In a brief but notable decision, the Ninth Circuit affirmed summary judgment in an employer’s favor on causation grounds in a SOX whistleblower retaliation case.  Kim v. The Boeing Co., 487 Fed. Appx. 356 (9th Cir. 2012). 

According to the decision rendered by the U.S. District Court for the Western District of Washington that was the subject of the appeal at issue in this case,[1] Plaintiff/Appellant Michael Kim previously told his manager he was unhappy with his work group, and his manager believed the best way to increase Kim’s job satisfaction was to switch his position with that of another employee.  The transfer would involve similar work, but with a different client, and Kim would have worked independently instead of on a team, which apparently would have benefitted him.   But Kim refused to comply with the transfer. 

Of significance, the Ninth Circuit stressed that:

It was undisputed that Boeing warned Kim that his failure to transfer could put his job in jeopardy.  His deposition testimony that he never received a direct order to transfer, and that he would have 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.

(emphasis added).  The Ninth Circuit went on to emphasize that “[n]one of Kim’s proffered evidence created a dispute of fact as to whether the company would have discharged him for what it viewed as insubordination, regardless of any protected activity.”  Thus, the Ninth Circuit ruled that Kim failed to establish a causal connection between his alleged protected activity and the decision to terminate his employment and affirmed the lower court’s decision. 

This decision should prove useful to employers saddled with SOX whistleblower litigation in the Ninth Circuit who wish to focus their dispositive motions on causation grounds.

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