Tracy Jonassen v. Port of Seattle , 550 F. App'x 384 ( 2013 )

FILED
NOT FOR PUBLICATION DEC 18 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TRACY JONASSEN, No. 12-35807
Plaintiff - Appellant, D.C. No. 2:11-cv-00034-RAJ
v.
MEMORANDUM*
PORT OF SEATTLE, a municipal
corporation,
Defendant - Appellee.
Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Argued and Submitted November 8, 2013
Seattle, Washington
Before: SCHROEDER, PAEZ, and BERZON, Circuit Judges.
Tracy Jonassen appeals the grant of summary judgment to his employer, the
Port of Seattle, on his claims of retaliation in violation of the False Claims Act
(“FCA”), 31 U.S.C. §§ 3729–3733, and breach of contractually enforceable Port
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
policy under Washington law. We affirm the former, reverse the latter, and
remand for further proceedings on Jonassen’s state contract claim.
1. Jonassen never “investigat[ed] matters which are calculated, or
reasonably could lead, to a viable FCA action.” United States ex rel. Hopper v.
Anton, 91 F.3d 1261, 1269 (9th Cir. 1996). None of the matters he investigated
involved the submission of a claim for payment to the federal government.
Jonassen therefore engaged in no activity protected by the FCA prior to his filing
of a meritless FCA suit on behalf of the federal government.
2. Jonassen has identified only one cognizable adverse employment action.
See Moore v. Cal. Inst. of Tech. Jet Propulsion Lab., 275 F.3d 838, 847–48 (9th
Cir. 2002) (defining “discrimination” under the FCA with reference to Title VII’s
definition of an adverse employment action). Because less overtime was available
to employees assigned to the boiler room than to those working in the Industrial
Waste Treatment Plant (“IWTP”), Jonassen’s reassignment to the boiler room
qualifies as an adverse employment action. See Fonseca v. Sysco Food Servs. of
Ariz., Inc., 374 F.3d 840, 847–48 (9th Cir. 2004). By contrast, the verbal taunting
to which Jonassen alleges he was subjected constitutes no more than “simple
teasing,” and thus does not rise to the level of an adverse employment action. See
Manatt v. Bank of America, N.A., 339 F.3d 792, 798–99 (9th Cir. 2003). And
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Jonassen’s assignments to perform dangerous work were in no way discriminatory,
as others routinely received similar assignments.
Jonassen’s reassignment to the boiler room was not “because of” his filing
of the FCA action. 31 U.S.C. § 3730(h)(1); Cafasso, United States ex rel. v. Gen.
Dynamics C4 Sys., Inc., 637 F.3d 1047, 1060 (9th Cir. 2011) (quoting Hopper, 91
F.3d at 1269). His reassignment predated the filing of that suit by several months.
And it predated his managers’ awareness of that suit by nearly two years.
Causation does not run in reverse.
Because Jonassen’s only cognizable protected activity was not causally
related to the only cognizable adverse employment action taken against him,
summary judgment was appropriate as to the FCA retaliation claim.
3. The district court misapplied Washington law in granting summary
judgment to the Port on Jonassen’s breach-of-contract claim. The Washington
Supreme Court has held potentially enforceable a policy forbidding retaliation
against whistleblower employees at a nuclear reactor. Korslund v. DynCorp Tri-
Cities Servs., Inc., 125 P.3d 119, 130–31 (Wash. 2005) (en banc). Before so
holding, the opinion discusses the protections provided under the Energy
Reorganization Act. Id. at 127. Yet, in Korslund’s analysis of the employer-policy
claim, the substantial overlap between the policy’s protections and those accorded
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by statute was not mentioned as a pertinent factor with regard to the judicial
enforceability of the employer’s policy.
Because the precise meaning of the terms of the Port’s policies remains
somewhat uncertain, those policies may well promise greater protection for
whistleblowers and against harassment than that provided by any applicable
statute. But even if that is not so, Korslund strongly suggests that Washington law
does not preclude the enforcement of employer policies simply because the
policies overlap with an employer’s legal obligations.
The Port argues that Francom v. Costco Wholesale Corp., 991 P.2d 1182,
1194 (Wash. Ct. App. 2000), precludes Jonassen’s claim based on its employer
policy. But Francom is a court of appeals case, and is in tension with Korslund, a
Washington Supreme Court case that postdates it. “‘When interpreting state law,
federal courts are bound by decisions of the state’s highest court,’” and only
review the decisions of intermediate state appellate courts “‘[i]n the absence of
such a decision . . . [to] predict how the highest court would decide the issue . . . .’”
Vestar Dev. II, LLC v. Gen. Dynamics Corp., 249 F.3d 958, 960 (9th Cir. 2001)
(quoting Lewis v. Tel. Emps. Credit Union, 87 F.3d 1537, 1545 (9th Cir. 1996)
(internal quotations and citations omitted)). The district court should not have
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followed Francom, as Korslund indicates that the Washington Supreme Court is
unlikely to follow it.
At oral argument, the Port attempted to distinguish Korslund on the ground
that the policy in that case included more specific remedial procedures than the
policies here. Not so. The Port’s policies, too, outline specific remedial
procedures that limit, to some degree, managerial discretion. See Korslund, 125
P.3d at 131 (holding a policy sufficiently specific where “there is no discretion that
some disciplinary action will be taken,” even if “there is discretion as to what
action is taken”). Whether the mandatory aspects of the policies are here
implicated is a matter not addressed by the district court.
Summary judgment on the ground advanced by the Port before the district
court was thus inappropriate. We decline to affirm on alternative grounds, as they
were raised for the first time on appeal and may depend on further factual
development. See, e.g., Tibble v. Edison Intern., 729 F.3d 1110, 1126 (9th Cir.
2013). It is quite possible, however, that on remand one or more of those
arguments may have validity. We leave those arguments, and the question of
whether to retain supplemental jurisdiction over Jonassen’s state-law claims, for
the district court to consider on remand.
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The district court’s grant of summary judgment on Jonassen’s FCA
retaliation claim is AFFIRMED, its grant of summary judgment on Jonassen’s
breach-of-contract claim is REVERSED, and the case is REMANDED for further
proceedings.
Each party shall bear its own costs.
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