                                                                              FILED
                           NOT FOR PUBLICATION
                                                                              AUG 12 2020
                    UNITED STATES COURT OF APPEALS                         MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


MICHAEL NEELY, an individual,                    No.   19-35449

              Plaintiff-Appellant,               D.C. No. 2:16-cv-01791-JCC

 v.
                                                 MEMORANDUM*
THE BOEING COMPANY, a corporation,

              Defendant-Appellee.


                    Appeal from the United States District Court
                      for the Western District of Washington
                   John C. Coughenour, District Judge, Presiding

                           Submitted August 10, 2020 **


Before: SCHROEDER, TROTT, and SILVERMAN, Circuit Judges

      Michael Neely appeals the district court’s judgment in favor of Boeing in

Neely’s action alleging that Boeing discriminated against him in violation of the

Age Discrimination in Employment Act (ADEA) and Washington Law Against


      *
             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).
Discrimination (WLAD); breached an employment contract; and retaliated against

him in violation of the ADEA, WLAD, public policy, and various federal

whistleblower statutes. We have jurisdiction pursuant to 28 U.S.C. § 1291. We

review the district court’s dismissal and summary judgment orders de novo.

Van Asdale v. Int’l Game Tech., 577 F.3d 989, 994 (9th Cir. 2009); Manzarek v. St.

Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1030 (9th Cir. 2008). We affirm.

      The district court properly dismissed Neely’s claims that Boeing violated the

Sarbanes-Oxley Act and Dodd-Frank Act by firing him for complaining about

safety issues. Regarding Sarbanes-Oxley, Neely failed to plead facts to show an

objectively reasonable belief that his complaints “definitively and specifically

relate[d] to” covered fraud. Van Asdale, 577 F.3d at 996-97, 1001 (listing the

covered fraud and requiring an objectively reasonable belief that there was fraud

that “approximate[s] the basic elements of” the covered fraud) (internal quotation

marks omitted). Neely does not qualify as a whistleblower under Dodd-Frank

because he did not file a securities complaint with the Securities and Exchange

Commission prior to his termination. See Digital Realty Trust, Inc. v. Somers, 138

S. Ct. 767, 778 (2018).

      The district court did not err by dismissing the breach of contract claim.

Neely failed to allege facts to establish that the documents attached to his


                                           2
complaint created an employment contract. Manzarek, 519 F.3d at 1031 (noting

that courts are not required to accept as true conclusory allegations contradicted by

the relevant documents referenced in the complaint).

      The district court properly granted summary judgment for Boeing on

Neely’s claims that he was terminated because of his age in violation of the ADEA

or WLAD. For his direct evidence claim, Neely failed to directly tie his Alabama

supervisor’s alleged March 2015 discriminatory attitude to Neely’s 2016

termination during the reduction in force (RIF). France v. Johnson, 795 F.3d

1170, 1173 (9th Cir. 2015). Neely was ranked lowest in the 2016 RIF because his

Washington supervisors reported that Neely’s inability to work with other workers

and suppliers was impeding his ability to perform his job in Washington. For

disparate treatment, Neely failed to establish that he was performing his job

satisfactorily in light of the undisputed evidence that his personal skills were

impeding his performance and that the problems continued after he was counseled

by the Washington supervisors. Cf. Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d

1201, 1208 (9th Cir. 2008) (holding that an individual who continues to violate

company policy over an extended period of time after receiving a warning has not

demonstrated satisfactory performance). In any event, Boeing came forward with

specific and legitimate nondiscriminatory reasons for terminating Neely, a


                                           3
reduction in force due to decreased funding and Neely’s undisputed lack of

personal skills, which gave him the lowest score among the engineers considered

for termination. Neely failed to come forward with “specific and substantial”

evidence that his termination during the RIF was a pretext for age discrimination.

Stegall v. Citadel Broad. Co., 350 F.3d 1061, 1066 (9th Cir. 2003) (listing the

ways to prove pretext).

      The district court properly granted summary judgment on Neely’s retaliation

claims. Even if Neely could prove a causal link between his discrimination

complaints and the adverse employment actions,1 Boeing came forward with

specific nonretaliatory reasons for issuing the written warning and poor

performance evaluation and terminating Neely in the RIF. For the written warning,

Neely admitted that he violated the alcohol reimbursement policy a second time

after being warned about the policy. The other three individuals who were warned

did not violate the policy a second time. Neely’s 2015 employment evaluation

accurately reported that Neely’s uncontested inability to work with others was

interfering with his work in Washington. There was no evidence that the

Washington supervisors, who were the source of the adverse performance



      1
       Hardage v. CBS Broad., Inc., 427 F.3d 1177, 1188-89 (9th Cir. 2005)
(finding no causal link where an adverse performance rating was accurate).
                                          4
evaluation ratings, knew or suspected that Neely had filed an age discrimination

complaint against his Alabama supervisor. Finally, Neely’s undisputed inability to

work with others gave him the lowest score among the engineers who were

considered for termination during the RIF. Neely did not come forward with

specific and substantial evidence that the nonretaliatory reasons given by Boeing

were pretext for retaliation.

      Neely waived his claim that Boeing fired him in violation of WLAD public

policy by failing to address the claim in his opening brief filed with this court.

Frank v. Schultz, 808 F.3d 762, 763 n.3 (9th Cir. 2015) (per curiam). We decline

to consider Neely’s argument that Boeing fired him in violation of public policy

because he reported safety violations. He waived that claim in the district court.

Novato Fire Prot. Dist. v. United States, 181 F.3d 1135, 1141 n.6 (9th Cir. 1999).

      AFFIRMED.




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