Gilmore v. Boeing Company

Filing 88

ORDER granting Defendant's 36 Motion for Summary Judgment in its entirety and denying Plaintiff's 32 Motion for Partial Summary Judgment in its entirety. Signed by Judge Marsha J. Pechman. (PM)

1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

8
9
10

MICHAEL GILMORE,
Plaintiff,

11
12
13

v.
BOEING COMPANY,

16
17
18
19
20
21
22
23

ORDER GRANTING
DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT;
DENYING PLAINTIFF’S MOTION
FOR SUMMARY JUDGMENT

Defendant.

14
15

CASE NO. C16-1617-MJP

THIS MATTER comes before the Court on the parties’ Motions for Summary Judgment.
Having reviewed the Motions (Dkt. Nos. 32, 36), the Responses (Dkt. Nos. 54, 69), the Replies
(Dkt. Nos. 61, 76), and all related papers, and having considered the statements of the parties at
oral argument, the Court GRANTS Defendant’s Motion in its entirety and DENIES Plaintiff’s
Motion in its entirety.
Background
Plaintiff Michael Gilmore filed this action against The Boeing Company (“Boeing”) for
employment discrimination on the basis of race and disability. Plaintiff asserts claims for
employment discrimination, hostile work environment, retaliation, and failure to accommodate

24
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT - 1

1

his disability under the Washington Law Against Discrimination (“WLAD”), 42 U.S.C. § 2000e,

2

et seq. (“Title VII”), 42 U.S.C. § 1981, et seq. (“Section 1981”), and the Americans with

3

Disabilities Act, 42 U.S.C. § 12101, et seq. (“ADA”).

4

Plaintiff, who is African American and suffers from obstructive sleep apnea, worked for

5

Boeing as a Nondestructive Inspection Technician (“NDI Technician”) from September 2011-

6

August 2015 in its Tukwila and Auburn facilities. (Dkt. No. 1 at 3, 5; Dkt. No. 69 at 2.) As an

7

NDI Technician, Plaintiff was tasked with inspecting airplane parts for imperfections and

8

defects. (Dkt. No. 36 at 2-3.) As these parts were later to be incorporated into passenger

9

airplanes, accuracy and attention to detail in their inspection were critical. (Id. at 2.)

10

As a result of his sleep apnea, Plaintiff claims he suffered from daytime somnolence

11

which made it difficult for him to stay awake at work. Boeing claims Plaintiff was repeatedly

12

observed sleeping at work, and was repeatedly advised to request an accommodation. The

13

relevant timeline of events is as follows:

14

Between 2011-2012, Plaintiff was observed sleeping at work several times. (Dkt. No. 36

15

at 3.) When confronted by his supervisor, Paul Adams, Plaintiff explained that he had a medical

16

condition. (Id.) Mr. Adams advised Plaintiff to initiate a request for accommodation with

17

Boeing Medical. (Id.)

18

In 2013, after Mr. Adams observed him sleeping at work several more times, Plaintiff

19

identified his condition as sleep apnea. (Id. at 4.) Plaintiff requested to work a later shift, which

20

he explained would help him accommodate his sleep apnea. (Id.) Mr. Adams granted the

21

request and again advised Plaintiff to initiate a request with Boeing Medical. (Id.)

22
23

In June 2014, Mr. Adams again observed Plaintiff sleeping at work. (Id.) Mr. Adams
referred the matter to Human Resources for discipline. (Id. at 4-5.)

24
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT - 2

1

On July 15, 2014, after learning of the pending discipline, Plaintiff submitted medical

2

documentation to Boeing Medical. (Id. at 5; Dkt. No. 38, Ex. D.) Boeing’s Reasonable

3

Accommodation Procedure required that such documentation identify both “the medical

4

necessity of the requested accommodation” and the employee’s “functional limitations.” (Dkt.

5

No. 36 at 3 n.2.) Plaintiff’s documentation showed he had been diagnosed with sleep apnea on

6

June 1, 2010, but did not identify functional limitations nor recommended any accommodation.

7

(Dkt. No. 38, Ex. D.)

8
9

On July 25, 2014, Boeing issued Plaintiff a Corrective Action Memorandum (“CAM”)
for sleeping at work (the “July 2014 CAM”). (Dkt. No. 36 at 5; Dkt. No. 40, Ex. S.)

10

In January 2015, Joseph Benavides assumed supervision over Plaintiff and other NDI

11

Technicians in his group. (Dkt. No. 36 at 6.) During a team meeting, Mr. Benavides greeted

12

Plaintiff by saying “good morning, sunshine,” and thereafter referred to him as “sunshine”

13

several more times. (Id.; Dkt. No. 69 at 5.) At the same team meeting, Plaintiff claims he

14

overheard Mr. Benavides use the term “little hood rats.” (Id. at 6.) On January 27, 2015,

15

Plaintiff told Mr. Benavides he found the term “sunshine” racially offensive. (Dkt. No. 38, Ex.

16

H.)

17

Around the same time, Mr. Benavides confronted Plaintiff regarding problems with his

18

attendance, including chronic lateness. (Dkt. No. 36 at 6.) Plaintiff explained that he suffered

19

from sleep apnea and asked Mr. Benavides for help using his leave benefits. (Id.) Mr.

20

Benavides advised Plaintiff to contact Boeing Medical, and provided him with a Reasonable

21

Accommodation and Health Care Provider Form (the “Reasonable Accommodation Form”).

22

(Id.)

23
24
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT - 3

1

On January 23, 2015, Plaintiff submitted the Reasonable Accommodation Form to

2

Boeing Medical along with documentation from his physician stating he needed to “come into

3

work occasionally late as he will sleep through alarm.” (Dkt. No. 36 at 6-7; Dkt. No. 38, Ex. E.)

4

Boeing’s Disability Management Representative reviewed the request with Plaintiff, and

5

together they agreed he would use Family Medical Leave Act (“FMLA”) leave and personal

6

leave to adjust his schedule as needed. (Dkt. No. 36 at 7; Dkt. No. 38, Ex. H.) Plaintiff claims

7

he was not late to work once offered this accommodation. (Dkt. No. 36 at 7; Dkt. No. 38-7 at

8

192:4-10.)

9

Around May 2015, Plaintiff voluntarily transferred from Boeing’s Tukwila facility to its

10

facility in Auburn. (Dkt. No. 36 at 3.) Plaintiff requested a later shift in Auburn, but was told

11

this would not be feasible given the facility’s production environment and shift schedule. (Id. at

12

7.) Mr. Benavides advised Plaintiff to continue using FMLA and personal leave to adjust his

13

schedule as needed. (Id.)

14

On July 13, 2015, Plaintiff received a second CAM for failing to comply with a company

15

policy requiring NDI Technicians to log out of a document called the “NDI log” (the “July 2015

16

CAM”). (See Dkt. No. 40, Ex. U.) The NDI log was used to record and track airplane part

17

inspections, and Boeing claims that failure to exit the log properly resulted in lost data and lost

18

production time. (Dkt. No. 36 at 8.) Boeing claims that prior to the July 2015 CAM, Plaintiff

19

and other NDI Technicians were repeatedly warned that failure to exit the log properly would

20

result in discipline. (Id.)

21

On August 11, 2015, Plaintiff received a third CAM for violating Boeing’s “No Walk

22

Away Policy,” which prohibited employees from leaving a certain machines unattended. (Id. at

23

9.) Boeing claims Plaintiff improperly left an AUSS machine unattended for over an hour, and

24
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT - 4

1

as a result “gallons of water spilled out of the tank and onto the shop floor near live electrical

2

outlets.” (Id.; Dkt. No. 40, Ex. M.)

3
4

Pursuant to company policy, Plaintiff was terminated in August 2015 for having received
his third CAM in one year. (Dkt. No. 36 at 9-10.)

5

Boeing now moves for summary judgment as to each of Plaintiff’s causes of action.

6

(Dkt. No. 36.) Plaintiff moves for summary judgment as to each of Boeing’s affirmative

7

defenses. (Dkt. No. 32.)

8
9
10

Discussion
I.

Boeing’s Motion to Strike
Boeing moves to strike the Declaration of Donald Morrow. (Dkt. No. 72.) “A trial court

11

can only consider admissible evidence in ruling on a motion for summary judgment.” Orr v.

12

Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002). Mr. Morrow’s declaration consists

13

of inadmissible hearsay and speculation regarding alleged racial and disability discrimination

14

against Plaintiff. (Id.) For instance, Mr. Morrow, who was also supervised by Mr. Adams, states

15

that he “noticed that when Mr. Gilmore was working on a shift at least one manager or lead was

16

at the work station” nearby. (Dkt. No. 72 at 4.) Mr. Morrow speculates that “the station was

17

created . . . to monitor Mr. Gilmore.” (Id.) Mr. Morrow also speculates that “[t]he non-disabled

18

Caucasian employees who are favorites of Mr. Adams are not or have not been disciplined for

19

acts which other similarly-situated employees are disciplined.” (Id. at 7.) While it is not

20

apparent how Mr. Morrow reaches these conclusions, they appear to be no more than conjecture.

21

Therefore, the Court GRANTS Boeing’s Motion to Strike. The Declaration of Donald

22

Morrow is stricken in its entirety and is not relied upon the Court’s consideration of the Motions

23

for Summary Judgment.

24
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT - 5

1
2
3

II.

Boeing’s Motion for Summary Judgment
a. Legal Standard
Summary judgment is proper if the pleadings, depositions, answers to interrogatories,

4

admissions on file, and affidavits show that there is no genuine issue of material fact and that the

5

moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The movant bears

6

the initial burden of demonstrating the absence of a genuine dispute of material fact. Celotex

7

Corp. v. Catrett, 477 U.S. 317, 323 (1986). A genuine dispute over a material fact exists if there

8

is sufficient evidence for a reasonable jury to return a verdict for the non-movant. Anderson v.

9

Liberty Lobby, Inc., 477 U.S. 242, 253 (1986). A mere scintilla of evidence supporting the

10

nonmovant’s position is insufficient to withstand summary judgment; there must be evidence on

11

which the jury could reasonably find for the nonmovant. Id. at 252.

12

While “summary judgment in favor of an employer in discrimination cases is often

13

inappropriate because the evidence will generally contain reasonable but competing inferences of

14

both discrimination and nondiscrimination,” this does not mean that “discrimination cases may

15

never be disposed of on summary judgment.” Kuyper v. State, 79 Wn. App. 732, 739 (1995)

16

(citation omitted. A plaintiff “must do more than express an opinion or make conclusory

17

statements.” Marquis v. City of Spokane, 130 Wn.2d 97, 105 (1996) (citation omitted).

18
19

b. Employment Discrimination
To establish a prima facie case of employment discrimination, Plaintiff must show: (1)

20

that he is a member of a protected class; (2) that he was qualified for his position and performing

21

satisfactory work; (3) that he suffered an adverse employment action; and (4) that similarly

22

situated employees outside his protected class received more favorable treatment. Hawn v. Exec.

23

Jet Mgmt., Inc., 615 F.3d 1151, 1155 (9th Cir. 2010) (citation omitted); Davis v. West One Auto.

24
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT - 6

1

Grp., 140 Wn. App. 449, 459 (2007). Alternatively, Plaintiff may provide evidence of “other

2

circumstances surrounding the adverse employment action [that] give rise to an inference of

3

discrimination.” Hawn, 615 F.3d at 1156. If Plaintiff succeeds, the burden shifts to Boeing to

4

articulate a legitimate, non-discriminatory reason for the adverse employment action. Wallis v.

5

J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994).

6

Boeing does not dispute that Plaintiff satisfies the first and third requirements, but

7

contends he has not proved either that he was performing satisfactory work or that employees

8

outside his protected class were treated differently.

9
10

i. Satisfactory Work
Plaintiff has not shown that he was performing satisfactory work prior to his termination.

11

While Plaintiff claims he was a “skilled, experienced, and qualified NDI technician who

12

performed his work satisfactorily” (Dkt. No. 69 at 3) and that the CAMs he received were

13

pretext, his claims are unsupported. Most favorably, Plaintiff was described as “technically

14

competent” (Dkt. No. 78-1 at 47) and not a “problematic employee.” (Id. at 28.) Other evidence

15

indicates Plaintiff’s performance was inconsistent. For instance, Mr. Benavides explained that

16

Plaintiff had “attendance issues” and “terrible time management skills,” and that his “work habits

17

and patterns were not consistent.” (Dkt. No. 40-12 at 2-3.) Mr. Adams explained that Plaintiff’s

18

practice of sleeping at work was “habitual.” (Dkt. No. 40-8 at 13.)

19

Further, an employee “who violates company policy and fails to improve his performance

20

despite a warning has not demonstrated satisfactory performance.” Diaz v. Eagle Produce Ltd.

21

Partnership, 521 F.3d 1201, 1208 (9th Cir. 2008) (citation omitted). Each of the CAMs Plaintiff

22

received was preceded by warnings that failure to comply with company policy would result in

23

discipline. Even viewing all of the evidence in the light most favorable to Plaintiff, it appears he

24
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT - 7

1

was terminated not because of his race or disability, but rather because he repeatedly violated

2

company policies and failed to comply with managers’ instructions.

3
4

ii. Comparators
Plaintiff has not shown that similarly situated employees outside his protected class

5

received more favorable treatment. Instead, Plaintiff merely claims there is “no evidence” that

6

“any employee other than him” was ever “disciplined for failure to log out of the NDI log” or

7

“issued a CAM or terminated” for violating the No Walk Away policy. (Dkt. No. 69 at 16.)

8

Plaintiff fails to offer admissible evidence in support of either claim. Plaintiff relies

9

entirely upon the Declarations of Gina Barron (Dkt. No. 71) and Donald Morrow (Dkt. No. 72).

10

Mr. Morrow’s declaration has been stricken in its entirety. Ms. Barron’s declaration is similarly

11

unavailing. For instance, Ms. Barron, who does not hold a managerial or human resources role,

12

states that she does not “know of any NDI employee other than [Plaintiff] who has been

13

disciplined for failing to log out [of the NDI log].” (Dkt. No. 71 at 3-4.) Ms. Barron also states

14

“I asked [a Caucasian employee] whether he had been written up for violating the ‘no walk

15

away’ policy. He said that he had not received a [CAM] or anything else.” (Id. at 5.) In

16

addition to being based upon inadmissible hearsay and speculation, Ms. Barrons’ claims are

17

directly contradicted by other evidence in the record. (See, e.g., Dkt. No. 77-4 at 4-6; Dkt. No.

18

77-6 at 12.) For instance, Plaintiff testified, and Boeing confirmed, that at least one Caucasian

19

employee received a CAM violating the No Walk Away policy. (Dkt. No. 70-1 at 55; see also

20

Dkt. No. 81-2.)

21

Ultimately, although an employee’s burden in opposing an employer’s motion for

22

summary judgment is minimal, Chuang v. Univ. of Cal. Davis, 225 F.3d 1115, 1124 (9th Cir.

23

2000), Plaintiff has not met his burden with respect to his employment discrimination claims.

24
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT - 8

1

Plaintiff has demonstrated neither that he was doing satisfactory work, nor that comparators were

2

treated more favorably, and has not offered any other evidence giving rise to an inference that

3

Boeing’s actions were motivated by his race and disability.

4
5
6
7

Therefore, the Court GRANTS Boeing’s Motion with respect to employment
discrimination.
c. Hostile Work Environment
Plaintiff has indicated to the Court that he does not intend to pursue his claim for hostile

8

work environment. Therefore, the Court GRANTS Boeing’s Motion with respect to hostile work

9

environment.

10
11

d. Reasonable Accommodation
To sustain a failure to accommodate claim, Plaintiff must show that (1) he had a

12

disability as defined by the ADA or WLAD; (2) he was qualified to perform the essential

13

functions of his job; (3) he gave Boeing notice of his disability and limitations; and (4) upon

14

notice, Boeing failed to adopt measures available to it in order to accommodate the disability.

15

Hylinger v. Union Pacific R.R., 538 F. Supp. 2d 1325, 1330-31 (W.D. Wash. 2008); Davis v.

16

Microsoft Corp., 149 Wn.2d 521, 532 (2003) (en banc). Boeing does not dispute whether

17

Plaintiff suffered from sleep apnea, but contends that he did not give notice of his disability and

18

its accompanying limitations until January 2015. Notwithstanding his failure to do so, Boeing

19

contends it provided him with a reasonable accommodation.

20

i. Notice of Disability and Limitations

21

While “[a]n employee is not required to use any particular language when requesting an

22

accommodation [and] need only inform the employer of the need for an adjustment due to a

23

medical condition,” an employer’s liability for failure to accommodate “ensues only where the

24
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT - 9

1

employer bears responsibility for breakdown in the interactive process.” Zivkovic v. Southern

2

Cal. Edison Co., 302 F.3d 1080, 1089 (9th Cir. 2002) (citations and internal quotation marks

3

omitted). “Where the employer has established reasonable procedures for making and handling

4

accommodation requests, it may expect its employees to utilize those procedures absent

5

extenuating circumstances. An employee’s oral request cannot trump an employer’s established

6

procedure for requesting and approving disability accommodations.” Bedeski v. Boeing Co.,

7

No. C14-1157RSL, 2015 WL 5675427, at *3 (W.D. Wash. Sept. 25, 2015) (citations and internal

8

quotation marks omitted).

9

Plaintiff claims Boeing had notice of his condition, as he disclosed the diagnosis when he

10

was hired, provided documentation of his diagnosis, and reported the disability to Mr. Adams

11

and Mr. Benavides. The Court finds that, although Plaintiff repeatedly told his managers he

12

suffered from sleep apnea, he did not submit a Reasonable Accommodation Form to Boeing

13

Health Services until January 28, 2015. (Dkt. No. 36 at 6-7; Dkt. No. 40-14.) Until this time,

14

Boeing did not have any obligation to accommodate Plaintiff under the ADA or WLAD. See

15

Bedeski, 2015 WL 6575427, at *1-2.

16

Between 2011-2015, both Mr. Adams and Mr. Benavides repeatedly advised Plaintiff to

17

initiate a request with Boeing Medical. In 2014, Plaintiff submitted a document stating that he

18

had sleep apnea, without a recommendation for an accommodation. (Dkt. No. 40-13 at 2-3.) As

19

in Bedeski, Plaintiff “does not dispute that [he] failed to follow Boeing’s procedure” for

20

requesting an accommodation, nor does he claim that Boeing’s “procedures for making the

21

request were onerous, unreasonable, or otherwise unenforceable.” Bedeski, 2015 WL 6575427,

22

at *1-2. As Boeing “clearly and repeatedly set forth the steps” for requesting an accommodation,

23

Plaintiff’s submission of “medical documentation without a corresponding request [was]

24
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT - 10

1

ambiguous and did not trigger the interactive process” under either the ADA or WLAD. Id. at

2

*3.

3
4

ii. Boeing’s Efforts to Accommodate Plaintiff’s Disability
Notwithstanding Plaintiff’s failure to follow Boeing’s established procedure for

5

requesting an accommodation, Boeing accommodated his sleep apnea for years by allowing him

6

to work a later shift at the Tukwila facility and allowing him to use FMLA and personal leave to

7

arrive late to work as needed. While Plaintiff claims Boeing should have allowed him to work a

8

later shift at the Auburn facility, Boeing was not obligated to do so. See Zivkovic v. S. Cal.

9

Edison Co., 302 F.3d 1080, 1089 (9th Cir. 2002) (“An employer is not obligated to provide an

10

employee the accommodation he requests or prefers, the employer need only provide some

11

reasonable accommodation.”); Elkins v. North Seattle Community College, No. C08-1466RSL,

12

2009 WL 3698516, at *3 (W.D. Wash. Nov. 3, 2009) (“Although plaintiff might have preferred

13

an alternate schedule in his former position, defendants were not required to provide plaintiff

14

with his preferred accommodation.”).

15
16

iii. Plaintiff’s Ability to Perform Essential Functions
Finally, Plaintiff has not demonstrated that he was able to perform the essential functions

17

of his job, with or without an accommodation. Plaintiff’s role as an NDI Technician required

18

him to inspect airplane parts for defects and required continuous monitoring of heavy machinery.

19

Plaintiff does not dispute that he was unable to perform these functions while sleeping, nor does

20

he dispute that he continued to fall asleep at work even after accommodated with a later shift.

21

Therefore, the Court GRANTS Boeing’s Motion with respect to failure to accommodate.

22
23
24
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT - 11

1

e. Retaliation

2

To establish a prima facie case of retaliation under Title VII and WLAD, Plaintiff must

3

show that (1) he engaged in a protected activity, (2) he suffered an adverse employment action,

4

and (3) there was a causal link between his activity and the employment decision. Stegall v.

5

Citadel Broadcasting Co., 350 F.3d 1061, 1065-66 (9th Cir. 2003). To establish causation,

6

Plaintiff must show that “but for” the protected activity, he would not have been disciplined or

7

terminated. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1064-65 (9th Cir. 2002)

8

(citation omitted).

9

Plaintiff has not established causation. Plaintiff claims he was issued unwarranted CAMs

10

and was ultimately terminated in retaliation for his complaints to Mr. Benavides about his use of

11

the term “sunshine” and his requests for a later shift. (Id.) However, Plaintiff concedes that he

12

violated company policies by failing to log out of the NDI log, and that he left the ASUS tank

13

unattended. While Plaintiff argues that the CAMs he received were discriminatory and

14

pretextual, he offers no admissible evidence to support his claim, and relies upon conjecture and

15

conclusory allegations. Further, it was clearly Boeing’s policy that an employee who received

16

three or more CAMs within one year would be subject to termination.

17
18

Therefore, the Court GRANTS Boeing’s Motion with respect to retaliation.
III.

Plaintiff’s Motion for Summary Judgment

19

Having granted Boeing’s Motion in its entirety, the Court finds that the affirmative

20

defenses at issue in Plaintiff’s Motion are now moot. Accordingly, the Court DENIES Plaintiff’s

21

Motion in its entirety.

22
23
24
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT - 12

1
2

Conclusion
Because Plaintiff has not raised a genuine issue of material fact with respect to his claims

3

for employment discrimination, failure to accommodate, and retaliation, and because Plaintiff

4

does not oppose Boeing’s Motion with respect to his claim for hostile work environment, the

5

Court GRANTS Boeing’s Motion for Summary Judgment (Dkt. No. 36) in its entirety. Because

6

Plaintiff’s Motion regarding his affirmative defenses is now moot, the Court DENIES Plaintiff’s

7

Motion for Partial Summary Judgment (Dkt. No. 32) in its entirety.

8

The clerk is ordered to provide copies of this order to all counsel.

9

Dated February 14, 2018.

11

A

12

Marsha J. Pechman
United States District Judge

10

13
14
15
16
17
18
19
20
21
22
23
24
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT - 13