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Neely v. The Boeing Co.

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

May 20, 2019

MICHAEL NEELY, Plaintiff,
v.
THE BOEING COMPANY, Defendant.

          ORDER

          JOHN C. COUGHENOUR, UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Defendant's motion for summary judgment (Dkt. No. 112). Having thoroughly considered the parties' briefing and the relevant record, the Court finds oral argument unnecessary and hereby GRANTS the motion for the reasons explained herein.

         I. BACKGROUND

         Plaintiff was employed by Defendant as a Project Engineer 5 in Huntsville, Alabama. (Dkt. No. 114 at 2.) In September 2014, Plaintiff began a temporary travel assignment with Defendant's 777X subsystems team in Everett, Washington and worked on the Electrical Load Management System (“ELMS”). (Dkt. Nos. 57 at 3, 113-1 at 4, 114 at 2.) Plaintiff primarily worked in Everett in 2014 and 2015 but reported directly to two senior managers in Huntsville: John Jones until January 9, 2015, and Dane Richardson from January 9 until the end of Plaintiff's employment. (Dkt. No. 119 at 1-2.) Plaintiff's day-to-day work on the ELMS project was overseen by two managers, Anthony De Genner and David Demars, who reported to Richardson about Plaintiff's work performance. (Id. at 2.)

         On March 3, 2015, Richardson met with Plaintiff for a scheduled salary review, during which Plaintiff was given a salary notice based on his performance in the prior year. (Dkt. Nos. 113-2 at 8-9, 119 at 2.) Richardson relied on Jones's 2014 performance ratings for the salary review. (Dkt. No. 113-2 at 8-9.) Plaintiff asserts that, during the salary review, Richardson made several negative comments about Plaintiff's age. (Dkt. No. 140 at 7; see Dkt. No. 140-19) (email from Plaintiff to himself with notes about the salary review).[1]

         In May 2015, Richardson sent Plaintiff an email concerning Plaintiff's reimbursement requests for meals and alcohol while traveling after Plaintiff charged $84 for alcohol on his company credit card in one day and expensed a $110 meal without providing an itemized receipt. (Dkt. Nos. 113-4, 119 at 3.) Defendant's Huntsville facility maintains a meal and alcohol reimbursement policy that limits employees to expensing one glass of wine or one beer as part of reimbursable meal costs, and requires employees to provide an itemized receipt and separate the cost of alcohol from the cost of food on an expense report. (Dkt. Nos. 113-3 at 3, 119 at 2-3.) On a later business trip, Plaintiff submitted receipts for four alcoholic drinks in a single meal and for at least $72.91 in expenses for a hotel minibar, which violated the meal and alcohol reimbursement policy. (Dkt. No. 119 at 3.) Although Richardson provided similar notifications to at least three other employees during his time as a manager at the Huntsville facility, Plaintiff was the only one to violate the policy a second time. (Id.) Defendant's human resources department recommended that Richardson suspend Plaintiff for one day without pay for his repeated violations of the reimbursement policy. (Id.) In September 2015, Richardson elected to issue Plaintiff a written warning, known as a corrective action memo (“CAM”). (Id. at 3-4; Dkt. No. 113-8 at 12.)

         On June 30, 2015, Plaintiff submitted a complaint to Defendant's ethics department, alleging that Richardson had made negative age-related comments to Plaintiff during his salary review; he later amended it to assert that Richardson had retaliated against Plaintiff by issuing the CAM. (Dkt. Nos. 57 at 9, 113-6 at 4, 113-7, 113-8.) Defendant investigated Plaintiff's claims and concluded that Plaintiff's claims were unsubstantiated. (Dkt. Nos. 113-6 at 13, 113-8.) Plaintiff's appeal of Defendant's determination was denied. (Dkt. No. 113-6 at 13-14.)

         On August 28, 2015, Plaintiff filed an age discrimination complaint with the federal Equal Employment Opportunity Commission (“EEOC”). (Dkt. Nos. 57 at 9, 140 at 13.) On June 1, 2016, the EEOC issued Plaintiff a right to sue letter that notified him that the EEOC was unable to conclude that Defendant had violated the relevant statutes and was closing its file on Plaintiff's claims. (Dkt. No. 140-36 at 2.)

         On October 21, 2015, Richardson asked De Genner and Demars for feedback on Plaintiff's work performance in preparation for Plaintiff's 2015 year-end performance evaluation. (See Dkt. Nos. 113-16, 119 at 4.) De Genner and Demars agreed that Plaintiff's technical skills met or exceeded expectations but were critical of Plaintiff's abilities to communicate and work with others. (Dkt. No. 113-16 at 2-3.) Plaintiff had exhibited rude and abrasive behavior toward other employees and did not change his behavior after De Genner and Demars brought up the issue with him, and had previously sent other employees aggressive and demeaning emails and messages. (See Dkt. Nos. 113-1 at 5, 113-9-113-12, 113-14 at 2, 113-15 at 2-3, 115 at 2, 116 at 2, 117 at 2, 118 at 2.)[2] Plaintiff's interpersonal issues extended to his interactions with Defendant's suppliers for the ELMS project. (Dkt. Nos. 116 at 2, 118 at 2.) Richardson relied on De Genner and Demars's input in formulating Plaintiff's 2015 year-end performance evaluation. (Dkt. No. 119 at 5.) Plaintiff's 2015 performance evaluation reflects that he met expectations in the business goals category, but only met some or did not meet expectations in several performance values categories, including communication, customer satisfaction, and people working together. (Dkt. Nos. 113-17 at 2-6, 119 at 5.)

         Also in October 2015, Demars was informed that the 777X ELMS project's budget would be reduced by approximately 20 percent beginning in March 2016, which necessitated a reduction in staffing on the project. (Dkt. No. 117 at 3.) Plaintiff's temporary assignment with the 777X ELMS project was eliminated, in part because “persistent travel” assignments, such as Plaintiff's, are more expensive than standard positions that do not involve frequent travel. (Id.) Plaintiff was scheduled to return to Defendant's Huntsville facility. (Id.) On November 10, 2015, Plaintiff was issued the 2015 performance evaluation by Richardson. (Dkt. No. 57 at 11.)

         Plaintiff was scheduled to return to work at the Huntsville facility full-time, but there was insufficient work available for Project Engineer 5 employees, Plaintiff's position. (Dkt. No. 119 at 5.) Because of the work deficit, Defendant determined that it was necessary to declare a “surplus of one” for Project Engineer 5 positions, which triggered Defendant's reduction in force (“RIF”) process in January 2016. (Id.; Dkt. No. 114 at 2.) Defendant's RIF process is a standardized process used when Defendant must eliminate a position due to either budgetary constraints or a surplus or redundancy in the workforce. (Dkt. No. 114 at 2.) During the RIF process, all affected employees are graded by their managers on a point scale based 40 percent on the employee's year-end performance management evaluation scores and 60 percent on their manager's rating of them on several core competencies. (Id.) During the scoring process, each affected employee's manager works with Defendant's human resources department and a Skills Captain, who is generally a management-level employee who does not directly supervise any of the affected employees. (Id. at 2-3.) When the affected employees' scores are computed, the managers meet to finalize the rating for each employee, and the employee with the lowest cumulative score is selected for layoff. (Id. at 2-3.)

         The RIF process for Plaintiff's position was conducted in January 2016 and included 33 employees in the Project Engineer 5 classification, including Plaintiff. (Id. at 3.)[3] Plaintiff received a score of 61 out of 100, which was the lowest out of the affected employees. (Id.; Dkt. No. 113-18 at 4.) Plaintiff was selected for layoff and issued a 60-day notice of termination on or around January 21, 2016. (Dkt. No. 114 at 4.) At least 14 other employees considered during the RIF process were older than Plaintiff but were retained. (Id.) During the ensuing 60-day period, Richardson worked with other employees of Defendant to attempt to find Plaintiff alternative employment with Defendant. (Dkt. No. 119 at 6.) Plaintiff was unable to obtain a new position at Defendant during the 60-day window and his employment was terminated on March 25, 2016. (Dkt. No. 114 at 4.)

         Plaintiff brings a variety of claims against Defendant, including for age discrimination and retaliation in violation of state and federal law, and wrongful discharge in violation of public policy. (See Dkt. No. 57 at 12-26.)[4] Defendant moves for summary judgment on Plaintiff's claims arising under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq., the Washington Law Against Discrimination (“WLAD”), Wash. Rev. Code §§ 49.60 et seq., and his claim of wrongful discharge in violation of public policy. (Dkt. No. 112 at 2.)

         II. DISCUSSION

         A. Summary Judgment Legal Standard

         “The court shall grant summary judgment if 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). In making such a determination, the Court must view the facts and justifiable inferences to be drawn therefrom in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Once a motion for summary judgment is properly made and supported, the opposing party “must come forward with ‘specific facts showing that there is a genuine issue for trial.'” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)). Material facts are those that may affect ...


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