NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 7 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL LEONARD, No. 20-35844
Plaintiff-Appellant, D.C. No. 2:19-cv-00956-TSZ
v.
MEMORANDUM*
THE BOEING COMPANY,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Thomas S. Zilly, District Judge, Presiding
Submitted October 5, 2021**
Seattle, Washington
Before: PAEZ, M. SMITH, and NGUYEN, Circuit Judges.
Daniel Leonard appeals from the district court’s grant of summary judgment
to The Boeing Company on his claims for age-based disparate treatment under
Washington’s Law Against Discrimination, Wash. Rev. Code § 49.60.180(2), and
breach of contract. We have jurisdiction under 28 U.S.C. § 1291. Reviewing de
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
novo, see Christian v. Umpqua Bank, 984 F.3d 801, 808 (9th Cir. 2020), we
affirm.
1. Leonard proffered no evidence that Boeing’s stated nondiscriminatory
reason for terminating his employment—violation of its sexual harassment
policy—“was a pretext.” Mikkelsen v. Pub. Util. Dist. No. 1, 404 P.3d 464, 471
(Wash. 2017). Although McGivern omitted Kilby’s follow-up email from his
report, he conveyed its substance—that Leonard “did not bring up having an affair
again” after handing Kilby his phone number, and that “Kilby did not allege that
she’d had any other issues with Leonard, or that he treated her differently after she
did not accept his advances.”
While McGivern disclosed the “approximately 10 reports” of Leonard’s
“engaging in favoritism of women with whom he was allegedly having a sexual
relationship,” McGivern acknowledged that “[n]one of those reports appear to have
resulted in Employee Corrective Action.” Leonard does not dispute this
information’s accuracy, and it was relevant to the investigation of allegations that
he “engaged in sexual relationships with women reporting to him.”
Leonard’s assertion that the Employee Corrective Action Review Board
misapplied the aggravating and mitigating factors relevant to his policy violation
improperly relies on his subjective version of events rather than the evidence
presented to the review board. See Villiarimo v. Aloha Island Air, Inc., 281 F.3d
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1054, 1063 (9th Cir. 2002). Leonard’s disagreement with how the review board
weighed the factors is not a basis to show pretext. See Diaz v. Eagle Produce Ltd.
P’ship, 521 F.3d 1201, 1214 n.7 (9th Cir. 2008) (“The focus of the pretext inquiry
is not to determine whether [the employer] was correct in determining that [the
employee’s] job performance was unsatisfactory, but simply whether [the
employee’s] performance was the real reason for the termination.”). The district
court properly granted summary judgment to Boeing on Leonard’s disparate
treatment claim.
2. Leonard also fails to show a triable issue of fact on his breach of
contract claim because PRO-1909 and the ECAPR matrix are not enforceable
“promises of specific treatment in specific situations” that modified his at-will
status. Mikkelsen, 404 P.3d at 477. To the extent Boeing’s policies contain
mandatory language, such language “does not set forth the specificity necessary to
create a binding promise.” Stewart v. Chevron Chem. Co., 762 P.2d 1143, 1146
(Wash. 1988). For example, “violations by managers must be scrutinized more
carefully to determine whether more severe ECA is warranted,” but how that
determination should be made is left to Boeing’s discretion. Similarly, facts and
findings must “be carefully evaluated for applicability to the aggravating or
mitigating factors,” but how to weigh the various factors is discretionary.
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Moreover, Boeing’s policies unequivocally state that they “do[] not
constitute a contract or contractual obligation,” which is similar to the disclaimer in
Kuest v. Regent Assisted Living, Inc., 43 P.3d 23, 29 (Wash. Ct. App. 2002), and
dissimilar to the one in Mikkelsen on which Leonard relies. The district court
properly granted summary judgment to Boeing on Leonard’s breach of contract
claim.
AFFIRMED.
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