Nguyen v. The Boeing Company

Filing 137

FINDINGS OF FACT AND CONCLUSIONS OF LAW. The Court finds against Plaintiff for her claims of retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and the Washington Law Against Discrimination, RCW 49.60 et seq. Signed by Judge Richard A. Jones. (TH)

HONORABLE RICHARD A. JONES

1
2
3
4
5
6

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

7
8
9

MINHNGA NGUYEN,
Plaintiff,

10
11
12

FINDINGS OF FACT AND
CONCLUSIONS OF LAW

v.
THE BOEING COMPANY,
Defendant.

13
14
15

CASE NO. C15-00793-RAJ

I. INTRODUCTION

On May 20, 2015, Plaintiff Minhnga Nguyen filed a complaint against Defendant,

16

the Boeing Company (“Boeing”), alleging harassment and discrimination based on her

17

race, national origin, and sex, and termination in retaliation for complaining about the

18

alleged harassment and discrimination. Dkt. # 1. The Court heard this matter in a bench

19

trial that began on April 30, 2018, and concluded on May 3, 2018. After orders on three

20

motions to dismiss and a motion for summary judgment, the only issue remaining for trial

21

was whether Plaintiff was terminated from her employment in retaliation for filing an

22

Equal Employment Opportunity (“EEO”) complaint. Dkt. # 46, Dkt. # 111. The trial

23

included the testimony of several witnesses and the admission of various exhibits into

24

evidence. In addition to live testimony at trial, both parties submitted deposition

25

designations from the depositions of Keith Sellers and Plaintiff. Dkt. # 134. The parties

26

also submitted proposed findings of fact and conclusions of law. Dkt. ## 132, 134.

27
28

ORDER – 1

1

Pursuant to Federal Rule of Civil Procedure 52, the Court enters the following

2

findings of fact and conclusions of law. For purposes of organization and clarity, the

3

Court has included some subsidiary conclusions of law with its findings of fact, and vice

4

versa. For the following reasons, Plaintiff failed to meet her burden of proof to show that

5

there was a causal link between her protected activity and her termination, and that the

6

“legitimate, non-discriminatory reason” for her termination was merely a pretext for a

7

discriminatory motive. See Stegall v. Citadel Broad. Co., 350 F.3d 1061, 1066 (9th Cir.

8

2003), as amended (Jan. 6, 2004).

9

II. FINDINGS OF FACT

10

1) Plaintiff is a Vietnamese woman and resident of the State of Washington.

11

Dkt. # 130 at 49:10-51:7. Plaintiff worked as an Electrical Engineer at Boeing

12

from 1991 until 2009, when she was laid off. Id. at 51:8-52:10; 53:11-13.

13

Plaintiff was rehired by Boeing as a Level 3 Systems Engineer in December

14

2011 and worked there until her termination on November 20, 2014. Id. at

15

54:8-16; Tr. Exh. 28.

16

2) When Plaintiff was rehired by Boeing in December 2011, she was supervised

17

by Gary Weber. Dkt. # 129 at 151:2-11. Gary Weber was Plaintiff’s manager

18

at the time of her termination. Id.

19

3) While employed by Boeing, Plaintiff was subject to employee policies and

20

procedures, many of which were set forth in a document titled, “Employee

21

Expectations and Supporting Policies.” Id. at 66:8-67:8; Tr. Exh. 10. The

22

document states that “flex or temporary schedules” must be requested in

23

advance, and that employees should call their “supervisor and lead prior to

24

shift start” when reporting absences. In the event that a supervisor or lead does

25

not answer, employees are instructed to leave a message on voicemail and

26

continue calling co-workers until he or she reaches a “person”. Id.

27
28

ORDER – 2

1

4) Plaintiff was also subject to Boeing’s corrective action policy, set forth in a

2

document titled, “Administration of Employee Corrective Action.” Tr. Exh. 9.

3

The corrective action policy states that an Employee Corrective Action

4

(“ECA”) will be taken when an employee engages in a practice that is

5

inconsistent with the Boeing Code of Conduct, Expected Behaviors for Boeing

6

Employees, U.S. Government security, regulatory and contractual

7

requirements, or ordinary, reasonable, common sense rules of conduct. Id.

8

5) There are seven “Expected Behavior” categories used to classify disciplinary

9

infractions at Boeing. Tr. Exh. 30. These categories can be found listed in a

10

document titled, “Employee Corrective Action Process Requirements

11

(ECAPR)”. Id.

12

6) The stages of corrective discipline are typically handled using progressive

13

corrective action. Dkt. # 129 at 77:11-16. The corrective action process does

14

not necessarily include every step, and can begin with any level and proceed to

15

more severe measures for similar subsequent violations. Tr. Exh. 9. The

16

stages of discipline usually progress as follows: (1) verbal warning; (2) written

17

warning; (3) time off from work without pay; and (4) discharge. Dkt. # 129 at

18

77:11-16.

19

7) Written warnings, time off from work, and discharge require preparation and

20

issuance of a Corrective Action Memo (“CAM”). Tr. Exh. 9. If an employee

21

has an active CAM on file, and that employee engages in subsequent

22

misconduct of a similar type in one of the seven Expected Behavior categories,

23

then a progressive step of corrective action must be issued. Id.; Dkt. # 129 at

24

77:17-19. The standard duration of an active CAM is twelve (12) months

25

unless additional violations for the same or similar type of offense have

26

occurred. Tr. Exh. 9. If such an additional violation occurs, the previous

27
28

ORDER – 3

1

active CAM’s expiration date will be extended to match that of the subsequent

2

CAM. Id.

3

8) One of the seven Expected Behavior categories is “Produce, design, and

4

support our products and services.” One of the possible violations within this

5

Expected Behavior category is “Failure to Comply.” Tr. Exh. 30. “Failure to

6

Comply” is defined as “Failure to follow documented policies, procedures, or

7

processes that have been previously communicated. Failure to perform

8

designated work, or act or cease to act after being instructed or reminded.”

9

The ECA level for this type of violation “[u]sually results in a written

10

warning.” Id. at 16.

11

9) Each possible violation also has aggravating and mitigating factors. An

12

aggravating factor of a “Failure to Comply” violation is if that violation

13

involves behavior that “disrupts production,” is “confrontational or

14

argumentative,” or is “repetitive.” Id.

15

10) Plaintiff received two “Failure to Comply” violations in the “Produce, design,

16

and support our products and services” category prior to the date of her

17

termination. Tr. Exhs. 11, 14. Plaintiff received her first CAM in this category

18

on March 14, 2014 for failing to “release documents” after her manager

19

instructed her to do so. This CAM was a written warning. Tr. Exh. 11.

20

Plaintiff’s supervisor, Dorothy Todd, asked her to release a drawing. Plaintiff

21

refused to do so because it had not passed a safety test and needed more work.

22

Dkt. #130 at 57:4-16.

23

11) When Plaintiff received the March 14, 2014 CAM she refused to sign it. In the

24

section for employee comments, she wrote, “I am a victim of James Michael

25

Todd and Dorothy Todd. I was downgraded by JMT and Dorothy retaliating

26

me for reporting the incidence of the Hamilton Sunstrand trip in 2009, when

27
28

ORDER – 4

1

JMT made Kate Vandermeer R1 to satisfy his personal need. That’s IT.” Id.

2

Plaintiff provided no further explanation for these comments at trial.

3

12) Around the same time that Plaintiff received the March 14, 2014 CAM, she

4

was reassigned to work under a new supervisor, Gary Weber. Dkt. # 129 at

5

165:2-8. At that time, Weber had a good working relationship with Plaintiff.

6

Id. at 165:17-22; Dkt. # 130 at 66:2-3.

7

13) Weber’s group worked primarily on supporting design integration for Boeing’s

8

787 aircraft that were in production. This included the 787-8 and 787-9

9

programs. Another group had primary responsibility for design integration for

10

the 787-10 program, which was in development at that time. Dkt. # 129 at

11

176:10-23. Weber’s group included a team of engineers that were responsible

12

for completing and correcting a large backlog of functional schematics that

13

were needed by different engineering groups associated with the 787 aircraft

14

programs. Id. at 174:21-175:20, 176:10-23. Functional schematics are a tool

15

that is used to aid in error corrections or problems with an airplane. Id. at

16

166:13-19.

17

14) Plaintiff’s primary job responsibility from December 2011 until the

18

termination of her employment was to prepare functional schematics. Id. at

19

166:13-19. The lead engineer in Weber’s group with responsibility for

20

functional schematics was Herb Harvey. The other engineer responsible for

21

functional schematics was Wassen Engida. Neither Harvey’s nor Engida’s

22

primary responsibility was to work on functional schematics. Id. at 167:22-

23

168:12. Harvey served as both Engida’s and Plaintiff’s lead. Id. at 168:13-

24

169:3.

25

15) After Weber became Plaintiff’s supervisor, he began encountering several

26

issues with her. These issues included repeated insults directed toward the

27

other members of her group (Dkt. # 129 170:24-171:12; Tr. Exh. 22), repeated

28

ORDER – 5

1

failures to record her assignments and progress in completing those

2

assignments in a shared spreadsheet created by Harvey (Dkt. # 129 at 171:13-

3

172:2; Dkt. # 131 at 23:1-24:2; Tr. Exh. 22), her initial refusal to cease using a

4

specific tool when working on functional schematics as instructed (Dkt. # 129

5

at 178:10-16; Dkt. # 130 at 58:19-59:18; Tr. Exh. 22), and her failure to follow

6

Weber’s direction to cease work on the 787-10 program (Dkt. # 129 at 170:13-

7

16, 201:25-202:15, 202:19-205:16, 206:7-207:21; Tr. Exh. 22). The existence

8

of all of these issues is supported by ample testimony and documentary

9

evidence. These issues began as early as April of 2014 and escalated in the

10

summer and fall of 2014. Tr. Exhs. 22, 23.

11

16) On Friday, July 18, 2014, Plaintiff’s eyeglasses were stolen while she was in

12

the restroom. When Plaintiff discovered the theft, she was upset and decided

13

to leave work early. Tr. Exh. 12. Before leaving work, Plaintiff sent an email

14

to Jeff Vick, her technical lead, letting him know that she planned to take “a

15

couple of days off.” Id. Weber was on vacation at the time, and Plaintiff

16

testified that she believed that Vick was her acting manager while Weber was

17

away. Dkt. # 130 at 68:2-12.

18

17) Plaintiff did not appear for work on the following Monday, July 21, 2014.

19

Tr. Exh. 13. Plaintiff did not call anyone in advance of her absence on

20

Monday and knew Vick was not in the office at the time she sent her email on

21

Friday. Dkt. # 130 at 69:5-6, 70:22-25. Prior to this incident, Plaintiff was

22

under the impression that Weber preferred in-person communication to report

23

future absences, but that if she wished to have it in writing she could use email.

24

Id. at 70:19-20. Plaintiff was also aware that it was Boeing policy that

25

employees must call their supervisor or lead before their shift starts. Id. at

26

135:17-25.

27
28

ORDER – 6

1

18) On Monday, July 21, 2014, Vick forwarded Plaintiff’s email to Weber’s

2

manager, Keith Sellers, and Human Resources Generalist Kim Conner. In his

3

email, Vick stated that he “found this e-mail this morning. Since I am not a

4

manager, I am forwarding this to you for any action that might be

5

necessary/appropriate.” Tr. Exh. 13. After Keith Sellers received the email, he

6

called Plaintiff and left two messages asking her to call him back that day. Id.;

7

Dkt. # 130 at 27:2-4. Plaintiff did not take Sellers’ phone calls because she did

8

not feel that it was necessary, and did not respond to his request until

9

Wednesday, July 23, 2014. Dkt. # 130 at 135:2-16, 136:2-6; Tr. Exh. 22 at 45.

10

19) Plaintiff initially recorded the time for her July 21, 2014 absence as sick leave.

11

On Wednesday, July 23, 2014, Sellers directed Plaintiff to change her time

12

entry for that day to time off without pay because her July 21, 2014 absence

13

did not qualify for sick leave, she did not contact Sellers or her lead to inform

14

them she was sick, and she did not request pre-approval to take a vacation day.

15

Sellers’ email also stated that her request to flex that time was denied. Plaintiff

16

informed Sellers that she did not agree with this decision several times but did

17

not change her time entry. On August 4, 2014, Sellers adjusted Plaintiff’s time

18

entries according to his directions, as Plaintiff had not done so. Tr. Exh. 22 at

19

45-46.

20

20) On August 1, 2014, Plaintiff received an email requesting that she provide

21

“disposition data or business justification for retaining” her laptop. Tr. Exh. 22

22

at 33. Plaintiff responded that she needed the laptop for her “daily business”

23

with her supervisor’s approval. Id. On August 4, 2014, Weber emailed

24

Plaintiff and stated that “as discussed,” Plaintiff needed to bring in her laptop

25

and turn it in because her “work statement can be fully accomplished with

26

[her] desktop computer.” Tr. Exh. 22. Shortly after Weber sent that email,

27
28

ORDER – 7

1

Sellers sent an email reiterating that Plaintiff should turn in her laptop the

2

following morning. Tr. Exh. 22 at 45.

3

21) Plaintiff then received her second CAM for a “Failure to Comply” violation in

4

the “Produce, design, and support our products and services” category on

5

August 7, 2014 for failing to notify management that she was out of the office

6

on July 21, 2014, and for failing to accurately report her time related to that

7

absence. Tr. Exh. 14. This CAM resulted in time off from work without pay.

8

Id.

9

22) On September 9, 2014, Plaintiff received a parking ticket from Boeing and her

10

car was towed. Tr. Exh. 15. On October 6, 2014, Plaintiff received another

11

parking ticket from Boeing. Tr. Exh. 16. On October 14, 2014, Plaintiff

12

received a CAM in the Expected Behavior category, “Adhere to company

13

agreements, policies, and procedures,” for failure to comply with site parking

14

regulations. Tr. Exh. 17. Plaintiff testified that she believed that the October

15

6, 2014 ticket was a fabrication, but that she parked in no-parking areas on

16

more than one occasion. Dkt. # 130 at 138:5-140:8. There is no evidence to

17

support Plaintiff’s allegation that the parking ticket was fabricated.

18

23) The “Employee Expectations and Supporting Policies” document has a section

19

detailing Boeing’s parking rules and regulations. It states that “[i]llegally

20

parked vehicles are subject to ticket and/or “No Notice Towing” at owner’s

21

expense,” and that vehicles parked in areas not marked for parking and create a

22

perceived safety issue will raise the level of the related CAM to a written

23

warning. A parking violation of this kind would result in a written warning,

24

even if the violation was a “first ticket.” Tr. Exh. 10 at 14-15.

25

24) On October 16, 2014, Plaintiff filed a discrimination complaint with Boeing’s

26

EEO department. Tr. Exh. 3. Plaintiff emailed Heather Frasier, a Human

27

Resource Generalist at Boeing, and attached an EEO complaint form. In her

28

ORDER – 8

1

email, she noted that she had attached her “form for the EEO office” and asked

2

Frasier’s help to forward the form to the “proper department.” Id. Because

3

Plaintiff’s first draft complaint was incomplete, Frasier responded to her

4

submission by pointing out which pages of the form were important to

5

complete and offering to speak to her about her issues. Tr. Exh. 4. Plaintiff

6

thanked Frasier for her feedback and submitted another draft of her complaint.

7

Id.

8
9

25) In her submitted complaint, Plaintiff described her viewpoint of the events
surrounding her CAM’s and took issue with the fact that her union

10

representative was not present when she was disciplined. Id. Plaintiff also

11

noted that her laptop was taken away but that others with similar job

12

assignments were allowed to keep theirs. Id. Plaintiff states that she is a

13

“woman, minority, and English is not my mother language. As manager and

14

HR, Gary and Kim Conner didn’t provide me helpful resources but just want to

15

put black mark on my record in order to get rid of me.” Id. The form did not

16

indicate exactly how she felt she was being discriminated against due to her

17

status as a minority or woman, only that she felt that she was being treated

18

unfairly and unequally. Id.

19

26) On October 17, 2014, Weber emailed Connor and asked to talk to her about

20

“an employee issue and how to move forward.” Tr. Exh. 5. On October 20,

21

2014, Conner sent herself two emails detailing her meeting with Weber. Id.

22

The emails state that Weber’s concern “is regarding Mihngna Nguyen [sic] and

23

her continuing to fail to follow directions.” The emails also state that Plaintiff

24

“continues to do some work that takes a significant amount of time away from

25

the expected work packages,” that Plaintiff would not use a common

26

spreadsheet to log information despite being asked to do so, that there were

27

“other issues”, and that Weber had given her “sufficient time and repeated

28

ORDER – 9

1

requests to comply with the direction, but she fails to do as requested.” Id.

2

The emails also note that Conner informed Frasier, since Frasier received

3

emails from Plaintiff on “01/16/2014 [sic] and 01/17/2014 [sic] . . . regarding

4

the corrective action she has received and feeling singled out,” and that Weber

5

stated that Plaintiff was not being singled out. Id.

6

27) At the time that Conner wrote these emails, she knew that Frasier had received

7

emails from Plaintiff and that Frasier had discussions with Plaintiff regarding

8

Plaintiff’s CAM’s. Frasier testified that she did not tell Conner that these

9

discussions and emails were in the context of Plaintiff’s EEO complaint or that

10

Plaintiff had filed an EEO complaint because Frasier did not think it was

11

appropriate for Conner to know about it at that time. Dkt. # 130 at 18:17-19:6.

12

Conner also testified that she was under the impression that the emails Plaintiff

13

sent to Frasier were solely regarding her corrective actions and that she did not

14

become aware that Plaintiff had filed an EEO complaint until later. Dkt. # 129

15

at 52:3-14, 96:15-24.

16

28) Weber testified that he was not aware that Plaintiff had filed an EEO

17

complaint when he met with Conner on October 17, 2014. Dkt. # 129 at

18

212:17-25. When Weber first met with Conner, he had not yet made the final

19

decision to terminate Plaintiff, but had “pretty much” made the decision that

20

day. Id. at 212:9-12; 215:16-216:6.

21

29) On October 22, 2014, Plaintiff took a day off of work to take care of her father

22

who was ill and in the hospital. Tr. Exh. 20. Plaintiff testified that she

23

obtained verbal permission from Weber to flex her time to make up for that

24

absence on or around October 12, 2014. However, at her deposition she

25

contended that Weber gave his permission implicitly by signing a time sheet

26

that showed she had worked extra hours on some days the week before her

27

absence. Dkt. # 130 at 85:8-10; Dkt. # 133 Ex. B at 110:2-20. Weber testified

28

ORDER – 10

1

that he did not give Plaintiff his permission. Dkt. # 129 at 213:15-214:21.

2

There is no other evidence to support Plaintiff’s contention that she received

3

permission from Weber to flex her time or take that day off of work.

4

30) On October 24, 2014, Weber sent an email to Plaintiff asking why she did not

5

record any time for her October 22, 2014 absence and reiterating that Plaintiff

6

did not ask permission to flex her schedule. Tr. Exh. 20. Plaintiff responded

7

by apologizing and asking to flex her time for that absence. She then asked for

8

permission to flex her time permanently. Id. Plaintiff’s email does not state

9

that she received permission to flex her time prior to her absence. Weber

10

replied by reiterating that Plaintiff did not inform him that she intended to be

11

absent on October 22, and refusing her request to continue to flex her time

12

moving forward. Id.

13

31) On October 22, 2014, Weber emailed Conner and provided her with a

14

memorandum describing the issues they discussed in their meeting. On

15

October 27, 2014, Conner asked Weber to provide documentation to

16

substantiate his claims and to support his description of the problems that he

17

was having with Plaintiff. Dkt. # 129 at 215:16-216:6; Tr. Exh. 19. Weber

18

also asked Harvey to gather related documentation and submitted that along

19

with other information to Conner on October 28, 2014. Tr. Exhs. 22-24.

20

32) On or about October 27, 2014, Conner met with Plaintiff and her union

21

representative to discuss the issues raised by Weber. Dkt. # 129 at 104:4-

22

105:10. Because Conner did not feel as though Plaintiff gave her direct

23

answers to her questions, Conner followed up with Plaintiff in writing, asking

24

for Plaintiff’s view of the situation. Dkt. # 129 at 105:7-16; Tr. Exh. 21. The

25

email detailed four examples of situations where Weber asked Plaintiff to do

26

something, and Plaintiff did not follow his directions. Id. In Plaintiff’s

27

response, she indicated that felt she was being treated differently than other

28

ORDER – 11

1

employees in the same group, that she was concerned that Conner and Weber

2

were working together to give her CAM’s and suspensions, and that she was

3

being targeted for termination. Tr. Exh. 21.

4

33) Conner then met with Weber to review Plaintiff’s responses and discuss the

5

supporting documentation Weber sent Conner on October 22 and 28. Dkt. #

6

129 at 120:3-13. After reviewing Plaintiff’s responses, Weber made the final

7

decision to discharge Plaintiff. Dkt. # 129 at 215:10-216:14. Conner testified

8

that the decision to terminate Plaintiff was made on or around October 28 or

9

29, 2014. Id. at 120:9-20. Conner’s testimony is supported by Weber’s

10

testimony as well. Weber stated that he did not remember the exact date he

11

made the final decision, but that it was “probably that following week” after he

12

sent supporting documentation to Conner. Id. at 215:10-22.

13

34) After Weber informed Conner that he had decided to proceed with the

14

termination, Conner reached out to Frasier to let her know. Id. at 120:21-

15

121:10. Fraiser then informed Conner that Plaintiff had filed an EEO

16

complaint and that it needed to be investigated. Dkt. # 129 at 120:21-121:7,

17

216:7-18; Dkt. # 130 at 19:7-17. Weber testified that at the time he made the

18

decision to terminate Plaintiff’s employment, he did not yet know that Plaintiff

19

had filed an EEO complaint. Dkt. # 129 at 215:10-216:14.

20

35) On November 3, 2014, Plaintiff received another parking ticket. Tr. Exh. 25.

21

36) On November 4, 2014, Frasier submitted Plaintiff’s complaint to David

22

Wuerch in Boeing’s EEO department. Tr. Exh. 26. Wuerch and Frasier

23

exchanged emails regarding the content of the complaint and Frasier indicated

24

that she met with Plaintiff in order to “try to understand the basis of her

25

complaint,” and noted that Plaintiff incorporated some additional information.

26

Id. Frasier noted that Plaintiff had received another parking ticket and that this

27

ticket should result in termination. Id. On November 13, 2014, Wuerch wrote

28

ORDER – 12

1

to Frasier that he did not see any “EEO issues” and that they could proceed

2

with Plaintiff’s termination. Id. Dkt. # 129 at 121:8-122:21, 216:25-217:4;

3

Dkt. # 130 at 19:21-21:8. Conner was informed of the EEO office’s decision

4

on November 14, 2014. Tr. Exh. 26.

5

37) On November 20, 2014, while Weber was out on medical leave, Sellers,

6

Conner, and another Human Resources employee, Ayesha Riaz, attended the

7

termination meeting with Plaintiff. Dkt. # 129 at 123:17-124:9, 129:5-16.

8

Sellers informed Plaintiff that she was being issued two additional CAM’s.

9

Tr. Exhs. 27, 28. The first was issued because of the November 3, 2014

10

parking violation. The Expected Behavior category for this CAM was “Adhere

11

to company agreements, policies and procedures. Id. The other CAM was

12

Plaintiff’s third CAM for a “Failure to Comply” violation in the “Produce,

13

design, and support our products and services” category. Specifically, the

14

CAM was issued for Plaintiff’s failure to obtain manager approval to flex her

15

schedule, failure to stop using a specific tool when working on functional

16

schematics and to stop working on the 787-10 program when requested by her

17

manager, and failure to start using a common process when requested by her

18

manager. Id. As this CAM was Plaintiff’s third in the same Expected

19

Behavior category, it was the basis for Plaintiff’s termination. Dkt. # 129

20

126:11-129:4. Sellers then informed Plaintiff that he was terminating her

21

employment with Boeing for failure to follow employer directives. Dkt. # 129

22

at 129:22-130:19.

23

38) What transpired after Sellers informed Plaintiff that she was being terminated

24

is disputed by the parties. What is undisputed is that at some point Plaintiff

25

became distressed by her termination, security was called, and shortly

26

thereafter, Plaintiff became unresponsive and the paramedics were called.

27
28

ORDER – 13

1

Dkt. # 129 at 120:22-133:22; Dkt. # 130 at 98:1-106:16; Dkt. # 131 6:16-

2

15:10. When Plaintiff became responsive again, she exited the premises. Id.
III. CONCLUSIONS OF LAW

3
4

The Court analyzes Plaintiff’s state and federal retaliation claims under the same

5

framework. Stegall v. Citadel Broad. Co., 350 F.3d 1061, 1065-1066 (9th Cir. 2003)

6

(finding that Washington courts look to federal law when analyzing retaliation claims,

7

and utilizing the three-part burden shifting test described in McDonnell Douglas Corp. v.

8

Green, 411 U.S. 792 (1973)). To establish a prima facie case of retaliation, a plaintiff

9

must demonstrate that (1) she engaged in a statutorily protected activity, (2) defendant

10

took some adverse employment action against her, and (3) there is a causal connection

11

between the protected activity and the adverse employment action. Id. at 1065-1066;

12

Corville v. Cobarc Servs., Inc., 869 P.2d 1103, 1105 (Wash. Ct. App. 1994). If a plaintiff

13

establishes a prima facie case, the evidentiary burden shifts to the employer to produce

14

admissible evidence of a legitimate, nondiscriminatory reason for the discharge. Stegall,

15

350 F.3d at 1066; Hollenback v. Shriners Hospitals for Children, 206 P.3d 337, 344

16

(Wash. Ct. App. 2009). If the employer meets its burden, the presumption is removed

17

and the employee must then establish pretext. Stegall, 350 F.3d at 1066; Hollenback, 206

18

P.3d at 344. “[A] plaintiff can prove pretext in two ways: (1) indirectly, by showing that

19

the employer's proffered explanation is ‘unworthy of credence’ because it is internally

20

inconsistent or otherwise not believable, or (2) directly, by showing that unlawful

21

discrimination more likely motivated the employer.” Chuang v. Univ. of California

22

Davis, Bd. of Trustees, 225 F.3d 1115, 1127 (9th Cir. 2000) (citing Godwin v. Hunt

23

Wesson, Inc., 150 F.3d 1217, 1220-22 (9th Cir. 1998)). In some cases, a combination of

24

indirect and direct evidence can establish pretext. Id.

25
26
27
28

ORDER – 14

1
2

A.

Plaintiff failed to demonstrate a causal connection between her protected
activity and her termination.
1) It is undisputed that Plaintiff engaged in protected activity when she filed her

3

EEO complaint in October of 2014 and that her termination in November of

4

2014 was an adverse employment action.

5

2) Plaintiff did not show by a preponderance of the evidence that her filing of an

6

EEO complaint was one of the reasons she was terminated, and that, but for

7

that complaint, she would not have been fired. See Villiarimo v. Aloha Island

8

Air, Inc., 281 F.3d 1054, 1064-65 (9th Cir. 2002).

9

3) There is very little evidence to support Plaintiff’s contention that Weber

10

learned of Plaintiff’s protected activity prior to making his decision to

11

terminate her employment. The only evidence that Plaintiff points to in

12

support of her contention is the October 20, 2014 email that Conner sent to

13

herself, mentioning that Frasier received emails from Plaintiff. This email

14

does not indicate that Fraiser told Conner about the EEO complaint or that

15

Conner then passed on that information to Weber. Frasier, Weber, and Conner

16

all testified that this was not the case.

17

4) The closeness in time between the filing of Plaintiff’s complaint and her

18

termination is also insufficient to support an inference of causation without

19

other supporting evidence. Plaintiff points to the fact that Weber gathered

20

additional documentation and evidence regarding his issues with Plaintiff and

21

asked that Harvey aid him, as evidence that Plaintiff’s complaint led him to

22

move forward with her termination. However, the record shows that Weber

23

gathered this information at Connor’s request. While Weber was acting to

24

gather evidence to support his statements, there is no indication that he was

25

taking this action because of her complaint and the action itself does not

26

support an inference that he had knowledge of the complaint. Plaintiff points

27

to no other circumstantial evidence to support an inference of causation. See

28

ORDER – 15

1

Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987) (“Causation sufficient

2

to establish the third element of the prima facie case may be inferred from

3

circumstantial evidence, such as the employer's knowledge that the plaintiff

4

engaged in protected activities and the proximity in time between the protected

5

action and the allegedly retaliatory employment decision.”).
5) Plaintiff has not shown by a preponderance of the evidence that her complaint

6
7

was a substantial factor in Weber’s decision to terminate her, or that it was a

8

reason she was terminated.

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

B.

Defendant met its burden to produce evidence of a legitimate,
nondiscriminatory reason for Plaintiff’s discharge.
1) In the months leading up to her termination, Plaintiff displayed a pattern of
failing to comply with management direction or company policies. At the time
of her termination, Plaintiff had five CAM’s. While not all of these CAM’s
were in the same Expected Behavior category, all five involved situations
where Plaintiff refused to follow management direction or company policy.
Defendant also produced evidence of several other instances where Plaintiff
failed to comply with management direction for which she did not receive a
corrective action.
2) Three of Plaintiff’s CAM’s were a result of a “Failure to Comply” violation in
the “Produce, design, and support our products and services” category.
Pursuant to Boeing’s employee corrective action policy, the corrective action
process does not necessarily include every step, and can begin with any level.
Three CAM’s in the same Expected Behavior category is sufficient grounds for
termination.
3) Defendant has established a legitimate, nondiscriminatory reason for Plaintiff’s
discharge.

26
27
28

ORDER – 16

1
2

C.

Plaintiff failed to demonstrate that Defendant’s legitimate, nondiscriminatory
reason for her termination was pretextual.
1) Other than conclusory statements made in her testimony, emails, and EEO

3

complaint, Plaintiff provided no direct or indirect evidence of discrimination.

4

See Chuang v. Univ. of California Davis, Bd. of Trustees, 225 F.3d 1115, 1127

5

(9th Cir. 2000). Plaintiff alleged that she was being treated differently than

6

other employees with regards to several of her infractions, specifically with

7

regards to the enforcement of parking violations, the handling of her absence

8

on July 21, 2014, whether she was allowed to use a laptop, and whether she

9

was allowed to flex her schedule. However, Plaintiff provided no concrete

10

details or other testimony to support her claims of alleged unequal treatment.

11

2) Plaintiff provided no evidence to support her claims that she was not treated

12

equally to those outside her protected class or that employees outside her

13

protected class were “treated better for offenses of comparable seriousness.”

14

See Reynaga v. Roseburg Forest Prod., 847 F.3d 678, 694 (9th Cir. 2017) (“the

15

fact that persons outside the plaintiff’s protected class were treated better for

16

offenses of comparable seriousness could also help demonstrate pretext”).

17

3) Plaintiff provided no evidence that Boeing’s proffered explanation for

18

Plaintiff’s termination was internally inconsistent or otherwise not believable.

19

4) Plaintiff provided no evidence that unlawful discrimination motivated Boeing

20

in any way to terminate her.

21
22

//

23

//

24

//

25
26
27
28

ORDER – 17

1
2
3
4

IV. CONCLUSION

For the reasons stated above, the Court finds against Plaintiff for her claims of
retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and
the Washington Law Against Discrimination, RCW 49.60 et seq. The clerk shall enter
judgment for Defendant.

5
6

DATED this 28th day of November, 2018.

7
8
9

A

10
11

The Honorable Richard A. Jones
United States District Judge

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

ORDER – 18