Nguyen v. The Boeing Company

Filing 46

ORDER granting defendant's 43 Motion to Dismiss for Failure to State a Claim by Judge Richard A Jones.(RS) cc plaintiff

HONORABLE RICHARD A. JONES

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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MINHNGA NGUYEN,

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Plaintiff,
CASE NO. C15-793RAJ
v.
ORDER
THE BOEING COMPANY,

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Defendant.

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I. INTRODUCTION

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This matter comes before the Court on Defendant Boeing Company’s

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(“Defendant”) Motion to Dismiss Plaintiff Minhnga Nguyen’s (“Plaintiff”) Third

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Amended Complaint In Part. Dkt. # 42. For the reasons set forth below, the Court

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GRANTS Defendant’s Motion. Dkt. # 43.

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II. BACKGROUND

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On May 20, 2015, pro se plaintiff Minhnga Nguyen filed this action alleging

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claims of discrimination and retaliation under Title VII. See Dkt. # 1 at 2. Defendant

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moved to dismiss. Dkt. # 12. On December 8, 2015, the Court granted Defendant’s

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Motion to Dismiss, but gave Plaintiff leave to amend. Dkt. # 24. Plaintiff filed a Second

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ORDER – 1

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Amended Complaint, alleging claims for disparate treatment, hostile work environment,

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retaliation, wrongful termination in violation of public policy, violations of the federal

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Family and Medical Leave Act (“FMLA”) and Washington Family Leave Act

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(“WFLA”), and failure to accommodate. Dkt. # 29. Defendant again moved to dismiss.

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Dkt. # 31. On May 16, 2016, the Court granted in part and denied in part Defendant’s

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Motion, but again provided Plaintiff an opportunity to amend. Dkt. # 41. The Court

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identified the deficiencies in Plaintiff’s Amended Complaint and cautioned her that if she

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did not cure these deficiencies, the Court would dismiss all affected claims. Id. On May

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26, 2016, Plaintiff filed her Third Amended Complaint. Dkt. # 42. Defendant then filed

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the instant motion. Dkt. # 43.
Plaintiff worked for Defendant as an engineer for twenty-one years before she was

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terminated from her position in November 2014 for failing to comply with management

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direction. See Dkt. # 42 at 1-2. This action followed.

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Plaintiff lists a series of events which she perceives to be discriminatory. In

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March 2013, her supervisor, Dorothy Todd, rated Plaintiff “efficiently,” but gave her a

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lower retention rating than Keith Choyke, a “young white male employee with less

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experience.” Id at 2. In response to this rating, Plaintiff emailed the other managers

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about her concerns. Id.

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In April 2014, Keith Sellers became Plaintiff’s senior manager. Id. Mr. Sellers

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directed Plaintiff’s new supervisor, Gary Weber, to reduce his Systems Engineering team

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by six workers. Id. at 30. Sometime afterwards, Mr. Weber told Plaintiff, “[F]or what

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you do, I can easily get a drafter to replace you.” Id. at 2.

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On July 18, 2014, Plaintiff’s eyeglasses were stolen at work and she felt sick. Id.

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at 3. She emailed acting manager Jeff Vick, informing him that she would need “a

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couple days off” due to the incident. Id. at 14. On July 21, 2014, Mr. Sellers called

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Plaintiff several times while she was at home during her sick leave, but Plaintiff did not

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respond. Id. at 3. As a result, Mr. Sellers altered Plaintiff’s sick leave to leave without

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ORDER – 2

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pay. Id. A few weeks later, Mr. Sellers and Mr. Weber had Plaintiff return her laptop

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and withdrew authorization for her to work offsite. Id. at 3, 17.

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On August 7, 2014, Plaintiff received a Corrective Action Memo (“CAM”) from

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HR employee Kim Conner and Mr. Sellers. The CAM advised that she had neglected to

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notify management that she would be out of the office on July 21, 2014 and that she had

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reported her time inaccurately. Id. at 15. As a result, Plaintiff was suspended from

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August 8, 2014 to August 14, 2014. Id. at 3. Plaintiff had previously received a written

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warning by Ms. Todd on March 14, 2014, for refusing to release engineering drawings to

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Defendant. Id. at 2.

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On August 15, 2014, Plaintiff emailed Defendant’s Director of Engineering, Rich

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Horigan, about her suspension. Id. at 3. On September 9, 2014, Plaintiff’s car was towed

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by Defendant, and Plaintiff received a parking ticket. Id. On October 15, 2014, Plaintiff

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received a CAM from Mr. Weber due to her failure to comply with Defendant’s parking

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regulations. Id. at 3, 16.

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On October 17, 2014, Plaintiff filed a discrimination complaint to Defendant’s HR

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manager, Heather Frasier. Id. at 4. On November 20, 2014, Ms. Conner and Mr. Sellers

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engaged Plaintiff in a disciplinary meeting. Id. That same day, Plaintiff received a CAM

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for her failure to park in designated parking spaces. Id. at 19. As a result, she received a

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five day suspension. Ultimately, she was terminated. Id. at 19, 20.

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Plaintiff filed a discrimination charge with the Equal Employment Opportunity

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Commission (“EEOC”). Id. at 28. The EEOC was unable to conclude from the available

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information that there were any statutory violations, and issued Plaintiff a right to sue

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letter. Id.

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III. LEGAL STANDARD

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Fed. R. Civ. P. 12(b)(6) permits a court to dismiss a complaint for failure to state a

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claim. The rule requires the court to assume the truth of the complaint’s factual

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ORDER – 3

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allegations and credit all reasonable inferences arising from those allegations. Sanders v.

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Brown, 504 F.3d 903, 910 (9th Cir. 2007). A court “need not accept as true conclusory

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allegations that are contradicted by documents referred to in the complaint.” Manzarek v.

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St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). The plaintiff must

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point to factual allegations that “state a claim to relief that is plausible on its face.” Bell

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Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). If the plaintiff succeeds, the complaint

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avoids dismissal if there is “any set of facts consistent with the allegations in the

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complaint” that would entitle the plaintiff to relief. Id. at 563; Ashcroft v. Iqbal, 556 U.S.

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662, 679 (2009).

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A court typically cannot consider evidence beyond the four corners of the

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complaint, although it may rely on a document to which the complaint refers if the

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document is central to the party’s claims and its authenticity is not in question. Marder v.

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Lopez, 450 F.3d 445, 448 (9th Cir. 2006). A court may also consider evidence subject to

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judicial notice. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).

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Where a plaintiff proceeds pro se, the court must construe her “complaints

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liberally even when evaluating it under the Iqbal standard.” Johnson v. Lucent Techs.

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Inc., 653 F.3d 1000, 1011 (9th Cir. 2011). A pro se litigant who has filed a deficient

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complaint is generally “entitled to notice of the complaint’s deficiencies and an

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opportunity to amend prior to dismissal of the action.” Lucas v. Dep’t of Corr., 66 F.3d

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245, 248 (9th Cir. 1995). But such complaints are subject to dismissal where “it is

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absolutely clear” that further amendment would not cure the deficiencies. Id.; see also

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Garity v. APWU Nat’l Labor Org., 655 Fed. Appx. 523 (9th Cir. 2016) (unpublished)

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(affirming trial court’s dismissal with prejudice of pro se plaintiff’s amended complaint

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of hostile work environment, negligent retention, and intentional infliction of emotional

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distress claims as insufficiently plead.).

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ORDER – 4

IV. ANALYSIS

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a. Disparate Treatment Claims

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Plaintiff’s Third Amended Complaint brings disparate treatment claims pursuant
to Title VII, Washington Law Against Discrimination (“WLAD”), and 42 U.S.C. § 1981.
Dkt. # 42 at 2. Plaintiff asserts that she was discriminated against based on her race,
national origin, and gender. Id.

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To establish a prima facie case of disparate treatment, a plaintiff must show “(1)
that [s]he is a member of a protected class; (2) that [s]he was qualified for [her] position
and performing [her] job satisfactorily; (3) that [s]he experienced an adverse employment
action; and (4) that ‘similarly situated individuals outside [her] protected class were
treated more favorably, or other circumstances surrounding the adverse employment
action give rise to an inference of discrimination.’” Knight, 797 F. Supp. 2d at 1125
(quoting Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir. 2004)). 1

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Defendant asserts that Plaintiff’s disparate treatment claims should be dismissed
with prejudice because Plaintiff has again failed to sufficiently allege a legally cognizable
comparator as previously noted by the Court. Dkt. # 43 at 5.

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The Court agrees. Plaintiff attempts to provide a legally cognizable comparator by
identifying Boeing employees who were allegedly treated more favorably than her. She
alleges that in March 2013, Keith Choyke, a “young white male employee” was rated at a
higher retention level rating than Plaintiff. Dkt. # 42 at 2. But Plaintiff does not include
any allegations that Mr. Choyke was a similarly situated employee or had acted similarly
to Plaintiff. See Dkt. # 42 at 2. Plaintiff further alleges that male Boeing engineers Matt
Koehler and Herb Harvey were treated better. Id. at 9. Plaintiff again merely offers the

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Because Washington’s discrimination laws substantially parallel federal laws, it is often
appropriate to analyze state and federal discrimination claims together. See Little v. Windermere
Relocation, Inc., 301 F.3d 958, 966 (9th Cir. 2001) (citing Payne v. Children’s Home Soc. of
Wash., 892 P.2d 1102, 1105 (Wash. 1995)); Alonso v. Quest Commc’ns Co., LLC, 315 P.3d 610,
616 n.11 (Wash. Ct. App. 2013) (citing Xieng v. Peoples Nat’l Bank of Wash., 844 P.2d 389, 392
(Wash. 1993)); Knight v. Brown, 797 F. Supp. 2d 1107, 1133 (W.D. Wash. 2011) (applying same
analysis to claims under Title VII, § 1981, and WLAD).

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facts that Mr. Koehler’s salary was higher than Plaintiff’s, and that Mr. Harvey was

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promoted as Plaintiff’s lead. Id. Plaintiff fails to show that these employees were

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similarly situated in the same job as Plaintiff, or engaged in similar conduct as Plaintiff,

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such as committing parking violations or refusing to release engineering drawings. Id. at

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Plaintiff also submits the affidavit of Ted Yan, an engineer who worked with

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Plaintiff. The Court, however, has already determined that Mr. Yan does not qualify as a

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legally cognizable comparator. See Dkt. # 41 at 6 n.3 (“Mr. Yan’s statements do not

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indicate that he ever engaged in any of the activity Plaintiff claims she was disciplined

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for.”).
Plaintiff does not identify any other specific comparators in order to sustain her

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claims. She makes threadbare and conclusory allegations about Defendant’s employees,

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such as alleging that “all male American employees” were allowed to keep their laptops

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and work from home (Dkt. # 42 at 3); “American male engineers” were not denied sick

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leave nor suspended five days for taking sick leave (Id.); “no Boeing American male

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employee received . . . severely bad treatment” (Id. at 4); “Boeing male American

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employees don’t receive this kind of severe unfit disciplines” (Id. at 5); “male American

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employee[s]” were not insulted like Plaintiff (Id. at 6); and “other American male

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employees” were allowed to flex time (Id. at 7). Plaintiff fails to identify employees who

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are “similarly situated . . . [and] have similar jobs and display[ed] similar conduct.”

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Vasquez v. Cty. of Los Angeles, 349 F.3d 634, 641 (9th Cir. 2004) (citing Ward v. Procter

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& Gamble Paper Prods. Co., 111 F.3d 558, 560-61 (8th Cir. 1997)). To demonstrate

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disparate treatment, Plaintiff must allege that she and other employees “were treated

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differently despite displaying similar conduct.” Espinoza v. Corvington, No. 2:10-CV-

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03213 JAM, 2012 WL 639313, at *8 (E.D. Cal. Feb. 27, 2012). She has not done so.

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Consequently, Plaintiff has not provided legally cognizable comparators for her disparate

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treatment claims. The Court DISMISSES these claims with prejudice.

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b. Hostile Work Environment Claims

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Next, Plaintiff alleges hostile work environment claims pursuant to Title VII and

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WLAD. Dkt. # 42 at 9. To prevail on a hostile workplace claim, Plaintiff must show: (1)

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that she was subjected to verbal or physical conduct based on her protected characteristic;

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(2) that the conduct was unwelcome; and (3) that the conduct was sufficiently severe or

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pervasive to alter the conditions of the plaintiff’s employment and create an abusive work

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environment. See Vasquez, 349 F.3d at 642; see also Knight, 797 F. Supp. 2d at 1131

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(analyzing Title VII, § 1981, and WLAD hostile work environment claims together).

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Additionally, for Title VII violations, “courts look at all the circumstances, including ‘the

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frequency of the discriminatory conduct, its severity; whether it is physically threatening

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or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with

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an employee’s work performance.’” Knight, 797 F. Supp. 2d at 1131-32 (quoting Harris

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v. Forklift Sys., Inc., 114 S. Ct. 367, 371 (1993)).

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Defendant argues in its motion that Plaintiff still does not fulfill the first and third

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elements. See Dkt. # 43 at 8-9; Dkt. # 45 at 4. Defendant is correct. Plaintiff repeats the

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same prior insufficient allegations in her Third Amended Complaint.

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For the first prong, Plaintiff does not allege facts suggesting that she was subjected

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to verbal or physical conduct based on her sex, race, or national origin. See Dkt. # 42.

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Again, she relies upon conclusory statements, such as stating that the listed actions “were

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based on Plaintiff’s race, Asian, Plaintiff’s sex female.” Id. at 1. Although Plaintiff lists

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several incidents in her Third Amended Complaint, she does not allege that these

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incidents are tied to her sex, race, or national origin. For example, Plaintiff alleges that

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her supervisor Mr. Weber insulted her by saying that “for what you do, I can easily get a

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drafter to replace you.” Id. at 2. Plaintiff also alleges that she received several

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unwelcome phone calls during her sick leave. Id. at 3. While these instances may

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qualify as unwelcome conduct for the second prong, Plaintiff does not sufficiently allege

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that the alleged conduct was based on her sex, race, or national origin.

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For the third prong, Plaintiff’s Third Amended Complaint does not show that the

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alleged conduct was severe or pervasive enough to qualify as a hostile work environment.

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The Ninth Circuit has found that generally, “‘isolated’ incidents, occurring sporadically

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over a long period of time, are not severe or pervasive enough to alter the conditions of

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employment.” Henry v. Regents of the Univ. of Cal., 37 F. Supp. 3d 1067, 1085 (N.D.

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Cal. 2014). Plaintiff alleges only several incidents over a long period of time, such as an

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unsatisfactory performance review, two phone calls during her sick leave, removal of her

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laptop and remote working privileges, and receiving a parking ticket for improperly

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parking at work. See Dkt. # 42 at 2-3. Accordingly, the Court DISMISSES Plaintiff’s

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hostile work environment claims with prejudice.

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c. Retaliation Claims

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Plaintiff alleges that Defendant retaliated against her after she failed to return Mr.

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Sellers’ phone calls during her sick leave and refused to release engineering drawings. 2

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Id. For a prima facie case of retaliation, Plaintiff must show that “(1) she engaged in a

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protected activity, (2) she suffered an adverse employment action, and (3) there was a

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causal link between her activity and the employment decision.” Id. (quoting Raad v.

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Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1196-97 (9th Cir. 2003)). 3

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The Court previously dismissed Plaintiff’s retaliation claims for failing to

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demonstrate how declining to return Mr. Sellers’ calls and refusing to release engineering

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drawings constitute protected activity under Title VII or WLAD. “An employee engages

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in protected activity when she opposes an employment practice that either violates Title

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VII or that the employee reasonably believes violates that law.” Westendorf v. W. Coast

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Plaintiff brings a separate retaliation claim based on her October 2014 EEOC complaint
submission and subsequent termination. This retaliation claim is not at issue in Defendant’s
Motion. The Court declined to dismiss this claim in Defendant’s previous Motion to Dismiss.
See Dkt. # 41 at 10.
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Courts commonly consider retaliation claims brought under Title VII and WLAD together. See
Stegall v. Citadel Broad. Co., 350 F.3d 1061, 1065 (9th Cir. 2003) (citing Little v. Windermere
Relocation, Inc., 301 F.3d 958, 969 (9th Cir. 2002)).

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Contractors of Nev., Inc., 712 F.3d 417, 422 (9th Cir. 2013) (citing Freitag v. Ayers, 468

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F.3d 528, 541 (9th Cir. 2006)).

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Plaintiff’s Third Amended Complaint does not cure the deficiencies previously

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noted by the Court. The Court DISMISSES with prejudice Plaintiff’s claims of

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retaliation relating to Mr. Sellers’ calls and to her refusal to release drawings.

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d. Wrongful Termination in Violation of Public Policy

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Plaintiff alleges wrongful discharge in violation of public policy. See Dkt. # 42 at

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10. She alleges that Defendant violated public policy because Defendant’s employees

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“made a big scene when they fired Plaintiff brutally and unlawfully on 11/20/14, caused

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humiliation and injury to Plaintiff.” Id.
To bring a claim for wrongful termination in violation of public policy, Plaintiff
must allege facts demonstrating four elements:
(1) the existence of a clear public policy (the clarity element); (2) that
discouraging the conduct in which he or she engaged would jeopardize the
public policy (the jeopardy element); (3) that the public-policy-linked
conduct caused the dismissal (the causation element); and (4) that the
defendant has not offered an overriding justification for the dismissal (the
absence of justification element).

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Armijo v. Yakima HMA, LLC, 868 F. Supp. 2d 1129, 1134 (E.D. Wash. 2012) (quoting

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Cudney v. ALSCO, Inc., 259 P.3d 244, 246 (Wash. 2011)). Examples of clear public

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policy violations are “when an employer terminates an employee as a result of his or her

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(1) refusal to commit an illegal act, (2) performance of a public duty or obligation, (3)

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exercise of a legal right or privilege, or (4) in retaliation for reporting employer

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misconduct.” Id.

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Defendant argues that Plaintiff’s Third Amended Complaint fails to identify a

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violation of public policy. See Dkt. # 43 at 10. In response, Plaintiff contends that the

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public policies allegedly violated include “Boeing’s oral warning for 1st and 2nd parking

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mistake, Boeing Discharge policy, Washington Law Against Discrimination, and Human

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Rights, and Federal Law Title VII.” See Dkt. # 44 at 8.

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Plaintiff has not sufficiently alleged that she was terminated in violation of public

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policy. Defendant’s internal policies do not qualify as public policies. Furthermore,

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while Plaintiff cites Title VII and WLAD as bases for public policy, these statutes cannot

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serve as such. See Armijo, 868 F. Supp. 2d at 1134-35 (holding that WLAD and

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Washington’s Law Against Retaliatory Discharge provide for a cause of action

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themselves, and thus, do not support a third cause of action for wrongful discharge as

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there is not additional “jeopardy” not already protected by the statutes themselves); see

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also Lee v. Rite Aid Corp., 917 F. Supp. 2d 1168, 1175-76 (E.D. Wash. 2013) (finding

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that wrongful discharge claim was barred because the WFLA, WLAD, and FMLA

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sufficiently protected the public policy against pregnancy related employment

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discrimination). The Court DISMISSES with prejudice Plaintiff’s claim that she was

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terminated in violation of public policy.

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e. Family Medical Leave Claims

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Plaintiff alleges that Defendant violated the FMLA and the WFLA by refusing to

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grant Plaintiff leave “to care for herself on 07/21/14, and . . . denied Plaintiff to flex [sic]

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time permanently to care for her ill dad.” Dkt. # 42 at 11. To prevail on a FMLA

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interference claim, an employee must establish that “(1) [s]he was eligible for the

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FMLA’s protections, (2) [her] employer was covered by the FMLA, (3) [s]he was

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entitled to leave under the FMLA, (4) [s]he provided sufficient notice of [her] intent to

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take leave, and (5) [her] employer denied [her] FMLA benefits to which [s]he was

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entitled.” See McDaniels v. Grp. Health Co-op, 57 F. Supp. 3d 1300, 1316 (W.D. Wash.

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2014) (quoting Sanders v. City of Newport, 657 F.3d 772, 778 (9th Cir. 2011)).

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Plaintiff’s Third Amended Complaint fails to substantiate her FMLA and WFLA

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claims. Instead of bolstering her claim with additional allegations, she merely reiterates

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her prior insufficient allegations with even less explanation for how the FMLA and

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WFLA were violated. These claims are DISMISSED with prejudice.

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f. Failure to Accommodate Claim

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Lastly, Plaintiff brings a claim for failure to accommodate under the Americans

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with Disabilities Act (“ADA”), the WLAD, and Title VII. See Dkt. # 42 at 11. Plaintiff

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repeats her argument that Defendant violated these laws by preventing her from obtaining

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a “CAD” scan after being terminated and by suspending her for improperly using sick

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leave several days after her eyeglasses were stolen at work. Id. Plaintiff does not add

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any new allegations in her Third Amended Complaint. Id.

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To state a claim for failure to accommodate under the ADA, Plaintiff “must show
that ‘(1) [she] is disabled within the meaning of the ADA; (2) [she] is a qualified

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individual able to perform the essential functions of the job with reasonable

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accommodation; and (3) [she] suffered an adverse employment action because of [her]

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disability.’” Hotchkiss v. CSK Auto, Inc., 918 F. Supp. 2d 1108, 1123 (E.D. Wash. 2013)

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(quoting Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1237 (9th Cir.

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2012)). The WLAD requires Plaintiff to show:

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(1) that [s]he had a sensory, mental, or physical abnormality that
substantially limited his or her ability to perform the job; (2) that [s]he was
qualified to perform the essential functions of the job in question; (3) that
[s]he gave [her] employer notice of the abnormality and its accompanying
substantial limitations; and (4) upon receiving notice, the employer failed to
affirmatively adopt measures that were available to and medically
necessary to accommodate the abnormality.
Id. (citing Riehl v. Foodmaker, Inc., 94 P.3d 930, 934 (Wash. 2004)).
As previously determined by the Court, Plaintiff does not appear to have a
disability as covered by the ADA. See Dkt. # 41 at 13. Furthermore, Plaintiff does not
explain how Defendant would be able to accommodate any alleged disability by
providing a “CAD” scan after her termination. The Court DISMISSES with prejudice
Plaintiff’s failure to accommodate claims.

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ORDER – 11

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V. CONCLUSION
For the reasons stated above, the Court GRANTS Defendant’s Motion to Dismiss.
Dkt. # 43. Because Plaintiff has been afforded the opportunity to cure deficiencies in her
complaint through amendment and has been warned that failure to do so would result in
dismissal, the Court will DISMISS with prejudice the claims targeted by Defendant in
the instant motion without leave to amend. The sole remaining issue to be resolved in
this case is Plaintiff’s claim that she was terminated in retaliation for filing a complaint
with the EEOC. See Dkt. # 41 at 10.

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DATED this 20th day of December, 2016.

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A

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The Honorable Richard A. Jones
United States District Judge

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ORDER – 12