Boyd v. Accuray, Inc. , 873 F. Supp. 2d 1156 ( 2012 )

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

LUCY H. KOH, District Judge.

Before the Court is Defendant Accuray, Ine.’s (“Accuray”) motion for summary judgment. ECF No. 51. The motion was heard on May 31, 2012. Having considered the submissions and arguments of the parties, the Court GRANTS Defendant’s motion for the reasons set forth below.

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 further amended by filing an errata, with leave of the Court, on February 24, 2012. ECF Nos. 27, 37. The FAC asserts retaliation claims against Accuray under the following five federal statutes: (1) the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 207; (2) the False Claims Act (“FCA”), 31 U.S.C. § 3730(h); (3) Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-5; (4) the Occupational Safety and Health Act of 1970 (“OSHA”), 29 U.S.C. §§ 651 et seq.; and- (5) the Sarbanes-Oxley Act (“SOX”), 18 U.S.C. § 1514A.

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, Accuray filed its motion for summary judgment. ECF No. 51. The original motion contained errors, and Accuray filed an errata the next day to correct these errors. ECF No. 53. To accommodate Plaintiffs counsel’s health condition, the Court granted Plaintiff three separate extensions to file his opposition to Accuray’s motion and continued the hearing on the motion from May 24, 2012, to May 31, 2012. See ECF Nos. 59, 61, 63, 69. On May 11, 2012, Plaintiffs counsel attempted to file the declaration in support of Plaintiffs opposition and the attached 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 Plaintiffs untimely filing, over Accuray’s objection, given that Plaintiffs counsel appears to have made a good faith effort to comply with the deadline, and in light of the fact that the Court likewise accepted Accuray’s errata one day after the deadline for filing dispositive motions. However, the Court strikes page 26 of Plaintiffs opposition brief because the Court explicitly denied the parties’ stipulation requesting additional pages. ECF No. 41; see also Civ. L.R. 7-4(b) (limiting opposition papers to 25 pages of text). On May 22, 2012, Accuray filed its reply. ECF No. 101. On May 29, 2012, Plaintiff filed an errata to the opposition brief. ECF No. 115.¹

On May 14, 2012, Plaintiff filed an objection to Accuray’s evidence separate from Plaintiffs opposition brief. EOF No. 92. Plaintiffs evidentiary objections are DENIED for failure to comply with Civil Local Rule 7-3(a), which requires that “evidentiary and procedural objections to [a] motion ... be contained within the [opposition] brief’ and thus subject to the Civil Local Rule page limitations for opposition briefs. The Court addresses Accuray’s evidentiary objections, properly included in its reply brief, as necessary in the body of the Order.

B. Factual Background

Accuray, Inc. is a biomedical technology company that specializes in the production of computerized medical equipment, including its “Cyberknife” product used to treat cancer. Hall Decl. ¶ 2; Boyd Decl. ¶1.

Plaintiff, who was hired by Accuray on May 11, 2004, as an “at will” employee, held the position of Senior Manufacturing Engineer. Dadone Decl. Ex. B; Ex. 91.3; Boyd Decl. ¶ 2. Since May 2005, Plaintiff reported to Rus Scott (“Mr. Scott”), the Manager of Manufacturing Engineering. Scott Decl. ¶¶ 1-2; Ex. 92.2; McMahon Decl. Ex. M, at 3. Mr. Scott in turn reported to Anthonios Zografos (“Mr. Zografos”), the Director of Manufacturing from April 2007 until October 1, 2008. See McMahon Decl. Ex. B (Strunk Dep. 47:16-20); id. Ex. M, at 3; Scott Decl. ¶¶ 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. ¶ 2.²

Mr. Scott provided Plaintiff with formal written annual performance evaluations, beginning in July 2005. Scott Decl. ¶ 4, Exs. A-E. These evaluations consistently stated that Plaintiffs performance “need[ed] improvement” or fell “below expectations” in several areas throughout Plaintiffs tenure. Id. On August 10, 2007, when Mr. Scott provided Plaintiff his annual performance evaluation (covering the period July 1, 2006, to June 30, 2007), Mr. Scott warned Plaintiff that if Plaintiffs performance did not improve, Plaintiff would be placed on a performance improvement plan. Scott Decl. ¶ 4(c); McMahon Decl. ¶ 2, Ex. A. (Boyd Dep. 54:13-15, Ex. 4). On December 11, 2007, Mr. Scott met with Plaintiff and provided him a half-year review which documented continuing concerns with Plaintiffs performance. Scott Decl. ¶ 7, Ex. F. On or about April 3, 2008, Mr. Scott met with Plaintiff to discuss Plaintiffs unsatisfactory performance. Scott Decl. ¶ 8, Ex. G. On June 4, 2008, Mr. Scott commenced the Corrective Action Process and provided Plaintiff with a Verbal Warning that Plaintiffs performance needed improvement. Scott Decl. ¶ 12, Ex. K. On August 21, 2008, Mr. Scott provided Plaintiff a Written Warning and began meeting “1 on 1” on a weekly basis to identify deficiencies and assist Plaintiff in curing them. Scott Decl. ¶ 15-16, Exs. N, P. At the May 31, 2012 hearing on the motion, Plaintiffs counsel conceded that the decision to terminate Plaintiff was made on September 10, 2008. Tr. 40:1; see also Scott Decl. ¶ 17, Ex. Q. Plaintiff was terminated on October 30, 2008. Scott Decl. ¶ 18; Boyd Decl. ¶ 11.

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 system to the United States; (2) Accuray upgraded the system’s parts and software; and (3) Accuray then shipped the upgraded Cyberknife system back to the overseas client. See Zografos Deck ¶¶ 7-16; Boyd Deck ¶ 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 Deck ¶ 7; McMahon Deck Ex. A (Boyd Dep. 34:15-35:11); Scott Deck ¶24. Specifically, before the upgraded product could be shipped, Plaintiff was responsible for executing the Product Release Certificate (“PRC”). See, e.g., Ex. 92.9, at 86:2-10.

An internal dispute arose in the manufacturing department over how to document part numbers on the Cu28/J18 Cyberknife system destined for Japan. See Zografos Deck ¶¶ 9-14. According to the Zografos Declaration, Plaintiff was insubordinate in resisting the documentation procedure agreed upon by the group, in consultation with Joy Sacmar (“Ms. Sac-mar”), Accuray’s Senior Manager of Regulatory Affairs. Zografos Deck ¶¶ 7-16; see also Vagadori Deck Ex. C. According to Plaintiffs Declaration in opposition to the motion for summary judgment, using the old part number for the pre-upgraded Cyberknife system, PN 020600, rather than the new part number, PN 020495, was inaccurate and could give customs officials a false impression that Accuray was merely processing and returning the same Cyberknife equipment initially shipped into the United States. Ex. 112.2; Boyd Deck ¶¶ 26-27; Exs. 13-15; see also Vagadori Deck Ex. D. However, according to Plaintiffs deposition testimony, Plaintiff stated that the wrong part number was a “safety issue” and “created a threat to the patient safety, efficacy [sic] because it was for a different configuration system.” McMahon Deck Ex. A (Boyd Dep. 26:19-20; 72:20). According to Plaintiffs deposition testimony, he was threatened to be fired if he did not put the wrong part number on the Cu28/J18 system. McMahon Deck Ex. A (Boyd Dep. 26:8-11, 23-25). In any event, Plaintiff objected to signing the PRC with the incorrect part number, but was ordered to, and did so, on August 13, 2007. Exs. 70. 1, 110; see also Vagadori Deck Ex. D.

In his deposition, Plaintiff was unable to explain how “Accuray’s decision to put a different part number on the release which was different than the one [Plaintiff] believed should go on there ... resulted in the United States getting less money from Accuray.” McMahon Deck Ex. A (Boyd Dep. 21:17-24).

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. Scott and Mr. Zografos for creating a “hostile work environment.” Vagadori Deck Ex. C. Plaintiff also complained about changed work duties following the Cu28/J18 Cyberknife Incident. McMahon Deck Ex. A (Boyd Dep. 27:21-23, 70-75). For example, Plaintiff was removed from all further responsibilities in connection with upgrading similar Cyberknife systems. Ex. 15, 112; Boyd Deck ¶ 32; see also Zografos Deck Ex. B, at 3; Vagadori Deck Ex. D; McMahon Deck Ex. A (Boyd Dep. 71:5:7 (“I have essentially been confined to my cube and removed from working on the next Japan upgrade system C033/J[21]”).

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

On September 25, 2007, Plaintiff emailed Mr. Vagadori to file a complaint regarding “possible discrimination if termination of employment of protected individuals occurs.” Vagadori Deck ¶¶ 1, 12 & Ex. G. Plaintiffs complaint was based on rumors he heard that Accuray was “going to let all the Mexicans go” and that Accuray was “outsourcing the stock room.” Id. Ex. G. Plaintiff expressed concern that Accuray’s project to outsource stockroom employees could be a violation of Title VII and compromise Accuray’s ability to obtain funding from the Veterans Administration. See id.

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. 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 Decl. ¶ 19.

On September 10, 2008, Plaintiff filed a complaint with the EEOC alleging that he believed that the “termination of Mexican stockroom employees was in fact discriminatory,” and he had been retaliated against for complaining about their termination. McMahon Decl. Ex. J. Specifically, Plaintiff alleged that after his September 25, 2007 complaint to Accuray, Mr. Scott “over scrutinized [Plaintiffs] work”; “Mr. Scott has given [Plaintiff] a negative performance evaluation”; Mr. Scott gave Plaintiff a “performance warning” in May and August 2008; and Plaintiff was threatened that if he “did not improve [his] work performance that [Accuray] would terminate [Plaintiffs] 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 against Plaintiff by: (1) disciplining him; (2) subjecting him to different terms and conditions of employment; and (3) terminating him. Id. Specifically, Plaintiff complained that: (1) in September 2008, Mr. Scott “wrote [Plaintiff] up alleging poor performance”; (2) in October 2008, Mr. Scott gave Plaintiff a “negative performance review” and denied a bonus and a raise; and (3) on October 30, 2008, Plaintiff was terminated.

As to both EEOC complaints, the EEOC determined that “[b]ased upon its investigation, the EEOC is unable to conclude that the information obtained establishes violations of the statutes.” McMahon Decl. Ex. A (Boyd Dep. Exs. 37, 39).

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 changed requirement from what they were shipped out on, and put back in stock as good cameras and reported as valid, usable inventory when it was not, when it ... actually should have been scrap material.” McMahon Decl. Ex. A (Boyd Dep. 22:5-9; 199:11-13; 206:2-8). Plaintiff testified that he did not inform Accuray’s Human Resources Department about his complaint to the SEC. 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 supervisor of the shipping/receiving department; Alicia Alvarez, an employee in the shipping receiving department; and Peter Nowakowski, a production manager. Id. Ex. A (Boyd Dep. 205:11-20); id. Ex. M, at 3. Ms. McKinley did not have supervisory authority over Plaintiff, and Ms. McKinley testified that she did not tell anyone about Plaintiffs complaint to the SEC. Id. Ex. C (McKinley Dep. 27-28), Ex. M. Mr. Nowakowski and Ms. Alvarez also did not have supervisory authority over Plaintiff. McMahon Decl. ¶ 14, Ex. M.

II. LEGAL STANDARD

Rule 56 of the Federal Rules of Civil Procedure provides that a court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute as to a material fact is “genuine” if the evidence is such that “a reasonable jury could return a verdict for the nonmoving party.” See id. In determining whether there is a material factual dispute, the Court considers admissible evidence in “depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c). The Court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in the non-moving party’s favor. Anderson, 477 U.S. at 255, 106 S.Ct. 2505.

The moving party bears the initial responsibility for informing the district court of the basis for its motion and identifying those portions of the evidentiary record that it contends demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

A party opposing a properly supported motion for summary judgment “may not rest upon the mere allegations or denials of [that] party’s pleading, but ... must set forth specific facts showing that there is a genuine issue for trial.” See also Anderson, 477 U.S. at 250, 106 S.Ct. 2505. The nonmoving party need not show the issue will be resolved conclusively in its favor. See id. at 248-49, 106 S.Ct. 2505. 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 nonmoving party’s “conclusory, self-serving affidavit, lacking detailed facts and any supporting evidence, is insufficient to create a genuine issue of material fact.” Nelson v. City of Davis, 571 F.3d 924, 929 n. 2 (9th Cir.2009) (quoting F.T.C. v. Publ’g Clearing House, Inc., 104 F.3d 1168, 1171 (9th Cir.1997)).

III. ANALYSIS

As an initial matter, the Court notes that at the May 31, 2012 hearing on the instant motion Plaintiffs counsel conceded that Defendant is entitled to summary judgment as to Plaintiffs retaliation claims under the FLSA and OSHA. Tr. 2:23-3:1; see also Opp’n 24. Accordingly, Accuray’s motion is GRANTED as to these two claims. Therefore the Court limits its analysis to Plaintiffs remaining retaliation claims under the FCA, Title VII, and SOX and addresses each of these claims in turn.

A. Fair Claims Act Retaliation Claim

Accuray argues that it is entitled to summary judgment as to Plaintiffs FCA claim because: (1) Plaintiff did not engage in activity protected by the FCA; (2) there is no evidence that Accuray had knowledge that Plaintiff was engaging in activity protected by the FCA; and (3) Plaintiff’s claim is time-barred. Plaintiff argues that the August 2007 Cu28/J18 Cyberknife incident presents “a simple and plain scheme to defraud the government of customs duties.” Opp’n 15. Accuray responds that: (1) there is no evidence that a customs duty applied to the Cyberknife shipment at issue; (2) there is no evidence that Plaintiff complained about the customs implications of the product numbering of the Cyberknife shipment; and (3) there is no evidence that Plaintiff was investigating, initiating, or assisting in an FCA suit against Accuray. As explained below, the Court agrees with Accuray.

“Congress added 31 U.S.C. § 3730(h) to the FCA in 1986 to protect ‘whistleblowers,’ those who come forward with evidence their employer is defrauding the government, from retaliation by their employer.” U.S. ex rel. Hopper v. Anton, 91 F.3d 1261, 1269 (9th Cir.1996). The FCA protects employees from being “discharged, demoted, ... or in any other manner discriminated against in the terms and conditions of employment ... because of lawful acts done by the employee ... in furtherance of an [FCA] action ..., including investigation for, initiation of, testimony for, or assistance in an [FCA] action. ...” 31 U.S.C. § 3730(h).

An FCA retaliation claim requires proof of three elements: “1) the employee must have been engaging in conduct protected under the Act; 2) the employer must have known that the employee was engaging in such conduct; and 3) the employer must have discriminated against the employee because of her protected conduct.” Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1060 (9th Cir.2011). The 3-year statute of limitations for a retaliation claim under the FCA begins to run when the retaliation actually occurs. 31 U.S.C. § 3730(h)(3); Graham Cnty. Soil & Water Conservation Dist. v. United States ex rel. Wilson, 545 U.S. 409, 419-420, 125 S.Ct. 2444, 162 L.Ed.2d 390 (2005).

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 action.” Moore v. Cal. Inst, of Tech. Jet Propulsion Lab., 275 F.3d 838, 845 (9th Cir.2002) (citing Hopper, 91 F.3d at 1269). “[A]n employee engages in protected activity where (1) the employee in good faith believes, and (2) a reasonable employee in the same or similar circumstances might believe, that the employer is possibly committing fraud against the government.” Id.

Plaintiffs 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 involved a contract with the United States government. In fact, Plaintiff admitted that he cannot explain how any of the events that transpired with regard to the Cu28/J18 Cyberknife upgrade resulted in the U.S. government obtaining any less money from Accuray. See McMahon Decl. Ex. A (Boyd Dep. 21:19-24). Here, Plaintiffs alleged protected activity of protesting the use of an incorrect product number was directed toward promoting regulatory compliance and patient safety. See, e.g., McMahon Decl. Ex. A (Boyd Dep. 26:16-22 (“I told them if they put that part number, that I shouldn’t sign it because it was the wrong part number ... it created a threat to patient safety.”)). Indeed, Plaintiff considered Mr. Scott and Mr. Zografos’s retaliation to be a result of “trying to do my job to comply with FDA regulations.” McMahon Decl. Ex. F, at 1; see also id. Ex. A (Boyd Dep. 27:7-19 (testifying that Plaintiff complained to FDA).³

The Ninth Circuit’s decision in United States ex rel. Hopper v. Anton, controls here and requires granting summary judgment in favor of Defendant on Plaintiffs FCA claim. In Hopper, the Ninth Circuit reversed a denial of summary judgment where:

The entire record failfed] to demonstrate that [the plaintiff] was engaged in ‘furtherance of an action’ under the FCA. Rather, the record quite clearly showfed] [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.”

Hopper, 91 F.3d at 1269. Likewise, here the record quite clearly shows that Plaintiff was merely attempting to get Accuray to comply with FDA’s “traceability” regulatory requirement and was concerned about patient safety, not fraud against the U.S. government. See McMahon Decl. Ex. A (Boyd Dep. 27:7-17 (describing Plaintiffs complaint to the FDA about the product release); id. 26:16-22 (testifying about concern regarding patient safety); id. 75:11-20 (describing “traceability” regulatory requirements.”). Accordingly, the evidence in support of Plaintiffs FCA claim is insufficient to “pass summary judgment muster.” Hopper, 91 F.3d at 1269.

Plaintiff argues in his opposition, for the first time, that he was engaging in protected activity because he believed that Accuray’s use of the incorrect product number in the August 2007 Cu28/J18 Cyberknife incident constituted “a simple and plain scheme to defraud the government of customs duties.” Opp’n 16. However, Plaintiff points to no evidence other than his own self-serving declaration in support of his opposition to buttress his new theory that he was engaging in protected activity by the FCA. Whereas Plaintiffs deposition testimony only contained evidence that Plaintiffs concern was patient safety and compliance with FDA regulations, Plaintiffs declaration adds that use of the wrong product number “was problematical” because it could “give a false impression to customs officials that Accuray was merely processing and returning the same Cyberknife equipment initially shipped into USA.” Boyd Deck ¶ 27. Although Plaintiff cites Exhibit 92.9, at 124:11— 125:23, to support his allegation of customs fraud, the Court is unable to find any such support in Exhibit 92.9. See Opp’n 5. Plaintiff also cites Exhibits 70.1 and 110 to support the proposition that Plaintiff attended a meeting where he “repeated his earlier protests that [using the wrong part number] meant misleading both the customer, with patient safety implications, and customs officials.” See Opp’n 6. Again, neither of these exhibits supports the factual allegation that the Cu28/J18 Cyberknife incident defrauded the U.S. government or that it was reasonable for Plaintiff to believe that Accuray was committing fraud against the U.S. government. Plaintiffs citation to Exhibit 15 is also unhelpful, as this email, which mentions the FDA but makes no mention of fraud against the U.S. government, provides further evidentiary support that Plaintiff was only trying to promote compliance with FDA regulations. Opp’n 7. Finally, Plaintiffs citation to Exhibit 93-5, Mr. Hall’s statement that “the different part number” mattered because “when you import into another country, each part number needs to be approved for both export and import,” is by Plaintiffs counsel’s own admission too “oblique[ ]” to suggest that Plaintiff had a good faith belief that Accuray was committing customs fraud against the U.S. government.⁴ Opp’n 17. Moreover, as Accuray pointed out at the May 31, 2012 hearing, Mr. Hall’s acknowledgement of the exporVimport implications of incorrectly numbering a product in a 2012 deposition, has no bearing on whether Plaintiff had a good faith belief that Accuray was defrauding the U.S. government in 2007. Nor did Accuray admit, as Plaintiff argues, that Plaintiff engaged in activity protected by the FCA. See Opp’n 18 (citing Ex. 37.12, 37.14-15).

Even if any of Plaintiffs cited exhibits actually supported Plaintiffs allegation that he engaged in activity protected by the FCA, Plaintiff fails to explain the discrepancy with his earlier admission, in his deposition, that he could not explain how any of the events that transpired with regard to the Cu28/J18 Cyberknife upgrade resulted in the U.S. government getting any less money from Accuray. See McMahon Decl. Ex. A (Boyd Dep. 21:19-24). A party “cannot create a genuine issue of fact sufficient to survive summary judgment simply by contradicting his or her own previous sworn statement.” Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806, 119 S.Ct. 1597, 143 L.Ed.2d 966 (1999); see also Kennedy v. Allied Mnt Ins. Co., 952 F.2d 262 (9th Cir.1991). Plaintiffs failure to provide any explanation for the discrepancy leads this Court to conclude that Plaintiffs allegations in his declaration regarding customs fraud are a “sham.” Kennedy, 952 F.2d at 267.

There is no evidence that Plaintiff informed Accuray that he was investigating any customs fraud against the U.S. government in regard to the August 2007 Cu28/J18 Cyberknife incident. Plaintiff cites 21 exhibits for the proposition that Plaintiffs complaints about “customs fraud” were known during Plaintiffs 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 does not quote any specific language contained in these 21 exhibits suggesting that Accuray had knowledge of Plaintiffs protected activity. Accordingly, Plaintiff also fails to meet his burden to establish a material factual dispute as to Accuray’s knowledge of Plaintiffs alleged protected activity, another necessary element of an FCA claim. Cafasso, 637 F.3d at 1060.

In summary, Plaintiff has failed to raise a material factual dispute as to two necessary elements of an FCA claim: (1) Plaintiffs engagement in activity protected by the FCA; and (2) Accuray’s knowledge of Plaintiffs protected activity.⁵ Accordingly, Defendant’s motion for summary judgment as to Plaintiffs FCA retaliation claim is GRANTED.

B. Title VII Retaliation Claim

Under Title VII, it is “an unlawful employment practice for an employer ... to discharge any individual ... because of such individual’s race, color ... or national origin.” 42 U.S.C. § 2000e-2(a). Title VII also prohibits retaliation against an employee for opposing any unlawful employment practice under Title VII, or for making a charge or otherwise participating in a Title VII proceeding. 42 U.S.C. § 2000e-3(a); see also Nilsson v. City of Mesa, 503 F.3d 947, 953 (9th Cir.2007).

Title VII retaliation claims follow the same burden-shifting framework described in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Dawson v. Entek Int’l, 630 F.3d 928, 936 (9th Cir.2011). “To establish a prima facie case, the employee must show that he engaged in a protected activity, he was subsequently subjected to an adverse employment action, and that a causal link exists between the two.” Id. (citing Jordan v. Clark, 847 F.2d 1368, 1376 (9th Cir.1988)). “An adverse employment action is one that ‘is reasonably likely to deter employees from engaging in protected activity.’” McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1125 n. 19 (9th Cir.2004) (citing Ray v. Henderson, 217 F.3d 1234, 1243 (9th Cir.2000)); see also Lyons v. England, 307 F.3d 1092, 1118 (9th Cir.2002) (noting that reduction of responsibilities; imposition of additional burdensome tasks; transfers of job duties; and undeserved performance ratings are examples of adverse employment decisions) (citations omitted). “The causal link can be inferred from circumstantial evidence such as the employer’s knowledge of the protected activities and the proximity in time between the protected activity and the adverse action.” Dawson, 630 F.3d at 936.

“If a plaintiff establishes a prima facie case of unlawful retaliation, the burden shifts to the defendant employer to offer evidence that the challenged action was taken for legitimate, nondiscriminatory reasons.” Id. (citing Nidds v. Schindler Elevator Corp., 113 F.3d 912, 917 (9th Cir.1996)). “If the employer provides a legitimate explanation for the challenged decision, the plaintiff must show that the defendant’s explanation is merely a pretext for impermissible discrimination.” Id. (citing Ray, 217 F.3d at 1240). A plaintiff can demonstrate that a defendant’s proffered reasons for a challenged action are pretextual “‘either directly by persuading the court that [a retaliatory] reason [for the decision] more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.’ ” Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107, 1115 (9th Cir.2003) (quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)) (some alterations changed).

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

1. Accuray’s Proffered NonDiscriminatory Reason

Accuray has submitted evidence supporting its contention that Plaintiff received negative reviews and was terminated due to poor work performance, rather than in retaliation for Plaintiffs September 25, 2007 activity protected under Title VII. As discussed above, Accuray’s documentation of Plaintiffs deficient performance dates as far back as his first annual performance review in 2005. Scott Dec. ¶ 4(a), Ex. A (noting that for the period of July 1, 2004, to June 30, 2005, Plaintiffs verbal communication needed improvement). Plaintiffs subsequent annual performance reviews consistently stated that Plaintiffs performance “need[ed] improvement” or fell “below expectations” in several areas throughout Plaintiffs tenure. Scott Decl. Exs. B-F. Specifically, these reviews noted that Plaintiffs performance was deficient in his “verbal communication skills”; “focus”; meeting etiquette; interpersonal skills; attention to detail; and timeliness of deliverables. See id. On August 10, 2007, when Mr. Scott provided Plaintiff his annual performance evaluation (covering the period July 1, 2006, to June 30, 2007), Mr. Scott warned Plaintiff that if Plaintiffs performance did not improve, Plaintiff would be placed on a performance improvement plan. Scott Decl. ¶ 4(c); McMahon Decl. ¶ 2, Ex. A. (Boyd Dep. 54:13-15, Ex. 4). On December 11, 2007, Mr. Scott met with Plaintiff and provided him a half-year review which documented continuing concerns with Plaintiffs performance. Scott Decl. ¶ 7, Ex. F. On or about April 3, 2008, Mr. Scott met with Plaintiff to discuss Plaintiffs unsatisfactory performance. Scott Deck ¶8, Ex., G. On June 4, 2008, Mr. Scott commenced the Corrective Action Process and provided Plaintiff with a Verbal Warning that Plaintiffs performance needed improvement. Scott Deck ¶ 12, Ex. K. On August 21, 2008, Mr. Scott provided Plaintiff a Written Warning and began meeting “1 on 1” on a weekly basis to identify deficiencies and assist Plaintiff in curing them. Scott Deck ¶ 15-16, Exs. N, P. At the May 31, 2012 hearing on the motion, Plaintiffs counsel conceded that the decision to terminate Plaintiff was made on September 10, 2008, when Mr. Scott had completed a final draft of a formal “Final Warning” for Plaintiff. Tr. 40:1; see also Scott Deck ¶ 17, Ex. Q. Plaintiffs activity protected under Title VII occurred on September 25, 2007. Plaintiff was terminated on October 30, 2008. Scott Deck ¶ 18; Boyd Deck ¶11.

In summary, Accuray has submitted ample evidence that poor performance provided a legitimate, non-discriminatory reason for terminating Plaintiff. Accordingly, the burden shifts to Plaintiff to adduce evidence that Accuray’s justifications for its adverse employment actions against Plaintiff were merely a pretext for retaliation. See Stegall v. Citadel Broadcasting Co., 350 F.3d 1061, 1066 (9th Cir.2003).

2. Pretext

Plaintiff fails to show that Accuray’s proffered reasons are pretextual. As the Ninth Circuit has held, “There is no genuine issue of material fact regarding pretext” where a plaintiffs “poor performance was documented before he engaged in protected activity, and [plaintiff] was informed before engaging in protected activity that he would receive a substandard evaluation absent an improvement in his performance.” Hobdy v. L.A. Unified Sch. Dist., 386 Fed.Appx. 722, 724 (9th Cir.2010) (citing Manatt v. Bank of Am., N.A, 339 F.3d 792, 803-04 (9th Cir.2003)).

As discussed above, Accuray has submitted ample evidence that Plaintiffs poor performance predated Plaintiffs activity protected under Title VII, which took place on September 25, 2007. For example, Plaintiffs annual performance reviews from 2005 through June 2007, all showed that Plaintiffs performance “need[ed] improvement” in several areas. Scott Decl. Exs. AD. On August 10, 2007, when Mr. Scott provided Plaintiff his annual performance evaluation, Mr. Scott warned Plaintiff that if Plaintiffs performance did not improve, Plaintiff would be placed on a performance improvement plan. Scott Decl. ¶ 4(c); McMahon Decl. ¶ 2, Ex. A. (Boyd Dep. 54:13-15, Ex. 4). Accordingly, because Plaintiffs “poor performance was documented before he engaged in protected activity, and [Plaintiff] was informed before engaging in protected activity that he would receive a substandard evaluation absent an improvement in his performance,” there is “no genuine issue of material fact regarding pretext.” Hobdy, 386 Fed.Appx. at 724.

Plaintiffs reliance on Van Asdale v. International Game Technology, 577 F.3d 989, 1004 (9th Cir.2009), is unavailing. Plaintiff cites Van Asdale for the proposition that whether Plaintiff was terminated for poor performance cannot be determined on summary judgment. In Van Asdale, unlike here, however, the evidence of plaintiffs poor performance was “in tension with other contemporaneous evidence of [the plaintiffs] strong performance.” Id. at 1004. Here, by contrast, Plaintiff has not cited evidence of strong performance in tension with Plaintiffs annual evaluations.

Furthermore, Plaintiffs own brief concedes that any alleged adverse employment actions, such as undeserved performance evaluations, began for nondiscriminatory reasons before Plaintiff engaged in activity protected under Title VII on September 25, 2007: “The move to terminate Plaintiff began with Zografos and his objections to Plaintiffs willingness to report safety and regulatory problems, and other protected forms of complaints as befitted the duties of his job. Zografos almost immediately, after his hiring in April 2007, commenced efforts to put Plaintiff on [sic] termination track, surreptitiously training Plaintiffs ‘replacement’ and discussing it behind his back long before doing so with Plaintiff — i.e. when he was angry over Plaintiff not doing his unlawful bidding with the Cyberknife J18.” Opp’n 12-13 (internal citations to the record omitted; emphasis added). Given that Mr. Zografos became angry over the J18 Cyberknife system in August 2007, this cited passage from Plaintiffs opposition undermines any claim that Plaintiff suffered adverse employment action, such as termination, as a result of activity protected under Title VII on or after September 25, 2007. Furthermore, Plaintiff cites Exhibit 112, which indicates that Mr. Zografos recommended placing Plaintiff on a Performance Improvement Plan in response to Plaintiffs insubordination as early as August 14, 2007, which, as Plaintiffs counsel put it, “means the employee is already on his way out, as sure as gravity.” Opp’n 22 (citing Ex. 90.25-26).⁷

Moreover, Plaintiffs opposition brief does not cite any facts, let alone sufficient facts to raise a genuine factual issue as to pretext. Plaintiff merely states, “the preceding Section III.B reflects the same evidence can and should be applied for the pretext analysis, and is incorporated herein by this reference.” Opp’n 24. This is woefully insufficient to carry Plaintiffs burden to raise a material factual dispute in order to survive Defendant’s motion for summary judgment. See Forsberg v. Pac. N.W. Bell Tel. Co., 840 F.2d 1409, 1417-18 (9th Cir.1988) (“The district court is not required to comb the record to find some reason to deny a motion for summary judgment.”).

For the foregoing reasons, Plaintiff fails to “adduce a triable issue of fact that [Accuray’s] justifications for” its adverse employment actions against Plaintiff were “merely a pretext” for retaliation. See Stegall, 350 F.3d at 1066. Accordingly, Accuray’s motion for summary judgment as to Plaintiffs Title VII retaliation claim is GRANTED.

C. Retaliation Claim Under Sarbanes-Oxley Act

Accuray argues that it is entitled summary judgment on Plaintiffs retaliation claim under SOX because: (1) Plaintiffs complaints did not constitute protected activity; (2) no person with supervisory authority was made aware of Plaintiffs SEC complaint; and (3) Plaintiffs SEC complaint was not a contributing factor to any unfavorable employment action Plaintiff suffered. Mot. 21-24. Plaintiff argues that Accuray’s subsequent remedial measures as to the accounting for the camera detectors inventories support a finding that Plaintiff was engaging in protected activity. Opp’n 19. Plaintiff also asserts that Plaintiffs supervisors were made aware of Plaintiffs complaints to the SEC. Opp’n 10-11, 21-22. For the reasons explained below, the Court finds that Plaintiff has failed to raise a genuine factual issue as to the following elements of a SOX claim: (1) whether Plaintiffs SEC complaint was a contributing factor to Plaintiffs termination; and (2) whether anyone at Accuray with supervisory authority over Plaintiff was made aware of Plaintiffs SEC complaint.

SOX grants “whistleblower” protection to employees of publicly traded companies by prohibiting employers from retaliating against employees for reporting certain potentially unlawful conduct. 18 U.S.C. § 1514A. The whistleblower-protection provision provides, in relevant part: “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 act done by the employee ... to provide information ... regarding any conduct which the employee reasonably believes constitutes a violation of ... 1348 [securities fraud], any rule or regulation of the [SEC], or any provision of Federal law relating to fraud against shareholders, when the information ... is provided to ... a person with supervisory authority over the employee. ...” Id § 1514A(a)(l)(C); see also Coppinger-Martin v. Solis, 627 F.3d 745, 748-49 (9th Cir.2010).

To prove a prima facie case, a plaintiff must show that: (a) “[t]he employee engaged in a protected activity or conduct”; (b) “[t]he named person [with supervisory authority over the employee] knew or suspected, actually or constructively, that the employee engaged in the protected activity”; (c) “[t]he employee suffered an unfavorable personnel action”; and (d) “[t]he circumstances were sufficient to raise the inference that the protected activity was a contributing factor in the unfavorable action.” Van Asdale, 577 F.3d at 996 (citing 29 C.F.R. § 1980.104(b)(l)(i)-(iv)). Once a plaintiff makes out a prima facie case, “the employer assumes the burden of demonstrating by clear and convincing evidence that it would have taken the same adverse employment action in the absence of the plaintiffs protected activity.” Id.

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 thereby “reported million [sic] of dollars in inflated assets.” Opp’n 8-9. Plaintiff claims that his protected activity under SOX began on April 11, 2008. Opp’n 23 (citing Ex. 37.14). However, Exhibit 37.14 does not mention the defective camera detector inventory. Moreover, Exhibit 37.14 shows only that Accuray HR Personnel had generally discussed SOX whistleblower protection with Plaintiff, and does not show that Plaintiff reasonably believed that keeping a defective camera detector inventory violated any securities law or regulation, or that Plaintiff expressed such a belief to Accuray. Similarly, Exhibit 22, an email chain between Plaintiff and Mr. Yuliano, does not mention the defective camera detector inventory. Exhibit 22 merely shows that Plaintiff was interested in learning more about SOX compliance at Accuray; it does not amount to a protected complaint under SOX. It is undisputed, however, that Plaintiff made a complaint to the SEC on September 19, 2008. McMahon Deck A (Boyd Dep. 199:9-13). Thus, the Court finds that Plaintiff engaged in protected activity on September 19, 2008.

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 SOX occurring before September 19, 2008. Moreover, as discussed above, Plaintiff conceded that Plaintiff was on the termination track as early as August 2007. Thus, these circumstances do not raise a reasonable inference that Plaintiffs protected activity under SOX, even if it began in April 2008, was a contributory factor to Plaintiffs termination. Van Asdale, 577 F.3d at 996. Accordingly, Plaintiffs SOX retaliation claim fails. Id.

Plaintiff also fails to show that anyone with supervisory authority over Plaintiff “knew or suspected, actually or constructively, that the [Plaintiff] engaged in the protected activity.” Id.⁸ According to Plaintiffs own testimony, he did not inform HR about his September 19, 2008 SEC complaint. McMahon Deck Ex. A (Boyd Dep. 205:4-9). Accuray cites evidence that none of Plaintiffs supervisors or individuals involved in his termination were aware of Plaintiffs SEC complaint. Zografos Deck ¶ 26; Scott Deck ¶ 19; McMahon Deck Ex. B (Strunk Dep. 28:2-5, 43:11-13). In response, Plaintiff merely states, without any citation, that: “Clearly, the persons involved in the decisionmaking process — Scott Zografos, Strunk, Hillberry, Dadone and Hall — were all made aware in one way or another of these complaints by Plaintiff, either directly or because of internal reporting and copying of each other in chain emails.” Opp’n 21-22. Plaintiff cites Exhibit 37.14 to support the proposition that “Ms. Hillbery acknowledge^] Plaintiffs SOX complaints and rights on April 11, 2008,” even though “no formal SEC complaint” had yet been made. Opp’n 23. However, as discussed above, Exhibit 37 does not support this proposition. Finally, Plaintiff cites fourteen exhibits to support the allegation that Plaintiffs supervisors were aware of Plaintiffs 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 inference that any of Plaintiffs supervisors was aware of Plaintiffs SEC complaint, and thus was aware that Plaintiff had engaged in protected activity under SOX. The mere fact that Accuray corrected its accounting for the defective camera inventory in response to allegations by Mr. Zografos on October 14, 2008, does not show that Plaintiffs supervisors were aware that Plaintiff thought that the accounting violated any securities law or regulation before the decision to terminate Plaintiff was made on September 10, 2008, or any time thereafter. See Opp’n 9 (citing Ex. 50.10). Thus, Plaintiff has failed to raise a genuine factual issue as to Plaintiffs supervisors’ knowledge of Plaintiffs protected activity under SOX, a necessary element of a SOX retaliation claim.

In summary, Plaintiff has failed to raise a genuine factual issue as to: (1) whether Plaintiffs protected activity under SOX contributed to his termination; and (2) whether Plaintiffs supervisors knew of Plaintiffs protected activity. Accordingly, Accuray’s motion as to Plaintiffs SOX retaliation claim is GRANTED.

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.

1 . Citations to Accuray's motion for summary judgment ("Mot.”) refer to the errata, ECF No. 53. Similarly, citations to Plaintiff’s opposition ("Opp’n”) refer to the May 29, 2012 errata, ECF No. 115.

2 . Mr. Strunk was the Director of Manufacturing when Plaintiff was hired in May 2004. See Boyd Decl. ¶ 2. In February 2007, Mr. Strunk was promoted to Vice President of Manufacturing, and Mr. Zografos became Director of Manufacturing. Scott Decl. ¶ 2.

3 . The Court expresses no opinion on whether Plaintiff's allegations, if true, would prove a violation of FDA regulations.

4 . The Court expresses no opinion on whether Plaintiff's allegations, if true, would prove a violation of the customs laws or regulations.

5 . The Court need not reach Accuray’s argument that Plaintiff's FCA claim is time-barred, an argument that Accuray appears to have retreated from in its reply brief.

6 . The Court need not reach whether Plaintiff establishes a prima facie case, because Plaintiff fails to raise a material factual dispute as to pretext. See Vasquez v. Cty. of L.A., 349 F.3d 634, 642 (9th Cir.2003) ("even assuming that [plaintiff] could establish his prima facie case, his claim would fail because he could not show that [defendant's] reason was a pretext for discriminatory intent.”)

7 . In light of Plaintiff’s concession and the overwhelming record evidence that Plaintiff was on the termination trajectory before engaging in any activity protected by Title VII, the expert testimony of Dr. Revelle, to which Accuray objects, would not raise a genuine factual issue as to pretext. Accordingly, the Court need not reach Accuray’s evidentiary objection.

8 . To the extent Plaintiff seeks to rely on the "cat's paw" theory of liability, Plaintiff has submitted no evidence to support this theory. Under the cat's paw theory, Plaintiff must establish that one of Accuray’s subordinates, in response to Plaintiff's protected activity, "set[] in motion” Plaintiff's termination, and that the subordinate "influenced or was involved in the decision or decision-making process." Cafasso, 637 F.3d at 1060.