United States District Court, W.D. Washington, Seattle
L. ROBART, United States District Judge
the court is Defendant The Boeing Company's
(“Boeing”) motion to dismiss portions of
Plaintiff Brett Caldwell's second amended complaint. (2d
MTD (Dkt. # 25); see also SAC (Dkt. # 24).) The
court has reviewed the motion, all submissions filed in
support of and opposition to the motion, the relevant
portions of the record, and // the applicable law. Being
fully advised,  the court grants in part and denies in
part the motion.
Caldwell is a thirty-four-year-old, African-American man, who
was employed by Boeing as an Automated Fiber Placement
(“AFP”) Operator. (SAC ¶¶ 2, 13;
see also Id. ¶ 21.) Mr. Caldwell began working
for Boeing on January 11, 2013. (Id. ¶ 14.)
During the time he worked for Boeing, Mr. Caldwell was the
only African-American who worked in the building to which he
was assigned in Everett, Washington. (Id.)
5, 2013, a Caucasian Boeing security officer stopped Mr.
Caldwell as he was leaving the front gate. (Id.
¶ 15.) The Officer approached Mr. Caldwell “in a
semi-crouched position with his hand on his weapon.”
(Id.) After the officer reviewed Mr. Caldwell's
registration, the officer said that he saw Mr. Caldwell's
car parked in the same spot every day. (Id.) Mr.
Caldwell alleges that the officer “assumed because of
[Mr. Caldwell's] race that [Mr. Caldwell] was hiding the
car on Boeing property.” (Id.)
January 15, 2016, Mr. Caldwell was attending a meeting in
Building 88 in Everett, Washington. (Id. ¶ 16.)
After the meeting, Mr. Caldwell asked a manager to direct him
to the nearest water fountain. (Id.) The manager
directed Mr. Caldwell to a water cooler “in the next
set of offices across the hall.” (Id.) When
Mr. Caldwell attempted to use the water cooler, an older
white woman yelled, “What are you doing?”
(Id.) She informed Mr. Caldwell that he could not
drink from the water cooler because he was not part of the
787 program. (Id.) Mr. Caldwell alleges that
“[t]he real reason . . . [the woman] did not want [him]
drinking from th[at] particular water fountain is that the
water fountain was the one she used and . . . [Mr. Caldwell]
is African American.” (Id.) When Mr. Caldwell
objected “that all Boeing employees drink from the
water fountains, ” the woman threatened to “write
[him] up the next time he attempt[ed] to drink water from
that cooler.” (Id.)
January 20, 2016, Ron Anderson, who is a gym recreation
administrator at Boeing, accused Mr. Caldwell “of
trying to steal a basketball because he is a large African
American male.” (Id. ¶ 17.) Mr. Caldwell
took his own basketballs to the facility. (Id.) When
Mr. Anderson, who is Caucasian, saw Mr. Caldwell sitting at
the top of the stairs with two basketballs, Mr. Anderson
confronted Mr. Caldwell and accused Mr. Caldwell of theft.
(Id.) Mr. Caldwell showed his basketballs to Mr.
Anderson to confirm that the basketballs were not
Boeing's property. (Id.) Mr. Anderson then told
Mr. Caldwell that he was not allowed to bring his own
basketballs to the court. (Id.) Mr. Caldwell alleges
that this statement was false and that Mr. Anderson made it
to discourage Mr. Caldwell “from using the Boeing
basketball [c]ourt because of his race.” (Id.)
A few weeks later a sign appeared in the gym stating,
“no personal basketballs allowed.” (Id.)
Mr. Caldwell alleges that the sign shows that “Boeing
ratified Mr. Anderson's discriminatory conduct.”
February 13, 2016, Mr. Anderson observed Mr. Caldwell playing
basketball at the gym and dunking the basketball.
(Id. ¶ 18.) Mr. Caldwell never saw any of the
Caucasian players dunk the ball, and Mr. Caldwell believes
they lacked the ability to do so. (Id.) The next
day, Mr. Anderson posted a sign stating, “no
dunking.” Mr. Caldwell alleges that, because he was the
only person at the gym who could dunk, “the signs were
clearly directed at [him] due to the fact that he is African
March 2016, while he was playing basketball, Mr. Caldwell
inadvertently cursed. (Id. ¶ 19.) Mr. Caldwell
alleges that over the years he had heard Caucasian players
curse without repercussion while playing at the Boeing gym.
(Id.) Nevertheless, Mr. Anderson “immediately
approached [Mr. Caldwell] and told him to stop
swearing.” (Id.) Mr. Caldwell alleges that he
apologized and resumed playing. (Id.) Mr. Anderson
continued looking at Mr. Caldwell with his arms folded.
(Id.) Mr. Caldwell responded by stating: “I
apologized. What more do you want?” (Id.) Mr.
Anderson replied, “I don't like your attitude,
” and he asked Mr. Caldwell to turn over his badge.
(Id.) After Mr. Caldwell refused, Mr. Anderson told
Mr. Caldwell to leave the gym. (Id.) When Mr.
Caldwell started to leave, Mr. Anderson allegedly blocked the
door, screamed at Mr. Caldwell demanding his badge, and
threatened to call the police. (Id.) Mr. Caldwell
alleges that “Mr. Anderson's tantrum was racially
motivated.” (Id.) When the Boeing police
arrived, Mr. Caldwell alleges that they wrote down only Mr.
Anderson's version of events and told Mr. Caldwell to
follow Mr. Anderson's instructions when he demands to see
Mr. Caldwell's identification. (Id.) The police
escorted Mr. Caldwell to his locker and told him that he
could no longer play basketball that day. (Id.) Mr.
Caldwell alleges that he emailed his manager, Dean Bogardus,
about the incident, but Mr. Bogardus took no action.
December 2016, while Mr. Caldwell was working, a white male
co-worker started to mock Mr. Caldwell “by walking with
his shoulders rolled and his arms dangling like an
ape.” (Id. ¶ 20.) Mr. Caldwell alleges
that his co-worker was “mock[ing] [his] race by walking
like an ape.” (Id.) When Mr. Caldwell had
completed his task, the co-worker stated loudly enough for
everyone in the area to hear, “This is why I can't
stand you Blacks.” (Id.) The co-worker then
falsely told others that Mr. Caldwell had offered to meet him
in the parking lot to fight. (Id.) Mr. Caldwell
complained about the incident to Mr. Bogardus. (Id.)
In response, Mr. Caldwell alleges that Mr. Bogardus (1)
accused Mr. Caldwell of being in the wrong, (2) did not want
to hear Mr. Caldwell's side of events because Mr.
Caldwell is African-American, (3) “did nothing”
to address the conduct of the co-worker, and (4) threatened
to fire Mr. Caldwell. (Id.)
Caldwell also alleges that he told Mr. Bogardus that Tom
Hammond, the AFP Operator Team Lead, was harassing him; but
instead of addressing the problem, Mr. Bogardus “joined
in on the racial intimidation.” (Id. ¶
21.) Mr. Bogardus told Mr. Caldwell that he needed to get
along with Mr. Hammond to make Mr. Bogardus's job easier.
(Id.) Mr. Hammond allegedly told Mr. Caldwell that
Mr. Caldwell scared him and that is just the way that Mr.
Hammond was raised. (Id.)
addition, Mr. Caldwell alleges that Manager Ron Jarvis would
address Mr. Caldwell uniquely “by imitating a
stereotypical African American manner of speech” and by
calling Mr. Caldwell “slick” and
“homeboy” or by saying “yo, yo, yo, yo,
yo.” (Id. ¶ 22.) Mr. Caldwell reported
Mr. Jarvis's behavior to Manager Adita Weatherbee, but
Mr. Caldwell alleges that Boeing did not nothing to stop Mr.
Jarvis's behavior. (Id.)
Mr. Caldwell alleges that Boeing terminated his employment on
February 10, 2017. (Id. ¶¶ 13, 23.) Boeing
stated that it terminated Mr. Caldwell for improper use of a
computer. (See Id. ¶ 23.) Mr. Caldwell,
however, alleges that his computer use “was clearly
permitted pursuant to the terms of [his] employment.”
(Id.) He also alleges that many of his white
coworkers used the computer for just as much time as he did,
but Boeing did not terminate his white co-workers for the
same conduct. (Id.)
August 17, 2017, Mr. Caldwell filed an administrative
complaint with the Equal Employment Opportunity Commission
(“EEOC”). (Id. ¶ 25.) On August 23,
2017, the EEOC issued a “Right to Sue” notice to
Mr. Caldwell. (Id. ¶ 25, Ex. 1.) Mr. Caldwell
filed suit on November 11, 2017. (See Compl. (Dkt. #
January 12, 2018, Boeing move to dismiss Mr. Caldwell's
original complaint. (1st MTD (Dkt. # 19).) Mr. Caldwell did
not file a response to Boeing's motion (see
generally Dkt.); instead, on February 9, 2018, Mr.
Caldwell filed a first amended complaint, and then on
February 13, 2018, he filed a second amended complaint
(see FAC (Dkt. # 22); see also SAC). On
March 26, 2018, the court denied Boeing's first motion to
dismiss as moot because Mr. Caldwell's second amended
complaint superseded his original complaint and rendered his
original complaint without legal effect. (3/26/18 Order (Dkt.
second amended complaint, Mr. Caldwell asserts claims for (1)
racial discrimination and retaliation in violation of Title
VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e-2, et seq. (SAC ¶¶ 26-28); (2)
hostile work environment based on race or retaliation for
engagement in protected activity in violation of the same
federal statute (id. ¶¶ 29-32); and (3)
intentional infliction of emotional distress based on
Washington common law (id. ¶¶ 33-36). On
February 27, 2018, Boeing filed the present motion to dismiss
claims two and three of ...