                                                                               FILED
                            NOT FOR PUBLICATION                                 DEC 18 2013

                                                                            MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


TRACY JONASSEN,                                   No. 12-35807

              Plaintiff - Appellant,              D.C. No. 2:11-cv-00034-RAJ

  v.
                                                  MEMORANDUM*
PORT OF SEATTLE, a municipal
corporation,

              Defendant - Appellee.


                    Appeal from the United States District Court
                      for the Western District of Washington
                    Richard A. Jones, District Judge, Presiding

                     Argued and Submitted November 8, 2013
                              Seattle, Washington

Before: SCHROEDER, PAEZ, and BERZON, Circuit Judges.

       Tracy Jonassen appeals the grant of summary judgment to his employer, the

Port of Seattle, on his claims of retaliation in violation of the False Claims Act

(“FCA”), 31 U.S.C. §§ 3729–3733, and breach of contractually enforceable Port




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
policy under Washington law. We affirm the former, reverse the latter, and

remand for further proceedings on Jonassen’s state contract claim.

      1. Jonassen never “investigat[ed] matters which are calculated, or

reasonably could lead, to a viable FCA action.” United States ex rel. Hopper v.

Anton, 91 F.3d 1261, 1269 (9th Cir. 1996). None of the matters he investigated

involved the submission of a claim for payment to the federal government.

Jonassen therefore engaged in no activity protected by the FCA prior to his filing

of a meritless FCA suit on behalf of the federal government.

      2. Jonassen has identified only one cognizable adverse employment action.

See Moore v. Cal. Inst. of Tech. Jet Propulsion Lab., 275 F.3d 838, 847–48 (9th

Cir. 2002) (defining “discrimination” under the FCA with reference to Title VII’s

definition of an adverse employment action). Because less overtime was available

to employees assigned to the boiler room than to those working in the Industrial

Waste Treatment Plant (“IWTP”), Jonassen’s reassignment to the boiler room

qualifies as an adverse employment action. See Fonseca v. Sysco Food Servs. of

Ariz., Inc., 374 F.3d 840, 847–48 (9th Cir. 2004). By contrast, the verbal taunting

to which Jonassen alleges he was subjected constitutes no more than “simple

teasing,” and thus does not rise to the level of an adverse employment action. See

Manatt v. Bank of America, N.A., 339 F.3d 792, 798–99 (9th Cir. 2003). And


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Jonassen’s assignments to perform dangerous work were in no way discriminatory,

as others routinely received similar assignments.

      Jonassen’s reassignment to the boiler room was not “because of” his filing

of the FCA action. 31 U.S.C. § 3730(h)(1); Cafasso, United States ex rel. v. Gen.

Dynamics C4 Sys., Inc., 637 F.3d 1047, 1060 (9th Cir. 2011) (quoting Hopper, 91

F.3d at 1269). His reassignment predated the filing of that suit by several months.

And it predated his managers’ awareness of that suit by nearly two years.

Causation does not run in reverse.

      Because Jonassen’s only cognizable protected activity was not causally

related to the only cognizable adverse employment action taken against him,

summary judgment was appropriate as to the FCA retaliation claim.

      3. The district court misapplied Washington law in granting summary

judgment to the Port on Jonassen’s breach-of-contract claim. The Washington

Supreme Court has held potentially enforceable a policy forbidding retaliation

against whistleblower employees at a nuclear reactor. Korslund v. DynCorp Tri-

Cities Servs., Inc., 125 P.3d 119, 130–31 (Wash. 2005) (en banc). Before so

holding, the opinion discusses the protections provided under the Energy

Reorganization Act. Id. at 127. Yet, in Korslund’s analysis of the employer-policy

claim, the substantial overlap between the policy’s protections and those accorded


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by statute was not mentioned as a pertinent factor with regard to the judicial

enforceability of the employer’s policy.

      Because the precise meaning of the terms of the Port’s policies remains

somewhat uncertain, those policies may well promise greater protection for

whistleblowers and against harassment than that provided by any applicable

statute. But even if that is not so, Korslund strongly suggests that Washington law

does not preclude the enforcement of employer policies simply because the

policies overlap with an employer’s legal obligations.

      The Port argues that Francom v. Costco Wholesale Corp., 991 P.2d 1182,

1194 (Wash. Ct. App. 2000), precludes Jonassen’s claim based on its employer

policy. But Francom is a court of appeals case, and is in tension with Korslund, a

Washington Supreme Court case that postdates it. “‘When interpreting state law,

federal courts are bound by decisions of the state’s highest court,’” and only

review the decisions of intermediate state appellate courts “‘[i]n the absence of

such a decision . . . [to] predict how the highest court would decide the issue . . . .’”

Vestar Dev. II, LLC v. Gen. Dynamics Corp., 249 F.3d 958, 960 (9th Cir. 2001)

(quoting Lewis v. Tel. Emps. Credit Union, 87 F.3d 1537, 1545 (9th Cir. 1996)

(internal quotations and citations omitted)). The district court should not have




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followed Francom, as Korslund indicates that the Washington Supreme Court is

unlikely to follow it.

      At oral argument, the Port attempted to distinguish Korslund on the ground

that the policy in that case included more specific remedial procedures than the

policies here. Not so. The Port’s policies, too, outline specific remedial

procedures that limit, to some degree, managerial discretion. See Korslund, 125

P.3d at 131 (holding a policy sufficiently specific where “there is no discretion that

some disciplinary action will be taken,” even if “there is discretion as to what

action is taken”). Whether the mandatory aspects of the policies are here

implicated is a matter not addressed by the district court.

      Summary judgment on the ground advanced by the Port before the district

court was thus inappropriate. We decline to affirm on alternative grounds, as they

were raised for the first time on appeal and may depend on further factual

development. See, e.g., Tibble v. Edison Intern., 729 F.3d 1110, 1126 (9th Cir.

2013). It is quite possible, however, that on remand one or more of those

arguments may have validity. We leave those arguments, and the question of

whether to retain supplemental jurisdiction over Jonassen’s state-law claims, for

the district court to consider on remand.




                                            5
      The district court’s grant of summary judgment on Jonassen’s FCA

retaliation claim is AFFIRMED, its grant of summary judgment on Jonassen’s

breach-of-contract claim is REVERSED, and the case is REMANDED for further

proceedings.

      Each party shall bear its own costs.




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