FILED

NOT FOR PUBLICATION

MAY 28 2019

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

YVETTE BAILEY, No. 17-36002

Plaintiff-Appellant, D.C. No. 2:16-cv-00727-JCC

v.

MEMORANDUM*

ALPHA TECHNOLOGIES

INCORPORATED, a Washington corporation; ALTAIR ADVANCED INDUSTRIES INC, a Washington corporation; ABC, INC. 1-10, defendant corporation(s) whose name(s) is/are unknown; FREDERICK KAISER; JANE DOE KAISER, and the marital community comprised thereof; GRACE BORSARI; JOHN DOE BORSARI, and the marital community comprised thereof,

Defendants-Appellees.

Appeal from the United States District Court for the Western District of Washington John C. Coughenour, District Judge, Presiding

Argued and Submitted May 16, 2019 Seattle, Washington

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: HAWKINS and W. FLETCHER, Circuit Judges, and SEEBORG,** District Judge.

Appellant, Yvette Bailey, sued defendants for wrongful termination under

Washington law. The district court granted judgment as a matter of law in favor of

defendants, and appellant appealed. We have jurisdiction pursuant to 28 U.S.C. §

1291. We affirm.1

Bailey alleges that she was terminated from her job as a senior international

buyer in retaliation for whistleblowing about tax fraud concerns. Defendants

argued that plaintiff was terminated because of an incident that occurred on a

business trip. At the conclusion of plaintiff’s evidence at trial, the district court

granted judgment as a matter of law on multiple grounds.

In Thompson v. St. Regis Paper Co., 685 P.2d 1081, 1088 (Wash. 1984),

Washington “recognize[d] a cause of action in tort for wrongful discharge if the

discharge of the employee contravenes a clear mandate of public policy.” Id. at

1089. Washington has allowed wrongful discharge claims “where employees are

fired in retaliation for reporting employer misconduct, i.e., whistleblowing.”

Gardner v. Loomis Armored Inc., 913 P.2d 377, 379 (Wash. 1996) (citing Dicomes

** The Honorable Richard Seeborg, United States District Judge for the Northern District of California, sitting by designation. 1 Bailey also moved for certification to the Washington Supreme Court on two questions of Washington law (Dkt. 12). We deny her motion for certification. 2 v. State, 782 P.2d 1002, 1007 (Wash. 1989)). To prevail on a wrongful termination

claim, a plaintiff must prove that her protected activity was “a substantial factor

motivating the employer to discharge the employee.” Rickman v. Premera Blue

Cross, 358 P.3d 1153, 1160 (Wash. 2015). On the undisputed facts of this case,

where Bailey did exactly what she was instructed to do—to report to her superiors

in order to help the company avoid violating tax law—her whistleblower claim

fails.

AFFIRMED.

3