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Michael E. Boyd v. Accuray

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION


June 4, 2012

MICHAEL E. BOYD, PLAINTIFF,
v.
ACCURAY, INC., DEFENDANT.

The opinion of the court was delivered by: Lucy H. Koh United States District Judge

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

United States District Court For the Northern District of California

Before the Court is Defendant Accuray, Inc.'s ("Accuray") motion for summary judgment.

ECF No. 51. The motion was heard on May 31, 2012. Having considered the submissions and 18 arguments of the parties, the Court GRANTS Defendant's motion for the reasons set forth below. 19

I.BACKGROUND

A.Procedural Background

Plaintiff Michael E. Boyd ("Plaintiff") initiated this lawsuit on April 5, 2011. ECF No. 1.

On December 8, 2012, Plaintiff filed the governing first amended complaint ("FAC"), which he 23 further amended by filing an errata, with leave of the Court, on February 24, 2012. ECF Nos. 27, 24 37. The FAC asserts retaliation claims against Accuray under the following five federal statutes: 25

(1) the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 207; (2) the False Claims Act ("FCA"), 31 26 U.S.C. § 3730(h); (3) Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-5; 27 (4) the Occupational Safety and Health Act of 1970 ("OSHA"), 29 U.S.C. §§ 651 et seq.; and (5) 28 the Sarbanes-Oxley Act ("SOX"), 18 U.S.C. § 1514A.

Accuray filed its motion for summary judgment. ECF No. 51. The original motion contained 4 errors, and Accuray filed an errata the next day to correct these errors. ECF No. 53. To 5 accommodate Plaintiff's counsel's health condition, the Court granted Plaintiff three separate 6 extensions to file his opposition to Accuray's motion and continued the hearing on the motion from 7

On December 27, 2011, Accuray filed its answer to the FAC. ECF No. 30. On April 12, 2012, the last day to file dispositive motions pursuant to this Court's case management order, May 24, 2012, to May 31, 2012. See ECF Nos. 59, 61, 63, 69. On May 11, 2012, Plaintiff's 8 counsel attempted to file the declaration in support of Plaintiff's opposition and the attached 9 exhibits, but, because of technical difficulties, failed to complete transmission that day. See ECF No. 93. Plaintiff completed the filing of his opposition and all of the supporting papers on May 12, 2012, one day past the Court's thrice-extended deadline. ECF No. 91. The Court reluctantly accepts Plaintiff's untimely filing, over Accuray's objection, given that Plaintiff's counsel appears 13 to have made a good faith effort to comply with the deadline, and in light of the fact that the Court 14 likewise accepted Accuray's errata one day after the deadline for filing dispositive motions. 15

However, the Court strikes page 26 of Plaintiff's opposition brief because the Court explicitly 16 denied the parties' stipulation requesting additional pages. ECF No. 41; see also Civ. L.R. 7-4(b) 17

No. 101. On May 29, 2012, Plaintiff filed an errata to the opposition brief. ECF No. 115.*fn1 19

(limiting opposition papers to 25 pages of text). On May 22, 2012, Accuray filed its reply. ECF 18

On May 14, 2012, Plaintiff filed an objection to Accuray's evidence separate from Plaintiff's opposition brief. ECF No. 92. Plaintiff's evidentiary objections are DENIED for failure 21 to comply with Civil Local Rule 7-3(a), which requires that "evidentiary and procedural objections 22 to [a] motion . . . be contained within the [opposition] brief" and thus subject to the Civil Local 23

Rule page limitations for opposition briefs. The Court addresses Accuray's evidentiary objections, 24 properly included in its reply brief, as necessary in the body of the Order. 25 26 27

Similarly, citations to Plaintiff's opposition ("Opp'n") refer to the May 29, 2012 errata, ECF No. 115. 2

3 computerized medical equipment, including its "Cyberknife" product used to treat cancer. Hall 4

Plaintiff, who was hired by Accuray on May 11, 2004, as an "at will" employee, held the

6 position of Senior Manufacturing Engineer. Dadone Decl. Ex. B; Ex. 91.3; Boyd Decl. ¶ 2. Since 7

Engineering. Scott Decl. ¶¶ 1-2; Ex. 92.2; McMahon Decl. Ex. M, at 3. Mr. Scott in turn reported 9 to Anthonios Zografos ("Mr. Zografos"), the Director of Manufacturing from April 2007 until 10

¶¶ 1-2; Zografos Decl. ¶ 2. Finally, Mr. Zografos reported to Steven Strunk ("Mr. Strunk"), the

Vice President of Manufacturing. McMahon Decl. Ex. M, at 2; Zografos Decl. ¶ 2.*fn2

Mr. Scott provided Plaintiff with formal written annual performance evaluations, beginning

14 in July 2005. Scott Decl. ¶ 4, Exs. A-E. These evaluations consistently stated that Plaintiff's 15 performance "need[ed] improvement" or fell "below expectations" in several areas throughout 16

Plaintiff's tenure. Id. On August 10, 2007, when Mr. Scott provided Plaintiff his annual 17 performance evaluation (covering the period July 1, 2006, to June 30, 2007), Mr. Scott warned 18

Plaintiff that if Plaintiff's performance did not improve, Plaintiff would be placed on a 19 performance improvement plan. Scott Decl. ¶ 4(c); McMahon Decl. ¶ 2, Ex. A. (Boyd Dep. 54:13-20

15, Ex. 4). On December 11, 2007, Mr. Scott met with Plaintiff and provided him a half-year 21 review which documented continuing concerns with Plaintiff's performance. Scott Decl. ¶ 7, Ex. 22

F. On or about April 3, 2008, Mr. Scott met with Plaintiff to discuss Plaintiff's unsatisfactory 23 performance. Scott Decl. ¶ 8, Ex. G. On June 4, 2008, Mr. Scott commenced the Corrective 24

Action Process and provided Plaintiff with a Verbal Warning that Plaintiff's performance needed 25 improvement. Scott Decl. ¶ 12, Ex. K. On August 21, 2008, Mr. Scott provided Plaintiff a Written 26

B.Factual Background

Accuray, Inc. is a biomedical technology company that specializes in the production of

Decl. ¶ 2; Boyd Decl. ¶ 1. 5

May 2005, Plaintiff reported to Rus Scott ("Mr. Scott"), the Manager of Manufacturing 8

October 1, 2008. See McMahon Decl. Ex. B (Strunk Dep. 47:16-20); id. Ex. M, at 3; Scott Decl.

Warning and began meeting "1 on 1" on a weekly basis to identify deficiencies and assist Plaintiff 27

in curing them. Scott Decl. ¶ 15-16, Exs. N, P. At the May 31, 2012 hearing on the motion, 2

Plaintiff's counsel conceded that the decision to terminate Plaintiff was made on September 10, 3

Scott Decl. ¶ 18; Boyd Decl. ¶ 11. 5

8 system to the United States; (2) Accuray upgraded the system's parts and software; and (3) 9

Decl. ¶¶ 7-16; Boyd Decl. ¶ 23. In the summer of 2007, Plaintiff was responsible for, among other

things, documentation for a project upgrading a Cu28/J18 Cyberknife system to be shipped to

Japan. Zografos Decl. ¶ 7; McMahon Decl. Ex. A (Boyd Dep. 34:15-35:11); Scott Decl. ¶ 24. 13

Specifically, before the upgraded product could be shipped, Plaintiff was responsible for executing 14 the Product Release Certificate ("PRC"). See, e.g., Ex. 92.9, at 86:2-10. 15

16 numbers on the Cu28/J18 Cyberknife system destined for Japan. See Zografos Decl. ¶¶ 9-14. 17

According to the Zografos Declaration, Plaintiff was insubordinate in resisting the documentation 18 procedure agreed upon by the group, in consultation with Joy Sacmar ("Ms. Sacmar"), Accuray's 19

According to Plaintiff's Declaration in opposition to the motion for summary judgment, using the 21 old part number for the pre-upgraded Cyberknife system, PN 020600, rather than the new part 22 number, PN 020495, was inaccurate and could give customs officials a false impression that 23

Accuray was merely processing and returning the same Cyberknife equipment initially shipped into 24 the United States. Ex. 112.2; Boyd Decl. ¶¶ 26-27; Exs. 13-15; see also Vagadori Decl. Ex. D. 25

However, according to Plaintiff's deposition testimony, Plaintiff stated that the wrong part number 26 was a "safety issue" and "created a threat to the patient safety, efficacy [sic] because it was for a 27 different configuration system." McMahon Decl. Ex. A (Boyd Dep. 26:19-20; 72:20). According 28 to Plaintiff's deposition testimony, he was threatened to be fired if he did not put the wrong part

2008. Tr. 40:1; see also Scott Decl. ¶ 17, Ex. Q. Plaintiff was terminated on October 30, 2008. 4

1.Facts Underlying False Claims Act Retaliation Claim: August 2007

Cu28/J18 Cyberknife Incident

Accuray had an upgrade program through which: (1) overseas clients shipped a Cyberknife

Accuray then shipped the upgraded Cyberknife system back to the overseas client. See Zografos 10

An internal dispute arose in the manufacturing department over how to document part

Senior Manager of Regulatory Affairs. Zografos Decl. ¶¶ 7-16; see also Vagadori Decl. Ex. C. 20

number on the Cu28/J18 system. McMahon Decl. Ex. A (Boyd Dep. 26:8-11, 23-25). In any 2 event, Plaintiff objected to signing the PRC with the incorrect part number, but was ordered to, and 3 did so, on August 13, 2007. Exs. 70.1, 110; see also Vagadori Decl. Ex. D. 4

In his deposition, Plaintiff was unable to explain how "Accuray's decision to put a different

5 part number on the release which was different than the one [Plaintiff] believed should go on there 6

Dep. 21:17-24). 8

. . . resulted in the United States getting less money from Accuray." McMahon Decl. Ex. A (Boyd 7

On August, 13, 2007, Plaintiff filed an "official complaint" regarding the Cu28/J18

Cyberknife Incident with Mr. Vagadori, then-Senior Director of Human Resources, against Mr. 10

also complained about changed work duties following the Cu28/J18 Cyberknife Incident.

McMahon Decl. Ex. A (Boyd Dep. 27:21-23, 70-75). For example, Plaintiff was removed from all 13 further responsibilities in connection with upgrading similar Cyberknife systems. Ex. 15, 112; 14

(Boyd Dep. 71:5:7 ("I have essentially been confined to my cube and removed from working on 16 the next Japan upgrade system CO33/J[21]").

"possible discrimination if termination of employment of protected individuals occurs." Vagadori 21

"going to let all the Mexicans go" and that Accuray was "outsourcing the stock room." Id. Ex. G. 23

Plaintiff expressed concern that Accuray's project to outsource stockroom employees could be a 24 violation of Title VII and compromise Accuray's ability to obtain funding from the Veterans 25

On or about October 2, 2007, while in a break-room, Plaintiff commented "that the

Company was planning to lay off all the Mexicans." Zografos Decl. ¶ 18; Vagadori Decl. ¶ 17. 28

Scott and Mr. Zografos for creating a "hostile work environment." Vagadori Decl. Ex. C. Plaintiff

Boyd Decl. ¶ 32; see also Zografos Decl. Ex. B, at 3; Vagadori Decl. Ex. D; McMahon Decl. Ex. A 15

2.Facts Underlying Title VII Retaliation Claim: Outsourcing of Stockroom

Employees

On September 25, 2007, Plaintiff emailed Mr. Vagadori to file a complaint regarding

Decl. ¶¶ 1, 12 & Ex. G. Plaintiff's complaint was based on rumors he heard that Accuray was 22

Administration. See id. 26

On November 1, 2007, Mr. Vagadori admonished Plaintiff "about his inaccurate racial comment in a public area regarding the confidential outsourcing of the stockroom employees [sic]." Vagadori 2

Decl. ¶ 19. 3

4 that the "termination of Mexican stockroom employees was in fact discriminatory," and he had 5 been retaliated against for complaining about their termination. McMahon Decl. Ex. J. 6

"over scrutinized [Plaintiff's] work"; "Mr. Scott has given [Plaintiff] a negative performance 8 evaluation"; Mr. Scott gave Plaintiff a "performance warning" in May and August 2008; and 9

On September 10, 2008, Plaintiff filed a complaint with the EEOC alleging that he believed

Specifically, Plaintiff alleged that after his September 25, 2007 complaint to Accuray, Mr. Scott 7

Plaintiff was threatened that if he "did not improve [his] work performance that [Accuray] would 10 terminate [Plaintiff's] employment." Id.

On November 7, 2008, Plaintiff filed a second EEOC complaint. McMahon Decl. Ex. K.

Plaintiff claimed that subsequent to his September 10, 2008 EEOC complaint, Accuray retaliated 13 against Plaintiff by: (1) disciplining him; (2) subjecting him to different terms and conditions of 14 employment; and (3) terminating him. Id. Specifically, Plaintiff complained that: (1) in September 15

2008, Mr. Scott "wrote [Plaintiff] up alleging poor performance"; (2) in October 2008, Mr. Scott 16 gave Plaintiff a "negative performance review" and denied a bonus and a raise; and (3) on October 17

As to both EEOC complaints, the EEOC determined that "[b]ased upon its investigation,

19 the EEOC is unable to conclude that the information obtained establishes violations of the 20 statutes." McMahon Decl. Ex. A (Boyd Dep. Exs. 37, 39). 21

30, 2008, Plaintiff was terminated. 18

3.Facts Underlying Sarbanes-Oxley Claim: Camera Detectors Inventory

On September 19, 2008, Plaintiff made a complaint to the Securities and Exchange

Commission ("SEC") that Accuray was "taking returned defective cameras, retesting them under a 24 changed requirement from what they were shipped out on, and put back in stock as good cameras 25 and reported as valid, usable inventory when it was not, when it . . . actually should have been 26 scrap material." McMahon Decl. Ex. A (Boyd Dep. 22:5-9; 199:11-13; 206:2-8). Plaintiff testified 27 that he did not inform Accuray's Human Resources Department about his complaint to the SEC. 28

Id. Ex. A (Boyd Dep. 205:4-9); see also id. Ex. Ex. B (Strunk Dep. 28:2-5, 43:11-13); Hall Decl. ¶

12. The only persons Plaintiff informed about his SEC complaint were Chris McKinley, the 2 supervisor of the shipping/receiving department; Alicia Alvarez, an employee in the shipping 3 receiving department; and Peter Nowakowski, a production manager. Id. Ex. A (Boyd Dep. 4

Ms. McKinley testified that she did not tell anyone about Plaintiff's complaint to the SEC. Id. Ex. 6

C (McKinley Dep. 27-28), Ex. M. Mr. Nowakowski and Ms. Alvarez also did not have 7 supervisory authority over Plaintiff. McMahon Decl. ¶14, Ex. M. 8

10 judgment if the movant shows that there is no genuine dispute as to any material fact and the

(1986). A dispute as to a material fact is "genuine" if the evidence is such that "a reasonable jury 14 could return a verdict for the nonmoving party." See id. In determining whether there is a material 15 factual dispute, the Court considers admissible evidence in "depositions, documents, electronically 16 stored information, affidavits or declarations, stipulations (including those made for purposes of the 17 motion only), admissions, interrogatory answers, or other materials." Fed. R. Civ. P. 56(c). The 18

Court must view the evidence in the light most favorable to the non-moving party and draw all 19 justifiable inferences in the non-moving party's favor. Anderson, 477 U.S. at 255. 20

21 for its motion and identifying those portions of the evidentiary record that it contends demonstrate 22 the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 23

A party opposing a properly supported motion for summary judgment "may not rest upon

25 the mere allegations or denials of [that] party's pleading, but . . . must set forth specific facts 26 showing that there is a genuine issue for trial." See also Anderson, 477 U.S. at 250. The non-27 moving party need not show the issue will be resolved conclusively in its favor. See id. at 248-49. 28

205:11-20); id. Ex. M, at 3. Ms. McKinley did not have supervisory authority over Plaintiff, and 5

II.LEGAL STANDARD

Rule 56 of the Federal Rules of Civil Procedure provides that a court "shall grant summary

movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Material facts are those

that may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 13

The moving party bears the initial responsibility for informing the district court of the basis

(1986). 24

All that is necessary is submission of sufficient evidence to create a material factual dispute,

thereby requiring a jury or judge to resolve the parties' differing versions at trial. See id. A non-2 moving party's "conclusory, self-serving affidavit, lacking detailed facts and any supporting 3 evidence, is insufficient to create a genuine issue of material fact." Nelson v. City of Davis, 571 4

1171 (9th Cir. 1997)). 6

F.3d 924, 929 n.2 (9th Cir. 2009) (quoting F.T.C. v. Publ'g Clearing House, Inc., 104 F.3d 1168, 5

III.ANALYSIS

As an initial matter, the Court notes that at the May 31, 2012 hearing on the instant motion

Plaintiff's counsel conceded that Defendant is entitled to summary judgment as to Plaintiff's 9 retaliation claims under the FLSA and OSHA. Tr. 2:23-3:1; see also Opp'n 24. Accordingly, 10

Plaintiff's remaining retaliation claims under the FCA, Title VII, and SOX and addresses each of

these claims in turn. 13

(1) Plaintiff did not engage in activity protected by the FCA; (2) there is no evidence that Accuray 16 had knowledge that Plaintiff was engaging in activity protected by the FCA; and (3) Plaintiff's 17 claim is time-barred. Plaintiff argues that the August 2007 Cu28/J18 Cyberknife incident presents 18

"a simple and plain scheme to defraud the government of customs duties." Opp'n 15. Accuray 19 responds that: (1) there is no evidence that a customs duty applied to the Cyberknife shipment at 20 issue; (2) there is no evidence that Plaintiff complained about the customs implications of the 21 product numbering of the Cyberknife shipment; and (3) there is no evidence that Plaintiff was 22 investigating, initiating, or assisting in an FCA suit against Accuray. As explained below, the 23

"Congress added 31 U.S.C. § 3730(h) to the FCA in 1986 to protect 'whistleblowers,' those

25 who come forward with evidence their employer is defrauding the government, from retaliation by 26 their employer." U.S. ex rel. Hopper v. Anton, 91 F.3d 1261, 1269 (9th Cir. 1996). The FCA 27 protects employees from being "discharged, demoted, . . . or in any other manner discriminated 28 against in the terms and conditions of employment . . . because of lawful acts done by the

Accuray's motion is GRANTED as to these two claims. Therefore the Court limits its analysis to

A.Fair Claims Act Retaliation Claim

Accuray argues that it is entitled to summary judgment as to Plaintiff's FCA claim because:

15

Court agrees with Accuray. 24

employee . . . in furtherance of an [FCA] action . . . , including investigation for, initiation of, 2 testimony for, or assistance in an [FCA] action . . . ." 31 U.S.C. § 3730(h). 3

4 been engaging in conduct protected under the Act; 2) the employer must have known that the 5 employee was engaging in such conduct; and 3) the employer must have discriminated against the 6 employee because of her protected conduct." Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 7

637 F.3d 1047, 1060 (9th Cir. 2011). The 3-year statute of limitations for a retaliation claim under 8 the FCA begins to run when the retaliation actually occurs. 31 U.S.C. § 3730(h)(3); Graham Cnty. 9

Plaintiff has not pointed to evidence supporting the claim that he was engaging in conduct

protected by the FCA. As the Ninth Circuit has stated, to be protected by the FCA, a "plaintiff

must be investigating matters which are calculated, or reasonably could lead, to a viable FCA 13 action." Moore v. Cal. Inst. of Tech. Jet Propulsion Lab., 275 F.3d 838, 845 (9th Cir. 2002) (citing 14

Hopper, 91 F.3d at 1269). "[A]n employee engages in protected activity where (1) the employee in 15 good faith believes, and (2) a reasonable employee in the same or similar circumstances might 16 believe, that the employer is possibly committing fraud against the government." Id.

An FCA retaliation claim requires proof of three elements: "1) the employee must have

Soil & Water Conservation Dist. v. United States ex rel. Wilson, 545 U.S. 409, 419-420 (2005). 10

Plaintiff's alleged protected activity underlying his FCA claim is the August 2007 Cu28/J18

Cyberknife incident. There is no evidence that the upgrade project on the Cu28/J18 system 19 involved a contract with the United States government. In fact, Plaintiff admitted that he cannot 20 explain how any of the events that transpired with regard to the Cu28/J18 Cyberknife upgrade 21 resulted in the U.S. government obtaining any less money from Accuray. See McMahon Decl. Ex. 22

A (Boyd Dep. 21:19-24). Here, Plaintiff's alleged protected activity of protesting the use of an 23 incorrect product number was directed toward promoting regulatory compliance and patient safety. 24

See, e.g.,McMahon Decl. Ex. A (Boyd Dep. 26:16-22 ("I told them if they put that part number, 25 that I shouldn't sign it because it was the wrong part number . . . it created a threat to patient 26 safety.")). Indeed, Plaintiff considered Mr. Scott and Mr. Zografos's retaliation to be a result of 27 28

"trying to do my job to comply with FDA regulations." McMahon Decl. Ex. F, at 1; see also id. 2

Ex. A (Boyd Dep. 27:7-19 (testifying that Plaintiff complained to FDA).*fn3 3

4 requires granting summary judgment in favor of Defendant on Plaintiff's FCA claim. In Hopper, 5 the Ninth Circuit reversed a denial of summary judgment where: 6

'furtherance of an action' under the FCA. Rather, the record quite clearly show[ed] [the plaintiff] was merely attempting to get the School District to comply with

Federal and State regulations. Her numerous written complaints, seventy letters and over fifty telephone calls were all directed toward this end. She was not trying to

recover money for the government; she was attempting to get classroom teachers

into IEP evaluation sessions. She was not investigating fraud. She was not whistleblowing as envisioned in the paradigm qui tam FCA action. . . . Correcting

regulatory problems may be a laudable goal, but one not actionable under the FCA

in the absence of actual fraudulent conduct. Her FCA allegations were not

sufficient to pass summary judgment muster. Her investigatory activity did not have any nexus to the FCA."

The Ninth Circuit's decision in United States ex rel. Hopper v. Anton, controls here and

The entire record fail[ed] to demonstrate that [the plaintiff] was engaged in

Hopper, 91 F.3d at 1269. Likewise, here the record quite clearly shows that Plaintiff was merely 15 attempting to get Accuray to comply with FDA's "traceability" regulatory requirement and was 16 concerned about patient safety, not fraud against the U.S. government. See McMahon Decl. Ex. A 17

26:16-22 (testifying about concern regarding patient safety); id 75:11-20 (describing "traceability" 19 regulatory requirements."). Accordingly, the evidence in support of Plaintiff's FCA claim is 20 insufficient to "pass summary judgment muster." Hopper, 91 F.3d at 1269. 21

Plaintiff argues in his opposition, for the first time, that he was engaging in protected

22 activity because he believed that Accuray's use of the incorrect product number in the August 2007 23

Cu28/J18 Cyberknife incident constituted "a simple and plain scheme to defraud the government of 24 customs duties." Opp'n 16. However, Plaintiff points to no evidence other than his own self-25 serving declaration in support of his opposition to buttress his new theory that he was engaging in 26 protected activity by the FCA. Whereas Plaintiff's deposition testimony only contained evidence 27

(Boyd Dep. 27:7-17 (describing Plaintiff's complaint to the FDA about the product release); id. 18

that Plaintiff's concern was patient safety and compliance with FDA regulations, Plaintiff's 2 declaration adds that use of the wrong product number "was problematical" because it could "give 3 a false impression to customs officials that Accuray was merely processing and returning the same 4

Exhibit 92.9, at 124:11-125:23, to support his allegation of customs fraud, the Court is unable to 6 find any such support in Exhibit 92.9. See Opp'n 5. Plaintiff also cites Exhibits 70.1 and 110 to 7 support the proposition that Plaintiff attended a meeting where he "repeated his earlier protests that 8

Cyberknife equipment initially shipped into USA." Boyd Decl. ¶ 27. Although Plaintiff cites 5

[using the wrong part number] meant misleading both the customer, with patient safety 9 implications, and customs officials." See Opp'n 6. Again, neither of these exhibits supports the 10 factual allegation that the Cu28/J18 Cyberknife incident defrauded the U.S. government or that it 11 was reasonable for Plaintiff to believe that Accuray was committing fraud against the U.S.

government. Plaintiff's citation to Exhibit 15 is also unhelpful, as this email, which mentions the 13

FDA but makes no mention of fraud against the U.S. government, provides further evidentiary 14 support that Plaintiff was only trying to promote compliance with FDA regulations. Opp'n 7. 15

Finally, Plaintiff's citation to Exhibit 93-5, Mr. Hall's statement that "the different part number" 16 mattered because "when you import into another country, each part number needs to be approved 17 for both export and import," is by Plaintiff's counsel's own admission too "oblique[]" to suggest 18 that Plaintiff had a good faith belief that Accuray was committing customs fraud against the U.S. 19 government.*fn4 Opp'n 17. Moreover, as Accuray pointed out at the May 31, 2012 hearing, Mr. 20

2012 deposition, has no bearing on whether Plaintiff had a good faith belief that Accuray was 22 defrauding the U.S. government in 2007. Nor did Accuray admit, as Plaintiff argues, that Plaintiff 23 engaged in activity protected by the FCA. See Opp'n 18 (citing Ex. 37.12, 37.14-15). 24

Even if any of Plaintiff's cited exhibits actually supported Plaintiff's allegation that he

25 engaged in activity protected by the FCA, Plaintiff fails to explain the discrepancy with his earlier 26 admission, in his deposition, that he could not explain how any of the events that transpired with 27

Hall's acknowledgement of the export/import implications of incorrectly numbering a product in a 21

regard to the Cu28/J18 Cyberknife upgrade resulted in the U.S. government getting any less money 2 from Accuray. See McMahon Decl. Ex. A (Boyd Dep. 21:19-24). A party "cannot create a 3 genuine issue of fact sufficient to survive summary judgment simply by contradicting his or her 4 own previous sworn statement." Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999); 5 see also Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262 (9th Cir. 1991). Plaintiff's failure to 6 provide any explanation for the discrepancy leads this Court to conclude that Plaintiff's allegations 7 in his declaration regarding customs fraud are a "sham." Kennedy, 952 F.2d at 267. 8

9 fraud against the U.S. government in regard to the August 2007 Cu28/J18 Cyberknife incident. 10 There is no evidence that Plaintiff informed Accuray that he was investigating any customs

Plaintiff cites 21 exhibits for the proposition that Plaintiff's complaints about "customs fraud" were

known during Plaintiff's employment to Hillberry, Dadone, Zografos, Strunk, Hall, and Vagadori,

but none of these exhibits appears to support this proposition. See Opp'n 10. Moreover, Plaintiff 13 does not quote any specific language contained in these 21 exhibits suggesting that Accuray had 14 knowledge of Plaintiff's protected activity. Accordingly, Plaintiff also fails to meet his burden to 15 establish a material factual dispute as to Accuray's knowledge of Plaintiff's alleged protected 16 activity, another necessary element of an FCA claim. Cafasso, 637 F.3d at 1060. 17

18 elements of an FCA claim: (1) Plaintiff's engagement in activity protected by the FCA; and (2) 19

Accuray's knowledge of Plaintiff's protected activity.*fn5 Accordingly, Defendant's motion for 20 summary judgment as to Plaintiff's FCA retaliation claim is GRANTED. 21

23 any individual . . . because of such individual's race, color . . . or national origin." 42 U.S.C. § 24

2000e-2(a). Title VII also prohibits retaliation against an employee for opposing any unlawful 25 employment practice under Title VII, or for making a charge or otherwise participating in a Title 26 27

In summary, Plaintiff has failed to raise a material factual dispute as to two necessary

B.Title VII Retaliation Claim

Under Title VII, it is "an unlawful employment practice for an employer . . . to discharge

VII proceeding. 42 U.S.C. § 2000e-3(a); see also Nilsson v. City of Mesa, 503 F.3d 947, 953 (9th Cir. 2007).

928, 936 (9th Cir. 2011). "To establish a prima facie case, the employee must show that he 6 engaged in a protected activity, he was subsequently subjected to an adverse employment action, 7 and that a causal link exists between the two." Id. (citing Jordan v. Clark, 847 F.2d 1368, 1376 8

Title VII retaliation claims follow the same burden-shifting framework described in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Dawson v. Entek Int'l, 630 F.3d 5

(9th Cir. 1988)). "An adverse employment action is one that 'is reasonably likely to deter 9 employees from engaging in protected activity.'" McGinest v. GTE Serv. Corp., 360 F.3d 1103, 10

1125 n.19 (9th Cir. 2004) (citing Ray v. Henderson, 217 F.3d 1234, 1243 (9th Cir. 2000)); see also 11

imposition of additional burdensome tasks; transfers of job duties; and undeserved performance 13 ratings are examples of adverse employment decisions) (citations omitted). "The causal link can 14 be inferred from circumstantial evidence such as the employer's knowledge of the protected 15 activities and the proximity in time between the protected activity and the adverse action." 16

"If a plaintiff establishes a prima facie case of unlawful retaliation, the burden shifts to the

18 defendant employer to offer evidence that the challenged action was taken for legitimate, non-19 discriminatory reasons." Id. (citing Nidds v. Schindler Elevator Corp., 113 F.3d 912, 917 (9th Cir. 20

1996)). "If the employer provides a legitimate explanation for the challenged decision, the plaintiff 21 must show that the defendant's explanation is merely a pretext for impermissible discrimination." 22

Id. (citing Ray, 217 F.3d at 1240). A plaintiff can demonstrate that a defendant's proffered reasons 23 for a challenged action are pretextual "'either directly by persuading the court that [a retaliatory] 24 reason [for the decision] more likely motivated the employer or indirectly by showing that the 25 employer's proffered explanation is unworthy of credence.'" Hernandez v. Spacelabs Med. Inc., 26

343 F.3d 1107, 1115 (9th Cir. 2003) (quoting Burdine, 450 U.S. at 256) (some alterations 27 changed). 28

Lyons v. England, 307 F.3d 1092, 1118 (9th Cir. 2002) (noting that reduction of responsibilities;

Dawson, 630 F.3d at 936. 17

Here, Plaintiff argues that: (1) he first engaged in activity protected by Title VII on

September 25, 2007, when he complained about the plan to outsource stock room employees; (2) 3 he was first subjected to an adverse employment action because of his protected activity under 4

Title VII when he received a negative review in December 2007; and (3) that causation can be 5 inferred from circumstantial evidence such as Accuray's knowledge of the protected activity and 6 the proximity in time between the protected activity and the adverse action. Accuray argues that it 7 is entitled to summary judgment on Plaintiff's Title VII claim because Plaintiff fails to establish a 8 prima facie case and, even if he could establish a prima facie case, Accuray gave Plaintiff negative 9 performance reviews and ultimately terminated Plaintiff for a legitimate, non-discriminatory 10 reason: poor work performance. Even assuming Plaintiff can establish a prima facie case,*fn6 as

discussed below, the Court agrees that Defendant is entitled to summary judgment because Plaintiff

has failed to raise a material factual dispute as to whether Defendant's proffered non-13 discriminatory reason was pretextual. 14

16 reviews and was terminated due to poor work performance, rather than in retaliation for Plaintiff's 17

September 25, 2007 activity protected under Title VII. As discussed above, Accuray's 18 documentation of Plaintiff's deficient performance dates as far back as his first annual performance 19 review in 2005. Scott Dec. ¶ 4(a), Ex. A (noting that for the period of July 1, 2004, to June 30, 20

2005, Plaintiff's verbal communication needed improvement). Plaintiff's subsequent annual 21 performance reviews consistently stated that Plaintiff's performance "need[ed] improvement" or 22 fell "below expectations" in several areas throughout Plaintiff's tenure. Scott Decl. Exs. B-F. 23

Specifically, these reviews noted that Plaintiff's performance was deficient in his "verbal 24 communication skills"; "focus"; meeting etiquette; interpersonal skills; attention to detail; and 25 timeliness of deliverables. See id. On August 10, 2007, when Mr. Scott provided Plaintiff his 26

1.Accuray's Proffered Non-Discriminatory Reason

Accuray has submitted evidence supporting its contention that Plaintiff received negative

annual performance evaluation (covering the period July 1, 2006, to June 30, 2007), Mr. Scott 2 warned Plaintiff that if Plaintiff's performance did not improve, Plaintiff would be placed on a 3 performance improvement plan. Scott Decl. ¶ 4(c); McMahon Decl. ¶ 2, Ex. A. (Boyd Dep. 54:13-4

15, Ex. 4). On December 11, 2007, Mr. Scott met with Plaintiff and provided him a half-year 5 review which documented continuing concerns with Plaintiff's performance. Scott Decl. ¶ 7, Ex. 6

F. On or about April 3, 2008, Mr. Scott met with Plaintiff to discuss Plaintiff's unsatisfactory 7 performance. Scott Decl. ¶ 8, Ex. G. On June 4, 2008, Mr. Scott commenced the Corrective 8

Action Process and provided Plaintiff with a Verbal Warning that Plaintiff's performance needed 9 improvement. Scott Decl. ¶ 12, Ex. K. On August 21, 2008, Mr. Scott provided Plaintiff a Written 10

in curing them. Scott Decl. ¶ 15-16, Exs. N, P. At the May 31, 2012 hearing on the motion,

Plaintiff's counsel conceded that the decision to terminate Plaintiff was made on September 10, 13

40:1; see also Scott Decl. ¶ 17, Ex. Q. Plaintiff's activity protected under Title VII occurred on 15

18 legitimate, non-discriminatory reason for terminating Plaintiff. Accordingly, the burden shifts to 19

Plaintiff to adduce evidence that Accuray's justifications for its adverse employment actions 20 against Plaintiff were merely a pretext for retaliation. See Stegall, 350 F.3d at 1066. 21

23 has held, "There is no genuine issue of material fact regarding pretext" where a plaintiff's "poor 24 performance was documented before he engaged in protected activity, and [plaintiff] was informed 25 before engaging in protected activity that he would receive a substandard evaluation absent an 26 improvement in his performance." Hobdy v. L.A. Unified Sch. Dist., 386 F. App'x 722, 724 (9th 27

Cir. 2010) (citing Manatt v. Bank of Am., N.A., 339 F.3d 792, 803-04 (9th Cir. 2003)). 28

Warning and began meeting "1 on 1" on a weekly basis to identify deficiencies and assist Plaintiff

2008, when Mr. Scott had completed a final draft of a formal "Final Warning" for Plaintiff. Tr. 14

September 25, 2007. Plaintiff was terminated on October 30, 2008. Scott Decl. ¶ 18; Boyd Decl. ¶ 16

In summary, Accuray has submitted ample evidence that poor performance provided a

2.Pretext

Plaintiff fails to show that Accuray's proffered reasons are pretextual. As the Ninth Circuit

2 performance predated Plaintiff's activity protected under Title VII, which took place on September 3

25, 2007. For example, Plaintiff's annual performance reviews from 2005 through June 2007, all 4 showed that Plaintiff's performance "need[ed] improvement" in several areas. Scott Decl. Exs. A-5

Scott warned Plaintiff that if Plaintiff's performance did not improve, Plaintiff would be placed on 7 a performance improvement plan. Scott Decl. ¶ 4(c); McMahon Decl. ¶ 2, Ex. A. (Boyd Dep. 8

As discussed above, Accuray has submitted ample evidence that Plaintiff's poor

D. On August 10, 2007, when Mr. Scott provided Plaintiff his annual performance evaluation, Mr. 6

54:13-15, Ex. 4). Accordingly, because Plaintiff's "poor performance was documented before he 9 engaged in protected activity, and [Plaintiff] was informed before engaging in protected activity 10 that he would receive a substandard evaluation absent an improvement in his performance," there

(9th Cir. 2009), is unavailing. Plaintiff cites Van Asdale for the proposition that whether Plaintiff 14 was terminated for poor performance cannot be determined on summary judgment. In Van Asdale, 15 unlike here, however, the evidence of plaintiff's poor performance was "in tension with other 16 contemporaneous evidence of [the plaintiff's] strong performance." Id. at 1004. Here, by contrast, 17

Plaintiff has not cited evidence of strong performance in tension with Plaintiff's annual 18 evaluations. 19

20 such as undeserved performance evaluations, began for non-discriminatory reasons before Plaintiff 21 engaged in activity protected under Title VII on September 25, 2007: "The move to terminate 22

Plaintiff began with Zografos and his objections to Plaintiff's willingness to report safety and 23 regulatory problems, and other protected forms of complaints as befitted the duties of his job. 24

[sic] termination track, surreptitiously training Plaintiff's 'replacement' and discussing it behind his 26 back long before doing so with Plaintiff-i.e. when he was angry over Plaintiff not doing his 27 unlawful bidding with the Cyberknife J18." Opp'n 12-13 (internal citations to the record omitted; 28 emphasis added). Given that Mr. Zografos became angry over the J18 Cyberknife system in

is "no genuine issue of material fact regarding pretext." Hobdy, 386 F. App'x at 724.

Plaintiff's reliance on Van Asdale v. International Game Technology, 577 F.3d 989, 1004

Furthermore, Plaintiff's own brief concedes that any alleged adverse employment actions,

Zografos almost immediately, after his hiring in April 2007, commenced efforts to put Plaintiff on 25

August 2007, this cited passage from Plaintiff's opposition undermines any claim that Plaintiff 2 suffered adverse employment action, such as termination, as a result of activity protected under 3

Title VII on or after September 25, 2007. Furthermore, Plaintiff cites Exhibit 112, which indicates 4 that Mr. Zografos recommended placing Plaintiff on a Performance Improvement Plan in response 5 to Plaintiff's insubordination as early as August 14, 2007, which, as Plaintiff's counsel put it, 6

26).*fn7 8

9 raise a genuine factual issue as to pretext. Plaintiff merely states, "the preceding Section III.B 10 reflects the same evidence can and should be applied for the pretext analysis, and is incorporated

"means the employee is already on his way out, as sure as gravity." Opp'n 22 (citing Ex. 90.25-7

Moreover, Plaintiff's opposition brief does not cite any facts, let alone sufficient facts to

herein by this reference." Opp'n 24. This is woefully insufficient to carry Plaintiff's burden to

raise a material factual dispute in order to survive Defendant's motion for summary judgment. See 13

Forsberg v. Pac. N.W. Bell Tel. Co., 840 F.2d 1409, 1417-18 (9th Cir. 1998) ("The district court is 14 not required to comb the record to find some reason to deny a motion for summary judgment."). 15

For the foregoing reasons, Plaintiff fails to "adduce a triable issue of fact that [Accuray's]

16 justifications for" its adverse employment actions against Plaintiff were "merely a pretext" for 17 retaliation. See Stegall, 350 F.3d at 1066. Accordingly, Accuray's motion for summary judgment 18 as to Plaintiff's Title VII retaliation claim is GRANTED. 19

C.Retaliation Claim Under Sarbanes-Oxley Act

Accuray argues that it is entitled summary judgment on Plaintiff's retaliation claim under

SOX because: (1) Plaintiff's complaints did not constitute protected activity; (2) no person with 22 supervisory authority was made aware of Plaintiff's SEC complaint; and (3) Plaintiff's SEC 23 complaint was not a contributing factor to any unfavorable employment action Plaintiff suffered. 24

Mot. 21-24. Plaintiff argues that Accuray's subsequent remedial measures as to the accounting for 25 the camera detectors inventories support a finding that Plaintiff was engaging in protected activity. 26

Opp'n 19. Plaintiff also asserts that Plaintiff's supervisors were made aware of Plaintiff's 2 complaints to the SEC. Opp'n 10-11, 21-22. For the reasons explained below, the Court finds that 3

Plaintiff has failed to raise a genuine factual issue as to the following elements of a SOX claim: (1) 4 whether Plaintiff's SEC complaint was a contributing factor to Plaintiff's termination; and (2) 5 whether anyone at Accuray with supervisory authority over Plaintiff was made aware of Plaintiff's 6

SOX grants "whistleblower" protection to employees of publicly traded companies by

8 prohibiting employers from retaliating against employees for reporting certain potentially unlawful 9 conduct. 18 U.S.C. § 1514A. The whistleblower-protection provision provides, in relevant part: 10

SEC complaint. 7

"No [publicly traded company], or any officer, employee, contractor, subcontractor, or agent of

such company, may discharge, demote, suspend, threaten, harass, or in any other manner

discriminate against an employee in the terms and conditions of employment because of any lawful 13 act done by the employee . . . to provide information . . . regarding any conduct which the 14 employee reasonably believes constitutes a violation of . . . 1348 [securities fraud], any rule or 15 regulation of the [SEC], or any provision of Federal law relating to fraud against shareholders, 16 when the information . . . is provided to . . . a person with supervisory authority over the employee 17

2010). 19

20 protected activity or conduct"; (b) "[t]he named person [with supervisory authority over the 21 employee] knew or suspected, actually or constructively, that the employee engaged in the 22 protected activity"; (c) "[t]he employee suffered an unfavorable personnel action"; and (d) "[t]he 23 circumstances were sufficient to raise the inference that the protected activity was a contributing 24 factor in the unfavorable action." Van Asdale, 577 F.3d at 996 (citing 29 C.F.R. § 25

1980.104(b)(1)(i)-(iv)). Once a plaintiff makes out a prima facie case, "the employer assumes the 26 burden of demonstrating by clear and convincing evidence that it would have taken the same 27 adverse employment action in the absence of the plaintiff's protected activity." Id. 28

. . . ." Id. § 1514A(a)(1)(C); see also Coppinger-Martin v. Solis, 627 F.3d 745, 748-49 (9th Cir. 18

To prove a prima facie case, a plaintiff must show that: "(a) "[t]he employee engaged in a

Plaintiff claims that his protected activity under SOX began when he complained that

Accuray retained an inventory of defective camera detectors, listed this inventory on its books, and 3 thereby "reported million [sic] of dollars in inflated assets." Opp'n 8-9. Plaintiff claims that his 4 protected activity under SOX began on April 11, 2008. Opp'n 23 (citing Ex. 37.14). However, 5

Exhibit 37.14 does not mention the defective camera detector inventory. Moreover, Exhibit 37.14 6 shows only that Accuray HR Personnel had generally discussed SOX whistleblower protection 7 with Plaintiff, and does not show that Plaintiff reasonably believed that keeping a defective camera 8 detector inventory violated any securities law or regulation, or that Plaintiff expressed such a belief 9 to Accuray. Similarly, Exhibit 22, an email chain between Plaintiff and Mr. Yuliano, does not 10 mention the defective camera detector inventory. Exhibit 22 merely shows that Plaintiff was interested in learning more about SOX compliance at Accuray; it d

12 complaint under SOX. It is undisputed, however, that Plaintiff made a complaint to the SEC on 13

Plaintiff engaged in protected activity on September 19, 2008. 15

SOX occurring before September 19, 2008. Moreover, as discussed above, Plaintiff conceded that 18

Plaintiff was on the termination track as early as August 2007. Thus, these circumstances do not 19 raise a reasonable inference that Plaintiff's protected activity under SOX, even if it began in April 20

Accordingly, Plaintiff's SOX retaliation claim fails. Id. 22

23 suspected, actually or constructively, that the [Plaintiff] engaged in the protected activity." Id.*fn8

oes not amount to a protected

September 19, 2008. McMahon Decl. A (Boyd Dep. 199:9-13). Thus, the Court finds that 14

As Plaintiff concedes, the decision to terminate Plaintiff had already been made on

September 10, 2008. Tr. 40:1. The evidentiary record does not show any activity protected under 17

2008, was a contributory factor to Plaintiff's termination. Van Asdale, 577 F.3d at 996. 21

Plaintiff also fails to show that anyone with supervisory authority over Plaintiff "knew or

According to Plaintiff's own testimony, he did not inform HR about his September 19, 2008 SEC 25 complaint. McMahon Decl. Ex. A (Boyd Dep. 205:4-9). Accuray cites evidence that none of 26

Plaintiff's supervisors or individuals involved in his termination were aware of Plaintiff's SEC 2 complaint. Zografos Decl. ¶ 26; Scott Decl. ¶ 19; McMahon Decl. Ex. B (Strunk Dep. 28:2-5, 3

43:11-13). In response, Plaintiff merely states, without any citation, that: "Clearly, the persons 4 involved in the decisionmaking process -- Scott Zografos, Strunk, Hillberry, Dadone and Hall -- 5 were all made aware in one way or another of these complaints by Plaintiff, either directly or 6 because of internal reporting and copying of each other in chain emails." Opp'n 21-22. Plaintiff 7 cites Exhibit 37.14 to support the proposition that "Ms. Hillbery acknowledge[d] Plaintiff's SOX 8 complaints and rights on April 11, 2008," even though "no formal SEC complaint" had yet been 9 made. Opp'n 23. However, as discussed above, Exhibit 37 does not support this proposition. 10

Finally, Plaintiff cites fourteen exhibits to support the allegation that Plaintiff's supervisors were

aware of Plaintiff's SEC complaint. Opp'n 11 (citing Exs. 33, 47, 48, 49, 50, 37, 49, 70, 71, 72,

90, 91, 92, 128). The Court has reviewed these exhibits and finds that none of them supports the 13 inference that any of Plaintiff's supervisors was aware of Plaintiff's SEC complaint, and thus was 14 aware that Plaintiff had engaged in protected activity under SOX. The mere fact that Accuray 15 corrected its accounting for the defective camera inventory in response to allegations by Mr. 16

Zografos on October 14, 2008, does not show that Plaintiff's supervisors were aware that Plaintiff 17 thought that the accounting violated any securities law or regulation before the decision to 18 terminate Plaintiff was made on September 10, 2008, or any time thereafter. See Opp'n 9 (citing 19

Ex. 50.10). Thus, Plaintiff has failed to raise a genuine factual issue as to Plaintiff's supervisors' 20 knowledge of Plaintiff's protected activity under SOX, a necessary element of a SOX retaliation 21 claim. 22

23 protected activity under SOX contributed to his termination; and (2) whether Plaintiff's supervisors 24 knew of Plaintiff's protected activity. Accordingly, Accuray's motion as to Plaintiff's SOX 25 retaliation claim is GRANTED. 26

In summary, Plaintiff has failed to raise a genuine factual issue as to: (1) whether Plaintiff's

IV.CONCLUSION

For the foregoing reasons, Defendant's motion for summary judgment is GRANTED. The Clerk shall enter judgment in favor of Defendant per this Order and close the file.

IT IS SO ORDERED.


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