United States District Court, W.D. Washington, Seattle
ORDER GRANTING SUMMARY JUDGMENT
L. Robart, United States District Judge.
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.
Mr. Caldwell's Employment at Boeing
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; 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.
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.)
Mr. Caldwell's Work Laptop
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
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.)
Boeing's Investigation into Mr. Caldwell's Laptop
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. ¶¶
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.)
Mr. Caldwell's ECARB & Termination
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.)
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,
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.)
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
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.)
Mr. Caldwell's Lawsuit
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.
Mr. Caldwell's Claim for Disparate Treatment
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.” (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.)
Mr. Caldwell's Claim for Hostile Work
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.).
Waving at a Caucasian Female Employee
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
Caucasian Employee Imitates an Ape
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.)
Teasing due to Blue Footwear
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
Supervisor Raised to be Afraid of African-Americans
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.) ...