Burrer v. Boeing Company
Filing
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ORDER Granting Defendant's 16 Motion for Summary Judgment, by Judge Robert S. Lasnik. All plaintiff's claims are dismissed with prejudice. (KERR)
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
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REBECCA BURRER,
Plaintiff,
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NO. C14-1676RSL
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v.
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THE BOEING COMPANY,
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ORDER GRANTING
DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT
Defendant.
This matter comes before the Court on “Defendant The Boeing Company’s Motion for
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Summary Judgment on All Claims.” Dkt. # 16. Having reviewed the materials submitted by the
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parties and having heard argument on April 22, 2016, the Court finds as follows.
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BACKGROUND
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Plaintiff Rebecca Burrer filed suit against defendant The Boeing Company in King
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County Superior Court in September 2014, and Boeing removed the action to this Court. Dkt.
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# 1. Burrer asserted claims under the Family and Medical Leave Act of 1993 (FMLA) and for
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intentional and negligent infliction of emotional distress. Dkt. # 1-2 at 4-5. Boeing moved for
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summary judgment on all of plaintiff’s claims. Dkt. # 16.
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Burrer began working for Boeing in April 2007. In 2008, Burrer applied for and was
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granted intermittent FMLA leave for depression and leukemia surveillance, which allowed her to
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take between four and eight days of leave per month. Andrea Fox and other unidentified
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coworkers complained to Burrer that she was never at work and told her that she “should just
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ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT - 1
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quit” since she “was never at work.” Dkt. # 20 (Declaration of Rebecca Burrer) at 2. Although
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it is unclear when these comments began, they continued through August 2011. Id. Burrer
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reports that when she tried to complain to Ezra Embree, her temporary manager, about Fox’s
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comments, he told her “that there was nothing he could do about it and that some people just
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don’t like working with people like you who were not at work like they were.” Id. at 2-4.
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During the week of August 8-12, 2011, Fox told Burrer that no one wanted to work with her,
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that no one liked her, and that everyone thought she was lazy. Id. at 3. Burrer reported the
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interaction to Buster Meston, who she identifies as her supervisor at the time, and Meston
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advised that Burrer speak with Human Resources. Id. Burrer informed Meston that she would
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give a statement to Human Resources after the crew meeting on Monday, August 15, 2011. Id.
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On August 15, Burrer left the work area to meet with Human Resources. She attempted
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to text Meston, who had been her supervisor the Friday before, but entered the wrong area code.
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Id. at 4. Burrer did not notify her then-supervisor, Embree, that she was leaving to meet with
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Human Resources despite her understanding of Boeing’s policy that she notify a manager before
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leaving the work area. Dkt. # 18 (Deposition of Rebecca Burrer) at 60-61. That evening,
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Embree met with Burrer and her union steward, John Lopez, and discussed the fact that Burrer
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had not informed Embree that she was leaving to go to Human Resources. Id. at 61-62. Embree
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warned that he was going to “write up” Burrer. Id. at 63.
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On August 24, after Fox made additional comments, Burrer left the work area to go to
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Human Resources without informing Embree and was gone for approximately 30 minutes. Dkt.
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## 18 at 64; 17 at 12 (email from Ezra Embree). Because Human Resources was busy when she
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first stopped by, Burrer returned during her lunch break and then spoke with Embree about
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taking a later lunch because she had been speaking to Human Resources. Dkt. # 18 at 65-66;
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Dkt. # 20 at 5. Andrew Cruikshank, a Human Resources Generalist at Boeing, investigated both
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instances of Burrer leaving the work area without notifying her manager and determined that a
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Corrective Action Memo (CAM) was warranted. Dkt. # 17 (Declaration of Andrew Cruikshank)
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ORDER GRANTING DEFENDANT’S
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at 3. On August 30, Burrer was issued the CAM, which noted that it had been determined that
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on two occasions Burrer left the work area without notifying her manger. Id. at 3, 24 (8/30/11
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CAM).
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On May 16, 2012, Burrer returned late from a break with two others. Id. at 34 (email
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from Charles Smith). Her manager at the time, Charles Smith, observed Burrer avoid walking
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through the area where Smith was waiting. Id. Smith gave the other two employees verbal
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warnings and then told Burrer that she was observed returning late and it would be documented.
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Id. On May 25, Cruikshank met with Burrer regarding the May 16 tardiness, and Burrer refused
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to provide a statement. Id. at 4. Cruikshank decided that a CAM was an appropriate response to
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Burrer’s May 16 lateness. Id. at 5. On May 30, Burrer was issued the CAM and given two days
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of time off without pay. Id. at 5, 38 (5/30/12 CAM).
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On June 8, 2012, as a result of a phone call with her doctor, Burrer was late to a crew
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meeting. Dkt. ## 18 at 17-18, 77-8; 20 at 7. When Burrer joined the meeting, Smith and Burrer
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had an exchange. Smith stopped talking and glared at Burrer, and in response Burrer asked
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Smith what he was looking at. Dkt. ## 17 at 48 (HR Investigation Report); 18 at 78. Smith
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responded by saying something about Burrer being late. See Dkt. ## 18 at 78; 20 at 7. Burrer
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became upset and left. Dkt. ## 18 at 79; 20 at 7. She did not clock out or tell Smith where she
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was going or how long she would be gone. Dkt. # 18 at 79. Shortly after leaving, Burrer
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contacted Aetna and requested eight hours of FMLA leave. Dkt. # 18 at 79, 81. Burrer also
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attempted to contact Smith, but he did not answer his phone. Id. at 79; Dkt. # 20 at 7.
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Following the June 8 incident, Smith requested that Boeing conduct an investigation of
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Burrer’s conduct. Dkt. # 17 at 5. Human Resources Investigator Kelsie Sanchez Islas
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investigated the complaint and interviewed Smith, Burrer, and other potential witnesses. Dkt.
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# 17 at 5. In a report dated July 9, 2012, Sanchez Islas concluded that on June 8 Burrer left
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Boeing premises without notifying a manager. Dkt. # 17 at 45 (HR Investigation Report). On
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July 23, a representative from Boeing’s Employee Corrective Action department drafted a
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ORDER GRANTING DEFENDANT’S
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proposed CAM recommending that Burrer be terminated, which was provided to Cruikshank the
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same day. Dkt. # 17 at 5. Cruikshank, following the practice at the time, met with the HR
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Director, a member of the Employee Corrective Action management team, and a member of
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Employee Relations. Id. at 6. The group decided to terminate Burrer’s employment because she
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had received multiple CAMs and repeatedly flaunted workplace rules. Id. Before Cruikshank
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could meet with Burrer’s manager to discuss the CAM with him, Burrer took an extended
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FMLA leave. Id. When Burrer returned from leave on October 11, 2012, manager Douglas
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Kramer issued the CAM to her, terminating her employment effective that day. Id. at 17, 51
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(10/11/12 CAM).
DISCUSSION
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A. Summary Judgment Standard
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Summary judgment is appropriate if, viewing the evidence in the light most favorable to
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the nonmoving party, “the movant shows that there is no genuine dispute as to any material fact
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and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); L.A. Printex
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Indus., Inc. v. Aeropostale, Inc., 676 F.3d 841, 846 (9th Cir. 2012). The moving party “bears the
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initial responsibility of informing the district court of the basis for its motion.” Celotex Corp. v.
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Catrett, 477 U.S. 317, 323 (1986). It need not “produce evidence showing the absence of a
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genuine issue of material fact” but instead may discharge its burden under Rule 56 by “pointing
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out . . . that there is an absence of evidence to support the nonmoving party’s case.” Id. at 325.
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Once the moving party has satisfied its burden, it is entitled to summary judgment if the non-
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moving party fails to designate “specific facts showing that there is a genuine issue for trial.” Id.
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“The mere existence of a scintilla of evidence in support of the non-moving party’s position is
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not sufficient”; the opposing party must present probative evidence in support of its claim or
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defense. Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 919 (9th Cir. 2001); Intel
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Corp. v. Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991). “An issue is
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‘genuine’ only if there is a sufficient evidentiary basis on which a reasonable fact finder could
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ORDER GRANTING DEFENDANT’S
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find for the nonmoving party.” In re Barboza, 545 F.3d 702, 707 (9th Cir. 2008) (internal
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citations omitted).
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B. FMLA
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Under 29 U.S.C. § 2615(a)(1), employees are protected from unlawful actions by their
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employer as a result of taking FMLA leave. Claims under (a)(1) are known as interference
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claims. Under 29 U.S.C. § 2615(a)(2), employees who oppose employer practices made
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unlawful by the FMLA are protected. Claims under (a)(2) are known as retaliation claims.
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Plaintiff has not clarified the basis for her FMLA claim. See Dkt. # 1 (Complaint) at 4-5; Dkt. #
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29 (Opposition to Motion for Summary Judgment) at 6-11. Therefore, the Court will determine
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whether plaintiff’s FMLA claim can survive summary judgment under either analysis.
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1. FMLA Interference
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Section 2615(a)(1) states that it “shall be unlawful for any employer to interfere with,
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restrain, or deny the exercise of or the attempt to exercise, any right provided” by the FMLA. 29
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U.S.C. § 2615(a)(1). To succeed on an FMLA interference claim, Burrer must prove that she
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took “FMLA-protected leave” and that doing so “constituted a negative factor” in an adverse
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employment decision. Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1125 (9th Cir. 2001).
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Boeing does not dispute that Burrer was entitled to FMLA leave or that she was subject to an
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adverse employment action. Therefore, Burrer must present some evidence – either direct or
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circumstantial – that her use of FMLA-protected leave was a negative factor Boeing considered
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in its decision to terminate her employment. Id.
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Boeing presented evidence that over several years, Boeing granted all of Burrer’s requests
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for both intermittent and continuous FMLA leaves. Dkt. # 18 at 27-31. Boeing also presented
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evidence that Burrer’s employment was terminated after she repeatedly failed to follow Boeing’s
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generally applicable policy that she inform her supervisor before leaving the work area. See
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Dkt. # 17 at 51 (10/11/12 CAM). Burrer understood this policy and violated it on multiple
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occasions. Dkt. # 18 at 35-36, 60-61, 63-64, 79.
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ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT - 5
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In response to Boeing’s motion, Burrer offers the following: 1) her belief that Boeing’s
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claims are a “pretext for unlawful retaliation for taking her leave”; 2) that the times she left the
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work area without notice were to complain about employees commenting on her attendance or to
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take FMLA leave; 3) the temporal proximity between her FMLA leave and her termination; and
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4) her perception of other employees’ actions violating Boeing’s rules; 5) comments by
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coworkers and supervisors regarding her attendance. Dkt. # 19 at 8-9. Because it is not clear
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whether Burrer intended to present these arguments in support of her FMLA interference or
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retaliation claim, the Court will consider whether any of these arguments create an issue of
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material fact regarding whether Burrer’s FMLA-protected leave was a negative factor in her
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termination. The Court concludes that Burrer has not presented probative evidence that presents
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a genuine issue of material fact regarding her FMLA interference claim for the reasons set forth
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below.
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First, Burrer’s feelings and speculation regarding the reason for her termination are
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insufficient for her claim to survive summary judgment. See Villiarimo v. Aloha Island Air,
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Inc., 281 F.3d 1054, 1061 (9th Cir. 2002); Nelson v. Pima Cmty. Coll., 83 F.3d 1075, 1081-82
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(9th Cir. 1996). Moreover, the evidence presented supports the conclusion that Burrer’s
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termination was unrelated to her FMLA use. Burrer agreed that Charles Smith, the supervisor
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who reported the policy violation that led to Burrer’s termination, never said or did anything to
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discourage her from taking her FMLA leave or retaliate against her for taking leave. Dkt. # 18 at
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84-85. Likewise, Burrer agreed that no member of Human Resources did anything to discourage
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her or retaliate against her for taking FMLA leave. Id. at 95-96.
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Second, no matter the reason for Burrer to have left the work area without notifying her
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supervisors, it is not a violation of the FMLA for an employer to discipline an employee for
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failing to comply with a generally applicable policy. See Buckman v. MCI World Com Inc., 374
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Fed App’x 719, 720 (9th Cir. 2010). Boeing has presented evidence that it is Boeing policy that
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all employees on their factory floor must notify a manager or supervisor before leaving the work
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area, a policy of which Burrer was aware. Dkt. ## 17 at 24; 18 at 34-37. Burrer has not
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presented any evidence suggesting that the fact that she took FMLA leave relieved her of the
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obligation to comply with this policy.
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As to Burrer’s third basis for avoiding summary judgment, she has not demonstrated a
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sufficiently close temporal connection between her termination and taking FMLA leave or
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complaining about her coworkers’ comments. Burrer was terminated in 2012, which was four
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years after she began taking intermittent FMLA leave and more than a year after reporting her
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coworkers’ comments to HR. See Swan v. Bank of Am., 360 F. App’x 903, 906 (9th Cir. 2009)
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(four months was “too remote in time to support a finding of causation premised solely on
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temporal proximity”). Moreover, the fact that Boeing terminated Burrer’s employment upon her
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return from continuous FMLA leave does not demonstrate that the FMLA leave was the reason
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for Burrer’s termination. Burrer does not dispute that the decision to terminate her employment
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was made before she took her second continuous FMLA leave. See id. (“[A]n employer is not
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required to cease pursuing a disciplinary course of action against an employee that began before
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that employee took FMLA-related leave, simply because that employee took leave.”).
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The evidence that Burrer offers in support of her fourth reason for denying summary
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judgment – her list of other employees’ perceived violations of Boeing policy (Dkt. # 20 at 14-
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15) – is insufficient. Burrer’s perception that these employees violated Boeing policy and were
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not punished is based upon speculation. Burrer has not presented evidence these employees did
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not get approval from their managers regarding their plans to be away from the work area and
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the length of time they were allowed to be away. Nor is there any evidence that the employees
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were not subject to discipline when they failed to comply with Boeing policies. Burrer’s
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speculation regarding her former coworkers’ work practices and discipline is insufficient to
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avoid summary judgment.
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Finally, Burrer argues that comments by her coworkers and supervisors provides support
for her claim. The comments regarding her attendance that Burrer appears to rely upon were
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ORDER GRANTING DEFENDANT’S
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made through August 2011. Dkt. # 20 at 2. On August 30, 2011, Burrer received a CAM for
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leaving the work area twice without permission. Dkt. # 17 at 3, 24. All elements of Burrer’s
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FMLA interference claim were present at that time, but Burrer did not file suit until September
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26, 2014, more than three years later. Any claims based upon comments and discipline in
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August 2011 are therefore time-barred. See 29 U.S.C. § 2617(c); Charnley v. Boeing Co., 2009
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WL 279030, at *2 (W.D. Wash. Feb. 5, 2009).
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For the reasons discussed above, Burrer has not presented evidence that creates a genuine
issue of material fact with respect to an FMLA interference claim.
2. FMLA Retaliation
Under 2615(a)(2), it “shall be unlawful for any employer to discharge or in any other
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manner discriminate against any individual for opposing any practice made unlawful by” the
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FMLA. This provision applies only to an employer’s discriminatory action taken in response to
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an employee who opposes a practice made unlawful by the FMLA; it does “not cover visiting
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negative consequences on an employee simply because he has used FMLA leave.” Bachelder,
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259 F.3d at 1124. The only facts Burrer has set forth that could possibly support a claim that she
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opposed practices made unlawful by the FMLA are the two instances of reporting her
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coworkers’ and supervisor’s comments to Human Resources in August 2011. As discussed
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above, these claims are time-barred. Charnley, 2009 WL 279030, at *2. Burrer therefore has
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failed to present evidence that creates a genuine dispute regarding an FMLA retaliation claim.
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C. Emotional Distress
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Burrer’s complaint includes claims for both intentional and negligent infliction of
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emotional distress. Dkt. # 1-2 at 5. These claims require Burrer to show, among other things,
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severe emotional distress or emotional distress manifested by objective symptoms. Washington
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v. Boeing Co., 105 Wn. App. 1, 17 (2000). In its motion for summary judgment, Boeing argued
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that these claims must be dismissed because they are derivative of Burrer’s unsuccessful FMLA
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claim. Dkt. # 16 at 21. Boeing also offered evidence that Burrer testified that she did not meet
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ORDER GRANTING DEFENDANT’S
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the standard for severe emotional distress and that Burrer offered no evidence that Boeing
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caused any of her emotional distress. Id. at 21-22. Burrer did not respond to Boeing’s evidence
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or arguments. See Dkt. # 19. The Court therefore finds that Burrer has conceded that her claims
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for intentional or negligent infliction of emotional distress are without merit. See Silva v. U.S.
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Bancorp, 2011 WL 7096576, at *3 (C.D. Cal. Oct. 6, 2011). Accordingly, Burrer’s emotional
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distress claims will be dismissed.
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CONCLUSION
For the foregoing reasons, the Court GRANTS defendant’s motion for summary
judgment (Dkt. # 16). All plaintiff’s claims are dismissed with prejudice. The Clerk of Court is
directed to enter judgment for defendant.
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DATED this 22nd day of April, 2016.
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A
Robert S. Lasnik
United States District Judge
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ORDER GRANTING DEFENDANT’S
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