Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Johnson v. The Boeing Co.

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

November 13, 2017

RALPH G. JOHNSON, Plaintiff,
THE BOEING COMPANY, et al., Defendant.



         This matter comes before the Court on “Defendant The Boeing Company's Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6).” Dkt. # 20. Plaintiff alleges that his employer retaliated against him for two safety complaints he made in 2013 by reducing his performance ratings, transferring him to a less desirable location and shift, and ultimately demoting him. Plaintiff also alleges that Boeing discriminated against him based on age, withheld wages in violation of RCW 49.52.050, and is responsible for an unsubstantiated sexual harassment claim lodged by one of its employees. Boeing seeks dismissal of the nine claims against it, arguing that they are insufficiently pled.

         The question for the Court on a motion to dismiss is whether the facts alleged in the complaint sufficiently state a “plausible” ground for relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

A claim is facially plausible when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Plausibility requires pleading facts, as opposed to conclusory allegations or the formulaic recitation of elements of a cause of action, and must rise above the mere conceivability or possibility of unlawful conduct that entitles the pleader to relief. Factual allegations must be enough to raise a right to relief above the speculative level. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief. Nor is it enough that the complaint is factually neutral; rather, it must be factually suggestive.

Somers v. Apple, Inc., 729 F.3d 953, 959-60 (9th Cir. 2013) (internal quotation marks and citations omitted). All well-pleaded factual allegations are presumed to be true, with all reasonable inferences drawn in favor of the non-moving party. In re Fitness Holdings Int'l, Inc., 714 F.3d 1141, 1144-45 (9th Cir. 2013). If the complaint fails to state a cognizable legal theory or fails to provide sufficient facts to support a claim, dismissal is appropriate. Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010).

         Having reviewed the complaint, the memoranda, and the ADR Resolution Form submitted by the parties, [1] the Court finds as follows:

         A. False Claims Act - Retaliation (Count I)

         In order to survive a motion to dismiss his claim of retaliation under the False Claims Act, plaintiff must raise a plausible inference that (1) he engaged in protected activity, (2) he suffered an adverse employment action, and (3) there was a causal link between the protected activity and the adverse employment action. Stegall v. Citadel Broad. Co., 350 F.3d 1061, 1065-66 (9th Cir. 2003). Protected activity under the False Claims Act includes investigating and reporting conduct which the employee in good faith believes (and a reasonable employee in the same or similar circumstances might believe) constitutes fraud against the government. Moore v. Cal. Inst. of Tech. Jet Propulsion Lab., 275 F.3d 838, 845-46 (9th Cir. 2002). The anti-retaliation provision of the Act protects employees against discharge, demotion, suspension, threat, harassment, or any other discrimination in the terms and conditions of employment. 31 U.S.C. § 3730(h)(a). The Ninth Circuit applies its Title VII test for determining whether a particular employment action is sufficient to form the basis of a retaliation claim under the False Claims Act, namely whether the action “is reasonably likely to deter employees form engaging in protected activity.” Id. at 847-48.

         Plaintiff alleges that, in early 2013, he lodged an internal complaint regarding labor charging irregularities on a federal contract. His next quarterly evaluation was below what it had been prior to the complaint. In the summer of 2013, he lodged with Boeing and the Department of Defense another complaint regarding false certification of test valves for in-flight use in the same federal project. His January 2014 review was again worse than it had been. In March 2014, plaintiff was transferred from the day shift in Everett to the night shift in Seattle. The transfer was not requested, was announced by a long-time friend of one of the people about whom plaintiff had complained, was justified as an effort to allow plaintiff to “learn the business” for career development purposes, and was a hardship for plaintiff. In March 2015, plaintiff was removed from his management position at Boeing.

         Boeing argues that there is no plausible causal connection between plaintiff's protected activities and the adverse employment actions. Assuming, as both parties do, that the causal connection analysis under the False Claims Act mirrors that used in Title VII lawsuits, the allegations of the complaint raise a plausible inference that his 2013 complaints played a motivating factor in the negative performance reviews and plaintiff's transfer to Seattle. Boeing clearly knew about both complaints, there is a temporal connection between the complaints and the unexpected reduction in plaintiff's performance ratings, and no non-retaliatory explanation was provided for the negative evaluations. With regards to the transfer, Boeing knew that the transfer posed a hardship for plaintiff, the timing and sequence of complaints and escalating adverse employment actions is consistent with causation, and the justification Boeing provided for the transfer, given plaintiff's history with the company and the lack of follow through in Seattle, is less than convincing. The allegations do not, however, support a plausible inference that plaintiff's complaints regarding fraud in a federal contract were a motivating factor in his demotion. The events are separated by almost two years, and plaintiff does not allege any causal connection. Rather, plaintiff acknowledges Boeing's justifications for the demotion: that it “was due to him failing to follow Boeing protocol related to [a workplace accident] and for alleged improper retaliation against Defendant Wiley for filing a sexual harassment claim.” Dkt. # 1 at ¶ 2.21. This aspect of plaintiff's retaliation claim is insufficiently pled.

         B. Retaliation Under the WLAD and Title VII (Count II)

         A prima facie case of retaliation under the Washington Law of Discrimination (“WLAD”) and Title VII of the Civil Rights Act of 1964 requires a showing that (1) plaintiff engaged in statutorily protected activity, (2) there was an adverse employment action, and (3) retaliation was causally connected to or a substantial factor motivating of the adverse action. Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1196-97 (9th Cir. 2003); Kahn v. Salerno, 90 Wn.App. 110, 128-29 (1998). An employee engages in protected activity under the WLAD and Title VII when he opposes employment practices forbidden by the statutes, such as race, color, national origin, or disability discrimination. Alonso v. Qwest Commc'ns Co., LLC, 178 Wn.App. 734, 754 (2013). Plaintiff's complaints to Boeing and the Department of Defense raised concerns regarding safety and/or potential fraud and may constitute protected activity under the False Claims Act. The complaints did not, however, involve discrimination on the basis of a characteristic protected under the WLAD or Title VII, and plaintiff could not reasonably have believed that he was engaging in protected activity under those statutes. These claims are not adequately pled.

         C. Age Discrimination Under the WLAD and the ADEA (Count III)

         Although a prima facie case of age discrimination involves slightly different elements under the WLAD and the Age Discrimination in Employment Act (“ADEA”), plaintiff is generally required to show that: (1) he was over the age of 40; (2) he was performing his job satisfactorily; (3) he suffered an adverse employment action or was otherwise treated less favorably than younger employees; and (4) there was a causal link between his age and the adverse employment action. McElwain v. Boeing Co., 244 F.Supp.3d 1093, 1100-01 (W.D. Wash. 2017). Plaintiff alleges that he was over 40 years of age during all relevant periods, that he was satisfactorily performing his job based on pre-2013 performance evaluations, that he was demoted in 2015, and that Boeing considered his age when terminating his management position. The last allegation is based on “information and belief” (Dkt. # 1 at ¶ 3.14): no supporting facts are provided. In fact, plaintiff alleges alternative motivations for the demotion having nothing to do with his age. There is no indication that anyone involved in ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.