at BAF; Wascher was promoted
to the position and transferred back. Wascher Dep. 62: 3 – 63: 4.
In or about the summer 2013, Walker observed that another security investigator, Marc
Salazar, accessed the BATS using the name and account of a military oversight official, Sergeant
Shahan, without her permission. Walker Dep. 203: 13 – 205: 8. Walker asked Sergeant Shahan
whether she had placed “alerts” on certain people entering the screening cell, who were noted to
meet with Salazar, and she said, “no.” Id. 205: 4–25. Walker reported this to military oversight
Sergeant Shahan and SFC Salinas. Id.
Wascher also witnessed Salazar using Sergeant Shahan’s name and account to access the
BATS system to place alerts on certain people without Shahan’s permission, and he reported it to
Tom Robin. Wascher Dep. 165: 21 – 167: 22.
In or about August 2013, Wascher was asked to conduct an investigation of a person
suspected of possessing a cell phone, which was not allowed on base absent military approval.
Wascher Dep. 107: 8 – 108: 10. Wascher interviewed the suspect and, during a break, Daniel
approached Wascher and told him that he “knew for a fact” that “she does have a cell phone”
because either “Agron or Artan [Fana] gave her the phone” to arrange “meetings” with her during
lunch or in the evenings. Id. 110: 17 – 111: 13; 139: 17–19.
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.
Walker was also asked to conduct an interview of a third country national in relation to the
same incident and he prepared a dossier on the BATS. Walker Dep. 192: 19 – 193: 21.
The next morning, Plaintiff Lytle told Wascher that Conklin had approached him saying that
someone had deleted information from Wascher’s reports. Wascher Dep. 112: 15 – 113: 6. That
“someone” according to Conklin was Shajaida Rivera, biometrics clerk, who allegedly deleted
information at Spann’s request. Id. 101: 14–23.
Wascher reviewed the previous day’s report and discovered that the information Daniel had
given him was missing. Id. 114: 4–12.
That same day, Specialist Siewell entered Walker’s office, closed his door, and told Walker
to check on his report from the previous day; Walker saw that several paragraphs of his dossier on
BATS concerning Artan Fana and Agron Fana were missing. Walker Dep. 194: 8 – 195: 9. Walker
replaced the altered dossier with a complete copy he had saved and reported the alteration to his
supervisor, Tom Robin. Id. 197: 17 – 198: 7.
Wascher reported the information missing from his report to his “lead,” Plaintiff Cross, who
told him to put the information back into the report, file it, and save a copy of the report. Wascher
Dep. 114: 13–22. Wascher did so, then sent an email to Cross, Robin, Spann, and Daniel “informing
them of the deletion of details in [his] report, [and] asked them if they could provide an explanation
and what . . . steps would be taken to rectify it.” Id. 115: 4–11. Only Cross responded to the email
saying he would speak to Spann about the matter, but Wascher had no knowledge whether Cross
ever did. Id. 116: 14–24.
The next day, Wascher sent a second “exact same” email “to ensure that everyone was
receiving the email.” Id. 116: 1–3. That morning, in the daily security meeting, the investigators
“discussed reports being altered” in a general sense and that “everyone should double check their
reports when they’re filed to make sure everything’s right, in case there’s any alterations.” Id. 119:
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.
At some point thereafter, Wascher was called to a meeting with Spann and Daniel at which
Spann asked Wascher whether he “was providing statements to the military.” Id. 46: 2 – 48: 4.
Wascher testified he told Spann and Daniel that Salinas was conducting an investigation into the
alterations of the reports and Spann ordered Wascher not to cooperate, but when Wascher stated it
would be illegal not to cooperate, Spann “changed his tone and stated that what he meant to say was
that he would go with me to the meeting and – and help me if I needed it.” Id. 48: 5 – 49: 7.
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 and Walker also learned later from Specialist Siewell that the deletions, in fact,
occurred at Rivera’s computer terminal. Id. 133: 5–17; Walker Dep. 200: 20 – 202: 8.
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. Salinas “consider[ed] this to be a serious matter” due to the
nature of the BATS system, and he reported it to Andrew Albright, DOD director of plans, training,
mobilization, and security at BAF, and Sergeant Major Bianco, the garrison commander. Id. 55:14
– 56: 20.
Thereafter, the Air Force OSI (office of special investigations) and Army CID (criminal
investigation command) interviewed the Plaintiffs and “took over” an investigation.
of SFC John Salinas, November 30, 2016 (“Salinas Dep.”) 55: 4 – 57: 1. Salinas was authorized by
Garrison Command to monitor the situation and instructed the security investigators, including
Walker and Wascher, to meet with him periodically if they observed or experienced “anything out
of the ordinary, anything that wasn’t policy.” Id. 57: 7 – 58: 10.
Wascher also testified that he discussed the deletions of his report with the “Air Force OSI,
United States Army Counter-Intelligence, task force biometrics, Garrison Commander Albright,
Garrison Sergeant Major Bianco, and the BAF JAG office.” Wascher Dep. 136: 24 – 137: 8. He
told these officials that he believed Rivera deleted the information at the request of Spann, with
whom she was having a sexual relationship and who was trying to help his friend, Daniel, who
regretted giving the information to Wascher. Id. 139: 9 – 142: 13.
While he was at BAF, Wascher was approached by Sergeant Shahan and asked to conduct
an interview of two men who had access to the base through “common access cards” usually
provided only to United States citizens. Wascher Dep. 238: 18 – 239: 7. Wascher brought up the
dossiers of the men on the BATS system, but found very little information input by his fellow
security investigator, Salazar. Id. 239: 7–24. Wascher never interviewed the men because, while
he was preparing to start the interviews, Spann burst into his office yelling, “What business do you
think you have interviewing these people?” Id. 241: 24 – 242: 20. Wascher reported this incident
to the military agencies on base. Id. 243: 20 – 244: 12.
Walker testified that Spann and Daniel authorized James Brown, Fluor security manager, to
attend “two or three” of his interviews. Walker Dep. 233: 15 – 234: 6. Both Walker and Wascher
witnessed Brown attend interviews by other security investigators, including Salazar, Lytle, and Ed
Sapp. Id. 234: 7–12; Wascher Dep. 258: 12 – 259:16, 263: 4–17. They reported this conduct to
Cross and SFC Salinas. Walker Dep. 234: 19–25; Wascher Dep. 262: 3–10. Wascher testified that
some of the interviews related to reports of Fluor security violations and, thus, it was improper for
Brown to participate in the interviews. Wascher Dep. 262: 19 – 263: 10.
Wascher observed Fana, Vectrus database administrator, bring uncleared foreign females
into the biometrics room, which was the most secure room in the building; he heard them have sex
in the room, then saw them leave the room putting their clothes back on. Wascher Dep. 163: 8–20;
170: 1 – 172: 7. Wascher reported this conduct to Robin and to the military. Id.
Walker reported to his supervisors at Vectrus and to military oversight that Spann and Daniel
kept at least two interpreters on staff, although they were not qualified, because the interpreters
would do “favors,” such as “get them things at the bazaar at cut rate or get them alcohol.” Walker
Dep. 215: 21– 221: 25.
Wascher reported to Robin and to the military that Spann ordered him and the other screeners
repeatedly to use either someone else’s information or a generic account number to access the BAT
system; Wascher believed such access constituted a violation of the National Industrial Security
Program Manual (“NISPOM”). Wascher Dep. 187: 20 – 188: 24.
Spann testified that in early October 2013, he knew that Wascher, Lytle, and Walker were
having secret meetings with SFC Salinas, counterintelligence personnel, and the Army CID.
Deposition of Brandon Spann, March 20, 2017 (“Spann Dep.”) 306: 4 – 308: 7.
Spann believed that Wascher, Lytle, Cejka, and Walker were the “worst offenders” of a
directive he gave that the screening cell personnel were required to have a Vectrus HR
representative present when reporting wrongdoing to military agencies other than military oversight.
Id. 295: 17 – 299: 4.
Program Manager Diaz testified that Vectrus employees were not required to report any
wrongdoing they observed or experienced “up the chain of command,” meaning to their supervisors
or next-level managers. Deposition of Richard Diaz, February 15, 2017 (“Diaz Dep.”) 112: 9 – 113:
20. Diaz disagreed that Vectrus personnel at the screening cell were required to notify Spann or HR
before providing information or statements to the military. 131: 22 – 132: 22.
Based on the Plaintiffs’ reports to the military, David Cleary, Army supervisory intelligence
security specialist, conducted a “15-6,” or “military” investigation. Cleary Dep. 38: 15 – 40: 4. SFC
Salinas was “the person [who] would identify something that needed a deeper look. And [Cleary]
was the person [who] would take the deeper look.” Id. 59: 12–25.
On October 12, 2013 and October 19, 2013, Riley/Scott sent emails to multiple Vectrus
employees including Diaz, Doug Brown, HR supervisor, Michael Hobbs, deputy program manager,
and Larry Maker, operations manager, listing seven positions at BAF to be “RIF’d”; four were
vacant positions, one position was held by an employee who was to be “removed,” and the other two
positions were held by Walker and Wascher who were to be “transferred.” ECF Nos. 123-11, 12313.
On October 18, 2013, a meeting was held at the Garrison headquarters among Salinas,
Walker, Wascher, Lytle, Cejka, Andrew Albright, DOD director of plans, training, mobilization, and
security at BAF, Sergeant Major Paul Bianco, garrison commander, and possibly Major Bradley
Cowan from JAG. Id. 79: 15 – 80: 5. At the meeting, Walker, Wascher, Lytle, and Cejka
summarized information they had provided previously to Salinas and answered questions from
Albright and Bianco. Id. 82: 12–23; Wascher Dep. 300: 1–13. According to Wascher, “[t]hey were
trying to vet [sic] us to make sure that we were reliable people. It was the first time they had
personally met us.” Id. 304: 2–6.
Walker learned on or about October 22, 2013 that Vectrus was going to transfer him to FOB
Walker Dep. 43: 9–20; 71: 19– 72: 17.
Walker and Wascher both testified that
approximately two weeks earlier at a morning briefing, Spann and/or Daniel asked for volunteers
to transfer to other FOBs and Ed Sapp and Kenneth Glover raised their hands. Id. 68: 12 – 69: 11;
Wascher Dep. 66: 2–21. However, Glover testified that he did not volunteer to leave BAF, at which
he had just arrived. Deposition of Kenneth Glover, May 8, 2017 (“Glover Dep.”) 41: 1–11; 62: 2–8.
On October 22, 2013, Walker emailed Donald Askew, Employee Relations analyst, a
complaint alleging the decision to transfer Walker to FOB Shank was based on “retaliation.”
Deposition of Donald Askew, February 24, 2017, Vol. I (“Askew Dep.”) 58: 10 – 59: 19. That is,
Walker believed he was being transferred after having filed an HR complaint against Robert Redd.
Walker Dep. 73: 3 – 74: 21. He also had an “underlying feeling that it might have been leaked out
that we were talking with the military but nothing concrete at that time.” Id. 86: 5–11.
Askew testified that although “there was no official notification from the government,” the
employees at BAF felt or had a “general suspicion” that FOBs Shank and Marmol were going to
close. Askew Dep. 64: 17 – 65: 20.
Tom Robin, screening cell supervisor, told Walker that Spann and Daniel told him Walker
and Wascher were selected for transfer because they were “troublemakers.” Walker Dep. 100:14
– 101: 16.
Robin had told Wascher “four or five times” something to the effect that, “ I don’t know
what you did to [Daniel] but he says, ‘if Wascher’s smart he’ll find another job or get out of Bagram
before I find a way to get rid of him.’” Wascher Dep. 63: 18 – 64: 24.
Askew opened an inquiry into Walker’s complaint, interviewed (1) Walker, (2) Daniel, (3)
HR manager Riley/Scott, and (4) a Fluor security manager, and determined that no investigation
needed to be conducted. Id. 59: 20 – 60: 2; 61: 18 – 64: 1; 66: 4–23.
Walker was transferred to FOB Shank on October 25, 2013. Walker Dep. 67: 10–16.
FOB Shank was “among the most dangerous [FOBs] in Afghanistan. [It] was attacked by
direct and indirect fire nearly every day, often more than once per day. These attacks often resulted
in casualties. A number of employees quit their jobs rather than be stationed at Shank.” Declaration
of Kelly Harris, January 6, 2017 (“Harris Decl.”), ¶ 2, ECF No. 158-28.
Wascher was transferred to FOB Marmol on October 29, 2013. Wascher Dep. 63: 5–9.
During the early morning of November 5, 2013, members of the United States military at
BAF arrested eight employees of Vectrus and barred them from the BAF – Kevin Daniel, Brandon
Spann, Carl Lynch, Marc Salazar, Robert Redd, Artan Fana, Agron Fana, and Shajaida Rivera – on
suspicion of drug and alcohol possession, fraternization, espionage, fraud, waste, abuse, and threats
to the integrity of the BATS system. Salinas Dep. 88: 5 – 91: 25; Cleary Dep. 72: 12 – 73: 17.
Prior to the raid, Walker told no one at Vectrus that he was cooperating with the military.
Walker Dep. 58: 3 – 59: 13.
Cleary believed that the information found during the raid validated the information brought
to the military’s attention by the Plaintiffs. Cleary Dep. 87: 3–7.
At Diaz’ request, Askew and Riley/Scott escorted the eight debarred employees from
Bagram to Dubai on November 6, 2013. Askew Dep. 90: 14-20; Diaz Dep. 97: 8 – 98: 4.
The debarred employees provided written statements to Askew and Riley/Scott on November
6, 2013. For example, Spann wrote, “I feel that this was an orchestrated strike against me and the
other 7 people involved by CI, SFC Salinas, Jaime Lytle, Steve Wascher, James Walker, Victor
Cejka, John White, & Carson Puckett.” ECF No. 159-16 at 8. Likewise, Marc Salazar wrote, “This
incident appeared to have been orchistrated [sic] by Sgt. Salinas, Jamie Lytle, James Walker, Victor
Cjeka [sic] & Steve Wascher.” ECF No. 159-19 at 7. Also, Carl Lynch wrote, “. . . I seen [sic]
Jamie Lytle, John White, Victor Cjeka, and Steve Washer [sic] sitting down talking to SFC Salanis
[sic]. When I walked over to the table they all became quiet and I just walked away. . . . I briefed
Brandon on all that took place while he was on R&R.” ECF No. 159-17 at 3.
Askew testified that he did not read the statements, but understood they would go to Diaz,
who would then forward the statements to “legal.” Askew Dep. 92: 6 – 93: 3.
SFC Salinas testified that, after the raid, he attended meetings at which Diaz, Maker, and
Askew were present, along with “Garrison Command” personnel, Mr. Albright, Sergeant Major
Bianco, and Major Cowan. Salinas Dep. 99: 9–22. According to Salinas, Diaz, Maker, and Askew
“took the part of [Vectrus] with the personnel that we had barred, [saying] that there was just a
conflict of personalities between the people that we had barred and the screeners that had come
forward with information.” Id. 100: 18 – 101: 1. In addition, Salinas stated that Vectrus
management “wanted to know . . . who was coming forward and alleging that the BATS system had
been compromised, I guess.” Id. 101: 21 – 102: 12. Salinas responded that he was not in a position
to say anything during the investigation. Id.
Franklin Kopecky, Vectrus BAF operations coordinator, testified that after the arrests, his
boss, Ruben Feliciano, BAF operations manager, told Kopecky “they were going to, you know, find
the people that . . . ratted, snitched” on those who had been arrested. Deposition of Franklin
Kopecky, January 19, 2017 (“Kopecky Dep.”) 30: 17 – 31: 9 (“people like Ruben and the program
management, they – they knew [somebody ‘dimed’ them out]. And so they were . . . pretty upset by
that.”). According to Kopecky, Vectrus program managers, including Askew, Maker, and Mike
Schneider, used the terms, “mole, rat, and narc” to describe the people who informed the military
about perceived wrongdoing at the screening cell. Id. 33: 10–25.
Kopecky observed that the “main person . . . that [sic] was clearly in charge of [Vectrus’]
response” to the raid was Askew. Id. 35: 13 – 36: 4. Askew told Kopecky that “he was going to
recommend termination based off of violation of the Code of Conduct for not using – not using the
chain of command or something like that.” Id. 36: 5–11.
In a meeting on or about November 6, 2013, Hobbs told Maker, Diaz, and Schneider that he
learned during a “sensing session” with screening cell personnel that Lytle, Wascher, Walker, and
[Carson] Puckett [security investigator] were “the people that went to the military.” Maker Dep.
135: 12 – 136: 10.
Maker also heard directly from Lytle during a meeting on or about November 8, 2013 that
he and the other Plaintiffs “were working for the military now” and “were a part of the
investigation”; also, Lytle stated “they were under the military’s protection.” Id. 156: 24 – 157: 22;
191: 4-14. Maker communicated this information to Diaz. Id. 192: 13–21.
Maker believed that the “chain of command, Bagram operations manager and program
manager, should have been notified as to any unethical conduct or criminal violations” in accordance
with Vectrus’ code of conduct. Id. 178: 22 – 179: 19. Maker told Lytle that “the PM [Diaz] is
disappointed that the chain of command was not given a chance to address these issues.” Id. 164:
Following the raid, the screening cell was short-handed; Cleary “pleaded” with Vectrus to
bring in experienced personnel. Cleary Dep. 152: 1–8. The one time Cleary asked about bringing
Walker and Wascher back to BAF, he was told “they were needed where they’re at.” Id. 153: 3–9.
Cleary responded, “I was like, ‘we’re the biggest base with the most traffic. We need personnel
here.’” Id. 153: 10–12.
Maker recalls that Cleary stated his belief to Maker and Diaz that Wascher would be a good
replacement for Daniel; Diaz responded, “that’s a company decision and we will go through our
hiring process and make a decision on the appropriate person.” Maker Dep. 213: 1–14.
Askew returned from Dubai to BAF “probably” on November 8, 2013. Id. 147: 14–23.
On November 9, 2013 and at Diaz’ request, Askew “coordinated” and met with Willie
Hernandez at CID and with the military JAG to discuss the allegations giving rise to the November
5th arrests. Id. 93: 4 – 94: 17. According to Askew, his conversation with Hernandez did not include
who had cooperated with the military in providing information leading to the arrests. Id.
In 2014, Walker reported to Tom Robin (who also had been transferred to FOB Shank) and
SFC Salinas that a prostitution ring was “running out of the barber shop [at FOB Shank] that some
of the firemen were interacting with” (Walker Dep. 145: 13 – 147: 17); that a Vectrus interpreter
was selling blank letters of authorization “to move things in and out of the base” (id. 150: 2 – 152:
6); that Hindi bus drivers employed by another contractor were driving with forged drivers licenses
(id. 152: 18 – 154: 16); that 30 Hindis were exposed to “human trafficking” in the form of “being
mistreated, weren’t allowed to take bathroom breaks, weren’t allowed to eat, were being told they
had to work extra hours” (id. 154: 25 – 156:16); and that a Vectrus screener “plugged in a secure
phone into a[n unsecured] Fluor computer line” (id. 156: 24 – 158: 25).
In the spring 2014, Kelly Harris was present at a meeting at FOB Shank at which Walker was
also present and Askew presided. Harris Decl. ¶ 3. Askew reported to the entire screening cell that
Vectrus was “downsizing” and it “needed investigators at [BAF] and sought volunteers to transfer
from Shank to BAF.” Id. Walker was the only investigator who raised his hand and verbally
volunteered to transfer to BAF; Askew did not respond. Id. ¶ 4. After the meeting, Askew
approached Harris in his office and asked him whether he would agree to transfer to BAF; Harris
declined and encouraged Askew to speak to Walker since Harris knew Walker wanted to transfer.
Id. ¶ 5.
After he was transferred to FOB Marmol, Wascher reported to his site lead, Jack Lee, and
to SFC Salinas that John Yelder, Vectrus security supervisor, instructed screening cell employees
not to cooperate with the industrial security investigator, who administered “tests to routinely verify
our clearances and – and our security stuff on the computer.” Wascher Dep. 87: 21 – 90: 10. When
Yelder was “caught, he had them shred the paperwork to get rid of the evidence that he did it.” Id.
In addition, Wascher reported to Lee and Eric Schultz that Yelder ordered him and the other
screeners repeatedly to use either someone else’s information or a generic account number to access
the BAT system. Id. 196: 13 – 198: 7.
In or about May 2014, Wascher asked to meet with Askew, who had traveled to Camp John
Pratt on FOB Marmol, but Askew (through Yelder, who made several requests) refused saying he
did not have time to meet with Wascher. Wascher Dep. 319: 15 – 320: 20. Wascher wanted to
discuss with Askew Vectrus’ “attempt[ ] to give [him] a dissatisfactory demobilization to remove
[him] from his job.” Id. Wascher eventually spoke to Askew, who “resolved the situation” (i.e.,
Vectrus’ characterization of Wascher as an “unsatisfactory employee”). Id. 403: 9 – 405: 24.
Also in May 2014, Michael Zink, who was a supervisor and senior supervisor with Vectrus
at BAF starting in January 2014, attended a meeting with Askew, who was then Vectrus’ regional
manager. Declaration of Michael Zink, February 7, 2017 (“Zink Decl.”) ¶¶ 4, 5, ECF No. 158-29.
Vectrus was reducing positions at FOB Marmol and considering which employees should be
transferred to other locations, including BAF. Id. Zink believed that Wascher was a “strong”
investigator, so suggested to Askew that he “would like to see [Wascher] among those transferred
back to Bagram.” Id. ¶ 6. Askew refused saying that “Wascher and Jamie Lytle had tried to take
the company down,” Askew “did not trust Wascher who he referred to as a ‘snake in the grass,’” and
“if [Zink] had the information that Askew knew from his prior position in Employee Relations,
[Zink] would not trust Wascher and would not want him at Bagram.” Id. ¶¶ 7, 8.
About a month before Wascher was terminated from employment, Yelder told Wascher that,
“he was briefed by Daniel and Spann that [Wascher] was a troublemaker and to watch out for
[him],” but Yelder decided, “you’re not like that at all.” Id. 89: 6–19.
Wascher was terminated from employment with Vectrus effective June 1, 2014 after
declining a demotion to a biometric processing clerk during a reduction in force. ECF No. 129-46.
Walker was terminated from employment with Vectrus effective July 10, 2014 after
declining a demotion to a biometric processing clerk during a reduction in force. ECF No. 129-45;
Walker Dep. 256: 4–6. Walker recalls that an HR representative had previously explained seniority
as “last guy in is first guy out” (id. 251:13–23) and, as such, he should not have been selected for
termination at FOB Shank. Id. 256: 7–20.
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).
At this stage of the litigation, the claims alleged by Walker and Wascher include (1)
wrongful discharge in violation of public policy; (2) a violation of 10 U.S.C. § 2409 (Walker only);
and (3) outrageous conduct in the form of “transferring Walker and Wascher to dangerous forward
operating bases.” Vectrus contends that Plaintiffs fail to raise genuine issues of material facts as to
each of these claims.
Wrongful Discharge in Violation of Public Policy
“To avoid summary judgment on his claim of wrongful discharge in violation of public
policy,” a plaintiff 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 Walker and Wascher have satisfied the first two prongs of a
wrongful discharge claim. Reply 3. Vectrus argues instead that the statutes/regulations under which
Walker and Wascher reported alleged unlawful conduct did not apply to the Plaintiffs and/or did not
further Colorado’s public policy, and Walker and Wascher have failed to state genuine issues of
material fact demonstrating causation. Walker and Wascher counter that the statutes/regulations on
which they base their claims are sufficient under Colorado law and that their terminations were in
retaliation for their reports to the military of improper and illegal conduct by Vectrus management.
The Court incorporates here its analysis and conclusion from its Order on the Defendant’s
Motion for Summary Judgment as to Plaintiff Paul Cross’s First and Third Claims for Relief, finding
that Army Regulation 381-12 and DOD Directive 5240.06 “meet the requirements stated in” Rocky
Mountain Hosp. & Med. Serv. v. Mariani, 916 P.2d 519, 525 (Colo. 1996) (“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.”). In addition, here, the
military investigator, David Cleary, testified that his findings and the raid validated the information
brought to the military by the Plaintiffs, including improper access to the screening cell and into the
BATS system. See Kearl, 205 P.3d at 499 (“[t]here is no question that the manifest public policy
of this state is that neither an employer nor an employee should be permitted to knowingly perpetrate
a fraud or deception on the federal or state government.”) (quoting Martin Marietta Corp. v. Lorenz,
823 P.2d 100, 109 (Colo. 1992)).
Therefore, as the Court concludes that Wascher and Walker have sufficiently identified
public policy under the requirements of which they 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 Walker and Wascher have raised genuine issues of material fact demonstrating
their conduct that was mandated by the policies caused their terminations.
First, temporal proximity may be considered in determining whether Walker’s and Wascher’s
protected conduct caused their terminations. See Barlow, 703 F.3d at 509. The testimony reflects
that Walker and Wascher were instructed by the military to reveal to no one at Vectrus they were
reporting what they believed to be security violations during the fall 2013, but the evidence reflects
that after the November 5, 2013 raid, certain Vectrus personnel, including Diaz, Maker, Hobbs, and
Askew learned that Walker and Wascher were some of the employees from the screening cell
working with the military. See, e.g., Maker Dep. 135: 12 – 136: 10 (Hobbs told Maker, Diaz, and
Schneider that he learned during a “sensing session” with screening cell personnel that Plaintiffs
were “the people that went to the military.”). However, unlike their co-Plaintiffs, Cejka and Lytle,
Walker and Wascher were terminated from employment with Vectrus several months after Vectrus
management allegedly learned they had been cooperating with the military. 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). Therefore, temporal proximity, by itself, does not
demonstrate causation for Walker’s and Wascher’s wrongful discharge claims.
“If sufficient temporal proximity cannot be shown, the employee must come forward with
some additional evidence from which the factfinder could infer some causal relationship between
the two events.” Felix v. City & Cnty. of Denver, 729 F. Supp. 2d 1243, 1254 (D. Colo. 2010)
(citing Haynes v. Level 3 Commc’ns Inc., 456 F.3d 1215, 1228 (10th Cir. 2006)). That is,
[t]o survive summary judgment, [plaintiff] had to present ‘additional evidence’ tying
the adverse employment actions to [plaintiff’s] participation in the [protected
activity]. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253–54 [ ] (1981).
The Supreme Court has likened this burden to a showing of “but-for causation.”
Univ. of Tex. Sw. Med. Ctr. v. Nassar, -- U.S. --, 133 S. Ct. 2517, 2533 [ ](2013). The
evidence of but-for causation “must be based on more than mere speculation,
conjecture, or surmise.” Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir.
Ward v. Jewell, 772 F.3d 1199, 1203 (10th Cir. 2014).
As set forth above, Walker and Washer were transferred in late October 2013. Plaintiffs’
evidence reflects that Spann and Daniel considered Walker and Wascher to be “troublemakers”
including that they were the “worst offenders” of Spann’s directive not to meet with the military or
government officials without a Vectrus supervisor or HR official present. In addition, Spann
admitted knowing in early October 2013 that Walker and Wascher were having “secret meetings
with the military.” Walker and Wascher testified that two weeks before they were transferred,
Daniel announced a meeting of the security investigators, then asked for two volunteers to transfer
to FOBs Shank and Marmol; Sapp and, possibly, Glover raised their hands. Nevertheless, Vectrus
chose Walker and Wascher to be transferred to the FOBs in October at a time when Askew admits
BAF personnel suspected that the FOBs were going to close.
Vectrus contends that Riley/Scott made the decision to transfer Walker and Wascher based
solely on seniority; however, Askew specifically asked Daniel in an email whether it was his
decision to transfer Walker to FOB Shank; Daniel answered, inter alia, that he and Spann had
discussed it. Askew Dep. 61: 18 – 62: 19. The Court finds this raises a question of fact as to
whether Spann and Daniel were involved in the decision-making process concerning Walker’s and
Moreover, once they were transferred, Walker and Wascher were not allowed to return,
despite the fact that BAF was almost immediately in need of security investigators due to the
November 5, 2013 raid. The evidence reflects that Cleary “pleaded” with Vectrus to bring in
experienced personnel, and when he asked about bringing Walker and Wascher back to BAF, he was
told “they were needed where they’re at.” Cleary responded, “I was like, ‘we’re the biggest base
with the most traffic. We need personnel here.’” In fact, Maker recalls that Cleary stated his belief
to both Maker and Diaz that Wascher would be a good replacement for Daniel, who had been
debarred; Diaz responded, “that’s a company decision and we will go through our hiring process and
make a decision on the appropriate person.”
The denials to return to BAF continued during the months Walker and Wascher worked at
the FOBs. Kelly Harris testified that in the spring 2014 he and Walker were present at a meeting
at FOB Shank at which Askew presided. Askew reported to the entire screening cell that Vectrus
was “downsizing” and it “needed investigators at [BAF] and sought volunteers to transfer from
Shank to BAF.” According to Harris, Walker was the only investigator who raised his hand and
verbally volunteered to transfer to BAF, but Askew did not respond. After the meeting, Askew
approached Harris in his office and asked him whether he would agree to transfer to BAF; Harris
declined and encouraged Askew to speak to Walker since Harris knew Walker wanted to transfer.
Similarly, in May 2014, Michael Zink, Vectrus senior supervisor, attended a meeting with
Askew, who was then Vectrus’ regional manager. Vectrus was reducing positions at FOB Marmol
and considering which employees should be transferred to other locations, including BAF. Zink
believed that Wascher was a “strong” investigator, so suggested to Askew that he “would like to see
[Wascher] among those transferred back to Bagram.” Askew refused saying that “Wascher and
Jamie Lytle had tried to take the company down,” Askew “did not trust Wascher who he referred
to as a ‘snake in the grass,’” and “if [Zink] had the information that Askew knew from his prior
position in Employee Relations, [Zink] would not trust Wascher and would not want him at
Importantly, Glover, who had arrived at BAF in August 2013, testified that “everything was
closing down, so the best place to be was Bagram, if you wanted to, you know, work out your
The Court finds this evidence sufficient to raise genuine issues of material fact as to whether
Walker’s and Wascher’s late October 2013 transfers to FOBs Shank and Marmol, which eventually
led to their terminations during reductions in force, were imposed in retaliation for Walker’s and
Wascher’s cooperation in the military’s investigation of security violations at Vectrus. The evidence
raises material issues as to whether Vectrus management considered Walker and Wascher
“troublemakers” whom they denied returns to a facility that was not (at least, at the time) in danger
of closing. See Barlow, 703 F.3d at 508 (quoting Lorenz, 823 P.2d at 109) (“Colorado law requires
that an employer ‘was aware, or reasonably should have been aware’ that the employee’s actions
were legally protected.” ).
Vectrus argues that it did not actually terminate Walker and Wascher, but offered them
“demotions” in lieu of termination. Plaintiffs counter that such offers constituted constructive
discharges under the law.
Whether a constructive discharge has occurred is a question of fact to be resolved by a jury.
Arnold v. McClain, 926 F.2d 963, 966 (10th Cir. 1991); Strickland v. UPS, 555 F.3d 1224, 1228
(10th Cir. 2009). “When, however, the record does not give rise to a reasonable inference that a
constructive discharge has occurred, the question is appropriately resolved by a judge as a matter
of law.” Heutzenroeder v. Mesa Cnty. Valley Sch. Dist. 51, 391 F. App’x 688, 693 (10th Cir. 2010)
(citing Garrett v. Hewlett–Packard Co., 305 F.3d 1210, 1222 (10th Cir. 2002)).
“The determination of whether the actions of an employer amount to a constructive discharge
depends upon whether a reasonable person under the same or similar circumstances would view the
new working conditions as intolerable, and not upon the subjective view of the individual
employee.” Boulder Valley Sch. Dist. R-2 v. Price, 805 P.2d 1085, 1088 (Colo. 1991) (en banc),
overruled in part on other grounds by Community Hosp. v. Fail, 969 P.2d 667 (Colo. 1998),
(quoting Wilson v. Bd. of Cnty. Comm’ns, 703 P.2d 1257, 1259, 1260 (Colo. 1985) and citing Irving
v. Dubuque Packing Co., 689 F.2d 170, 172 (10th Cir. 1982)). “To prove a constructive discharge,
a plaintiff must present sufficient evidence establishing deliberate action on the part of an employer
which makes or allows an employee’s working conditions to become so difficult or intolerable that
the employee has no other choice but to resign.” Id. (quoting Wilson, 703 P.2d at 1259)5; see also
Krauss v. Catholic Health Initiatives Mountain Region, 66 P.3d 195, 202-03 (Colo. App. 2003).
Plaintiffs are correct that even a “perceived demotion or reassignment to a job with lower
status or lower pay may, depending upon the individual facts of the case, constitute aggravating
factors that would justify [a] finding of constructive discharge.” James v. Sears, Roebuck & Co.,
21 F.3d 989, 993 (10th Cir. 1994) (citing Cockrell v. Boise Cascade Corp., 781 F.2d 173, 177-78
(10th Cir. 1986)); see also Christie v. San Miguel Cnty. Sch. Dist. R-2(J), 759 P.2d 779, 783 (Colo.
App. 1988) (plaintiff’s alleged “demotion” was simply a reassignment of duties and, thus, was
insufficient to demonstrate a constructive discharge).
Here, the Court concludes that the question of whether Walker and Wascher suffered
constructive discharges should be submitted to a jury. Kelly Harris, security investigator, testified
that FOB Shank was “among the most dangerous [FOBs] in Afghanistan. [It] was attacked by direct
and indirect fire nearly every day, often more than once per day. These attacks often resulted in
casualties. A number of employees quit their jobs rather than be stationed at Shank.” Walker
testified that he was fearful of working at Shank, but stayed on because he was receiving a six-figure
Boulder Valley cites the following example: “In Civil Rights Commission v. Colorado, 30
Colo. App. 10, 488 P.2d 83 (1971), the court found a constructive discharge, but no discriminatory
purpose, where a teacher signed a letter of resignation based on her superior’s refusal to recommend
her for rehiring. There was no duress or coercion to have the teacher sign the letter of resignation,
but there was evidence that the teacher would not have resigned had she been able to receive a
salary as a security investigator. Wascher testified that he was very upset when he was characterized
as a “dissatisfactory” employee during the reduction in force at Marmol. Moreover, a jury could
find that the offers of the demotions, rather than permitting Walker and Wascher to return to BAF
when positions were open, would compel a reasonable person to resign.
In sum, the Court finds that Walker and Wascher have raised genuine issues of material fact
as to whether their transfers and eventual terminations of employment were actions taken by Vectrus
in retaliation for Walker and Wascher’s reports to the military concerning security violations at
Defense Contractor Whistleblower Protection Act (10 U.S.C. § 2409) Claim
The Court notes first that, as stated in its order on Defendant’s motion for summary judgment
regarding Plaintiffs’ second claims for relief, the Court will decline to apply Vectrus’ suggested
legal standard for adjudicating Walker’s § 2409 claim.
Citing unpublished cases from the Northern District of Alabama and the Eastern District of
Virginia, Vectrus urges that “[t]he McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
burden-shifting framework should be used to evaluate claims under the Act.” Mot. 17 (citing
DeVillo v. Vision Centric, Inc., No. 5:15-cv-02211, 2017 WL 3425465, at *3 (N.D. Ala. Aug. 9,
2017) and Brach v. Conflict Kinetics Corp., No. 1:16-cv-978, 2017 WL 3267961, at *14 (E.D. Va.
Jul. 31, 2017). However, neither of these opinions recognize that § 2409 incorporates into the
statute a framework for burdens of proof to determine whether retaliation has occurred.6 That is, §
2409(c)(6) provides that the legal burdens in 5 U.S.C. § 1221(e) shall be controlling for any judicial
determination of whether retaliation occurred. Section 1221(e), in turn, requires that an employee
show his protected activity was a “contributing factor” in the adverse employment action taken,
In Brach, the court cites to 5 U.S.C. § 1221(e)(1)(B)(2), but fails to apply the burden
articulated therein. 2017 WL 3267961 at *17–*18.
unless the contractor “demonstrates by clear and convincing evidence that it would have taken the
same personnel action” notwithstanding the protected activity. 5 U.S.C. § 1221(e)
Thus, Walker will succeed on his claim for retaliation in violation of 10 U.S.C. § 2409 if he
demonstrates (1) he engaged in protected activity as described in the statute, (2) the Vectrus decision
maker knew he engaged in protected activity, and (3) his protected activity was a contributing factor
in the adverse employment action taken against him, unless (4) Vectrus shows by clear and
convincing evidence that it would have taken the employment action despite Walker’s protected
activity. See United States ex rel. Cody v. Mantech Int’l Corp., 207 F. Supp. 3d 610 (E.D. Va.
The Court has already determined that § 2409 did not apply to the subcontract under which
the Plaintiffs worked until June 17, 2014, which was after the termination dates of Cross, Lytle,
Cejka, and Wascher. The only adverse employment action about which Walker complains that took
place after June 17, 2014 was his termination of employment. Thus, the questions before the Court
are (1) did Walker engage in protected activity under § 2409?; and (2) has Walker raised genuine
The Cody court determined:
. . . under the DCWPA, a whistleblower employee is entitled to relief for retaliation
if he or she demonstrates that a protected activity was a “contributing factor” in the
“personnel action which was taken” and that “the official taking the personnel action
knew of the ... protected activity.” 5 U.S.C. § 1221 (e)(1). The employee may
demonstrate such a causal connection through circumstantial evidence such as
temporal proximity, but the employee is not entitled to relief if the employer
“demonstrates by clear and convincing evidence that it would have taken the same
personnel action in the absence of such disclosure.” Id. § 122l(e)(1)(B), (2). Based
on these statutes, in order to establish a prima facie case of unlawful retaliation, a
whistleblower plaintiff must establish that: (1) he engaged in “protected activity”;
(2) his employer knew or was reasonably on notice that he was engaged in protected
activity; and (3) his employer took adverse action against him as a result of his
protected activity. See Glynn v. EDO Corp., 710 F.3d 209, 214 (4th Cir. 2013);
Eberhardt v. Integrated Design & Const., Inc., 167 F.3d 861, 866 (4th Cir. 1999).
207 F. Supp. 3d. at 620-21.
issues of material fact as to whether his reports to the military were a contributing factor in his
termination, or has Vectrus shown by clear and convincing evidence that it would have terminated
Walker despite his protected activity?
According to § 2409(a), an employee enjoys protection if he discloses to certain government
officials, judicial officers or grand jurors, or managers or other employees of the employer who have
the responsibility to investigate, discover or address misconduct, what he reasonably believes is
evidence of gross mismanagement of a DOD contract, gross waste of DOD funds, an abuse of
authority relating to a DOD contract, or a violation of law, rule, or regulation relating to a DOD
contract. 10 U.S.C. § 2409(a)(1) & (2).
Here, the parties dispute whether any protected activity may occur before, or must occur
after, the effective date of the DCWPA. The parties have not cited nor has the Court found any case
law directly addressing this issue. However, courts that have addressed an analogous issue
involving other anti-retaliation statutes have considered protected activity that occurred outside the
statute of limitations period. See, e.g., Quidachay v. Kan. Dep’t of Corrs., 239 F. Supp. 3d 1291,
1295 (D. Kan. 2017) (finding allegations of protected activity and adverse actions for a
Rehabilitation Act claim occurring outside the statute of limitations were relevant to establish a
causal link and sufficient to “plausibly suggest” retaliation); Meiners v. Univ. of Kan., 239 F. Supp.
2d 1175, 1189, 1190–91 (D. Kan. 2002) (finding that the administrative statute of limitations in a
Title VII case began to run on the date of the adverse action and, thus, the protected activity that
occurred before such date was considered in determining whether defendant was entitled to
summary judgment); Kelley v. City of Albuquerque, 375 F. Supp. 2d 1183, 1221 (D. N.M. 2004)
(same); Nguyen v. United Gov’t of Wyandotte Cnty., No. 16-2654-JAR, 2017 WL 2080622, at *4
(D. Kan. May 15, 2017) (declining to strike factual allegations concerning the plaintiff’s protected
activity of filing an internal complaint in 2013, which served as the basis of his Title VII and 42
U.S.C. § 1981 retaliation claims).
The Court agrees with the proposition that the date on which to determine whether an antiretaliation statute applies is the date the plaintiff allegedly suffered retaliation. Thus, the fact that
protected activity may fall outside the statute’s limitations period is immaterial; the question is
whether the protected activity contributed to causing the retaliatory action. In this case, the evidence
reveals Walker engaged in the protected activity of reporting BAT system access and security
violations to military oversight and to, at least, the U.S. Army counter-intelligence unit (“CI”) and
the criminal investigation command (“CID”), and the Judge Advocate General’s Office (“JAG”).
The Court concludes that, as with Walker’s wrongful discharge claim, a jury will need to
determine whether Walker’s reports to the military contributed to his transfer, the alleged denials
of his return to BAF, and his eventual termination, or whether Vectrus would have terminated
Walker in spite of his reports. With respect to whether the reports contributed to the eventual
termination, the Court finds persuasive the Fourth Circuit’s opinion cited in Cody, 207 F. Supp. 3d
A contributing factor is any factor, which alone or in combination with other factors,
tends to affect in any way the outcome of the decision. This element is broad and
forgiving, and this test is specifically intended to overrule existing case law, which
requires a whistleblower to prove that his protected conduct was a ‘significant,’
‘motivating,’ ‘substantial,’ or ‘predominant’ factor in a personnel action in order to
overturn that action. Temporal proximity between the protected activity and the
adverse action is a significant factor in considering a circumstantial showing of
causation, the causal connection may be severed by the passage of a significant
amount of time, or by some legitimate intervening event.
Id. (quoting Feldman v. Law Enforcement Assocs. Corp., 752 F.3d 339, 348 (4th Cir. 2014)).
“Under this ‘broad and forgiving’ standard, a plaintiff has ‘a rather light burden of showing by a
preponderance of the evidence that the [protected] activities tended to affect his termination in at
least some way.’” In this case, Walker has met his “light burden” of demonstrating a material factual
issue as to whether his termination of employment with Vectrus was retaliatory in violation of 10
U.S.C. § 2409.
Outrageous Conduct Claims
The Court has previously ordered that Walker and Wascher failed to state claims for
intentional infliction of emotional distress—or, “outrageous conduct”—except as to their “transfers
to dangerous FOBs.” Vectrus argues that Plaintiffs fail to demonstrate genuine issues of material
fact as to whether Vectrus’ decision to transfer Walker and Wascher constituted outrageous conduct.
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
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, 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).
In this case, the Court finds that a reasonable person could come to no conclusion other than
that Vectrus’ decision to transfer Walker and Wascher—while possibly intended to compel them to
resign—was not intended to inflict severe emotional distress on the Plaintiffs. First, there is nothing
in the evidence demonstrating that FOB Marmol was any more dangerous than BAF; in fact,
Wascher testified that, other than less “permanent” building facilities (i.e., tents vs. huts), Marmol
was not much different than BAF for him in terms of security. Wascher Dep. 77: 20 – 81: 5.
As for FOB Shank, Kelly Harris testified that it was “among the most dangerous [FOBs] in
Afghanistan. [It] was attacked by direct and indirect fire nearly every day, often more than once per
day.” While this may be true, and while Walker testified that he lived in fear of the attacks while
assigned there, he did not immediately “quit” his job “rather than be stationed at Shank,” as Harris
testified many employees did. Moreover, and more importantly, the evidence lacks any indication
that the decision to transfer Walker to Shank was reckless or motivated by an intent to harm Walker
emotionally, particularly as Vectrus transferred Tom Robin to Shank at the same time Walker was
transferred there. Certainly, the Plaintiffs have proffered no evidence nor argument that Robin also
participated in reports to the military or, otherwise, engaged in conduct that would lead Vectrus to
transfer Robin to Shank in an effort to inflict on him severe emotional distress.
The Court finds material factual issues exist concerning whether Vectrus retaliated against
Walker and Wascher by transferring them to FOBs, denying them returns to BAF, then terminating
their employment after they reported potential security violations. However, the Plaintiffs failed to
demonstrate material factual issues regarding whether Vectrus inflicted on them severe emotional
distress by transferring Walker and Wascher to allegedly “dangerous” FOBs.
THEREFORE, Defendant Vectrus Systems Corporation’s Motion for Summary Judgment
as to Plaintiff Steven Wascher’s and James Walker’s First and Third Claims for Relief [filed October
2, 2017; ECF No. 120] is granted in part and denied in part. Walker’s and Wascher’s third
claims for relief are 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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