FILED

NOT FOR PUBLICATION

JUN 11 2020

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MINHNGA NGUYEN, No. 18-36059

Plaintiff-Appellant, D.C. No. 2:15-cv-00793-RAJ

v.

MEMORANDUM*

THE BOEING COMPANY,

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Washington Richard A. Jones, District Judge, Presiding

Submitted June 9, 2020 **

Before: FARRIS, TROTT, and SILVERMAN, Circuit Judges

Minhnga Nguyen appeals the district court’s judgment in favor of Boeing

following a bench trial on her claims that she was terminated in violation of Title

VII and the Washington Law Against Discrimination for filing an internal

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). discrimination complaint. We have jurisdiction pursuant to 28 U.S.C. § 1291. We

review the district court’s factual findings for clear error and the conclusions of

law de novo. United Steel Workers Local 12-369 v. United Steel Workers Int’l,

728 F.3d 1107, 1114 (9th Cir. 2013). We affirm.

The district court properly applied the McDonnell Douglas shifting burdens

test to plaintiff’s retaliation claims. Stegall v. Citadel Broad. Co., 350 F.3d 1061,

1065-66 (9th Cir. 2003); Cornwell v. Microsoft Corp., 430 P.3d 229, 234 (Wash.

2018). In addition, the district court’s factual findings are well-supported by the

record and not clearly erroneous.

To prove a causal link between her protected activity and termination,

plaintiff needed to establish that her internal discrimination complaint was a

substantial factor motivating her termination or the “but for” cause of her

termination. Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362 (2013);

Cornwell, 430 P.3d at 235. Evidence at trial established that the manager who

decided to fire plaintiff had hired plaintiff and did not know or suspect that

plaintiff had filed an internal discrimination complaint when he made the decision

to fire plaintiff. Therefore, plaintiff failed to establish an element of her prima

facie case, a causal link between her discrimination complaint and her termination.

2 Cohen v. Fred Meyer, Inc., 686 F.2d 793, 796 (9th Cir. 1982); Cornwell, 430 P.3d

at 239.

Plaintiff also failed to prove that the specific and legitimate reasons that

Boeing articulated for firing her were pretext for discrimination. Boeing presented

well-documented evidence that plaintiff repeatedly refused to follow its polices and

managers’ directions for months before her termination. Plaintiff produced no

direct evidence of discrimination and no specific and substantial indirect evidence

of pretext. At most, plaintiff was terminated a month after she filed her internal

discrimination complaint. But two of the three written warnings documenting

plaintiff’s failure to follow two different managers’ directives were issued in

March and July, months before plaintiff filed her October discrimination

complaint. Plaintiff’s subjective belief that she was treated differently from other

engineers did not establish pretext. Plaintiff needed to prove that individuals

outside of her protected class with similar jobs who repeatedly refused to follow

managers’ orders were not terminated. Vasquez v. County of Los Angeles, 349

F.3d 634, 641 (9th Cir. 2003). She did not present this evidence at trial. We agree

with the district court that plaintiff failed to prove that Boeing’s reasons for firing

plaintiff were pretext for discrimination in this case.

3 Finally, plaintiff waived her challenge to the district court’s reconsideration

order by failing to argue in her opening brief that she sufficiently alleged any of the

missing elements of the other claims raised in her third amended complaint. Frank

v. Schultz, 808 F.3d 762, 763 n.3 (9th Cir. 2015). Plaintiff’s argument that she

proved the elements of these claims at trial lacks merit. The district court allowed

plaintiff to prove other discrimination to establish pretext and did not err by

holding that plaintiff failed to come forward with any concrete evidence of

discrimination.

AFFIRMED.

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