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McElwain v. Boeing Co.

United States District Court, W.D. Washington, Seattle

March 20, 2017

DAVID H. MCELWAIN, Plaintiff,
v.
THE BOEING COMPANY, Defendant.

          ORDER

          JAMES L. ROBART United States District Judge

         I. INTRODUCTION

         Before 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, [1] the court GRANTS Boeing's motion for summary judgment.

         II. BACKGROUND

         Boeing 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 ¶¶ 2.6-2.10.)

         Mr. 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.)

         Despite 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.)

         On 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.)

         In 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 Compl.)

         Boeing 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.[2] (See generally McElwain Decl.; Eisenberger Decl.) The court now considers Boeing's motion.

         III. ANALYSIS

         A. Legal Standard

         Summary 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).

         The 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 ...


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