Michael M. Kim v. the Boeing Company

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL M. KIM,
Plaintiff - Appellant,
v.
THE BOEING COMPANY,
Defendant - Appellee.
No. 11-35879
DC No. 2:10 cv-1850 RSM
MEMORANDUM*
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
FILED
OCT 25 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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(“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

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There is some dispute as to whether he was warned again at the1
September 17 meeting, but this is immaterial because he had been warned
previously by e-mail.
Boeing introduced significant documentary evidence showing that2
Kim was aware that he was expected to transfer, and Kim did not dispute the
authenticity of this evidence.
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Kim that his failure to transfer could put his job in jeopardy. His deposition1
testimony that he never received a direct order to transfer, and that he would have2
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.

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