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Shokri v.The Boeing Co.

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

April 25, 2018

THE BOEING COMPANY, a Delaware corporation, Defendant.




         This 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.[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.


         Plaintiff 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 ¶¶ 2-3

         A. Following Management Changes, Mr. Garrity Becomes Plaintiff's New Manager

         During 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.

         Plaintiff 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.

         To 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.

         B. Plaintiff's 2014 Performance Management Review

         Within 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.

         Central 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.

         Mr. 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.

         On 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.

         The ADR 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 terminated. Id.

         C. Defendant's 2015 Reduction in Force and Termination of Plaintiff's Employment

         In 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.

         Upon 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.

         D. Plaintiff's Relationship with Mr. Garrity Did Not Improve

         During 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.

         E. Plaintiff's Internal Appeals

         After 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.

         On 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 98-100.

         Around 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 ¶¶ 89-91.

         On April 24, 2015, Defendant terminated Plaintiff's employment.

         III. DISCUSSION A. Standard of Review for Summary Judgment

         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)).

         The 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, 323 (1986).

         On 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 triable fact”).[2]

         B. Section 1981 and WLAD Discrimination Claims

         Plaintiff's 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.

         Because 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.

         Under 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).

         1. Plaintiff's Prima Facie Case

         An 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 ...

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