FILED
NOT FOR PUBLICATION JUL 11 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
THOMAS FRONAPFEL, No. 11-17349
Plaintiff - Appellant, D.C. No. 3:09-cv-00562-LRH-
VPC
v.
FARROKH HORMAZDI and EDGAR MEMORANDUM*
ROBERTS,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Submitted May 17, 2013**
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
1
Before: CLIFTON and BEA, Circuit Judges, and KORMAN, Senior District
Judge.***
Thomas Fronapfel was terminated from his position as Field Services
Administrator for the State of Nevada Department of Motor Vehicles (“DMV”).
He filed an action for money damages under 42 U.S.C. § 1983 against Edgar
Roberts, the DMV Director, and Farrokh Hormazdi, the Deputy Director, alleging
gender discrimination and First Amendment retaliation claims. The district court
granted the Defendants’ motion for summary judgment. Fronapfel timely appealed
and argues that the district court erred by holding that (1) he failed to adduce
evidence sufficient to create a triable issue as to whether the Defendants’ proffered
reasons for his termination were pretextual, and (2) the speech in question was part
of his job duties. We have jurisdiction under 28 U.S.C. § 1291. We review the
district court’s decision de novo, see Godwin v. Hunt Wesson, Inc., 150 F.3d 1217,
1219–20 (9th Cir. 1998), and affirm.
To survive summary judgment on his equal protection claim, Fronapfel must
adduce evidence that the several legitimate, non-discriminatory reasons Defendants
proffered to justify his termination were pretextual. See Keyser v. Sacramento City
Unified Sch. Dist., 265 F.3d 741, 754–55 (9th Cir. 2001) (explaining that summary
***
The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
2
judgment for an employer is appropriate where “1) there was little to no direct
evidence of discriminatory intent, 2) the employer offered legitimate,
non-discriminatory reasons for its actions, and 3) the employee did not show these
reasons were false or pretextual”). Here, Fronapfel has offered no direct evidence
of discriminatory intent, and the Defendants offered several non-discriminatory
reasons for the termination. While Fronapfel disputed the validity of some
proffered justifications, those he admitted are sufficient to undermine his allegation
that the termination decision was based on discriminatory animus. In particular,
Fronapfel conceded that he (1) played Sudoku in his office when he was supposed
to be working, and (2) cut his fingernails and toenails in his office when he was
supposed to be working. Because Fronapfel was an at-will employee, he could be
fired for playing Sudoku or grooming himself at work. See Engquist v. Oregon
Dep’t of Agriculture, 553 U.S. 591, 606 (2008) (stating that it is a “basic principle
of at-will employment . . . that an employee may be terminated for a good reason,
bad reason, or no reason at all” (internal quotation marks and citations removed)).
Because Fronapfel adduced no evidence that these non-discriminatory reasons
were pretextual, the district court was correct to grant the Defendants summary
judgment on Fronapfel’s equal protection claim.
3
To survive summary judgment on his First Amendment retaliation claim,
Fronapfel must show that he engaged in some constitutionally protected speech.
See Garcetti v. Ceballos, 547 U.S. 410, 415–20 (2006). Fronapfel based his First
Amendment retaliation claim on his (1) speech against denying overtime pay to
employees, (2) speech expressing a concern that employee timesheets had been
altered to take away earned overtime, and (3) statement that a failure to pay
overtime would violate the law. The record shows that the DMV conducted
extensive discussions on how to implement the state’s new furlough and overtime
policies. The record also reveals that Fronapfel took part in these discussions. It
was in this context that Fronapfel made his statements about overtime. Thus,
Fronapfel acted as a public employee when he spoke about overtime issues; he did
not speak as a private citizen. “[W]hen public employees make statements
pursuant to their official duties, the employees are not speaking as citizens for First
Amendment purposes, and the Constitution does not insulate their communications
from employer discipline.” Id. at 421.
AFFIRMED.
4