Wheeler Trigg O’Donnell, in partnership with Chicago-based Freeborn & Peters, saw a plaintiff’s-side trial verdict in a whistleblower retaliation case from Bagram Airfield in Afghanistan. The plaintiff’s-side work is an unusual undertaking for the defense-focused firm.
On its face, the case was an employment law dispute that questioned whether five defense contractors were fired for blowing the whistle on other employees’ conduct. The plaintiffs’ argument was that they were following U.S. military orders to report wrongdoing and in doing so, closed holes in the base’s security. The defense argued in trial, however, that the contractors were in fact laid off for refusing a transfer to a different location. A jury in federal court in Denver sided with the plaintiffs, awarding four of five plaintiffs compensatory damages of $1.35 million and punitive damages against the employer for $400,000.
The plaintiffs provided security investigation services at Bagram and were responsible for managing base access for local service providers and international third parties. Through their work, the plaintiffs in 2013 found breaches in security protocol among other activities that led them to report concerns to their supervisors and the U.S. military.
The plaintiffs found through their work managing data within the Biometric Automated Toolset, known as BAT, a computer system used by the U.S. military and NATO to track terrorists that other employees of Colorado Springs-based defense contractor company Vectrus had altered and deleted information.
The plaintiffs discovered two instances when data in the system had been altered, and information important to maintaining the security of Bagram and potentially other military facilities from the system had been deleted.
According to the complaint, the plaintiffs also found a “cabal of Vectrus employees engaged in … selling of classified information for personal gain, taking improper actions to protect a Turkish contractor including interfering with investigations and giving advance warning of raids by the military, controlling drugs, alcohol and prostitutes on the military base and transferring or terminating employees who would not cooperate with their illegal activities.”
The plaintiffs reported what they found to Vectrus and were told to stand down, according to the complaint. The plaintiffs ultimately informed U.S. military officials and cooperated in a joint investigation by military counterintelligence officers and the Air Force Office of Security Investigations. The investigation found that security protocols had been breached, and in a basewide raid, eight Vectrus employees were apprehended.
Over the next two months, three of the plaintiffs were fired and two were assigned to the front lines in the war in Afghanistan.
Raymond Martin, a partner at Wheeler Trigg O’Donnell, said the case came to the firm by way of Freeborn & Peters, his former law firm. The case was his second plaintiff’s case in 40 years of practicing law. After Steven Hartmann of Freeborn introduced him and WTO partner John Fitzpatrick to the plaintiffs, they felt they should join the case. They ended up working on the case in partnership with attorneys from Freeborn led by Hartmann, head of Freeborn’s employment group. Freeborn agreed to represent the plaintiffs in court and prepared the case with assistance from Martin and Fitzpatrick.
“These are really good people who had a difficult fight ahead of them,” Martin said of the plaintiffs. “We knew the case would be very aggressively defended, and we were being asked to step up and help them out. Because of the quality of these people and the impact what happened in Afghanistan had on their lives, we decided to do the right thing and help them out.”
The plaintiffs had all chosen to work in Afghanistan in order to enhance their own well being and in most instances, that of their families in the U.S. Many were able to double their salaries or more, earning upward of $148,000 in Afghanistan through hazard pay and bonuses. Prior to serving in Bagram, none of the plaintiffs had any disciplinary history either, Martin said. “This had been a significant career decision for them and a career move for them, and with three of them getting fired and two constructively discharged, these careers that had just followed a steady progression of success are now torpedoed,” he said.
The case went to a 14-day trial in U.S. District Court for the District of Colorado, and on June 12, the jury returned a verdict in favor of four of five plaintiffs. For the fifth, the jury found she had not met the burden of proof to show the Vectrus personnel responsible for her termination was aware of her whistle blowing, according to the jury verdict form.
In response to their claims that they were retaliated against, the defense on behalf of Vectrus said the three terminated employees were laid off from their positions after being offered transfers. And according to a May article from Courthouse News Service, the defense attorneys said the plaintiffs weren’t content to do their jobs and instead wanted to be spies.
“There was nothing at trial to support that claim,” Martin said. He said the plaintiffs initially reported the missing data because it was unprecedented to have information deleted from the computer system. Martin said witnesses testified in trial that they had never seen that happen before.
After reporting the missing data, the military began an investigation involving the plaintiffs. A Department of Defense officer testified at trial that the plaintiffs were told if they had seen misconduct and didn’t report it, that would be treated no differently than if they had done it themselves, Martin said.
Martin said that he felt the character of the plaintiffs was a significant factor for the jury decision.
Included in the verdict was a punitive damages award of $100,000 for each plaintiff found to have been retaliated against. Martin said that although the information gained from the military investigation was classified, the military’s actions and the plaintiffs’ character were deciding factors.
“I think our clients were the reason the jury did what it did,” Martin said. “They are wonderful people, and I think the jury concluded that they had compelling claims.”
Neither Vectrus nor the attorneys who represented the company in this case responded to a request for comment. They have not yet filed for a motion for appeal.
— Tony Flesor