Opinion
No. C 04-3787 CW.
October 18, 2005
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Defendants United Airlines, Inc. (United) and Ron King move, pursuant to Federal Rule of Civil Procedure 56, for summary judgment. Plaintiff Anthony Williams, proceeding pro se, opposes this motion. The matter was heard on October 14, 2005. The Court, having considered all of the papers filed by the parties and oral argument, GRANTS Defendants' motion.
On May 6, 2005, the Court issued an order providing notice to Williams regarding the requirements for opposing a motion for summary judgment.
BACKGROUND
The facts below are undisputed unless otherwise noted.
Williams was employed by Defendant United as an airline mechanic in Oakland from 1989 until his termination in May, 2003. Defendant Ron King was, at all times relevant to this action, Williams' direct supervisor.
In February, 2000, United received a report that Williams, while using United employee travel benefits, acted in an uncooperative manner toward United States customs agents when questioned upon his return from an international trip. (Williams Dep. 163:7-165:16; Larry Trickett Dec. (Trickett Dec.) ¶ 2, Ex. A). Williams was threatened with discipline over the incident but was not disciplined. (Williams Dep. 168:12-23).
In July, 2000, Williams was counseled for being absent without leave (AWOL) five days. (Id. at 170:14-171:1, Ex. 3). In April, 2001, Supervisor James Connell issued Williams a "letter of concern" for again taking an unauthorized leave of absence of five days when he failed to return on time from his scheduled vacation. The letter of concern stated:
It is your responsibility to come to work on your assigned days to work. During a vacation you cannot just extend your days off without proper approval. In the future plan your vacation and stay with your plan. Disciplinary action will be taken if you are AWOL in the future.
(Id. at Ex. 3).
On May 21, 2001, Gary Meeks issued Williams Level 3 discipline for an altercation with a co-worker, Ricardo Paras, and for leaving the premises without authorization on work time during United's follow-up investigation. (Id. at 174:18-175:13, 180:191-82:14, Ex. 4). Defendant King, a supervisor, had instructed Williams to return to work after the altercation, but Williams left work. (Id. at 176:15-177:13). After Williams was disciplined, he alleged that a manager, Paras and another co-worker discriminated against him and harassed him. (Id. at 178:23-179:19, Ex. 5).
According to United's discipline policy, contained in a collective bargaining agreement, misconduct can result in disciplinary "Levels" up to and including termination. When an employee reaches Level 5, he or she is subject to immediate termination. (Trickett Dec. ¶ 10). "Letters of concern" are not Levels and are not considered for purposes of termination. (Id. at ¶ 11).
On October 17, 2001, supervisor Connell submitted a report concerning Williams' lack of productivity and frequent loafing on the job. (James Connell Dec. (Connell Dec.) ¶ 5, Ex. B). Subsequently, on February 11, 2002, Williams was issued Level 4 discipline for loafing on company premises during work time. (Williams Dep. 189:25-191:18, Ex. 7; Ron King Dec. (King Dec.) ¶ 3, Ex. A). Williams received this discipline because Defendant King found him watching a portable television during work time. (Id.). Defendant King had previously discovered Williams watching television and warned him about this on multiple occasions. (Id.).
On July 16, 2002, Williams was issued a job card ordering him to perform maintenance that included lubricating cables and pulleys on a particular aircraft. (Williams Dep. 94:13-95:2, 198:24-199:13, Ex. 8). After viewing the aircraft, Williams did not think he could complete the task as ordered unless parts of the wing surface were removed. The crew leads informed him that it would not be necessary to remove the wing surface, but Williams, nevertheless, refused to sign the work order. Defendant King was called to resolve the issue. Defendant King instructed Williams that he should complete the job as ordered by the crew leads and sign the order. Williams refused. Eventually, Williams' co-worker completed the job without removing the wing surface and Defendant King signed the maintenance card.
On or about July 23, 2002, Williams sent a written complaint to United and the Federal Aviation Administration (FAA), reporting that Defendant King had falsified information and violated United's aircraft maintenance rules. United investigated the incident and, two months later, concluded that it could not substantiate Williams' claims. (Chris Carrick Dec. ¶ 3, Ex. B, C).
On August 17, 2002, Larry Trickett issued Williams a letter of concern charging Williams with failing properly to perform leak checks of an airplane's lavatory and galley filtering systems. (Trickett Dec. ¶ 3, Ex. B). On September 9, 2002, supervisor Craig Whitmore issued a letter of concern to Williams because he improperly used the eye wash station in the airplane bay to clean his coffee pot. (Williams Dep. 216:4-15, Ex. 12). Williams did not receive discipline Levels for these instances. (Id. at 219:92-21:17, Ex. 14).
In December, 2002, Williams told Trickett that he was interested in taking vacation time in January of the following year. Williams was granted fifteen days of vacation and scheduled to return to work on January 20, 2003. (Id. at 219:9-221:17, Ex. 14).
On January 18, 2003, during his vacation in Thailand, Williams called the resource center requesting additional vacation days. (Id. at 223:3-12). Trickett informed Williams that he would not be granted an extension because those days were marked red, meaning that time off was unavailable because too many employees had already been granted time off. (Trickett Dec. ¶ 5). Williams did not return to work until January 28. On March 8, Williams was charged with unauthorized absence and issued a disciplinary report. Because Williams had failed to return to work after vacation in the past, Trickett recommended Level 4 discipline. (Trickett Dec. ¶ 9; Williams Dep. 224:24-225:13, Ex. 16).
An investigative review hearing on the matter was scheduled for May 8, 2003. (Williams Dep. 131:18-132:13). Before the hearing, Williams was called by his union representative Robert Walton into a meeting to prepare. (Id. at 132:3-133:9). During this meeting, Williams was involved in a physical altercation with one of his union representatives, Javier Lectora. (Id. at 133:101-40:4). After the altercation, Williams left the meeting and called the police. (Id. at 140:5-141:4). Lectora reported that Williams had pushed him against a wall. (Id. at 141:2-142:10). That same day, United conducted its own investigation and all of the witnesses confirmed Lectora's version of events. (Id. at 141:24-142:10; King Dec. ¶ 7). The hearing scheduled for that day did not take place. Williams received Level 5 discipline for the incident and was terminated that same day.
Following the termination, another hearing was scheduled but Williams chose not to appear because he claimed he had done nothing wrong. (Williams Dep. 152:16-153:23). The hearing took place on October 7, 2003, and the termination decision was upheld. (Williams Dep. 232:12-20, Ex. 20).
LEGAL STANDARD
Summary judgment is properly granted when no genuine and disputed issues of material fact remain, and when, viewing the evidence most favorably to the non-moving party, the movant is clearly entitled to prevail as a matter of law. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir. 1987). Material facts which would preclude entry of summary judgment are those which, under applicable substantive law, may affect the outcome of the case. The substantive law will identify which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The moving party bears the burden of showing that there is no material factual dispute. Therefore, the court must regard as true the opposing party's evidence, if supported by affidavits or other evidentiary material. Celotex, 477 U.S. at 324;Eisenberg, 815 F.2d at 1289. The court must draw all reasonable inferences in favor of the party against whom summary judgment is sought. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Intel Corp. v. Hartford Accident Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991).
Where the moving party does not bear the burden of proof on an issue at trial, the moving party may discharge its burden of showing that no genuine issue of material fact remains by demonstrating that "there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325. The moving party is not required to produce evidence showing the absence of a material fact on such issues, nor must the moving party support its motion with evidence negating the non-moving party's claim. Id.; see also Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 885 (1990); Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), cert. denied, 502 U.S. 994 (1991). If the moving party shows an absence of evidence to support the non-moving party's case, the burden then shifts to the opposing party to produce "specific evidence, through affidavits or admissible discovery material, to show that the dispute exists." Bhan, 929 F.2d at 1409. A complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial. Celotex, 477 U.S. at 323.
DISCUSSION
Williams brings this action under the Airline Deregulation Act's Whistleblower Protection Program (WPP), codified at 49 U.S.C. § 42121. Williams contends that he was terminated in retaliation for reporting Defendants' safety violations.
The WPP states, in relevant part:
(a) Discrimination against airline employees. No carrier or contractor or subcontractor of an air carrier may discharge an employee or otherwise discriminate against an employee . . . because the employee . . .
(1) provided . . . to the employer or Federal Government information relating to any violation or alleged violation of any order, regulation, or standard of the Federal Aviation Administration or any other provision of Federal law relating to air carrier safety under this subtitle or any other law of the United States.
I. Legal Standard for Retaliation Under the WPP
This issue comes to the Court as a matter of first impression in the Ninth Circuit. At the time of this writing, the Court is aware of only one federal court decision interpreting the requirements for a prima facie claim of retaliation under the WPP. Collins v. Beazer Homes USA, Inc., 334 F. Supp. 2d 1365, 1375-76 (N.D. Ga. 2004). In Collins, the court addressed the burdens of proof under Section 806 of the Sarbanes-Oxley Act, codified at 18 U.S.C. § 1514A, a provision that provides whistleblower protection to employees of publicly traded companies. Id. at 1372. The Collins court observed that the evidentiary framework for a claim under Sarbanes-Oxley is governed by the legal framework set forth in the WPP. Id. at 1374-75; see 18 U.S.C. § 1514A(b)(2)(C). The court articulated this framework as follows:
Defendants do not state the legal standard for a prima facie showing of retaliation under the WPP. Rather, they imply that Plaintiff must make a prima facie case of retaliation under Title VII. However, Defendants fail to cite any authority or even argue that Title VII provides the appropriate framework for analyzing a retaliation claim under the WPP.
a plaintiff must show by a preponderance of the evidence that (1) she engaged in protected activity; (2) the employer knew of the protected activity; (3) she suffered an unfavorable personnel action; and (4) circumstances exist to suggest that the protected activity was a contributing factor to the unfavorable action . . . Proximity in time is sufficient to raise an inference of causation . . . 334
F. Supp. 2d at 1375-76 (citing Stone v. Webster Eng'g, Corp. v. Herman, 115 F.3d 1568, 1573 (11th Cir. 1997); Bechtel Constr. Co. v. Sec'y of Labor, 50 F.3d 926, 933-34 (11th Cir. 1995)) (citations omitted).
In Marano v. Dep't of Justice, the Federal Circuit interpreted "contributing factor" under the Whistleblower Protection Act (WPA), 5 U.S.C. § 1221(e)(1). The WPA, which provides government employees a right of action for retaliation, is analogous to the WPP's cause of action for airline employees. According to Marano, contributing factor means "any factor which, alone or in connection with other factors, tend[s] to affect in any way the outcome of the decision." 2 F.3d 1137, 1140 (Fed. Cir. 1993). The Marano court added:
this test is specifically intended to overrule existing case law, which requires a whistleblower to prove that his protected conduct was a `significant,' `motivating,' `substantial,' or `predominant' factor in a personnel action in order to overturn that action. Id.
The Collins court's formulation highlights a substantial difference between Title VII and the WPP: once the plaintiff establishes a prima facie case by a preponderance of the evidence, the employer must demonstrate "by clear and convincing evidence that the employer would have taken the same unfavorable personnel action in the absence of [the protected activity]." 49 U.S.C. § 42121(b)(2)(B)(iv) (emphasis added) (alterations in original). Even if the Court were to adopt this standard, Defendants would prevail because Williams fails to make a prima facie case.
II. Analysis
Defendants do not challenge the facts that (1) Williams engaged in protected activity when on July 23, 2002, he reported Defendant King's alleged safety violations; (2) Defendants knew of Williams' protected activity; and (3) Williams suffered an unfavorable personnel action when his employment was terminated. Defendants contend, nevertheless, that Williams cannot establish a causal connection between his protected activity and his termination. Williams must show that there are circumstances which suggest that the protected activity was a factor contributing to his termination.Collins, 334 F. Supp. 2d at 1378-79; 49 U.S.C. § 42121(b)(2)(B)(iii). A contributing factor does not have to be a significant, motivating, substantial or a predominant factor.Marano, 2 F.3d at 1140. Rather, a contributing factor, by itself or conjunction with other factors, tends to affect, in any way, the outcome of personnel action. Id.
Defendants also challenge Defendant King's personal liability for whistleblower retaliation. Because the Court grants both Defendants summary judgment it does not need to reach this issue.
Williams' prima facie burden is light; however, he fails to offer any evidence that his whistleblower activity was even a contributing factor in the termination decision. Although Williams does not make the argument, his best chance at proving causation is through temporal proximity. "Normally, th[at] burden is satisfied, for example, if the complaint shows that the adverse personnel action took place shortly after the protected activity." 29 C.F.R. § 1984.104(b)(2). Indeed, "[t]he cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be very close." Clark County Sch. Dist. v. Breedan, 532 U.S. 268, 273-74 (2001) (citing with approval cases finding temporal proximity of four and three months insufficient); see also Erickson v. Pierce County, 960 F.2d 801, 803 (9th Cir. 1992) (three months proximity insufficient to infer retaliation for exercising free speech); Eaton v. Kindred Nursing Ctrs. W., LLC, 2005 U.S. Dist. LEXIS 9545 (D. Me. 2005) (finding ten weeks insufficient for causation under WPA).
Here, Williams' termination occurred more than nine months after his whistleblower activity. Furthermore, Williams acknowledges that he was disciplined for poor job performance, improper use of an eye wash station, failure to return from vacation on time, and for his involvement in a physical altercation on company premises, all of which occurred after the whistleblower activity. Thus, the undisputed evidence of intervening incidents of discipline together with the nine month lapse sufficiently defeats any inference of causation based on proximity.
The undisputed evidence shows that Williams also received discipline for misconduct on several occasions prior to engaging in protected activity. Significantly, Williams was at Level 4 discipline, one level below termination, before July 23, 2002 when he filed his whistleblower complaint. Williams also acknowledged that his issues with Defendant King arose long before the whistleblower activity. (Williams Dep. 55:18-60:6). Referring to the discipline for an altercation before his protected activity, Williams stated that "this man [King] had been doing all he can since that incident in the Chair Shop." (Id. at 260:6-261:23) Commenting on his discipline for watching television at work, which occurred before the whistleblowing, Williams declared that Defendant King "was out to fire [him]." (Id. at 83:16-85:6). In his deposition testimony, Williams conjectures that Defendant King was attempting to terminate him for various reasons: (1) because Williams accused another supervisor of discrimination and harassment (id. at 57:12-60:6); (2) because Defendant King was a "racist" (id. at 93:2-7); and (3) because Defendant King "didn't like" Williams (id. at 92:21-93:1). Yet, Williams fails to submit any evidence that Defendant King wanted to terminate him because of his whistleblower activity. Thus, Williams' own admissions that Defendant King wanted him terminated prior to the whistleblower activity undermine any inference that the whistleblower activity was a contributing factor in the termination.
In response, Williams asserts that, according to the Racketeer Influenced and Corrupt Organization (RICO) Act, he does not need to prove a connection between his whistleblower activity and his termination. Williams' reliance on RICO is inapt; his claim for retaliation is governed by the WPP. Alternatively, Williams suggests that a causal connection can be inferred from the fact that he was employed with United for thirteen years and he was terminated only after he engaged in the protected activity. Although Williams' length of employment gives rise to a presumption that he was meeting Defendants' expectations, that presumption is effectively rebutted in light of Williams' disciplinary record during the latter years of his employment. Williams himself admits the possibility that even after thirteen years of employment his misconduct could have resulted in termination, specifically for improper use of the eye wash station. (Williams Dep. 114:241-15:6).
18 U.S.C. § 1962 et. seq.
Williams also describes the discipline he received as common based on workplace disagreements, unworthy of termination. Williams contends that any claims of misconduct should have been resolved according to the collective bargaining agreement. However, Williams offers no evidence that he was disciplined contrary to the agreement. More importantly, Williams does not present any evidence to suggest that any deviations from the agreement were the result of his whistleblower activity.
Williams implies that the altercation with Lectora was minor and contends the real reason for his termination was his whistleblower activity. However, Williams offers no evidence in support of his theory. Williams proposes that cross-examination at trial will reveal that his co-workers were untruthful regarding the altercation with Lectora. However, "neither a desire to cross-examine an affiant nor an unspecified hope of undermining his or her credibility suffices to avert summary judgment." Nat'l Union Fire Ins. Co. v. Argonaut Ins. Co., 701 F.2d 95, 97 (9th Cir. 1983). Moreover, as Defendants point out, Williams does not present any evidence to rebut the fact that, regardless of his co-workers' honesty, United relied on their accusations and not Williams' whistleblower activity when it decided to discipline him. Although it is his burden to do so, Williams does not establish how the whistleblower activity impacted the termination decision. In the absence of any evidence to the contrary, and given Williams' undisputed disciplinary record, it is reasonable to conclude that the altercation was the final straw. There is no evidence that the whistleblower activity, in fact, contributed to the termination.
Williams also argues that Defendant King and other members of management colluded to terminate his employment. Williams contends that Defendant King had other wrongful reasons for terminating him and that he merely used the May 8, 2003 altercation to justify the termination. Nevertheless, Williams offers no more than mere allegations of improper motives, which are insufficient at the summary judgment stage. Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994); see also Hewitt v. Grabicki, 794 F.2d 1373, 1382 (9th Cir. 1986) ("The mere fact that a conspiracy is alleged is insufficient to defeat an adequately supported motion for summary judgment.").
Even in the light most favorable to Williams, the undisputed evidence suggests that, had such a conspiracy existed, Defendant King and management could have terminated Williams on three separate occasions before the altercation. But even if, as Williams claims, Defendant King had to wait for the right time to terminate him, the fact remains that Williams fails to provide evidence giving rise to an inference that the whistleblower activity induced or contributed to the collusion.
Therefore, Williams fails to meet his prima facie burden to show that his whistleblower activity was a contributing factor in the decision to terminate him.
Finally, Williams requests additional time for discovery claiming the Federal Bureau of Investigation is conducting an criminal investigation which will reveal facts relevant to his case. However, Williams has provided no evidence or even explanation showing that the information sought would aid him in establishing his prima facie case. See Burlington Northern Santa Fe R.R. Co. v. Assiniboine Sioux Tribes, 323 F.3d 767, 774 (9th Cir. 2003) (holding that the district court did not abuse its discretion in denying a Rule 56(f) motion where the discovery sought "would be futile"). Therefore, the Court denies Williams' request for additional discovery.
CONCLUSION
For the forgoing reasons, Defendants' motion for summary judgment is GRANTED. The Clerk shall enter judgment and close the case. Defendants shall recover their costs from Plaintiff.
IT IS SO ORDERED.