Nahum v. The Boeing Company

• Court: District Court, W.D. Washington
• Decided: April 2, 2020
• Docket: 2:19-cv-01114
• Status: Unknown

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT FOR THE 7 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 ) 9 SETONDJI NAHUM, ) ) CASE NO. 2:19-cv-1114-BJR 10 Plaintiff, ) ) ORDER DENYING PLAINTIFF’S 11 v. ) MOTION FOR RECONSIDERATION ) AND DENYING DEFENDANTS’ 12 THE BOEING COMPANY, et al., ) MOTION TO DISMISS ) 13 Defendants. ) ____________________________________) 14 15 I. INTRODUCTION 16 Before the Court are two motions: (1) pro se Plaintiff Setondji Nahum’s (“Plaintiff”) 17 Motion for Reconsideration, Dkt. No. 43, of the Court’s Order Granting in Part and Denying in 18 Part Defendants The Boeing Company (“Boeing”) and one of its managers, Jeffrey Dillman’s 19 20 (collectively “Defendants”) Motion to Dismiss, Dkt. No. 42,1 and (2) Defendants’ Motion to 21 Dismiss Plaintiff’s Amended Complaint, Dkt. No. 51. Having reviewed the motions, the 22 23 24 1 In full, the Court’s order was captioned “Order Granting in Part and Denying in Part Defendants’ Motion to Dismiss; Granting Defendants’ Motion to Strike; Granting Plaintiff’s Motion to Amend; Denying Plaintiff’s Motion 25 for Polygraph Evidence.” Dkt. No. 42. 1 oppositions thereto,2 the record of the case, and the relevant legal authorities, the Court will deny 1 Plaintiff’s Motion for Reconsideration and deny Defendants’ Motion to Dismiss. The reasoning 2 3 for the Court’s decision follows. 4 II. BACKGROUND 5 The Court set forth the facts of this case in its previous order granting in part and denying 6 in part Defendants’ Motion to Dismiss. Dkt. No. 42 at 1–2. In brief, Plaintiff is a former Boeing 7 employee. While employed by Boeing, he received two corrective actions indicating that he failed 8 to comply with management’s expectations and directions. Based on those actions, he filed a 9 complaint with the U.S. Equal Employment Opportunity Commission (“EEOC”) on March 18, 10 11 2019. On May 13, 2019, Boeing issued Plaintiff a third corrective action and terminated his 12 employment the same day. Plaintiff then requested that the EEOC issue a Notice of Right to Sue 13 based on his March 18 complaint, which it issued on May 30, 2019. 14 Plaintiff’s original Complaint advanced seven causes of action: (1) Title VII Racial 15 Discrimination; (2) Title VII Retaliation; (3) Abuse of Power and Authority; (4) Harassment; (5) 16 Defamation; (6) Conspiracy against Civil Rights; (7) Retaliation through act of Discrimination and 17 Abuse of Office. See Dkt. No. 1. The matter was originally assigned to Judge Marsha J. Pechman, 18 19 at which time Defendants brought a motion to dismiss all of Plaintiff’s causes of action. Dkt. No. 20

22 2 Plaintiff has filed both a Reply to Defendants’ Opposition to Plaintiff’s Motion for Reconsideration, Dkt. No. 48, and a Surreply in Opposition to Defendants’ Reply in Support of Defendants’ Motion to Dismiss, Dkt. No. 55. Both 23 the Reply and the Surreply required leave of the Court prior to submission. Local Rules W.D. Wash. LCR 7(h)(3); Dkt. No. 32 at II.A (this Court’s standing order stating “[l]eave of Court must be obtained to file a sur-reply”); see 24 also LCR 7(g). This is the second and third time Plaintiff has filed an unauthorized surreply. See Dkt. No. 38. However, the Court will not strike these briefs. In the future, the Court urges Plaintiff to observe the Court’s rules 25 regarding filing unauthorized briefs. 2 21. The matter was then reassigned to the undersigned on October 1, 2019, Dkt. No. 23, and the 1 Court granted in part and denied in part Defendants’ Motion, Dkt. No. 42. The Court granted 2 3 dismissal with prejudice for Claims 2, 3, 6, and 7; dismissal without prejudice for Claim 5; and 4 denied dismissal of Claims 1 and 4. See Dkt. No. 42 at 12. In the same Order, the Court also 5 granted Defendants’ motion to strike parts of Plaintiff’s original Complaint; granted Plaintiff’s 6 cross motion for leave to amend his Complaint as to Claim 5, Dkt. No. 29; and denied Plaintiff’s 7 Motion for the Use of Polygraph, Dkt. No. 25. Id. 8 Plaintiff has now filed a Motion for Reconsideration of the Court’s Order. Dkt. No. 43. 9 Plaintiff asks the Court to reconsider each of the claims dismissed, with or without prejudice; its 10 11 decision to deny the use of a polygraph; and belatedly to strike Defendants’ Motion to Dismiss for 12 failure to comply with the Court’s standing order requiring motions to contain a Certificate of 13 Conferral. Additionally, Plaintiff appears to be contending that the Court misapplied the standard 14 for pro se pleadings. See Dkt. No. 48 at 3–5. 15 After submitting his Motion for Reconsideration, Plaintiff filed an Amended Complaint. 16 Dkt. No. 47. The Amended Complaint includes the same causes of action as Plaintiff’s original 17 18 Complaint, including those dismissed with prejudice. Defendants move to dismiss Claim 5 19 (Defamation) of the Amended Complaint, the only claim previously dismissed by this Court 20 without prejudice. Dkt. No. 51 at 2 n.1. 21 III. PLAINTIFF’S MOTION FOR RECONSIDERATION 22 A. Legal Standard 23 “Motions for reconsideration are disfavored.” Local Rules W.D. Wash. LCR 7(h)(1); see 24 also Doe v. Trump, 284 F. Supp. 3d 1182, 1184 (W.D. Wash. 2018). Reconsideration is only 25 3 appropriate where a movant can show (1) “manifest error” or (2) “new facts or legal authority 1 which could not have been brought to [the Court’s] attention earlier with reasonable diligence.” 2 3 LCR 7(h)(1); see also Wilcox v. Hamilton Constr., LLC, No. 18-cv-1756, 2019 WL 2515332, at 4 *2 (W.D. Wash. June 18, 2019). 5 B. Certificate of Conferral 6 Plaintiff contends that the Court should have dismissed Defendants’ original Motion to 7 Dismiss for failure to include a Certificate of Conferral pointing to this Court’s standing order 8 requiring parties to include “a certificate that the parties have met and conferred” and ordering that 9 a failure to do so will result in summary denial of the motion. See Dkt. No. 43 at 2, 9; Dkt. No. 48 10 11 at 2–3; see also Dkt. No. 32 at II.C (Court’s standing order). 12 Defendants’ original motion was filed on September 30, 2019, while this matter was still 13 assigned to Judge Pechman. This Court’s standing order, and the requirement to include a 14 Certification of Conferral, simply was not relevant at that time.3 15 C. Pro Se Pleadings 16 Numerous sections of Plaintiff’s briefing for both the Motion for Reconsideration and the 17 Motion to Dismiss stress the permissive standards granted pro se plaintiffs and appear to assert 18 19 that the Court erred by not applying these permissive standards when it granted dismissal of 20 Plaintiff’s claims. See Dkt. No. 43 at 4–5, 6; Dkt. No. 48 at 2, 4–5; Dkt. No. 53 at 3; Dkt. No. 55 21 at 3. 22 As the Court stated in its Order, “the Court [] liberally construes a complaint filed by a pro 23

25 3 Defendants have included a Certificate of Conferral with their new Motion to Dismiss. See Dkt. No. 51 at 10. 4 se litigant such as Plaintiff.” Dkt. No. 42 at 3 (citing Erickson v. Pardus, 551 U.S. 89, 94 (2007)). 1 However, as the Court went on to explain “the [C]ourt cannot supply essential facts that the pro 2 3 se plaintiff has failed to plead.” Id. at 4 (citing Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992). 4 Nor can the Court supply Plaintiff with “essential elements of [his] claim,” such as a cause of 5 action, where he has failed to properly plead one. See United States v. Duck, 774 F. App'x 1039, 6 1041 (9th Cir. 2019); Litmon v. Harris, 768 F.3d 1237, 1241 (9th Cir. 2014); Pena, 976 F.2d at 7 471; Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). The Court was 8 well aware of its obligation to construe pro se plaintiffs’ pleadings liberally and was also aware of 9 the limitations on that obligation. 10 11 D. Title VII Retaliation (Claim 2) 12 The Court dismissed Plaintiff’s Title VII Retaliation Claim based on Plaintiff’s failure to 13 exhaust his administrative remedies. Dkt. No. 42 at 6–7. Specifically, the Court found that 14 Plaintiff had not reported his allegedly retaliatory termination to the EEOC before bringing the 15 claim in this Court. As the Court explained, “Plaintiff, in a time when he could have presented a 16 new retaliation claim to the EEOC, instead sought a right-to-sue letter which closed his [already 17 filed] EEOC case.” Id. at 7. According to Plaintiff, this finding was in error because he disclosed 18 19 “new discrimination and retaliation acts” to an EEOC investigator on April 19, 2019 and was told 20 that his claims would be “encompassed and investigated as part of [his] ongoing claim.” Dkt. No. 21 43 at 3. 22 These allegations, however, do not raise “new facts” warranting reconsideration. Plaintiff 23 already argued while opposing Defendants’ original Motion to Dismiss that he brought “multiple 24 charges” to the EEOC’s attention, “including retaliation,” that he was told would be “incorporated 25 5 into the first charge filed by Plaintiff.” Dkt. No. 29 at 16. Thus, the Court has already heard and 1 rejected this argument. 2 3 The only new information Plaintiff provides in his Amended Complaint is the alleged April 4 19th meeting with an EEOC investigator. The April 19th meeting, however, cannot serve as 5 grounds for reconsideration. First, as the meeting included Plaintiff, its occurrence could not 6 represent a new fact unavailable to Plaintiff at the time he filed his opposition to the original 7 Motion to Dismiss. Even were the Court to examine the merits of the allegation, the meeting took 8 places weeks before the retaliatory actions Plaintiff alleges, that is his third corrective action and 9 termination, which both occurred on May 13, 2019. Simply put, there is no way his EEOC 10 11 complaint could have included a charge of retaliatory actions where those actions occurred after 12 he spoke to the EEOC’s investigator. The Court, therefore, finds no grounds to reconsider its 13 holding on Claim 2. 14 E. Abuse of Power and Authority (Claim 3) and Retaliation Through Act of 15 Discrimination and Abuse of Office (Claim 7) 16 Plaintiff proffers the same arguments for reconsideration of Claims 3 and 7. The Court 17 originally found that, as to both Claims, Plaintiff failed to identify a valid cause of action by basing 18 his claims on 25 C.F.R. § 11.448 (Abuse of Office). See Dkt. No. 42 at 7–8, 10. That section 19 provides a criminal offense under the jurisdiction of the Courts of Indian Offenses. In his Motion 20 for Reconsideration, Plaintiff concedes that he pointed to inapposite authority, but fails to provide 21 an appropriate cause of action for this claim. Dkt. No. 43 at 4–6, 7–8. In fact, Plaintiff’s Amended 22 23 Complaint points to the same already rejected authority. See Dkt. No. 47 at 7, 11. As such, the 24 Court finds no grounds for reconsideration of Claims 3 and 7. 25

6 F. Conspiracy against Civil Rights (Claim 6) 1 Plaintiff’s original Complaint cited to the criminal statute 18 U.S.C § 241 (Conspiracy 2 3 against Rights) as authority for Claim 6. Dkt. No. 1 at 10, 30.4 The Court dismissed Claim 6 4 ruling that Plaintiff failed to present a cognizable legal theory for his civil claim. Dkt. No. 42 at 5 10. In his Motion for Reconsideration, Plaintiff argues that the Court failed to note that he also 6 pointed to Title VII of the Civil Rights Act of 1964 as grounds for his claim. Dkt. No. 43 at 7. 7 Title VII of the Civil Rights Act, however, provides a cause of action for employment 8 discrimination, not “Conspiracy against Civil Rights.” See 42 U.S.C. § 2000e–5. Thus, Plaintiff’s 9 argument is of no avail. 10 11 Furthermore, Plaintiff has failed to plead the elements of civil conspiracy. Plaintiff’s claim 12 is that Boeing conspired to violate his civil rights to seek employment by offering him a settlement 13 that restricted his right to reapply to Boeing or any of its subsidiaries. Dkt. No. 1 at 10, 30. To 14 establish a common law claim for civil conspiracy, a plaintiff must show, “by clear, cogent, and 15 convincing evidence,” that “(1) two or more people combined to accomplish an unlawful purpose, 16 or combined to accomplish a lawful purpose by unlawful means[] and (2) the conspirators entered 17 into an agreement to accomplish the conspiracy.” Conklin v. Univ. of Washington Med., No. 18- 18 19 cv-0090, 2018 WL 5895352, at *4 (W.D. Wash. Nov. 9, 2018) (quoting Bonneville v. Pierce Cty., 20 202 P.3d 309, 318 (Wash. Ct. App. 2008)). Here, Plaintiff has not pled that Boeing acted in concert 21 with a third-party to accomplish the allegedly unlawful action. The only other person who could 22 23

25 4 Plaintiff presents the same criminal statute in his Amended Complaint. Dkt. No. 47 at 10, 32. 7 have acted in concert with Boeing to accomplish the allegedly illegal act of constraining Plaintiff’s 1 ability to reapply was Plaintiff by agreeing to the settlement. Plaintiff cannot qualify as a co- 2 3 conspirator. Therefore, there are no grounds warranting reconsideration of this claim. 4 G. Plaintiff’s Polygraph Motion 5 Plaintiff contends that the Court erred in denying him permission to use a polygraph “for 6 all court hearings and depositions.” Dkt. No. 43 at 8. Plaintiff, however, proffers no authority 7 requiring the Court to grant his request, nor could he since no such federal authority exists. See, 8 e.g., Johnson v. Ohio Dep't of Rehab. & Corr., No. 13-cv-583, 2014 WL 5782939, at *2 (S.D. 9 Ohio Nov. 6, 2014) (“plaintiff has pointed to no persuasive authority for his request to compel a 10 11 party to undergo a polygraph examination”); Sango v. Johnson, No. 13-cv-12808, 2014 WL 12 4658320, at *2 (E.D. Mich. May 22, 2014), adopted by, 2014 WL 4658385 (E.D. Mich. Sept. 17, 13 2014) (“The Federal Rules of Civil Procedure do not provide for discovery in the form of 14 compelling polygraph examinations of parties or other individuals, and [Plaintiff] has provided the 15 Court with no other valid basis for ordering one in this case.”). 16 IV. DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S AMENDED 17 DEFAMATION CLAIM 18 A. Legal Standard 19 Federal Rule of Civil Procedure 12(b)(6) provides for dismissal of a claim for “failure to 20 state a claim upon which relief can be granted.” FED. R. CIV. P. 12(b)(6). While a complaint does 21 not require “detailed factual allegations,” the “[f]actual allegations must be enough to raise a right 22 to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). 23 24 Thus, allegations in a complaint must only provide a sufficient basis “to state a claim to relief that 25 is plausible on its face.” Id. at 570. 8 In reviewing a motion to dismiss under Rule 12(b)(6), the Court “accept[s] all well-pleaded 1 factual allegations in the complaint as true and construe[s] the pleadings in the light most favorable 2 3 to the plaintiff.” Walker v. Fred Meyer, Inc., No. 18-35592, 2020 WL 1316691, at *4 (9th Cir. 4 Mar. 20, 2020) (citing Syed v. M-I, LLC, 853 F.3d 492, 499 (9th Cir. 2017)). 5 B. Defamation (Claim 5) 6 Under Washington law,5 a defamation action consists of four elements: (1) a false 7 statement, (2) unprivileged publication, (3) fault, and (4) damages. Duc Tan v. Le, 300 P.3d 356, 8 364 (Wash. 2013); see also Seaquist v. Caldier, 438 P.3d 606, 612 (Wash. Ct. App. 2019). 9 Defendants challenge Plaintiff’s Amended Complaint for failure to show an unprivileged 10 11 publication. Dkt. No. 51 at 4. Publication requires that “the defamation be communicated to 12 someone other than the person defamed.” Doe v. Gonzaga Univ., 24 P.3d 390, 397 (Wash. 2001), 13 rev’d on other grounds, 536 U.S. 273 (2002); see also Delashaw v. Seattle Times Co., No. 18-cv- 14 0537, 2018 WL 4027078, at *10 (W.D. Wash. Aug. 23, 2018). 15 Plaintiff’s Amended Complaint claims publication of defamatory remarks through a letter 16 dated July 12, 2019. Id. at 9, 27–31. The letter was sent by Boeing through its unemployment 17 agent, TALX UCM Services, to Washington State’s Employment Security Department (“ESD”) 18 19 appealing ESD’s determination that Plaintiff should receive unemployment benefits. See Dkt. No. 20

22 5 Plaintiff’s Amended Complaint pleads a cause of action for defamation under federal law. Dkt. No. 47 at 27. His complaint identifies 28 U.S.C. § 4101(1) as the source for his federal defamation cause of action. Id. at 4. That 23 statute, however, provides a definition for “defamation” for the purpose of judicial recognition of foreign defamation judgments. It does not provide an independent private cause of action for defamation. The Court, therefore, again 24 dismisses Plaintiff’s federal defamation claim for failure to identify a cause of action. See Dkt. No. 42 at 9 (Court’s order dismissed federal defamation claim because the original Complaint “does not identify any discernable federal 25 cause of action”); see also Pena, 976 F.2d at 471–72. 9 47 at 57; Dkt. No. 52 at 5; Dkt. No. 53 at 13 (same letter provided with various degrees of 1 redactions). This communication does not constitute unprivileged publication. 2 3 Intracorporate communications, including communications with a corporate agent, are 4 subject to a qualified privilege and “are not ‘published’ for purposes of defamation” because they 5 constitute a corporation communicating only with itself. Doe, 24 P.3d at 397 (citing Prins v. 6 Holland-North Am. Mortgage Co., 181 P. 680 (Wash. 1919)); see also Armijo v. Yakima HMA, 7 LLC, 868 F. Supp. 2d 1129, 1139 (E.D. Wash. 2012). Boeing’s transmittal of the letter through 8 its employment agent, therefore, does not constitute publication. 9 As for the communication with ESD, communications made to state regulatory entities are 10 11 statutorily immune from civil liability, including for claims of defamation. RCW § 4.24.510; see 12 also Akmal v. Cingular Wireless, Inc., No. 06-cv-748, 2007 WL 1725557, at *5 (W.D. Wash. June 13 8, 2007). Boeing’s transmittal of the letter to ESD, therefore, cannot form the basis of a defamation 14 suit. 15 The intracorporate communications privilege, however, may be lost where the allegedly 16 defamatory statements are made with actual malice. Armijo, 868 F. Supp. 2d at 1139; see also 17 18 Doe, 24 P.3d at 397–98.6 “Actual malice exists when a statement is made ‘with knowledge of its 19 falsity or with reckless disregard of its truth or falsity.’” Doe, 24 P.3d at 398 (quoting Herron v. 20 KING Broad. Co., 746 P.2d 295, 301 (Wash. 1987). To show actual malice a plaintiff must 21 22

23 6 To the extent that Plaintiff argues the July 12 letter was outside of the scope of TALX UCM Services’ scope as 24 agent, this argument also fails. See Dkt. No. 53 at 5 (“TALX UCM Services . . . received materials that are out of the scope of their business entity services and operations”). As the subject of the letter pertained to an employment 25 dispute, it is indisputable that the contents of the letter were well within Boeing’s unemployment agent’s scope. 10 “establish that the speaker knew the statement was false, or acted with a high degree of awareness 1 of its probable falsity, or in fact entertained serious doubts as to the statement's truth.” Id. (quoting 2 3 Story v. Shelter Bay Co., 760 P.2d 368, 373 (Wash. Ct. App. 1988)); see also Sweeney v. 4 Manorcare Health Servs., Inc., No. 03-cv-5320, 2006 WL 1042015, at *11 (W.D. Wash. Apr. 5, 5 2006). At the same time, the Federal Rules of Civil Procedure allow plaintiffs to allege malice, 6 along with “other conditions of a person’s mind,” generally. FED. R. CIV. P. 9(b). 7 Plaintiff’s Amended Complaint sufficiently pleads actual malice. The Amended 8 Complaint alleges that Boeing constructed the three corrective actions based on fictitious 9 misconduct and that Boeing knew as much because Plaintiff actually completed the underlying 10 11 tasks requested. See Dkt. No. 47 at 28–31. These allegedly false reports were then disseminated 12 in the July 2019 letter through their attachment. See Dkt. No. 52 at 5 (“The claimant was 13 discharged when he failed to perform a statement of work as requested. Please see the attached 14 statements, corrective action memos, meeting request . . .” etc.).7 Taking these allegations in a 15 light most favorable to Plaintiff, as the Court must on a motion to dismiss, the Court concludes 16 that the dispute over the legitimacy of the underlying corrective actions provides sufficient 17 18 grounds, at this early stage, for Plaintiff’s assertion of actual malice. 19 20 21

22 7 The letter itself may be considered as it is appended to Plaintiff’s Amended Complaint. Dkt. No. 47 at 57; United 23 States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) (“When ruling on a Rule 12(b)(6) motion to dismiss, if a district court considers evidence outside the pleadings, it must normally convert the 12(b)(6) motion into a Rule 56 motion 24 for summary judgment, and it must give the nonmoving party an opportunity to respond. A court may, however, consider certain materials—documents attached to the complaint . . . —without converting the motion to dismiss 25 into a motion for summary judgment.”) (Internal citations removed). 11 V. CONCLUSION 1 For the foregoing reasons, the Court hereby DENIES Plaintiff’s Motion for 2 3 Reconsideration, Dkt. No. 43, and DENIES Defendants’ Motion to Dismiss, Dkt. No. 51. The 4 only claims which remain are Plaintiff’s Claims 1, 4, and 5. 5 6 DATED this 2nd day of April, 2020. 7

8 _______________________________ BARBARA J. ROTHSTEIN 9 UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 12