                            NOT FOR PUBLICATION                            FILED
                     UNITED STATES COURT OF APPEALS                         JUL 2 2019
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

BEHROUZ SHOKRI,                                  No.    18-35434

                Plaintiff-Appellant,             D.C. No. 2:16-cv-01132-RSM

 v.
                                                 MEMORANDUM*
THE BOEING COMPANY, a Delaware
corporation,

                Defendant-Appellee.

                   Appeal from the United States District Court
                      for the Western District of Washington
                   Ricardo S. Martinez, District Judge, Presiding

                        Argued and Submitted May 13, 2019
                               Seattle, Washington

Before: KLEINFELD and FRIEDLAND, Circuit Judges, and EZRA,** District
Judge.

      Appellant was laid off as part of a 2015 Reduction in Force (“RIF”) at

Appellee Boeing Company (“Boeing” or “Appellee”). As the facts of that layoff

are familiar to the parties, the Court will not recite them here. Appellant filed suit


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
against Boeing, alleging race and national origin discrimination and retaliation in

violation of 42 U.S.C. § 1981 and the Washington Law Against Discrimination

(“WLAD”), Wash. Rev. Code. 49.60.180.

      Boeing moved for summary judgment, which was granted by the district

court. This appeal followed. Appellant argues that the district court impermissibly

failed to view inferences in the light most favorable to him as the nonmoving party,

and that he successfully raised genuine issues of material fact with regard to both

his discrimination and retaliation claims.

      A district court’s grant of summary judgment pursuant to Federal Rule of

Civil Procedure 56 is reviewed de novo. Cruz v. Int’l Collection Corp., 673 F.3d

991, 996 (9th Cir. 2012). Rule 56(a) provides that summary judgment is warranted

“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). A

genuine issue of material fact is absent if, upon “viewing the evidence and

inferences which may be drawn therefrom in the light most favorable to the

adverse party, the movant is clearly entitled to prevail as a matter of law.” Diaz v.

Eagle Produce Ltd. Partnership, 521 F.3d 1201, 1207 (9th Cir. 2008) (quoting

Jones v. Halekulani Hotel, Inc., 557 F.2d 1308, 1310 (9th Cir. 1977)).

Summary judgment is inappropriate if reasonable jurors, drawing all inferences in




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favor of the nonmoving party, could return a verdict in the nonmoving party’s

favor. Id.

      For both his state and federal claims Appellant must first establish a prima

facie case. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973);

Rashdan v. Geissberger, 764 F.3d 1179, 1182 (9th Cir. 2014); Poland v. Chertoff,

494 F.3d 1174, 1179–80 (9th Cir. 2007).

      The district court concluded that Appellant established a prima facie case for

both retaliation and discrimination, and we can assume that determination was

correct. The burden then shifted to Boeing to establish a “legitimate, non-

discriminatory reason” for its employment decisions. Chuang v. Univ. of Cal.

Davis, Bd. of Trs., 225 F.3d 1115, 1123–24 (9th Cir. 2000). Boeing did so,

pointing to Appellant’s low scores both on his 2014 year-end review and during

the 2015 RIF as reasons for his termination. The burden then shifted back to

Appellant to raise a triable issue of fact that the offered reasons were pretextual by

presenting “specific, substantial evidence,” Wallis v. JR Simplot Co., 26 F.3d 885,

890 (9th Cir. 1994) (quoting Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir.

1983)), beyond that which was sufficient for his prima facie case to rebut Boeing’s

stated reason. Stegall v. Citadel Broad. Co., 350 F.3d 1061, 1069 (9th Cir. 2003);

see also Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981) (holding

that an employee may establish pretext “either directly, by persuading the court


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that a discriminatory reason more likely motivated the employer, or indirectly by

showing that the employer’s proffered explanation is unworthy of credence”). We

hold that, viewing the facts in the light most favorable to Appellant, he failed to

produce “specific and substantial” evidence to overcome Appellee’s stated

nondiscriminatory reasons, and accordingly AFFIRM the district court’s grant of

summary judgment.

      None of the evidence Appellant presented generated a genuine issue of

material fact that Boeing’s stated reasons for Appellant’s termination—his low

2014 performance management review scores (“PMs”) and low 2015 RIF scores—

were pretextual. Appellant presented evidence that his manager gave him lower

scores than he had previously received from other managers and that he advocated

against Appellant during the RIF process. However, Boeing presented evidence

that the lowered scores were in accordance with an internal directive to managers

to space scores out along a bell curve, and that many employees outside of

Appellant’s protected class also received lower scores. On this record, Boeing

articulated unambiguous, neutral reasons for Appellant’s termination, and the

burden shifted to Appellant to rebut them with some showing of pretext. Contra

Scrivener v. Clark Coll., 334 P.3d 541, 547 (Wash. 2014) (relying on ambiguous

reasons by an employer when finding pretext in a WLAD case).

      Appellant failed to meet his burden to rebut Boeing’s stated reasons for his


                                          4                                    18-35434
termination. Moreover, he failed to raise a genuine issue of material fact as to who

the correct comparators for his position were1 and as to whether he was treated

differently than others who were similarly situated.2 Accordingly, the district

court’s grant of summary judgment as to his discrimination claim was proper.

      With regard to retaliation, Appellant likewise failed to meet his burden to

rebut Boeing’s stated legitimate reasons for his termination. The record again

supports the district court’s finding that Appellant failed to show any genuine issue

of material fact as to pretext. Appellant first engaged in protected activity on

January 5, 2015, when he voiced his dissatisfaction to his manager about his 2014

PM ratings, refused to sign off on them, and indicated that he was making an ADR

complaint.3 This was followed by adverse employment actions culminating in

Appellant’s termination. These adverse actions, however, are premised on the pre-

complaint 2014 PM scores. Appellant’s RIF rating comported with his middling


1
  Appellant rejected being compared to others with the same Boeing job code and
instead relied on another classification (that of being a Subject Matter Expert, or
“SME”) to establish other employees with whom he was similarly situated. This
“SME” designation was not used by Boeing in any official capacity and was used
only in limited contexts by one Boeing executive for whom Appellant performed
tasks. Appellant has therefore not presented any evidence that this designation is a
meaningful one here.
2
  Nine of sixteen employees scored by Appellant’s new manager received lower
scores on their 2014 PM ratings, two of four employees with Appellant’s job code
scored by his new manager received lower scores, and two non-minority
employees with Appellant’s job code were laid off in the 2015 RIF.
3
  Contrary to Appellant’s position in his briefing and at argument, his statements to
his manager during the October altercation are not protected activity.

                                          5                                    18-35434
performance evaluation, which predated any protected activity. In addition,

Appellant’s manager assigned him RIF ratings that were initially higher than those

of several of his peers before they were reduced during a consensus meeting with

other managers. It is not reasonable to infer, based on that action, that Appellant’s

new manager was attempting to retaliate against him, given that the lower-ranked

employees would have been laid off before Appellant based on the new manager’s

initial scores. Accordingly, the record does not raise a genuine question whether

Boeing acted with a retaliatory motive.

      We find, viewing the facts in the light most favorable to Appellant, that the

district court properly granted summary judgment on both Appellant’s

discrimination and retaliation claims. We AFFIRM the judgment of the district

court and the grant of summary judgment to Appellee Boeing.

      AFFIRMED.




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