United States District Court, W.D. Washington, Seattle
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendant's Motion for
Summary Judgment on all of Plaintiff's claims. Dkt. #96.
Plaintiff has alleged, under 42 U.S.C. § 1981
(“§ 1981”) and the Washington Law against
Discrimination (“WLAD”), that Defendant
discriminated and retaliated against him on account of his
race and national origin. Dkt. #1 ¶ 2. Defendant argues
that Plaintiff's evidence cannot support a prima facie
case of discrimination or retaliation and, in any event,
cannot show that Defendant did not have legitimate business
reasons for its actions or that Defendant's reasons were
merely a pretext for discrimination or retaliation. Dkt. #96
at 2- 3. Plaintiff argues that he has “provided
substantial evidence in support of his case and has disputed
the material facts.” Dkt. #122-1 at 1. While Plaintiff
has requested oral argument, the Court finds oral argument
unnecessary to its resolution of Defendant's motion.
Having considered the parties' briefing and the relevant
record, and for the reasons set forth below, the Court grants
Defendant's Motion for Summary Judgment.
Behrouz Shokri is originally from Iran and is of Persian and
Middle Eastern race. Dkt. #122-2 at ¶ 3. Plaintiff was
employed by Defendant, The Boeing Company, from February,
1986, until he was laid off as a part of a reduction in force
in April, 2015. Dkt. #1 at ¶¶ 11, 18. At all
relevant times, Plaintiff was a Systems and Data Analyst 4 (a
“BAMA-4”) working within Defendant's
“ENOVIA” development team, a part of its IT
group. Dkt. #122-2 at ¶¶ 10-12; Dkt. #99 at
Following Management Changes, Mr. Garrity Becomes
Plaintiff's New Manager
2014, Defendant reorganized its IT group, resulting in
several management changes for Plaintiff. Dkt. #99 at
¶¶ 4-5. Plaintiff began the year under the
management of Mr. McClees who had previously managed
Plaintiff for several years and who continued to manage
Plaintiff and the ENOVIA team until April, 2014. Id.
Management of the team was then transferred to Mr. Nelson
from April to August because Defendant initially intended to
maintain the ENOVIA team in Washington. Id.
Defendant later decided to move its ENOVIA team to South
Carolina and placed the team under the management of Mr.
Garrity, who was located in South Carolina. Id. Mr.
Garrity was Plaintiff's manager from August until his
termination on April 24, 2015. Id.
did not believe that his new manager was qualified or
effective as Mr. Garrity had “only been with
[Defendant] for approximately two years [and] . . . had
little to no IT experience, computer science experience, or
software development experience.” Dkt. #122-2 at ¶
21. Further, Plaintiff experienced a lack of direct
communication with Mr. Garrity and Mr. Garrity ceased
“weekly face to face status meetings.”
Id. at ¶ 22.
foster communication, Plaintiff took the initiative to
schedule a face to face meeting with Mr. Garrity when he was
in Washington on October 30, 2014. Id. at
¶¶ 23-24. During the meeting Plaintiff discussed
the status of his projects, his concerns with the performance
of a contractor, and his opinion that “continuing the
weekly meetings would be helpful for the team and for [Mr.
Garrity].” Id. at ¶¶ 24-26. During
the course of the meeting, Plaintiff observed “Mr.
Garrity [become] visibly frustrated and hostile” and
Mr. Garrity “angrily said to [Plaintiff] in a very
aggressive tone: ‘Where are you from?' and
‘What is your nationality?'” Id. at
¶ 27. Plaintiff “was offended by the
comment” as he felt “[i]t was not asked as any
kind of pleasantry or curiosity.” Id. at
¶ 28. In response, Plaintiff told Mr. Garrity:
“This has nothing to do with this conversation. I'm
Iranian, and why you're [sic] asking about my
nationality?” Dkt. #97-1 at 17-18. Mr. Garrity
responded: “What else do you have to complain
about?” Id. After Plaintiff responded that he
had nothing else, Mr. Garrity “stormed out of the
conference room, abruptly terminating the meeting.”
Dkt. #122-2 at ¶¶ 30-31.
Plaintiff's 2014 Performance Management Review
Defendant's IT group, managers complete yearly
Performance Management Reviews (“PMs”) for their
hourly employees based on their individual performance. Dkt.
#99 at ¶¶ 6, 8. Managers assign values on a variety
of metrics within the areas of “Business Goals and
Objectives” (“B&Os”) and
“Performance Values” (“PVs”) using
the following scale: “1 Does Not Meet, ” “2
Met Some Expectations, ” “3 Met Expectations,
” “4 Exceeds Expectations, ” and “5
Far Exceeds Expectations..” Id. at ¶ 6.
Even though the PMs consider individual performance, there
was a push, in mid-to-late 2014, for managers to force
differentiation and have tough conversations in the review
process by more closely applying rating criteria and
utilizing the full rating scale. Dkt. #97-4 at 3-4; Dkt. #98
at ¶ 5; Dkt. #99 at ¶ 7.
to his claims, Plaintiff alleges that under Mr. Garrity he
received “some of the worst and most unfair Performance
Management and Job-Related Competencies evaluations he had
received in his 29 years with [Defendant], despite 2014 being
one of the most successful years of his career.” Dkt.
#1 at ¶ 16. Mr. Garrity, as Plaintiff's manager at
the end of 2014, completed his PM for the year in November,
2014. Dkt. #122-2 at ¶ 43. Mr. Garrity gave Plaintiff an
overall rating of “(3) ‘Met
Expectations'” in the B&Os section and gave
Plaintiff a mixture of “3”s and “4”s
within the individual metrics of that section. Dkt. #107-1 at
255-65. In the PVs section, Mr. Garrity gave Plaintiff
“3”s on the individual metrics as well as an
overall rating of “(3) ‘Met
Expectations.'” Id. Mr. Garrity explained
in the 2014 PM that Plaintiff's “transition from
‘exceeds' to ‘mets' [sic] was not due to
a decline in his performance, but due to [Mr. Garrity]
working to provide more accurate feedback and metrics for the
requirements that [Plaintiff] has in his position and
level.” Dkt. #107-1 at 260.
Garrity's ratings were a departure from Plaintiff's
2013 PM, completed by Mr. McClees, and his mid-year 2014 PM,
completed by Mr. Nelson, each of which rated Plaintiff
“(4) ‘Exceeds Expectations'” in both
the B&Os and PVs. Dkt. #107-1 at 235-53. Further, the
lower ranking was despite Plaintiff having successfully
completed several projects in 2014, pleasing his internal
customers and saving Defendant over 10 million dollars. Dkt.
#122-1 at 2- 3; Dkt. #122-2 at ¶¶ 38-40. Mr.
Garrity knew of at least one of these successful projects
before rating Plaintiff and considered those accomplishments
in Plaintiff's 2014 PM ratings, rating him as exceeding
expectations in relevant subcategories. Dkt. #109; Dkt. #98
at ¶ 16. While significant, the accomplishments were not
unexpected for an employee of Plaintiff's level. Dkt. #98
at ¶ 15; Dkt. #99 at ¶ 19.
December 8, 2014, Plaintiff began an alternative dispute
resolution process (“ADR”) “challenging the
fairness, process, and scoring” of his 2014 PM ratings.
Dkt. #122-2 at ¶¶ 62- 63. Specifically, Plaintiff
argued that the PM rating did not “fairly reflect my
actual performance, contributions, and accomplishments made
during the year.” Dkt. #97-7 at 2. During a January 5,
2015 phone call, Mr. Garrity ordered Plaintiff to sign his
2014 PM rating and Plaintiff told Mr. Garrity that “the
way you graded me is discriminatory and biased, and I have
to-I'm challenging you, and taking this to ADR.”
Dkt. #122-2 at ¶ 71-73. On the same date, Plaintiff
signed his 2014 PM ratings and included a narrative
disagreeing with the ratings but not indicating that he
believed the review was discriminatory, motivated by racial
animus, or retaliatory. Dkt. #107-1 at 263-65.
process was supposed to have three steps. Plaintiff's ADR
appeal proceeded through the first two steps, but Mr.
Garrity-Defendant's representative-did not agree to
change Plaintiff's ratings. Dkt. #107-3 at 38; Dkt.
#107-1 at 53-61. The ADR process was terminated prior to the
final step-a more involved Panel Review to determine whether
the ratings were in line with Defendant's policies. Dkt.
#107-1 at 56-59. Scheduling difficulties did not allow the
Panel Review to occur before Plaintiff's employment was
Defendant's 2015 Reduction in Force and Termination of
early 2015, Defendant's IT group commenced a reduction in
force (“RIF”) in Puget Sound, including a RIF for
employees within Plaintiff's job classification-BAMA-4.
Dkt. #99 at ¶ 9. The IT group had gone through several
reductions in force in the preceding years, leaving a pool of
talented employees. Id. For its 2015 RIF, Defendant
followed a set process. Id. at ¶ 10; Dkt.
#99-1. A “Skill Captain” was first designated for
BAMA-4s and the Skill Captain worked with managers of BAMA-4s
to identify agreed upon job competencies. Dkt. #99 at ¶
11. The Skill Captain and managers then assigned the job
competencies weighted values to comprise 60% of the RIF
assessment score and the 2014 PM scores made up the other 40%
of the assessment score (20% B&Os, 20% PVs). Id.
Managers rated their individual BAMA-4s on the agreed job
competencies, using a scale of 1 (Entry Level) to 5 (Expert).
Id. at ¶ 12. After rating their employees,
managers met collectively with the Skill Captain to generate
an overall ranking, with the ability to modify ratings based
on feedback and input amongst themselves and with approval of
the group. Id. at ¶ 15. During the
manager's meeting, one of Plaintiff's ratings
“was changed from a 3 to a 2 based on management
consensus.” Dkt. #98-4 at 3. During the same meeting,
four other employees had their scores in individual
competencies adjusted by one point-two were adjusted down by
a point and two were adjusted up by a point. Id.
finalization of the assessment, Plaintiff was rated 22nd out
of 24 BAMA-4s working within the Puget Sound region and was
ultimately selected for involuntary layoff. Id. at
¶ 16. Plaintiff was given a “60 Day Advanced
Notification of Layoff” on or about February 17, 2015,
confirming that his last day of employment would be April 24,
2015. Dkt. #98 at ¶ 12; Dkt. #98-5 at 3.
Plaintiff's Relationship with Mr. Garrity Did Not
their time working together, the relationship between
Plaintiff and Mr. Garrity did not improve. Mr. Garrity did
not submit a “Lean plate” detailing
Plaintiff's accomplishments on a specific project, which
may have entitled Plaintiff to a monetary award. Dkt. #122-2
at ¶¶ 36-39. Plaintiff's understanding was that
managers were to submit the necessary supporting
documentation. Id. Further, Mr. Garrity gave
Plaintiff a disappointing raise in 2015. Defendant uses
Independent Performance Assessment (“IPA”)
ratings in part to determine raises. Id. at ¶
59. Mr. Garrity gave Plaintiff a lower IPA rating and
ultimately a smaller raise than he had received in previous
years. Id. at ¶ 58-60; Dkt. #107-2 at 11-15.
Upon learning that he would be terminated, Plaintiff received
assistance from others to find possible job openings, but Mr.
Garrity did not assist him. Dkt. #122-2 at ¶ 86. Rather,
Mr. Garrity treated Plaintiff in a hostile manner and
advocated against Plaintiff's importance to the company
and against giving Plaintiff an extension Id. at
¶ 87; Dkt. #107-2 at 59-76.
Plaintiff's Internal Appeals
learning that he was to be terminated, Plaintiff attempted to
alter his course and elevate his concerns about possible
discrimination. On February 24, 2015, Plaintiff made a
complaint of discrimination to Defendant's Western Equal
Employment Office (“EEO”). Dkt. #107-3 at 42-45.
Specifically, Plaintiff complained that at the October 30,
2014 meeting with Mr. Garrity, “he asked me what my
nationality was, which was irrelevant to the subject and the
meeting.” Defendant's EEO did not investigate and
rejected the claim. Dkt. #107-3 at 47-48.
March 2, 2015, Plaintiff began a RIF Appeal process, arguing
that his job competency evaluations were unfair and his job
code was incorrect-meaning that he was compared to the wrong
employees. Dkt. #122-2 at ¶ 80 Dkt. #107-2 at 82.
Defendant held a RIF appeal meeting on April 14, 2015. Dkt.
#107-2 at 98. But Mr. Garrity refused to alter
Plaintiff's RIF scores and on April 16, 2015, Plaintiff
was informed that his RIF Appeal was denied and that he would
still be terminated. Dkt. #122-2 at ¶ 81; Dkt. #107-2 at
April 11, 2015, Plaintiff submitted a complaint to
Defendant's Ethics Department alleging that Mr. Garrity
was discriminating against him based upon his nationality and
retaliating against him as well. Dkt. #122-2 at ¶ 88.
Dkt. #107-3 at 58-68. The Ethics Department did some
preliminary investigation, but ultimately declined to
investigate because the allegation was “Discrimination
EEO” and “Retaliation (Non-EEO).” Dkt.
#107-3 at 58. The matter was referred to Defendant's
Eastern EEO, where it was sent back to Defendant's
Western EEO, and ultimately denied. Dkt. #122-2 at
April 24, 2015, Defendant terminated Plaintiff's
DISCUSSION A. Standard of Review for Summary
judgment is appropriate where “the movant 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); Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247 (1986). Material facts are those which
might affect the outcome of the suit under governing law.
Anderson, 477 U.S. at 248. In ruling on summary
judgment, a court does not weigh evidence to determine the
truth of the matter, but “only determine[s] whether
there is a genuine issue for trial.” Crane v.
Conoco, Inc., 41 F.3d 547, 549 (9th Cir. 1994) (citing
Federal Deposit Ins. Corp. v. O'Melveny &
Meyers, 969 F.2d 744, 747 (9th Cir. 1992)).
non-moving party must present significant and probative
evidence to support its claim or defense. Intel Corp. v.
Hartford Accident & Indem. Co., 952 F.2d 1551, 1558
(9th Cir. 1991). “The mere existence of a scintilla of
evidence in support of the [non-moving party's] position
will be insufficient; there must be evidence on which the
jury could reasonably find for the [non-moving party].”
Anderson, 477 U.S. at 251. Neither will
uncorroborated allegations and self-serving testimony create
a genuine issue of material fact. Villiarimo v. Aloha
Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002);
T.W. Elec. Serv. v. Pac. Elec. Contractors
Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). Rather,
the non-moving party must make a “sufficient showing on
[each] essential element of her case with respect to which
she has the burden of proof” to survive summary
judgment. Celotex Corp. v. Catrett, 477 U.S. 317,
summary judgment, the Court views the evidence and draws
inferences in the light most favorable to the non-moving
party. Anderson, 477 U.S. at 255; Sullivan v.
U.S. Dep't of the Navy, 365 F.3d 827, 832 (9th Cir.
2004). However, where the non-moving party fails to properly
support an assertion of fact or fails to properly address the
moving party's assertions of fact, the Court will accept
the fact as undisputed. Fed.R.Civ.P. 56(e). As such, the
Court relies “on the nonmoving party to identify with
reasonable particularity the evidence that precludes summary
judgment.” Keenan v. Allan, 91 F.3d 1275,
1278-79 (9th Cir. 1996) (quotation marks and citations
omitted). The Court need not “comb through the record
to find some reason to deny a motion for summary
judgment.” Carmen v. San Francisco Unified Sch.
Dist., 237 F.3d 1026, 1029 (9th Cir. 2001);
Keenan, 91 F.3d at 1279 (the court will not
“scour the record in search of a genuine issue of
Section 1981 and WLAD Discrimination Claims
first and third claims for relief allege discrimination on
account of “race, color, national origin, ethnicity,
and/or accent” in violation of § 1981 and the
WLAD. Dkt. #1 at ¶¶ 31, 33. Section 1981 bars
racial discrimination in the making and enforcement of
contracts. Runyon v. McCrary, 427 U.S. 160, 168
(1976). The WLAD similarly bars discharge or discrimination
in the terms or conditions of employment on account of race
or national origin. RCW 49.60.180.
there will rarely be direct evidence of discrimination,
discrimination claims are often considered under the
burden-shifting framework set forth in McDonnell Douglas
Corp. v. Green. 411 U.S. 792 (1973). See Doe v.
Kamehameha Sch./Bernice Pauahi Bishop Estate, 470 F.3d
827, 837-38 (9th Cir. 2006) (affirming that Title VII
substantive standards apply to a § 1981 claim);
Mikkelsen v. Pub. Util. Dist. No. 1 of Kittitas
Cnty., 189 Wash.2d 516, 404 P.3d 464, 470-71 (2017)
(applying McDonnell Douglas framework to claims
under the WLAD). Because Washington Courts look to federal
law in interpreting the WLAD, see id., the Court
will consider this motion under federal law, considering
Washington case law where appropriate.
McDonnell Douglas, a plaintiff bears the initial
burden of establishing a prima facie case by raising an
inference of discrimination-a “presumption that the
employer unlawfully discriminated against the
employee.” Tex. Dep't of Cmty. Affairs v.
Burdine, 450 U.S. 248, 253-54 (1981). After this prima
facie case is made, the burden “then shifts to the
defendant to articulate a legitimate nondiscriminatory reason
for its employment decision.” Wallis v. J.R.
Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994) (quoting
Lowe v. City of Monrovia, 775 F.2d 998, 1005 (9th
Cir. 1985), as amended, 784 F.2d 1407 (1986)). If
the defendant succeeds, then to defeat summary judgment, the
plaintiff must demonstrate that the “articulated reason
is a pretext for unlawful discrimination by ‘either
directly persuading the court that a discriminatory reason
more likely motivated the employer or indirectly by showing
that the employer's proffered explanation is unworthy of
credence.'” Aragon v. Republic Silver State
Disposal, Ind., 292 F.3d 654, 658-9 (quoting Chuang
v. Univ. of Cal. Davis, 225 F.3d 1115, 1124 (9th Cir.
2000) (quotation marks and string citation omitted).
“Although intermediate burdens shift back and forth
under this framework, ‘[t]he ultimate burden of
persuading the trier of fact that the defendant intentionally
discriminated against the plaintiff remains at all times with
the plaintiff.'” Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 143 (2000) (quoting
Burdine, 450 U.S. at 253).
Plaintiff's Prima Facie Case
inference of discrimination may be established “in
whatever manner is appropriate in the particular
circumstances.” Diaz v. Am. Telephone &
Telegraph, 752 F.2d 1356, 1361 (9th Cir. 1985).
“The requisite degree of proof necessary to establish a
prima facie case for [§ 1981] claims on summary judgment
is minimal and does not even need to rise to the level of a
preponderance of the evidence.” Wallis, 26
F.3d at 889 (citing Yartzoff v. Thomas, 809 F.2d
1371, 1375 (9th Cir. 1987), cert. denied, 498 U.S.
939 (1990)). In disparate treatment cases, the inference is
often established by the plaintiff showing that: (1) he is a
member of a protected class, (2) he was qualified for his
position, (3) he was subject to an adverse employment action,
and (4) similarly situated employees outside ...