IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
SHAHROOZ JAHANBIN, No. 86522-6-I Appellant,
v. DIVISION ONE
THE BOEING COMPANY, ERIN KELLY, an individual, NATHAN UNPUBLISHED OPINION THOMAS, an individual, and RICH KAWAGUCHI, an individual,
Respondents.
CHUNG, J. — Shahrooz Jahanbin started working for The Boeing Company
(Boeing) in 2009. In 2019, the Federal Bureau of Investigation (FBI) notified Boeing that
it had information suggesting Jahanbin was using his Boeing computer to share
information with non-Boeing personnel. After Boeing conducted a lengthy investigation,
which included installing monitoring software on Jahanbin’s work computer, Boeing
terminated Jahanbin’s employment for misconduct in 2021. Jahanbin filed suit against
Boeing alleging disparate treatment, discriminatory discharge, and wrongful termination
in violation of public policy. The trial court granted summary judgment in Boeing’s favor
and dismissed Jahanbin’s claims. On appeal, Jahanbin challenges the trial court’s
dismissal of his claims on summary judgment. We affirm. No. 86522-6-I/2
FACTS
Shahrooz Jahanbin, a United States citizen born in Iran, began working for
Boeing as an aircraft mechanic in 2009. Jahanbin then took a position as a Structural
Analysis Engineer and progressed to become a Structural Analysis Engineer Level II. In
2017, Jahanbin was asked to join the “Next Generation Quality team” as an
Experienced Structural Analysis Engineer for the 777X program, whose goal was to
streamline efficiency. Around this time, Jahanbin raised concerns to his supervisors that
removing inspection procedures to save costs would lead to violations of federal law
and could lead to premature defects that could jeopardize aircraft safety. He and other
employees who also had concerns with the change in procedure attempted to elevate
those concerns up the chain of command. For example, Jahanbin gave presentations
on the issues and deficiencies he perceived. However, their concerns were dismissed.
While on the Next Generation Quality team, Jahanbin developed four technical
memoranda, proposing the invention of an “alternative method to address in-service
inspections of 777X crucial components that were removed during the manufacturing
process.” Boeing sought patents of Jahanbin’s inventions. Despite vocalizing concerns,
Jahanbin received several positive evaluations from his relevant managers between
2012 and 2018 and was nominated for an “appreciation award” based on his inventions.
Subsequently, Jahanbin left the Next Generation Quality team and took a
different position as a Structural Engineer. In 2019, he was promoted to Flight
Operational Manager, a position in which he was “responsible for preflight and delivery
of 777X airplanes.” In May 2020, Jahanbin took a position as a Senior Safety Engineer,
which required him to communicate with the Federal Aviation Administration (FAA). He
2 No. 86522-6-I/3
again tried to speak out about his concerns with the change in safety procedures, but
his senior manager dismissed his concerns.
In April 2019, Boeing’s Strategic Intelligence team, which monitors, analyzes,
and investigates “potential insider threats” to Boeing, received information from the FBI
that Jahanbin had used his Boeing-issued computer to “share aviation information with
non-Boeing personnel, and more specifically, with non-identified Iranian individuals in
violation of OFAC [(Office of Foreign Assets Control)] sanctions.” Independently,
another Boeing employee on the Strategic Intelligence team “discovered anomalous
data and activity associated with Mr. Jahanbin’s use of the Boeing IT network.” Erin
Kelly, an Insider Threat Specialist with the Strategic Intelligence team, began
investigating Jahanbin in April 2019. During this time, Kelly discovered that Jahanbin
downloaded unapproved software onto his Boeing computer, including Zoom,
Telegram, Microsoft Teams and WhatsApp. This led Kelly to install a forensic
monitoring tool (FMT) that “capture[d] screenshots, every three seconds, of Mr.
Jahanbin’s activities” on Jahanbin’s Boeing-issued computer.
After using the FMT between May 2020 and November 2020, Kelly concluded
that Jahanbin “repeatedly violated Boeing Procedures and Information Security
Standards.” In May and June 2020, the FMT captured information that showed
Jahanbin copying folders labeled as “Boeing Proprietary” into a draft in his personal
email account, responding to an email in Farsi, accessing a restricted database, and
copying a screenshot of aircraft information into another email draft. In August 2020, the
FMT captured Jahanbin downloading five export-controlled “Aircraft Illustrated Parts
Catalog” manuals and uploading them to a third-party storage site. In October and
3 No. 86522-6-I/4
November 2020, the FMT captured Jahanbin recording meetings between Boeing and
the FAA, which he saved on the unapproved Telegram application.
On December 3, 2020, the FBI conducted a search of Jahanbin’s house and
seized his Boeing laptop and other devices. Subsequently, on December 4, 2020,
Jahanbin’s then-manager, Nathan Thomas, placed Jahanbin on a leave of absence, as
instructed by Boeing’s Human Resources department. Boeing then interviewed
Jahanbin about his alleged misconduct.
The Boeing Employee Corrective Action Review Board (ECARB) addresses
employee misconduct that may warrant discharge. A Special Action Review (SAR)
committee is utilized in situations where “an employee is accused of particularly
egregious conduct that raises special concerns for Boeing,” such as insider threats.
Boeing assembled the SAR committee to address Jahanbin’s misconduct and
concluded that his “actions were egregious and a clear violation of Boeing policies.”
After considering the Employee Corrective Action Process Requirements for 2H
violations—the misuse or failure to protect information or intellectual property—and 2F
violations—creating an unacceptable liability or potential liability—the SAR committee
determined that terminating Jahanbin was appropriate.
In January 2021, Anthony Garcia, counsel for Boeing, authored a
recommendation to the ECARB, summarizing the findings from the investigation that
Jahanbin “misappropriated Boeing proprietary information, supplied Boeing information
to non-Boeing personnel without authorization, downloaded unauthorized applications
to his Boeing laptop, recorded Boeing meetings with the [FAA] without the participants’
consent, and was not credible during his interview in the investigation.” On January 28,
4 No. 86522-6-I/5
2021, his manager, Thomas, informed Jahanbin that his employment was terminated
effective immediately and provided him with a copy of the Employee Corrective Action
Memo, which explained that his “actions have created an unacceptable liability” and that
such serious violations were the cause of his discharge.
In October 2022, Jahanbin filed a lawsuit against Boeing, alleging wrongful
discharge in violation of public policy, discrimination based on his nationality, retaliation,
and creation of a hostile work environment pursuant to the Washington Law Against
Discrimination (WLAD), chapter 49.60 RCW. Boeing filed a CR 12(b)(6) motion to
dismiss the case for failure to state a claim, which the court denied. 1 After a series of
discovery motions, which resulted in a protective order for Boeing, Boeing filed a motion
for summary judgment in October 2023. Jahanbin filed a response and also requested a
CR 56(f) continuance so he could seek comparator data to develop his theory that his
discharge was pretext for discrimination. After a hearing on November 3, without
explicitly ruling on the CR 56(f) motion, the court granted summary judgment in favor of
Boeing and dismissed each of Jahanbin’s claims. Jahanbin filed a motion for
reconsideration, which the court denied. The trial court also denied Boeing’s motion for
attorney fees. Jahanbin timely appeals the grant of summary judgment in favor of
Boeing and denial of reconsideration.
DISCUSSION
Jahanbin challenges the trial court’s grant of summary judgment in favor of
Boeing, arguing that there are genuine issues of material fact regarding his claims for
1 The parties filed dueling motions for protective orders and the court granted Boeing’s. Jahanbin
filed a motion for sanctions and delay of summary judgment which the court denied. The court also denied Jahanbin’s motion to compel interrogatories.
5 No. 86522-6-I/6
disparate treatment, discriminatory discharge, and wrongful discharge in violation of
public policy. 2 He also argues that the trial court abused its discretion in declining to
grant him a CR 56(f) continuance so he could complete discovery. 3 We conclude the
trial court did not err in granting summary judgment or in denying a continuance.
I. WLAD Claims
We review orders granting summary judgment de novo. Keck v. Collins, 184
Wn.2d 358, 370, 357 P.3d 1080 (2015). Summary judgment is proper when “there is no
genuine issue as to any material fact,” meaning the moving party is entitled to judgment
as a matter of law. CR 56(c). A “material fact” exists when such fact impacts the
outcome of the litigation. Owen v. Burlington N. & Santa Fe R.R. Co., 153 Wn.2d 780,
789, 108 P.3d 1220 (2005). There is a genuine issue of material fact when “the
evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party.”
Keck, 184 Wn.2d at 370. The moving party can submit affidavits demonstrating an
absence of a material issue or can demonstrate that the nonmoving party lacks
competent evidence to support an essential element of their claim. Young v. Key
Pharm., Inc., 112 Wn.2d 216, 225-26, 770 P.2d 182 (1989). We consider “the evidence
and all reasonable inferences from the evidence in the light most favorable to the
nonmoving party.” Id. When the moving party satisfies the initial burden, the burden
then shifts to the nonmoving party to demonstrate the existence of an element essential
2 While Jahanbin assigns error to the court’s grant of summary judgment dismissing all of his
claims, on appeal, he provides argument only as to these three claims. When the basis for an assignment of error “is not stated nor argued nor is there any reference to decisional or statutory law bearing upon the issue,” the assignment of error is waived. Puget Sound Plywood, Inc. v. Mester, 86 Wn.2d 135, 142, 542 P.2d 756 (1975). Thus, he has waived appeal of the dismissal of his claims for retaliation and hostile work environment. 3 Jahanbin assigns error to the trial court’s denial of his motion for reconsideration but does not
provide argument or citations to authority. Thus, Jahanbin has waived any error regarding the order denying the motion for reconsideration.
6 No. 86522-6-I/7
to their case of which they will bear the burden of proof at trial. Id. at 225. The failure to
make such showing will result in the trial court granting summary judgment. Id.
The WLAD protects “[t]he right to be free from discrimination because of race,
creed, color, national origin.” RCW 49.60.030(1). In particular, WLAD contemplates the
“right to obtain and hold employment without discrimination,” RCW 49.060.030(1)(a),
which prohibits an employer “from discharging any employee on the basis of a protected
characteristic.” Mikkelsen v. Pub. Util. Dist. No. 1 of Kittitas County, 189 Wn.2d 516,
526, 404 P.3d 464 (2017).
As direct evidence of discrimination is rare, “plaintiffs may rely on circumstantial,
indirect, and inferential evidence to establish discriminatory action.” Id. Thus, the
Washington Supreme Court has adopted the three-part McDonnell Douglas4 burden-
shifting framework. Id. at 527. First, the employee must establish a prima facie case of
discrimination, which, if satisfied, creates a rebuttable presumption of discrimination. Id.
Second, the burden shifts to the employer to “ ‘articulate a legitimate nondiscriminatory
reason for the adverse employment action.’ ” Id. (quoting Scrivener v. Clark Coll., 181
Wn.2d 439, 446, 334 P.3d 541 (2014)). Finally, the burden shifts back to the employee
to demonstrate the employer’s proffered nondiscriminatory reason was pretext. Id. An
employee shows that the proffered reason is pretext when it “has no basis in fact, is an
unreasonable ground upon which to base the decision, or was not a motivating factor in
employment decisions for other similarly-situated individuals.” Williams v. Dep’t of Soc.
& Health Servs., 24 Wn. App. 2d 683, 700, 524 P.3d 658 (2022). An employee can also
satisfy their burden at the final step by offering evidence that creates a genuine issue of
4 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
7 No. 86522-6-I/8
fact that the employer’s reason was a pretext for discrimination or that its reason was
legitimate but the employer was substantially motivated by discrimination. Mikkelsen,
189 Wn.2d at 528.
Jahanbin contends Boeing subjected him to disparate treatment based on his
national origin because it monitored him for seven months when it first learned of his
alleged misconduct instead of giving him a written warning. 5 He further contends his
discharge was unlawfully based on his national origin.
To establish a prima facie case of disparate treatment, the plaintiff must show
that they were (1) a member of a protected class, (2) suffered a “tangible adverse
employment action,” and (3) “that the action occurred under circumstances that raise a
reasonable inference of unlawful discrimination and that the [plaintiff] was doing
satisfactory work.” Marin v. King County, 194 Wn. App. 795, 808-09, 378 P.3d 203
(2016). Jahanbin contends that he can make the prima facie showing of discrimination
for both his disparate treatment claims based on monitoring and for discriminatory
discharge. While Boeing agrees that he can establish the first element, as Jahanbin is a
member of a protected class, it disagrees that he can satisfy the other prima facie
elements. 6
5 After oral argument, Boeing filed a statement of additional authorities with cases supporting its
argument that (1) Jahanbin’s work was not satisfactory; (2) Jahanbin failed to address the prima facie case on reply and conceded it; and (3) it supplied adequate comparator evidence. Jahanbin responded that he did not concede the prima facie case, as he addressed it in his opening brief. Jahanbin filed a motion to strike Boeing’s additional authorities, arguing that the cases Boeing cited therein should be stricken because they were available at the time it filed its response brief. We agree with Jahanbin that he did not concede the prima facie case. But as Boeing’s statement of additional authorities complies with RAP 10.8, we deny Jahanbin’s motion to strike it. 6 Boeing claims he was not doing satisfactory work because he engaged in misconduct.
However, this argument improperly collapses the inquiry. Instead, the relevant time period is whether before the allegedly adverse action, he was performing satisfactory work.
8 No. 86522-6-I/9
As to his disparate treatment claim, Jahanbin argues that he was treated less
favorably than other nonprotected employees because he did not receive a written
warning. Instead, Boeing “covertly monitored him for over seven months” based on his
use of Farsi in emails before taking disciplinary action.
As Boeing points out, “the gist” of this disparate treatment claim is that he should
have been warned rather than investigated. But proof of an actionable adverse action
requires showing a “ ‘significant change in employment status, such as hiring, firing,
failing to promote, reassignment with significantly different responsibilities, or a decision
causing a significant change in benefits.’ ” Marin, 194 Wn. App. at 808 (quoting
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)). Jahanbin cannot meet his
burden of establishing a prima facie case of disparate treatment solely based on the
failure to receive a written warning. A grant of summary judgment is proper in the
context of WLAD when “the plaintiff fails to raise a genuine issue of fact on one or more
prima facie elements.” Frisino v. Seattle Sch. Dist. No. 1, 160 Wn. App. 765, 777, 249
P.3d 1044 (2011). Boeing was entitled to judgment as a matter of law on Jahanbin’s
WLAD claim based on monitoring.
As to his discriminatory discharge claim, the parties disagree on the third prima
facie element—in particular, whether he had been doing satisfactory work prior to his
discharge. Jahanbin contends that his work had always been satisfactory, noting that he
had passed various background checks and had been a valuable employee. The record
indicates that even during the time of Boeing’s investigation, Jahanbin received a
performance review in July 2020 stating that he “listens and demonstrates
understanding; . . . [is] able to communicate with a diverse audience,” and “[d]eals with
9 No. 86522-6-I/10
others in a fair honest, and straightforward manner . . . takes responsibility for failures
and shares credit for successes; uses appropriate discretion and is sensitive to
confidentiality,” and “[d]elivers products and services that consistently meet or exceed
expectations.”
Boeing does not dispute that Jahanbin continued to receive positive reviews but
instead asserts that Jahanbin’s work could not have been satisfactory if he “admit[ted]
to misconduct that violated Boeing policies and Washington law.” Boeing misconstrues
this element. For a prima facie case, Jahanbin need show only that before the allegedly
adverse action—for this claim, the discharge—he was performing satisfactory work,
other than the evidence of misconduct that Boeing claims led to the discharge. See,
e.g., Mackey v. Home Depot USA, Inc., 12 Wn. App. 2d 557, 459 P.3d 371 (2020)
(plaintiff established a prima facie case even though defendant submitted evidence that
the plaintiff violated company policy, as plaintiff submitted evidence that her work was
satisfactory); Anica v. Wal-Mart Stores, Inc., 120 Wn. App. 481, 84 P.3d 1231 (2004)
(plaintiff who had been satisfactorily performing before she was injured and filed for
workers compensation, then was terminated shortly after return to work, established a
prima facie case). Therefore, Jahanbin has met his initial burden of establishing a prima
facie case that his discharge was discriminatory.
At the second step of the McDonnell Douglas test, the burden shifts to Boeing to
provide evidence of a legitimate, nondiscriminatory reason for the discharge. Boeing’s
stated reason for discharge was Jahanbin’s misconduct. After being alerted by the FBI,
Boeing monitored Jahanbin “to examine [his] activity on his Boeing laptop.” Kelly
explained that she “assumed responsibility for reviewing Mr. Jahanbin’s activity based
10 No. 86522-6-I/11
on both the FBI’s notice and this new report of anomalous network activity to determine
if there was evidence to validate or negate the allegation,” that Jahanbin was using “a
communications software application to share aviation information with non-Boeing
personnel, and more specifically, with non-identified Iranian individuals in violation of
OFAC sanctions.” After investigating, Kelly found that Jahanbin had downloaded
unapproved software onto his Boeing-issued computer and “had engaged in further
conduct, which further suggested to me that efforts should be made to obtain more
detailed information about his activities,” prompting the installation of the FMT software
onto Jahanbin’s Boeing-issued computer. Boeing’s Report of Investigation detailed
Jahanbin’s misconduct, including that Boeing discovered he had been saving
confidential information onto his personal email account and that he admitted to
exporting sensitive Boeing documents to his third party storage site and recording
confidential meetings. Kelly stated in her memorandum to the SAR committee that
Jahanbin was “not truthful during his interview.”
As Boeing has satisfied its burden of providing evidence that it had a legitimate,
nondiscriminatory reason for discharging Jahanbin, the burden shifts back to Jahanbin
to provide evidence that, if believed, raises a question of fact as to whether his
misconduct was pretext for discrimination. “One test for pretext is whether (1) an
employee outside the protected class (2) committed acts of comparable seriousness (3)
but was not demoted or similarly disciplined.” Johnson v. Dep’t of Soc. & Health Servs.,
80 Wn. App. 212, 227, 907 P.2d 1223 (1996).
Jahanbin points to a document in the record that includes comparator data on the
discipline received by employees who committed 2H and 2F violations, but the
11 No. 86522-6-I/12
document does not provide any information on their race or national origin. An
employee commits a 2F violation by taking “any action or lack of action that has caused
a financial or legal liability or the potential for such for the company or has created the
expectation of liability for the company,” with an aggravating factor for when the
violation poses “significant liability.” 7 A 2H violation includes “[f]ailure to protect;
damage; unapproved access, unapproved possession, disclosure, distribution, or
misuse of information or other intellectual property of the company, its employees,
[etc.],” with an aggravating circumstance stating that “an ECARB review for potential
discharge will occur when there is an actual loss of information, trade secret protection,
rights to intellectual property; and/or employee actions jeopardize Boeing’s ability to
acquire leverage, or protect intellectual property; misuse of competitor sensitive
information.”
Here, the evidence shows that the 90 employees who committed 2H violations—
misuse or failure to protect information or intellectual property—received written
warnings and only three were discharged. However, 18 employees who committed 2F
violations—creating an unacceptable liability or potential liability—were discharged,
while only one received a written warning. This information suggests that written
warnings were not as common for 2F violations as they were for 2H violations. But as
Boeing points out, Jahanbin “provides no evidence about whether those others [who
received warnings] are outside his protected class, no evidence showing they are
similar to Jahanbin in terms of job held, and no evidence showing they are similar to
Jahanbin in terms of the seriousness or amount of misconduct.”
7 This document includes a separate column for “TOFW,” however the record does not include a
key or indicate what type of action this is, and Jahanbin does not explain it.
12 No. 86522-6-I/13
Jahanbin also contends that even though Boeing terminated him after concluding
that his conduct created an “unacceptable liability,” the fact that it monitored him as it
was occurring shows Boeing’s stated reason for discharge was pretextual. In particular,
he contends that had his activities created such an unacceptable risk, Boeing should
have stopped or warned him earlier, but instead, Boeing exaggerated its concern that
he was disclosing proprietary information to sanctioned entities. He claims that
exaggeration is evidence of pretext, pursuant to several federal cases. 8 He points to the
fact that Boeing never filed a complaint against him for misappropriation of trade secrets
and that he was never arrested or charged for disclosing information to sanctioned
entities, evidence that he suggests could lead a jury to “find that Boeing was
substantially motivated by Jahanbin’s race, national origin, and use of Farsi” when it
conducted an active insider threat investigation and subsequently discharged him.
In response, Boeing argues that Jahanbin’s misconduct was not exaggerated but
was in fact “egregious.” It points to evidence that Jahanbin admitted to “moving the
Boeing documents” to a third-party cloud storage account, as well as to recording
“conversations between the FAA and Boeing personnel . . . [wherein] the participants
did not authorize him to do so.” Jahanbin also “admitted disclosing Boeing information
about Ukrainian Airlines cockpit voice data recorders to the family members of the
victims” of a plane crash. Further, the Boeing Report of Investigation summarizes
Jahanbin’s alleged policy violations:
8 Appellant cites Vaughn v. Woodforest Bank, 665 F.3d 632, 639-40 (5th Cir. 2011), in which the
court reversed summary judgment based on evidence that the defendant exaggerated its concern over the plaintiff’s unsatisfactory conduct and statements at work. Appellant also cites Plotke v. White, 405 F.3d 1092, 1106 (10th Cir. 2005), in which the court noted that a jury could infer that the plaintiff’s employer discriminated against her by reassigning her after it exaggerated an incident where the plaintiff improperly filed travel documents.
13 No. 86522-6-I/14
Jahanbin did not adhere to the expected behaviors for Boeing employees when he misappropriated BPI and Export Administration Regulations (EAR) data. Jahanbin stored five Boeing Manuals marked Boeing Proprietary [ ], unpublished work, and copyright to his [third party] provided cloud storage. .... Jahanbin also stored Boeing information in draft emails located in his personal Gmail accounts, and evidence suggests that non-Boeing persons had access to the draft emails and Boeing data. Jahanbin also violated Boeing Information Security Policy Standards and Boeing Computing Security Standards when he installed several external communication tools—Telegram, Whatsapp, Microsoft Teams, and Zoom—not approved for Boeing business use—to his Boeing-issued laptop. .... Jahanbin was discovered to have surreptitiously recorded four joint- Boeing and FAA aviation safety related meetings without permission from either Boeing or the FAA.
Jahanbin also points to Boeing’s Report of Investigation, which noted that he had
“multiple documents written in Farsi script” and that he “was emailing professors located
in Iran.” He claims this report supports his claim that his discharge was motivated by his
national origin and use of Farsi. As other evidence of discrimination, Jahanbin claims
that after covertly monitoring him, Boeing contacted the FBI, who raided his home.
However, in support of this contention, he cites only to his declaration, which does not
indicate any connection between Boeing’s investigation of him and the FBI’s raid of his
home. Further, he asserts that Kelly “admitted Boeing felt a need to investigate him for
fear he was communicating with ‘sanctioned entities.’ ” Yet, when read in full, the
transcript shows Kelly stating only that “Boeing has a responsibility to make sure that
there is no sanctioned information that is provided to sanctioned entities.” Jahanbin
does not cite to any evidence in the record to indicate that the FBI raid of his home was
precipitated by Boeing’s investigation of him or that any nonprotected employees were
14 No. 86522-6-I/15
not similarly investigated for similar types of misconduct. Jahanbin does not explain how
his declaration demonstrates that he was disparately treated by Boeing’s monitoring.
Finally, as evidence of animus, he points to questions from his then-manager,
Thomas, about what food he eats “ ‘back home in [the] middle east.’ ” This is insufficient
to create a question of fact as to the pretext because the decision to terminate him was
made by the SAR, not by Thomas.
Thus, absent any evidence that the proffered reason for his discharge had “no
basis in fact,” was “an unreasonable ground upon which to base the decision,” see
Williams, 24 Wn. App. 2d at 700, or that other employees who committed similar
misconduct were not similarly discharged, Jahanbin cannot meet his burden of
producing evidence that this discharge was pretext for discrimination. Therefore, we
conclude that, considering all evidence and inferences in Jahanbin’s favor, the trial court
did not err in dismissing Jahanbin’s discriminatory discharge claim.
II. Wrongful Discharge in Violation of Public Policy
Jahanbin also contends that he presented an issue of fact regarding whether
Boeing wrongfully discharged him because he spoke “out for years against Boeing’s
decisions to strip safety protections from its manufacturing process.” Boeing argues that
Jahanbin cannot demonstrate a clear public policy or that anyone involved in his
termination was aware of his “alleged protected activity.” We agree with Boeing.
Washington recognizes the tort of wrongful discharge in violation of public policy
as an exception to the at-will employment doctrine. Martin v. Gonzaga Univ., 191 Wn.2d
712, 722-23, 425 P.3d 837 (2018). A terminated employee can establish a claim for
wrongful discharge in violation of public policy by proving that they did one of the
15 No. 86522-6-I/16
following: (1) refused to commit an illegal act; (2) performed a public duty or obligation,
e.g. jury duty; (3) exercised a legal right or privilege; and (4) were retaliated against for
reporting employer misconduct, i.e. whistleblowing. Id. at 723.
Jahanbin contends that he “engaged in protected activities, akin to
whistleblowing for years, by openly complaining to many supervisors within Boeing that
the company’s cost-cutting decisions to systematically remove safety inspections,
violated federal aviation standards.” To prevail, Jahanbin must identify a clear public
policy, demonstrate that his discharge was likely motivated by his action in pursuit of
that public policy, and show that Boeing could not offer an overriding reason for his
discharge. See Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 231-33, 685 P.2d
1081 (1984). 9
The first Thompson element, a clear mandate of public policy, is “established by
prior judicial decisions or constitutional, statutory or regulatory provisions or schemes.”
Martin, 191 Wn.2d at 725. Jahanbin argues that air safety is heavily regulated, pointing
to 42 U.S.C. § 7572 and 14 C.F.R. § 21. He also relies on the fact that federal case law
recognizes “an ‘overriding public policy’ in ‘promoting aviation safety,’ ” specifically citing
Sikkelee v. Precision Airmotive Corp., 822 F.3d 680, 707-08 (3d Cir. 2016)). However,
Jahanbin does not articulate how these federal laws, regulations and cases establish a
9 Jahanbin’s argument is based on the “Perritt” framework, as set out in Henry H. Perritt, Jr.,
Workplace Torts: Rights and Liabilities (1991). See Martin, 191 Wn.2d at 723-24. This framework requires the employee to prove (1) the existence of a clear public policy, (2) that discouraging the employee’s conduct would jeopardize that public policy, (3) that the employee’s public policy-based conduct caused their dismissal, and (4) that the employer cannot offer an overriding reason for the dismissal. Id. at 723. However, courts apply the Perritt framework only if a claim is not based on one of the four general circumstances. Id. at 724. Here, as Jahanbin’s claim is based on the fourth general category, reporting employer misconduct, we instead apply the standard from Thompson.
16 No. 86522-6-I/17
clear public policy specifically as to his alleged whistleblowing activities—i.e., reporting
and speaking about Boeing allegedly stripping safety inspections to save costs.
For example, 42 U.S.C. § 7572(a), a subpart of the federal chapter on “Air
Pollution Prevention and Control,” merely provides the federal Secretary of
Transportation with authority to “prescribe regulations to insure compliance” with air
pollution standards articulated pursuant to 42 U.S.C. § 7571. Similarly, 14 C.F.R. § 21 is
a broad category of regulation describing “Certification Procedures for Products and
Articles,” which covers hundreds of subsections. And finally, while Sikkelee does state
that promoting aviation safety is an overriding public policy, it is factually and
procedurally distinct. There, the plaintiff filed a wrongful death action alleging various
state law claims and violation of FAA regulations. Sikkelee, 822 F.3d at 685. The district
court granted summary judgment on the plaintiff’s design defect claims, concluding that
federal law preempted a state cause of action. Id. at 686-87. However, on appeal, the
Third Circuit explained that Congress had not created a federal standard of care for
injuries related to design defect and that state standards of care were not preempted.
Id. at 708-09. Thus, the Sikkelee court concluded that preserving state tort law
standards of care does not alter remedies for people injured by aviation-related design
defects but “furthers an overriding public policy and one we conclude is consistent with
the Federal Aviation Act, FAA regulation, GARA [(General Aviation Revitalization Act)]
and decisions of the Supreme Court and our sister Circuits: promoting aviation safety.”
Id. at 707-08.
The authority Jahanbin identified does not support his claim that there is a clear
public policy protecting his reports of safety issues. Instead, his claim is based on his
17 No. 86522-6-I/18
own opinions as to what should constitute proper procedure. “Mere opinion” as to the
appropriate safety measures “does not constitute a clear mandate of public policy.”
Martin, 191 Wn.2d at 725 (although the plaintiff argued “that student safety, specifically
wall padding in the basketball courts, is a clear mandate of public policy” there were no
statutes, regulations, or caselaw that supported his position). Here, as in Martin,
Jahanbin’s claim amounts to his opinion, which is not a clear public policy. We conclude
that Jahanbin has failed to satisfy his burden of identifying a clear public policy that was
furthered by his complaints about Boeing stripping safety inspections to save costs.
We also conclude that Jahanbin cannot satisfy his burden of demonstrating that
his discharge was motivated by his vocalizations about safety inspection procedures
because of the public scrutiny Boeing faced relating to “the 737 MAX groundings.” He
asserts his statements “substantially motivated [Boeing] to rid itself of a whistleblowing
employee who had shown a willingness to potentially speak outside of the company.” 10
But Jahanbin cannot demonstrate that anyone on the SAR team knew of his concerns,
much less that they were motivated by them.
Generally, a plaintiff must show a connection between their complaints and the
discharge, such as proximity in time and that the decisionmaker was aware of the
complaints. See Cornwell v. Microsoft Corp., 192 Wn.2d 403, 413, 430 P.3d 229 (2018)
(refusing to adopt a “general corporate knowledge” standard and instead applying an
10 Jahanbin’s complaint includes a claim for retaliation pursuant to WLAD, chapter 49.60 RCW
and a claim for wrongful discharge in violation of public policy. On appeal, he focuses on his claim for wrongful discharge in violation of public policy for his whistleblowing activities. In analyzing the causation element of the Perritt framework, he cites to Currier v. Northland Servs., Inc., 182 Wn. App. 733, 747, 332 P.3d 1006 (2014), where the court explained that an employee establishes a rebuttable presumption of retaliation by demonstrating they engaged in a statutorily protected activity that their employer knew about, and they were subsequently discharged. However, Currier involved a WLAD retaliation claim and not a wrongful discharge in violation of public policy retaliation claim.
18 No. 86522-6-I/19
actual knowledge or “knew or suspected” standard in the WLAD retaliation context). For
example, in Mackey, the plaintiff filed a claim of wrongful discharge in violation of public
policy alleging that she was retaliated against for complaining to her store manager
about her coworker’s behavior. 12 Wn. App. 2d at 565-67. There, the store manager
both informed the plaintiff that she was being terminated and prepared her notice of
termination, which created an inference that the store manager was at least one of the
people who decided to terminate the plaintiff. Id. at 576-77. Further, as the plaintiff was
terminated 12 days after she complained directly to the store manager, “[t]his proximity
in time between the complaint and the termination is sufficient to create a reasonable
inference” that the plaintiff’s complaint was a significant factor in her termination. Id. at
579-80.
Here, unlike in Mackey, beyond mere assertions that his managers and
supervisors knew of his concerns with the safety inspection procedures and dismissed
them, Jahanbin does not point to any record evidence that his concerns raised two
years prior to Kelly’s investigation were part of the investigation, were presented to the
SAR committee, or were considered by the SAR committee at all. Therefore, we
conclude that when considering all evidence and inferences in Jahanbin’s favor, he has
failed to satisfy his burden under Thompson to show that his discharge may have been
motivated by reasons contrary to clear public policy. Thus, the trial court properly
dismissed Jahanbin’s claim of wrongful discharge in violation of public policy.
III. CR 56(f) Request to Continue Summary Judgment
Jahanbin argues that the trial court abused its discretion in declining to continue
the summary judgment hearing to allow him to obtain “relevant comparator data” that
19 No. 86522-6-I/20
would have demonstrated pretext for discrimination. In particular, he argues that he
needed to complete several depositions of Boeing employees and that Boeing redacted
and withheld comparator data.
A court has authority to continue a hearing on a motion for summary judgment
when the party opposing summary judgment demonstrates that it cannot present
affidavits to support its opposition. CR 56(f). A court may deny a motion for continuance
when the party opposing summary judgment (1) does not have a good reason for the
delay in obtaining evidence, (2) does not indicate what evidence would be established
by additional discovery, or (3) the evidence does not raise a genuine issue of material
fact. Modumetal, Inc. v. Xtalic Corp., 4 Wn. App. 2d 810, 832, 425 P.3d 871 (2018). A
court can deny a continuance if “[o]nly one of the qualifying grounds” are met. Gross v.
Sunding, 139 Wn. App. 54, 68, 161 P.3d 380 (2007). We review a trial court’s decision
on a request to continue a summary judgment for an abuse of discretion, meaning its
decision is based on untenable or unreasonable grounds. Modumetal, 4 Wn. App. 2d at
832.
However, to prevail under CR 56(f), Jahanbin needed to point to evidence that he
could not have previously attained that suggests Boeing’s proffered reasons for his
treatment were pretexts for discrimination based on his national origin. Jahanbin first
argues that he needed to finish depositions of Erin Kelly and Boeing’s CR 30(b)(6)
deponent, Anthony Garcia, and conduct a deposition of Rich Kawaguchi. However,
Jahanbin fails to show good reason for the delay. But the record shows that Jahanbin
prematurely ended the deposition of Kelly, conducted two depositions of Garcia, and
failed to reschedule a deposition with Kawaguchi. The cases Jahanbin cites in support
20 No. 86522-6-I/21
of this assignment of error are distinguishable, because the delay in those cases was
due to the plaintiff’s substitution of counsel, who needed time to respond to the claims.
See Coggle v. Snow, 56 Wn. App. 499, 508, 784 P.2d 554 (1990); Butler v. Joy, 116
Wn. App. 291, 299-300, 65 P.3d 671 (2003). By contrast, here, Jahanbin has not
indicated that he substituted his counsel or that his counsel was dilatory.
Further, Jahanbin fails to state specifically what testimony Kelly, Garcia, or
Kawaguchi would provide that would create a genuine issue of material fact as to
pretext, or why he failed to ask Kelly or Garcia in their previous depositions the
necessary questions to obtain that information. Unlike in Coggle, 56 Wn. App. at 507-
08, where the court concluded that the trial court abused its discretion in denying the
plaintiff’s CR 56(f) request to continue because the affidavit he intended to submit would
rebut the defendant’s testimony, here, Jahanbin has not identified how the outstanding
depositions would create a genuine issue of material fact that his treatment and
discharge was pretext. Therefore, he has not satisfied the CR 56(f) requirements as to
the depositions.
Jahanbin also argues that he needed to meet and confer about Boeing’s failure
to respond to his third set of interrogatories and requests for production (RFP). 11
Jahanbin notes the data he had already received omitted contact information,
disciplinary files, and investigative files. He identifies specific comparator data, namely
disciplinary and investigative files, that could raise a genuine issue of material fact if it
demonstrates an employee outside of a protected class who committed similar
misconduct was not similarly disciplined. However, he fails to demonstrate any good
11 The record does not include the third set of interrogatories and RFPs.
21 No. 86522-6-I/22
reason for delay. He claims that the delay was due to Boeing’s refusal to meet for a CR
26(i) conference.
But the record does not support this contention. In early September 2023,
Jahanbin attempted to set up a CR 26(i) meet and confer, alleging that Boeing’s
response to his requests for admission (RFA) and RFPs were deficient. 12 Boeing
responded that it would not participate in the meeting because it believed that Jahanbin
had not properly identified “the specific deficiency concerns” of their responses, so that
it could consider the issues and prepare to address them. In late September 2023,
Jahanbin filed a motion to compel, which the trial court denied for failing to meet and
confer. Jahanbin filed a motion for reconsideration, arguing that the trial court should not
have denied his motion to compel when the defendants refused to meet and confer.
However, the trial court denied his motion for reconsideration because “[Boeing]
reasonably requested that [Jahanbin] identify the alleged deficiencies in their discovery
responses prior to a CR 26(i) conference so that [it] could be prepared to meaningfully
engage in discussions,” but Jahanbin refused, which “indicate[d] that [Jahanbin] did not
wish to discuss issues in good faith.” And, as Boeing notes, Jahanbin has not appealed
the trial court’s order denying his motions to compel or reconsider.
Therefore, we conclude that the trial court was within its discretion to deny
Jahanbin’s CR 56(f) request to continue summary judgment because he failed to show
that the evidence would present a genuine issue of fact and that there was good reason
for the delay in obtaining it.
12 Under CR 26(i), a court will not consider any discovery motions unless the parties have
conferred, including for a motion to compel discovery. A failure to confer will result in CR 37(b) sanctions. CR 26(i)
22 No. 86522-6-I/23
CONCLUSION
We affirm the trial court’s summary judgment dismissal of Jahanbin’s claims for
disparate treatment and discriminatory discharge under the WLAD and for wrongful
discharge in violation of public policy.
WE CONCUR: