United States District Court, W.D. Washington, Seattle
DAVID H. MCELWAIN, Plaintiff,
THE BOEING COMPANY, Defendant.
L. ROBART United States District Judge
the court is Defendant The Boeing Company's
("Boeing") motion for summary judgment. (Mot. (Dkt.
# 10), ) Plaintiff David H. McElwain has not filed an
opposing memorandum, but has submitted two declarations in
opposition to Boeing's motion. (See McElwain
Dec!. (Dkt. # 18); Eisenberger Deck (Dkt. # 19).) Boeing has
filed a reply. (See Reply (Dkt. # 20).) Having
considered these submissions, the relevant portions of the
record, and the applicable law, and considering itself fully
advised,  the court GRANTS Boeing's motion for
employed Mr. McElwain from 1978 until October 2014. (Compl.
(Dkt. # 1-2) ¶¶ 2.3, 2.27; Answer (Diet. # 5)
¶¶ 2.3, 2.27, ) Mr. McElwain alleges that Boeing
terminated his employment for poor attendance while he was on
medical leave. (Compl. ¶ 2.27.) Mr. McElwain alleges
that he was diagnosed with alcoholism, anxiety, and
depression and that he gave notice of these conditions to
Boeing. (Compl. ¶¶ 2.6, 2.8; McElwain Decl.
¶¶ 4-5.) Boeing denies these allegations. (Answer
McElwain was charged with and convicted of driving under the
influence ("DUI") in King County, Washington.
(Seabright Decl. (Dkt. # 12) ¶ 2.) As a result of his
conviction, Mr. McElwain was sentenced to serve 30 days in
jail. (Id. Ex. A.) Mr. McElwain requested to
participate in King County's Work Education Release
("WER") program in lieu of incarceration.
(Seabright Decl., Ex. B at 4). Mr. McElwain asked his
supervisor at Boeing, William Fletcher, to sign a document
that Mr. McElwain said would allow him to participate in the
WER program. (Fletcher Decl. (Dkt. # 14) ¶ 3.) Mr.
Fletcher signed the paperwork. (Id. ¶ 4.)
However, after consulting with Boeing's Human Resources
Generalist, Mr. Fletcher asked Mr. McElwain to return the
signed document, which Mr. Fletcher then destroyed.
(Id. ¶ 5.)
the withdrawal of Mr. Fletcher's approval, Mr, McElwain
was accepted into the WER program. (Seabright Decl., Ex. C.)
Mr. McElwain entered the program on September 28, 2014.
(See id.) On September 30, 2014, Mr. McElwain
requested and was given a pass release from the WER facility
to attend a probation appointment and treatment.
(Id.., Ex. E). However, Mr. McElwain returned to the
WER facility late after attending his appointments, in
violation of the Conditions of Conduct for the WER program.
(Id.) As a result of this violation, Mr. McElwain
was released from the program and returned to full-time
detention on or around October 1, 2014. (Id.)
October 14, 2014, Boeing issued a "corrective action
memo" informing Mr. McElwain that he was being
terminated for violating Boeing's attendance policy.
(Haydon Decl., Ex. B.) Specifically, the memo stated that Mr.
McElwain had been absent from work from October 1 through
October 14, 2014. (Id.)
2016, Mr. McElwain filed suit against Boeing, alleging that
it had discriminated against him based on his age and
disability in violation of the Washington Law Against
Discrimination ("WLAD") and the Age Discrimination
in Employment Act ("ADEA") and had failed to
accommodate his disability in violation of the Americans with
Disabilities Act (ADA) and WLAD. (See generally
filed this motion for summary judgment on October 13, 2016.
(See Mot.) Shortly thereafter, the court granted Mr.
McElwain's attorney's motion to withdraw as counsel.
(See generally Order (Dkt. # 17).) Mr. McElwain, who
is now proceeding pro se did not filed a memorandum
in opposition to Boeing's motion for summary judgment.
(See generally Dkt.) Rather, Mr. McElwain filed two
declarations-his own and that of Ken Eisenberger, his
mental-health counselor. (See generally McElwain Decl.;
Eisenberger Decl.) The court now considers Boeing's
judgment is appropriate if the evidence shows "that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986); Galen v. Cty. of LA,
, 477 F.3d 652, 65 8 (9th Cir. 2007). A fact is
"material" if it might affect the outcome of a
case. Anderson v. Liberty Lobby, 477 U.S. 242, 248
(1986). A factual dispute is "'genuine' only if
there is sufficient evidence for a reasonable fact finder to
find for the non-moving party." Far Out Prods., Inc.
v. Oskar, 247 F.3d 986, 992 (9th Cir. 2001) (citing
Anderson, 477 U.S. at 248-49).
moving party bears the initial burden of showing there is no
genuine dispute of material fact and that the movant is
entitled to prevail as a matter of law. Celotex, 477
U.S. at 323. If the moving party does not bear the ultimate
burden of persuasion at trial, it can show the absence of a
dispute of material fact in two ways: (1) by producing
evidence negating an essential element of the nonmoving
party's case, or (2) by showing that the nonmoving party
lacks evidence of an essential element of its claim.
Nissan Fire& Marine Ins. Co. v. Fritz
Cos.,210 F.3d 1099, 1106 (9th Cir. 2000). If the moving
party meets its burden of production, the burden then shifts
to the ...