                                                                           FILED
                             NOT FOR PUBLICATION                            OCT 25 2012

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



MICHAEL M. KIM,                                  No. 11-35879

               Plaintiff - Appellant,            DC No. 2:10 cv-1850 RSM

  v.
                                                 MEMORANDUM *
THE BOEING COMPANY,

               Defendant - Appellee.



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

                            Submitted October 10, 2012 **
                                Seattle, Washington

Before:        TASHIMA, M. SMITH, and CHRISTEN, Circuit Judges.

       Plaintiff-Appellant Michael Kim appeals the district court’s order granting

Defendant-Appellee The Boeing Company’s motion for summary judgment in a

whistleblower action brought under § 806 of the Sarbanes-Oxley Act of 2002


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
(“SOX”), 18 U.S.C. § 1514A. Because the facts and procedural history are

familiar to the parties, we do not recite them here except as necessary to explain

our disposition. We have jurisdiction under 28 U.S.C. § 1291. We review the

district court’s grant of summary judgment de novo. Tides v. Boeing Co., 644 F.3d

809, 813 (9th Cir. 2011). We affirm.

      SOX whistleblower claims are governed by a burden-shifting procedure

under which a plaintiff is first required to make out a prima facie case of retaliatory

discrimination. Then, “if the plaintiff meets this burden, the employer assumes the

burden of demonstrating by clear and convincing evidence that it would have taken

the same adverse employment action in the absence of the plaintiff’s protected

activity.” Van Asdale v. Int’l Game Tech., 577 F.3d 989, 996 (9th Cir. 2009).

Because Boeing presented clear and convincing evidence of its belief that Kim had

been insubordinate and was subject to discharge on that basis we need not reach

the question of whether Kim made out a prima facie case. Although Kim denied

that he was insubordinate, he presented no evidence giving a materially different

account of his conduct. See Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1103

(9th Cir. 2008) (“Conclusory statements without factual support are insufficient to

defeat a motion for summary judgment.”). It was undisputed that Boeing warned




                                          -2-
Kim that his failure to transfer could put his job in jeopardy.1 His deposition

testimony that he never received a direct order to transfer,2 and that he would have

obeyed such an order if he had received one is not material to the pertinent

question of whether Boeing believed that Kim had been insubordinate and was

subject to discharge on that basis. None of Kim’s proffered evidence created a

dispute of fact concerning whether Boeing would have terminated him for what it

viewed as insubordination, regardless of any protected activity. Kim also failed to

adduce any evidence that Boeing’s directive that he change his job responsibility

was an adverse employment action against him. Because Kim has failed to

establish a causal connection between his whistleblower activity and Boeing’s

employment action, we need not reach Boeing’s contention that the proposed

transfer did not amount to an adverse employment action.

      Therefore, the district court did not err in granting summary judgment to

Boeing.

      AFFIRMED.


      1
            There is some dispute as to whether he was warned again at the
September 17 meeting, but this is immaterial because he had been warned
previously by e-mail.
      2
             Boeing introduced significant documentary evidence showing that
Kim was aware that he was expected to transfer, and Kim did not dispute the
authenticity of this evidence.

                                         -3-
