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Michael E. Boyd v. Accuray

June 4, 2012


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


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


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


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 ...

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