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Caldwell v. The Boeing Co.

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

April 10, 2019



          James L. Robart, United States District Judge.


         Before the court is Defendant The Boeing Company's (“Boeing”) motion for summary judgment. (MSJ (Dkt. # 47).) The court has considered the motion, the parties' submissions filed in support of and opposition to the motion, the relevant portions of the record, and the applicable law. In addition, the court heard the argument of counsel on April 8, 2019. Being fully advised, the court GRANTS the motion.


         A. Mr. Caldwell's Employment at Boeing

         Plaintiff Brent Caldwell is a thirty-five-year-old, African-American man. (TAC (Dkt. # 32) ¶ 13.) Mr. Caldwell began working at Boeing on January 11, 2013, in composite fabrication at Boeing's manufacturing facility in Frederickson, Washington. (1/22/19 Stinson Decl. (Dkt. # 48) ¶ 2, Ex. 1 (“Caldwell Dep.”) at 72:14-73:1;[1] Caldwell Decl. (Dkt. # 59-1) ¶ 3.) In November 2015, Mr. Caldwell left Boeing's Frederickson facility and transferred to a Boeing facility in Everett, Washington-Boeing's Composite Wing Center (“the CWC”). (Id. at 75:9-20; Bogardus Decl. (Dkt. # 49) ¶ 3; Caldwell Decl. ¶ 3.)

         At the time of Mr. Caldwell's transfer, the CWC was still under construction, and the facility did not officially open until May 2016. (Bogardus Decl. ¶ 3.) The CWC houses Boeing's Automated Fiber Placement (“AFP”) machines used to manufacture the composite wings of Boeing's 777X aircraft-its next commercial aircraft. (Id.) Mr. Caldwell worked as an AFP Operator, manufacturing aircraft components. (Id. ¶ 5; Caldwell Dep. at 75:21-76:1.) Dean Bogardus was Mr. Caldwell's supervisor while Mr. Caldwell worked at the CWC. (1/22/19 Stinson Decl. ¶ 3, Ex. 2 (“Bogardus Corp. Dep.”) at 12:24-13:6; Bogardus Decl. ¶ 5; Caldwell Dep. at 75:21-76:1.)

         B. Mr. Caldwell's Work Laptop

         To help him perform his job, Mr. Bogardus issued Mr. Caldwell a company laptop computer soon after he arrive at the CWC. (Bogardus Decl. ¶ 4; Caldwell Decl. at 103:22-104:2, 104:14-22.) The laptop only worked while Mr. Caldwell was at the CWC, and he only used it at work. (Caldwell Dep. at 103:22-104:11; see also id. at 105:25-106:25.) Mr. Caldwell used the laptop to document steps involved in the composite manufacturing process. (Bogardus Decl. ¶ 6.) During composite builds, employees were supposed to be on the production floor. (Id.) Employees were supposed to use their remaining time for cleaning or performing online training. (Id.)

         Mr. Caldwell admits that he used his computer while he was at work for “surf[ing] the net” on websites like Twitter, Facebook, and Yahoo. (Caldwell Dep. at 107:18-23.) He also acknowledges using his computer to read “news articles that would pop up.” (Id. at 107:24-108:2.) He testified that he could not estimate how many times he would go onto these websites while at work. (Id. at 108:10-15.) Mr. Bogardus was unaware that Mr. Caldwell was on his laptop for personal use during the workday because every time Mr. Bogardus approached Mr. Caldwell, it appeared that Mr. Caldwell was completing online work-related training or other work responsibilities. (Borgardus Decl. ¶ 13; Bogardus Corp. Dep. at 24:13-24.)

         C. Boeing's Investigation into Mr. Caldwell's Laptop Use

         In mid-December 2016, Boeing received an anonymous ethics complaint that Mr. Caldwell was misusing company time by being on Facebook and watching YouTube videos throughout the workday. (Petrey Decl. (Dkt. # 51) ¶ 3.) Boeing does not know who made the complaint. (Id.) After further investigation, Boeing's Corporate Investigations group installed monitoring software on Mr. Caldwell's work laptop that allowed Boeing to monitor how Mr. Caldwell was using his work laptop during the workday. (Id. ¶¶ 4-5.) Mr. Caldwell did not know that Corporate Investigations had installed monitoring software on his laptop. (Id. ¶ 5.) Boeing monitored Mr. Caldwell's laptop usage on five working days between December 22, 2016, and January 6, 2017. (Id. ¶ 6.) During this period, Mr. Caldwell spent 17.1 hours of the 40 hours he entered into Boeing's timekeeping system, or 43 percent of his workday, on non-work-related, personal use of the Internet-specifically, by accessing Facebook, Yahoo, Twitter, Instagram, and YouTube. (Id. ¶¶ 7-8.)

         As a part of the investigation, a Boeing investigator interviewed both Mr. Caldwell and Mr. Bogardus. (Id. ¶ 9.) In a January 31, 2017, voluntarily signed statement, Mr. Caldwell admitted that he “check[ed] social media throughout the day” but did “not keep track of the amount of time [he was] on the Internet for personal use.” (Petrey Decl. ¶ 13, Ex. A (“Caldwell Statement”) at 1; Caldwell Dep. at 122:20-123:2 (acknowledging that the signature on the statement is his).) Mr. Caldwell acknowledged that he visited “social media sites such as Twitter and Facebook, ” and that he does “not typically use the Internet for work related matters.” (Caldwell Statement at 1.) The Boeing investigator explained to Mr. Caldwell that over the period of December 22, 2016, through January 6, 2017, he had “averaged over approximately 3 1/2 hours of personal Internet during the days [he] worked.” (Id.) In his statement, Mr. Caldwell acknowledged that he may have “spent that amount of time on the Internet for personal use, ” but explained that “[i]t may have been slow at work during that time period.” (Id.) He further explained that there are “down times” in his work area, and if he does not have work to do, it is common for him to be on the Internet for personal use. (Id.) He also stated that, although he does not keep track of his personal Internet time while he is at work, “spending 3 1/2 hours a day would not be typical” for him. (Id.) Nevertheless, he did not “have an idea about the amount of time” he actually spent on personal Internet time while at work. (Id.) During his deposition, Mr. Caldwell again admitted that he used his work computer during work time to surf the Internet for personal entertainment. (Caldwell Dep. at 107:18-108:2.)

         D. Mr. Caldwell's ECARB & Termination

         Consistent with Boeing's policy, Mr. Caldwell's documented and admitted personal use of the Internet was submitted to a Boeing Employee Corrective Action Review Board (“ECARB”) for review, evaluation, and disposition. (Lewis Decl. (Dkt. # 52) ¶¶ 13, 16; Petrey Decl. ¶ 17.) ECARB is a committee of Boeing employees that is responsible for the review, evaluation, and disposition of serious employee misconduct. (Lewis Decl. ¶ 14.) Boeing uses ECARB as a formal process to review more significant cases of misconduct so that corrective action is applied consistently. (Id.) All time-misuse cases are reviewed by an ECARB. (Miller Decl. (Dkt. # 53) ¶ 3.)

         Mr. Caldwell's ECARB was on February 8, 2017. (Id.) The ECARB that reviewed Mr. Caldwell's case was composed of the following members: (1) Steven Miller, as chair, (2) a standing member from Ethics, (3) four Employee Corrective Action (“ECA”) standing members, (4) Mr. Bogardus, as Mr. Caldwell's manager, and (5) Michael Edmiston, as the relevant Human Resources (“HR”) representative. (Lewis Decl. ¶ 18, Miller Decl. ¶ 3, Borgardus Corp. Dep. 22:24-23:3; Bogardus Decl. ¶ 15.) Except for Mr. Bogardus and Mr. Edmiston, none of the ECARB members had ever met Mr. Caldwell or knew his race. (Borgardus Decl. ¶ 15 (“The ECARB was conducted by telephone conference, and other than [Mr.] Edmiston, no one on the ECARB had ever met [Mr.] Caldwell or were [sic] told his race.”); 1/22/19 Edmiston Decl. (Dkt. # 54) ¶ 7 (“Other than myself and [Mr.] Bogardus, no one on the ECARB ever met [Mr.] Caldwell or was told his race.”); see also 2/15/19 Edmiston Decl. (Dkt. # 63) ¶ 3 (“No member of the ECARB who voted to discharge [Mr.] Caldwell would have had reason to know [Mr.] Caldwell's race.”); see Miller Decl. ¶ 3 (“ECARB members are not provided the race of employees, only names.”).)

         During the ECARB, Mr. Bogardus advocated for retaining Mr. Caldwell and would have disciplined him with time off from work instead of discharge. (Borgardus Corp. Decl. at 23:12-15; Borgardus Decl. ¶ 16.) Mr. Edmiston also voted to discipline Mr. Caldwell with time off work rather than discharge. (2/15/19 Edmiston Decl. (Dkt. # 63) ¶ 2.) However, ultimately, a majority of ECARB members voted to terminate Mr. Caldwell's employment with Boeing. (Miller Decl. ¶ 5; Lewis Decl. ¶ 22; Bogardus Decl. ¶ 17.) No. member of the ECARB who voted to discharge Mr. Caldwell had any reason to know Mr. Caldwell's race. (2/15/19 Edmiston Decl. ¶ 3.) Indeed, Mr. Caldwell's “race was not disclosed to ECARB members, and there was no discussion whatsoever of his race during the ECARB.” (Id.) On February 10, 2017, Mr. Bogardus informed Mr. Caldwell of the decision to terminate his employment for misuse of company time. (Bogardus Decl. ¶ 18; Caldwell Dep. at 81:20-82:20.)

         Boeing has discharged more than 200 employees for similar time-misuse offenses. (Lewis Decl. ¶¶ 11-12, Ex. 4.) Of those individuals, at least 137 are Caucasian and 16 are African-American. (See id.) Nearly two-thirds of the Caucasian offenders spent less work time than Mr. Caldwell misusing the Internet. (See Id. (showing 89 of the 137 terminations of white employees for under 43 percent of time misuse).) Mr. Caldwell has no evidence to counter the foregoing statistics from Boeing. (See Caldwell Dep. at 124:3-17 (“Q: Do you have any information about the races of people who have been terminated for personal computer use time? A: I don't know anyone.”).)

         Mr. Caldwell admits that his personal Internet use during Boeing's investigation fell within Boeing's definition of misuse of company time. (See Id. at 132:7-133:6.) Mr. Caldwell agrees that Boeing followed ECARB procedures in arriving at its decision to terminate his employment. (See Id. at 137:3-138:1.)

         E. Mr. Caldwell's Lawsuit

         On August 17, 2017, Mr. Caldwell filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”). (TAC ¶ 25, Ex. 1.) He received a Notice of Right to Sue on August 23, 2017. (See id.) On November 11, 2017, Mr. Caldwell filed suit against Boeing. (See Compl. (Dkt. # 1).) In his third amended and operative complaint, Mr. Caldwell asserts two claims against Boeing for racial discrimination under Title VII of the Civil Rights Act of 1964: (1) disparate treatment arising from his termination, and (2) a racially hostile work environment. (See generally TAC); see also 42 U.S.C. § 2000e-2, et seq.

         1. Mr. Caldwell's Claim for Disparate Treatment

         Mr. Caldwell contends that his termination from Boeing was racially motivated because of a run-in with an anonymous white male who was making fun of Mr. Caldwell due to his race around the time Mr. Caldwell was investigated for excessive personal usage of his work laptop. (Caldwell Dep. at 87:8-13.) Mr. Caldwell also speculates that one of his leads, Tom Hammond, whom Mr. Caldwell accuses of discriminatory behavior, see infra § III.E.2.d, may have made the anonymous call reporting Mr. Caldwell's personal use of the Internet. (Id. at 111:4-112:21.) However, any connection between the hotline tip and Mr. Caldwell's race is based solely on Mr. Caldwell's assumptions because he admits that he has no specific information about who made the anonymous call, but rather only his personal speculations. (See id.) Mr. Caldwell also believes Boeing's stated reason for his termination-excessive personal use of the Internet during work hours-is pretextual. (Id. ¶ 22.) He states that “[t]here was never any policy at Boeing, Everett that prevented the employees from using the Internet [during] down time.”[2] (Id.) He asserts that other employees with whom he worked and who were not African-American “were never disciplined for this ‘offense,' and [everyone] used the Internet during down time.” (Id.)

         2. Mr. Caldwell's Claim for Hostile Work Environment

         In support of his claim for a racially hostile work environment, Mr. Caldwell describes a number of events that occurred during his employment with Boeing. Although Mr. Caldwell describes several events while he worked at Boeing's Frederickson facility, for reasons stated in the analysis section below, the court describes only those events which occurred after Mr. Caldwell transferred to the CWC in Everett, Washington. See infra § III.C.1. In general, Mr. Caldwell testifies that he experienced “racial harassment . . . on an ongoing, continuous, and daily basis” after he moved to the CWC (Caldwell Decl. ¶ 11), but he provides specific detail concerning a series of disparate and largely unrelated events spanning approximately 15 months (see generally id.).

         a. Waving at a Caucasian Female Employee

         Mr. Caldwell testifies that, in November 2015, he waved at a Caucasian female Boeing employee with whom he worked. (Id. ¶ 13.) She did not wave back and looked down at her feet. (Id.) Shortly thereafter, Mr. Caldwell was asked by two Caucasian security guards to “step outside.” (Id.) Mr. Caldwell attributes his treatment by the security guards to his interaction with the Caucasian female Boeing employee. (See Id. (“I have no doubt that if a Caucasian waved to [the Caucasian female employee] then I would not have been dragged out of the locker room by Boeing security.”).)

         b. Caucasian Employee Imitates an Ape

         Mr. Caldwell testifies that “one of the worst incidents” of racial harassment occurred on December 1, 2016, and involved Caucasian employees at the Tooling Department. (Id. ¶ 14.) As Mr. Caldwell was moving large pieces of metal, a Caucasian Boeing employee began “walking as a knuckle-dragging ape and making ape noises, ” and stated, “I can't stand you blacks, ” while other Caucasian employees laughed. (Id.) Mr. Caldwell attests that he reported the incident to Mr. Bogardus, who later accused Mr. Caldwell of trying to provoke a fight in the parking lot and, on that basis, threatened to discipline Mr. Caldwell. (Id.)

         c. Teasing due to Blue Footwear

         Mr. Caldwell testifies that, from April 2016, through his termination, he was “singled out and harassed on almost a daily basis” due to his footwear. (Id. ¶ 18.) Mr. Caldwell wore a set of royal blue Timberland steel-toed boots. (Id.) Because the toes were reinforced with steel, they met Boeing's regulation, but Mr. Caldwell attests that “Caucasian employees and manager constantly questioned [him] about and even made fun of [his] boots.” (Id.) Although Mr. Caldwell does not state that anyone engaging in this behavior referenced his race, he nevertheless impliedly attributes this treatment to racial discrimination. (See Id. (‘[T]he concept of an African American wearing blue boots was just too much for many of the Boeing Caucasians to take.”).)

         d. Supervisor Raised to be Afraid of African-Americans

         Mr. Caldwell states that one his leads, Mr. Hammond, would follow him around closely and “boss [him] around.” (Id. ¶ 19.) Mr. Caldwell testifies that, in October 2016, and on other occasions, Mr. Hammond told Mr. Caldwell that he was afraid of Mr. Caldwell because that is how Mr. Hammond was raised. (Id.) ...

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