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Astley v. The Boeing Co.

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

July 20, 2018

RYAN ASTLEY, Plaintiff,
v.
THE BOEING COMPANY, Defendant.

          ORDER ON SUMMARY JUDGMENT

          The Honorable Marsha J. Pechman, United States Senior District Court Judge.

         The above-entitled Court, having received and reviewed:

1. Defendant The Boeing Company's Motion for Summary Judgment (Dkt. No. 24),
2. Opposition of Plaintiff Ryan Astley to The Boeing Company's Motion for Summary Judgment (Dkt. No. 34),
3. Defendant The Boeing Company's Reply Brief in Support of Motion for Summary Judgment (Dkt. No. 38),

         all attached declarations and exhibits, and relevant portions of the record, rules as follows:

         IT IS ORDERED that the motion is GRANTED as to all claims; Plaintiff's lawsuit is DISMISSED with prejudice.

         Background

         Plaintiff worked as a fuel cell assembler in Boeing's Renton plant. Months prior to the incident at the heart of this lawsuit, he had received a Corrective Action Memo (“CAM”) for using derogatory language to a co-worker. (Dkt. No. 26, Decl. of Wagenblast at ¶ 9; Dkt. No. 26-1, Ex. D.)

         On March 6, 2014, Plaintiff was working in a confined space with another crew member, McCarty. There is no dispute at this point that McCarty was behind Plaintiff in the space and Plaintiff kicked McCarty in the face. The following day, McCarty initiated a complaint with Boeing's Human Resources department (“HR”). (Id., Ex. B.) The HR investigator (Brogowski) interviewed McCarty, several co-workers present at the site (Plaintiff and McCarty were the only employees in the space; there were no eyewitnesses), and Plaintiff (twice). (Dkt. No. 28, Decl. of Brogowski at ¶¶ 7-10.)

         The report of the first interview with the HR investigator reflects that Plaintiff alleged that he “felt something touch my genitals, ” “flinched and hit Kyle McCarty with my foot.” (Dkt. No. 28-1, Ex. M.) However, Plaintiff refused to sign that document. (Id.) The report of the second interview with the HR investigator (which Plaintiff did sign as “true and accurate”) reflects that Plaintiff denied knowing that he had kicked McCarty. (“I had no idea that I kicked him;” Dkt. No. 28-1, Ex. N. at 1.)[1] The HR investigator concluded that McCarty was more credible than Plaintiff and that Plaintiff had purposely kicked McCarty in the face. (Id., Ex. O.)

         Upon review of the report, Defendant's HR department found that Plaintiff had violated “Expected Behavior No. 1” (“Treat Others and Expect to Be Treated With Respect, Dignity, and Trust”) of the Boeing Employee Corrective Action Manager (“ECAPR”); specifically, a “1D” or “Physical Confrontation” violation. The ECAPR indicates that such a violation “[u]sually results in discharge.” (Dkt. No. 26, Decl. of Wagenblast, Ex. C at 10.) Additionally, Plaintiff's prior violation (a “1E” in the ECAPR), according to the “General Factors Matrix, ” meant that this violation warranted “progressive action.” (Id. at 5.)

         By midday on March 18, 2014, HR had decided that Plaintiff would be discharged. (Decl. of Wagenblast at ¶ 11.) A summary of the department's rationale was prepared, as well as a CAM to be issued by Plaintiff's supervisor Bowen. (Id.; Exs. E, F.) Bowen was informed of the decision on that same date, and scheduled a termination meeting for March 20. (Dkt. No. 27, Decl. of Bowen at ¶¶ 5-6.)

         Also on March 18 (after the decision to terminate had been made), Plaintiff met with HR Generalist Wagenblast. During the course of the meeting, Plaintiff posed a hypothetical to Wagenblast about the company's response to a complaint by a female employee of sexual harassment by a male co-worker; inquiring about the process for reporting and investigating such a complaint and asking if the two employees would be separated. The HR staff person reported that she offered Plaintiff several opportunities to disclose more details or file a complaint, but that Plaintiff declined, indicating he was “just curious” about the policy. (Decl. of Wagenblast at ¶¶ 13-15.) Plaintiff confirmed at deposition that this is what occurred. (Dkt. No. 25-1, Depo of Astley, 171:10 - 173:17.)

         Boeing HR forwarded a summary of the conversation to Boeing's Equal Employment Opportunity (“EEO”) group the next day. (Decl. of Wagenblast at ¶ 15; Ex. G.) EEO Investigator Winship contacted Plaintiff and interviewed him on the morning of March 20. (Dkt. No. 29, Decl. of Winship at ¶¶ 4, 6.) During that interview, Plaintiff alleged that McCarty had sexually assaulted him on the day of the kicking incident by “cupp[ing] and squeeze[ing] his genitals.” (Id. at ¶ 9.) EEO opened an investigation into the allegation and Defendant decided to postpone Plaintiff's discharge pending the completion of the investigation. (Dkt. No. 30, Decl. of Young at ¶6, Ex. S; Decl. of Wagenblast at ¶ 16.)

         Plaintiff reports that, following the filing of the EEO complaint:

• He was required to work in proximity to McCarty on March 25.[2]
• He was advised by his supervisor (Bowen) that “what happens in the tank, stays in the tank.”
• “Snitches get stitches” notes appeared on the table in the break area where he took his breaks.
• His lunch box was stamped with McCarty's BEMS ID (“bug”) over a dozen times.

         Decl. of Astley at ¶ 7 (with the exception of the “working with McCarty” claims, no evidence in support of any of these allegations appears in the record). He further claims (again, without evidence) that he informed EEO of the retaliatory harassment and “initially no action was taken.” (Id. at ¶ 8.)

         At the conclusion of the EEO investigation, Winship issued a report which concluded that the truth of the incident between Plaintiff and McCarty came down to a credibility determination. Based on a number of factors -- Plaintiff changing his story between the first and second HR interview and then again between the HR and EEO interviews; plus Plaintiff's knowledge of an impending disciplinary proceeding as a motive to embellish the incident (Decl. of Owen, Ex. P at 15-16)[3] - she did not find Plaintiff credible regarding the incident and no action was taken on his complaint.

         Following the issuance of the EEO report, Boeing resumed Plaintiff's discharge process. On April 15, 2014, Plaintiff's employment was terminated. (Decl. of Wagenblast at ¶ 20; Decl. of Bowen at ¶ 10, Exs. K-L; Astley Depo. at 153:14-24.) Astley attempted to grieve the discharge through his union, but apparently a grievance was never filed.[4] On March 16, 2017, Plaintiff filed this action; his later-filed amended complaint alleges claims of gender discrimination, hostile work environment, unlawful retaliation, and breach of contract under the Washington Law Against Discrimination (“WLAD”) and Washington common law. (Dkt. No. 12.)

         Discussion

         Legal ...


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