Kelley v. The Boeing Co.

1

PATRICK KELLEY, an individual, Appellant, v. THE BOEING COMPANY, a Delaware corporation; and BRIAN BAIRD, an individual, Respondents.

No. 82010-9-I

Court of Appeals of Washington, Division 1

December 13, 2021

UNPUBLISHED OPINION

Appelwick, J.

Patrick Kelley argues the trial court erred in dismissing his wrongful discharge claim. He alleges that Boeing wrongfully discharged him after he participated in an investigation based on his employees' complaints about their bonuses and annual review. He sought to establish wrongful termination by showing his firing contravened a clear mandate of public policy. Kelley failed to establish the necessary legal error. We affirm.

FACTS

Patrick Kelley began working at The Boeing Company in 1986.^[1] In June 2014 he became a director of supplier performance.

In 2017, Gabrielle Wolfe was supporting Kelley as part of her role as a staff analyst, and her cubicle was located outside his office. In March 2017, Wolfe had reported to the Boeing Ethics and Business Conduct Department (Ethics) that a non-Boeing employee had taken photos while in Kelley's office, a policy violation. Months after this complaint, on August 10, 2017, Kelley called Wolfe into his office and told her that her career would be damaged if she complained to Ethics again. After that conversation, Kelley often commented that he did not trust Wolfe because of her Ethics report and that he did not want her sitting outside his office. Wolfe's job assignment was changed and her work area was moved. Wolfe felt that her changed work assignment and Kelley's behavior toward her resulted from her reporting his behavior, so she filed a retaliation complaint with Ethics.

In late 2017, Kelley conducted annual performance reviews for his employees. As part of the reviews, Kelley assigned integrated performance scores (IPS) to his direct reports. IPS ratings range from 0.00 to 2.00, and managers must ensure that all employees' scores balance to 1.00 on a scale. There is a "fixed pool of resources" and IPS ratings are used to determine distribution of "executive incentive compensation package[s]," including bonuses and shares of stock. Kelley said that after he made recommendations minor changes to IPS ratings were common.

Kelley gave positive performance reviews to two of his employees Robert Thornton and Daniel Tulcan. He suggested IPS ratings within the range demonstrating that each had made an impactful contribution to Boeing. Brian Baird was Kelley's supervisor and is another party to this case. Baird and a group of other Boeing vice presidents reviewed and lowered Tulcan's and Thornton's IPS ratings which affected their bonuses. At the time of the decision-making, Boeing knew that it might layoff both Thornton and Tulcan. Kelley thought that Baird had lowered IPS ratings for Thornton and Tulcan, and believed this change went against Boeing policy. In March 2018, Thornton and Tulcan complained about the changed scores. An investigation into their compensation occurred, in which Kelley "provided truthful information."

Following an incident occurring in March 2018, Boeing employee Kevin McCarry made a complaint about Kelley to Ethics. McCarry worked for Boeing on an assignment in Belgium. The investigation, conducted by Brandi Bateman, found that Kelley and McCarry had a phone call on March 29, 2018, in which Kelley asked McCarry to cancel a vacation in order to visit a supplier in Germany. McCarry refused. Kelley then contacted McCarry's manager to have McCarry "repatriated." McCarry took his vacation, but spent two days of his planned vacation onsite with the supplier.

In June 2018, Boeing considered Kelley the incumbent candidate to lead the new Enterprise Supplier Performance Organization. However, people involved in the decision stated that Kelley's recent leadership issues and the investigations around his behavior eliminated him as their choice for the role. The position went to another candidate.

In July 2018, Bateman completed her investigation into the incident between McCarry and Kelley. The report states that Kelley denied having a phone conversation with McCarry where Kelley requested that McCarry cancel his vacation. However, McCarry's phone records showed a call between them on the day in question that lasted over eight minutes. In his deposition, Kelley affirmed that they talked on the phone, but denied again that he requested that McCarry cancel his vacation. But, the report found that after the phone call, Kelley threatened to repatriate McCarry.

Also in July 2018, Boeing investigator Robert Fasold completed his investigation into Wolfe's second ethics complaint. He turned in a draft report finding Wolfe's allegations to be unsubstantiated. In August 2018, Boeing

reassigned the Wolfe case to Investigator Kathy Cho stating that Cho had more experience in Equal Employment Opportunity claims. Cho's investigative report was completed in August 2018. Cho found that Kelley made negative comments to Wolfe about contacting Ethics, and that he inferred that Wolfe's career could be impacted if she complained again. The report contained no recommendations or outcomes for Kelley, only findings.

In August 2018, following these investigations, the Boeing Employee Corrective Action Review Board (ECARB) met to "consider possible corrective action" for Kelley. ECARB was comprised of five senior Boeing employees. It reviewed the Wolfe and McCarry investigations, and heard from investigators Cho and Bateman, who stated that they questioned Kelley's honesty throughout the investigations. The ECARB decided to terminate Kelley based on three violations of Boeing policy and his not being completely honest during the investigation. Multiple ECARB members stated that Kelley's involvement in the IPS ratings investigation was not a factor in Kelley's termination.

Kelley believed that Boeing leadership retaliated against him for participating in the compensation investigation regarding Tulcan's and Thornton's IPS ratings. He sued Boeing and Baird in King County Superior Court for wrongful discharge, breach of implied contract, justified reliance and estoppel, and for retaliation under the equal pay act, chapter 49.58 RCW.^[2] Boeing moved for summary judgment, and the trial court granted summary judgment in favor of Boeing. Kelley appeals the order granting summary judgment.

DISCUSSION

I. Standard of Review

The standard of review for summary judgment is de novo. Martin v. Gonzaga Univ., 191 Wn.2d 712, 722, 425 P.3d 837 (2018). Reviewing courts find summary judgment appropriate if there are no genuine issues of material fact and if the moving party is entitled to judgment as a matter of law. Scrivener v. Clark Coll., 181 Wn.2d 439, 444, 334 P.3d 541 (2014) (citing CR 56(c)). When reviewing a summary judgment appeal, "we consider all facts, and make all reasonable factual inferences in the light most favorable to the nonmoving party." Id.

II. Tort of Wrongful Discharge

Most employment agreements allow either the employer or employee to terminate the contract "at will." Dicomes v. State, 113 Wn.2d 612, 617, 782 P.2d 1002 (1989). However, Washington applies a "public policy" exception to the at will doctrine. Id. An employee has a "cause of action in tort for wrongful discharge if the discharge of the employee contravenes a clear mandate of public policy." Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 232, 685 P.2d 1081 (1984).

To create a prima facie case for wrongful discharge, the plaintiff must show that they: (1) expressed or exercised a statutory right; (2) the employer fired the employee; and (3) there was a causal connection between the employee's exercise of their rights and the discharge. Wilmot v. Kaiser Aluminum & Chem. Corp., 118 Wn.2d 46, 68, 821 P.2d 18 (1991).

Courts look to four situations in determining whether an employee expressed or exercised a statutory right. Becker v. Cmty. Health Sys. Inc., 184 Wn.2d 252, 258-59, 359 P.3d 746 (2015). These four situations include whether an employee (1) refused to commit an illegal act; (2) performed a public duty; (3) exercised a legal right or privilege; or (4) was retaliated against for reporting employer misconduct, also referred to as "whistleblowing."^[3] Id.

When an employee alleges a wrongful termination claim under one or more of these scenarios, they have the burden to establish a prima facie case. Martin, 191 Wn.2d at 725. The prima facie case needs to show that their "'discharge may have been motivated by reasons that contravene a clear mandate of public policy.'" Id. (quoting Thompson, 102 Wn.2d at 232). A clear mandate of public policy is "'one of law'" and can be demonstrated by "'prior judicial decisions or constitutional, statutory, or regulatory provisions or schemes.'" Martin, 191 Wn.2d at 725 (quoting Dicomes, 113 Wn.2d at 617). If the employee shows a violation of public policy, the burden shifts to the employer to produce evidence showing a legitimate, nonpretextual and nonretaliatory reason for the discharge. Martin, 191 Wn.2d at 725-26. If the employer shows sufficient evidence, the burden shifts back to the employee to show a pretextual reason for the firing, or, if the employer's reason is legitimate, to show that the public policy conduct was a substantial factor in the employer discharging the worker. Id.

III. Discharge in Violation of Public Policy

Kelley argues that the trial court erred in ordering summary judgment. He claims he took protected action in cooperating with an internal investigation regarding Boeing's policies when it lowered Thornton's and Tulcan's IPS ratings. He believes that this was regarded as objecting to an unfair wage practices. He alleges that these actions protected him from wrongful termination....