FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NELSON H. ANTHOINE,
Plaintiff-Appellant, No. 08-16803
v. D.C. No.
NORTH CENTRAL COUNTIES 2:06-cv-01169-
CONSORTIUM; LORI BROWN; CINDY JAM-KJM
NEWTON, OPINION
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Submitted November 5, 2009*
San Francisco, California
Filed May 24, 2010
Before: Alfred T. Goodwin and William A. Fletcher,
Circuit Judges, and Richard Mills,** District Judge.
Opinion by Judge William A. Fletcher
*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable Richard Mills, Senior United States District Judge for
the Central District of Illinois, sitting by designation.
7395
ANTHOINE v. NORTH CENTRAL COUNTIES CONSORTIUM 7399
COUNSEL
Michael Edward Adams, Redwood City, California, for the
appellant.
7400 ANTHOINE v. NORTH CENTRAL COUNTIES CONSORTIUM
Mark Henry Van Brussel, Joel Van Parys, SEYFARTH
SHAW FAIRWEATHER & GERALDSON, Sacramento,
California, for the appellees.
OPINION
W. FLETCHER, Circuit Judge:
In Garcetti v. Ceballos, 547 U.S. 410 (2006), the Supreme
Court held that public employees do not have First Amend-
ment protection for statements made pursuant to their official
duties. In this case we consider the application of Garcetti to
plaintiff-appellant Nelson Anthoine, a low-level employee
who jumped the chain of command to report directly to the
chairman of his employer’s governing board that his immedi-
ate supervisor had misrepresented the status of the employer’s
compliance with its legal obligations. Anthoine was disci-
plined and terminated soon thereafter. Anthoine brought vari-
ous claims in federal district court, and the court granted
summary judgment against Anthoine. We hold that Anthoine
has presented triable issues of fact on his First Amendment
retaliation claim, and we reverse the summary judgment on
that claim. We affirm the summary judgment against
Anthoine on his gender discrimination and wrongful termina-
tion claims.
I. Background
In reviewing the summary judgment against Anthoine, we
take undisputed facts as true and consider disputed facts in the
light most favorable to him. Cripe v. City of San Jose, 261
F.3d 877, 881 n.1 (9th Cir. 2001).
Defendant-appellee North Central Counties Consortium
(“NCCC”) is a public entity created by five California coun-
ties to administer the Workforce Investment Act (“WIA”), 29
ANTHOINE v. NORTH CENTRAL COUNTIES CONSORTIUM 7401
U.S.C. § 2801 et seq. NCCC receives money from the state
and federal governments to fund programs that provide work-
force development activities. Defendant-appellee Lori Brown
served as the interim Executive Director of NCCC from Janu-
ary 27, 2005 to December 31, 2005. Defendant-appellee
Cindy Newton worked as NCCC Program Director, directly
supervising Anthoine and two other Program Analysts. Anth-
oine worked as a Program Analyst at NCCC from 1988 until
his termination in May 2005. His duties included working
with NCCC-funded programs to ensure compliance with the
WIA.
Anthoine received seven written performance reviews
between 1988 and 2001. His evaluations ranged from “im-
provement needed” (second on a five-part scale) to between
“standard” and “above standard” (between third and fourth on
the scale). Between 1998 and 2002, Anthoine received three
reprimands. In 1998, he was given a counseling memo for his
delay in commencing a project and for directly contacting
Deputy Director Bill Rottman, rather than his supervisor
Newton, to get clarification of an instruction. In 2000, he was
criticized for having directly emailed Executive Director
Charles Peterson to express his concerns about how the office
was run and his desire to be treated with respect and to be
included in decision-making processes. In March 2002, he
received a counseling memo for negligence in failing to pre-
pare an inventory list in a timely manner. This memo warned
that future unacceptable work performance would result in
disciplinary action.
From 2002 to early 2004, Anthoine worked largely from
home on a job-survey project. He returned to compliance-
monitoring duties at the NCCC office in February 2004. In
October 2004, Anthoine was admonished by his supervisor
Newton for not following directions on four occasions
between June and October 2004. Newton warned him that fur-
ther misbehavior could result in disciplinary action.
7402 ANTHOINE v. NORTH CENTRAL COUNTIES CONSORTIUM
On January 25, 2005, Anthoine arranged a meeting with
Gary Freeman, the chairman of NCCC’s governing board, at
a restaurant after work. Anthoine reported to Freeman that
Newton had falsely reported to the board that NCCC was cur-
rent in reporting to the state certain data from NCCC’s case
management system (“CMS”). Anthoine also expressed con-
cerns about flaws in CMS, complained that his work was “not
being considered properly,” and complained about Rottman,
the Deputy Director of NCCC. Anthoine called Freeman the
next day to reiterate his concerns.
Freeman communicated Anthoine’s concerns to Brown,
who became interim executive director on January 27, 2005.
Brown met with Anthoine soon thereafter. She investigated
and confirmed that there was a problem with CMS and data
reporting. Brown confronted Newton, asking her why she had
incorrectly reported that the data was current.
On February 7, 2005, Newton gave Anthoine a verbal
warning for a “pattern of incidents of insubordination.” Anth-
oine had previously been reprimanded for “failure to follow
instructions,” but the word “insubordination” had been used
only once before, in the 1998 counseling memo. As later
memorialized in a memo, Newton’s February 7 warning cited
the four 2004 incidents that had been listed in the earlier
October 2004 warning, as well as an additional incident that
occurred in January 2005. (The memo states that the addi-
tional incident occurred in January 2004, but it appears to
have occurred in January 2005.)
On February 14, 2005, Anthoine responded to Newton’s
verbal warning by giving her a 207-page document. In an
email to Brown, Newton commented, “Looks like good
insomnia reading. Here’s another whirl on Mr. Toad’s wild
ride.” Brown responded, “wow . . . 207 pages?! I cannot wait
for the revision of those policies!!!”
On February 17, 2005, Brown informed Anthoine that there
would be no response to his document. On February 24,
ANTHOINE v. NORTH CENTRAL COUNTIES CONSORTIUM 7403
Brown, Newton, and Anthoine met. On February 25, Anth-
oine submitted a formal grievance to Brown regarding his
work assignments. He also challenged the February 7 disci-
plinary action and requested that he be included in meetings
when Newton met jointly with the two other Program Ana-
lysts she supervised. Anthoine contends that the other analysts
met to discuss matters that affected his job, but that they met
without him because he was male and had “male qualities”
and because they wanted to talk about personal matters. In
Anthoine’s view, Brown tended to treat male employees in a
“gruff and standoffish” manner, while having a “greater sort
of leniency or flexibility in appraisals of behavior of the
women in the office.”
On March 25, 2005, Brown denied Anthoine’s grievance,
including his request that he always be included in meetings
between Newton and the other analysts. However, she stated
that NCCC would begin holding periodic program analyst
meetings where they could “share ideas and resolve issues as
a team.” On April 7, 2005, Anthoine appealed Brown’s denial
of his grievance to the governing board. On May 16, 2005, the
full governing board heard Anthoine’s grievance. Anthoine
did not tell the board or other NCCC personnel of his com-
plaints of gender discrimination, but he testified in his deposi-
tion that he had such discrimination in mind when he
complained of unfair treatment by Newton and Brown. The
board unanimously denied the grievance.
Meanwhile, on March 17, 2005, Anthoine had been given
his evaluation for 2004. He received an “unsatisfactory” rat-
ing, the lowest rating on a new four-part scale. An earlier
draft of the evaluation, originally prepared for delivery on
January 28, 2005, would have given him a “needs improve-
ment” rating, the second-lowest rating. Brown had been dis-
satisfied with the “needs improvement” rating and instructed
Newton to revise it downward to “unsatisfactory.” Brown
requested similar adverse revisions in the performance evalu-
ation for Ed Morrison, the only other low-level male
7404 ANTHOINE v. NORTH CENTRAL COUNTIES CONSORTIUM
employee. She concurred in “excellent” overall ratings for the
two female Program Analysts and for Newton.
At about this time, Anthoine told Newton and Brown of his
concern that Upward Bound, one of the programs that Anth-
oine monitored, was misusing a portion of its NCCC funds in
violation of the WIA. Newton and Brown disagreed with
Anthoine but agreed to contact NCCC’s state WIA liaison for
advice. Newton states that she believes that she told Anthoine
not to discuss his concern with Upward Bound staff in
advance of receiving an answer from the state liaison. Anth-
oine denies that she gave him any such direction.
On April 20, 2005, Anthoine attended a monitoring meet-
ing at Upward Bound during which he told staff members
Maria Moreno and Dave Ferguson that their manner of using
funds for classroom training might not be allowable under the
WIA. He also told them that, in his personal opinion, Upward
Bound’s use of funds seemed excessive when programs in
other counties were starved for funds. He told them that he
was trying to influence NCCC to direct more of its funds to
work-site experiences for disadvantaged youth, in contrast to
the Upward Bound program which provided academic train-
ing.
On May 5, 2005, Moreno called Newton, telling her about
Anthoine’s comments regarding the possible disallowance of
wages for classroom training. In a written follow-up email
sent on May 10 at Newton’s request, Moreno stated that
Anthoine “informed us that we were most likely in violation
of the WIA regulations,” and that “it was a possibility we
would have to return funds to the consortium for money
already spent or money that would be spent this summer on
class time.” On May 11, Ferguson emailed Newton, indicat-
ing that Anthoine had stated that Upward Bound was in jeop-
ardy of having to return funds that it planned to spend in the
future.
ANTHOINE v. NORTH CENTRAL COUNTIES CONSORTIUM 7405
On May 13, 2005, Newton and Brown met with Anthoine
to discuss Upward Bound’s complaints. At this meeting,
Newton stated her belief that she had told Anthoine not to dis-
cuss his concern about the use of state funds with Upward
Bound staff; Anthoine denied that she ever gave him such
direction. Anthoine also denied having spoken to Upward
Bound about any risk of having to repay previously expended
funds, acknowledging only that he offered guidance about
planning for future expenditures.
On May 16, 2005, Brown informed the NCCC governing
board that she had decided to discharge Anthoine. The board
ratified Brown’s decision. On May 20, NCCC gave Anthoine
notice that he was terminated effective May 26, because of
unsatisfactory performance, insubordination, and discourteous
treatment of the public or other employees. Bill Rottman and
Ed Morrison, the only other men on the eleven-person NCCC
staff, were terminated on the same day as Anthoine.
Anthoine brought suit in federal district court, asserting,
inter alia, claims for retaliation in violation of the First
Amendment; gender-based employment discrimination in vio-
lation of the Equal Protection Clause; and wrongful discharge
in violation of California law. The district court granted sum-
mary judgment against Anthoine on all three of these claims.
Anthoine timely appealed.
II. Standard of Review
We review de novo a grant of summary judgment. Huppert
v. City of Pittsburg, 574 F.3d 696, 701 (9th Cir. 2009).
III. Discussion
A. First Amendment Claim
Anthoine contends that he engaged in protected speech
when he informed Freeman, the chairman of NCCC’s board,
7406 ANTHOINE v. NORTH CENTRAL COUNTIES CONSORTIUM
that NCCC was in violation of its legal obligations and that
Newton had misrepresented to the board that NCCC was cur-
rent in meeting those obligations. Anthoine contends that he
was subjected to a “cascade of adverse employment actions”
in retaliation for having communicated this information to
Freeman.
[1] “The First Amendment shields a public employee if he
speaks as a citizen on a matter of public concern.” Huppert,
574 F.3d at 702. However, “when 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.” Garcetti v. Ceballos, 547 U.S. 410, 421
(2006). We employ a “sequential five-step series of ques-
tions” to determine whether an employer impermissibly retali-
ated against an employee for protected speech:
(1) whether the plaintiff spoke on a matter of public
concern; (2) whether the plaintiff spoke as a private
citizen or public employee; (3) whether the plain-
tiff’s protected speech was a substantial or motivat-
ing factor in the adverse employment action; (4)
whether the state had an adequate justification for
treating the employee differently from other mem-
bers of the general public; and (5) whether the state
would have taken the adverse employment action
even absent the protected speech.
Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009); see Hup-
pert, 574 F.3d at 702 (applying Eng test). For the reasons that
follow, we conclude that summary judgment should not have
been granted against Anthoine on his First Amendment retali-
ation claim. We analyze the five steps of the test in turn.
1. Matter of Public Concern
“Speech involves a matter of public concern when it fairly
can be said to relate to any matter of political, social, or other
ANTHOINE v. NORTH CENTRAL COUNTIES CONSORTIUM 7407
concern to the community.” Huppert, 574 F.3d at 703 (inter-
nal quotation marks and alterations omitted). “Public con-
cern” does not have a precise definition, but “the essential
question is whether the speech addressed matters of ‘public’
as opposed to ‘personal’ interest.” Desrochers v. City of San
Bernardino, 572 F.3d 703, 709 (9th Cir. 2009). Subjects of
public concern include “unlawful conduct by a government
employee” and the “misuse of public funds, wastefulness, and
inefficiency in managing and operating government entities.”
Huppert, 574 F.3d at 703-04 (citing cases). “[S]peech that
deals with individual personnel disputes and grievances and
that would be of no relevance to the public’s evaluation of the
performance of governmental agencies is generally not of
public concern.” Eng, 552 F.3d at 1070 (quoting Coszalter v.
City of Salem, 320 F.3d 968, 973 (9th Cir. 2003)) (internal
quotation marks omitted). The public concern inquiry is a
question of law. Eng, 552 F.3d at 1070. A court must consider
“the content, form, and context of a given statement, as
revealed by the whole record.” Connick v. Myers, 461 U.S.
138, 147-48 (1983). Of these, content is the most important
factor. Desrochers, 572 F.3d at 710.
[2] We hold that Anthoine’s speech qualifies as a matter of
public concern. A report regarding the agency’s failure to
comply with its legal obligations is clearly relevant to the
public’s evaluation of NCCC’s performance. Moreover, mis-
representation to the governing board of a public entity by an
employee of that entity falls squarely within the subjects of
public concern delineated in Huppert. 574 F.3d at 703-04.
It is not determinative that Anthoine did not air his con-
cerns publicly. See Thomas v. City of Beaverton, 379 F.3d
802, 810 (9th Cir. 2004) (“That [plaintiff] chose to convey her
views privately rather than publicly is not determinative of
whether her expression is entitled to protection.”); see also
Connick, 461 U.S. at 148 n.8 (noting that the “right to protest
. . . a matter inherently of public concern[ ] is not forfeited
by” use of a private rather than public forum); Givhan v. W.
7408 ANTHOINE v. NORTH CENTRAL COUNTIES CONSORTIUM
Line Consol. Sch. Dist., 439 U.S. 410, 415-16 (1979)
(“Neither the [First] Amendment itself nor our decisions indi-
cate that this freedom is lost to the public employee who
arranges to communicate privately with his employer rather
than to spread his views before the public.”). Anthoine
expressed his concerns about Newton’s misrepresentation
directly to Freeman, the chairman of the board, because he
believed (correctly) that Freeman would be able to address
and correct the problem. See Thomas, 379 F.3d at 811.
2. Speech as a Private Citizen or Public Employee
“Statements are made in the speaker’s capacity as citizen if
the speaker had no official duty to make the questioned state-
ments, or if the speech was not the product of performing the
tasks the employee was paid to perform.” Eng, 552 F.3d at
1071 (internal quotation marks omitted) (citing cases). State-
ments do not lose First Amendment protection simply because
they concern “the subject matter of [the plaintiff’s] employ-
ment.” Freitag v. Ayers, 468 F.3d 528, 545 (9th Cir. 2006);
see Garcetti, 547 U.S. at 421. However, “speech which ‘owes
its existence to an employee’s professional responsibilities’ is
not protected by the First Amendment.” Huppert, 574 F.3d at
704 (quoting Garcetti, 547 U.S. at 421). “[W]hether the plain-
tiff spoke as a public employee or a private citizen [ ] is a
mixed question of fact and law.” Posey v. Lake Pend Oreille
Sch. Dist. No. 84, 546 F.3d 1121, 1129 (9th Cir. 2008).
In Garcetti, Ceballos, a deputy district attorney, wrote a
memo informing his supervisors that a search warrant affida-
vit contained serious misrepresentations. The supervisors
allegedly retaliated against him as a result. The Court held
that Ceballos’s speech was not protected by the First Amend-
ment because the memo was written pursuant to his official
duties.
In Freitag v. Ayers, Freitag was a prison guard who first
complained to officials in her chain of command that inmates
ANTHOINE v. NORTH CENTRAL COUNTIES CONSORTIUM 7409
were sexually harassing her. After the officials failed to take
action, Freitag eventually wrote to the Director of the prison
system, to a state senator, and to California’s Inspector Gen-
eral. Because Freitag was required to report inmate miscon-
duct, we concluded that her complaints to the officials in the
chain of command were made pursuant to her official duties.
We held, however, that her speech to the state senator and the
Inspector General was protected because her official duties
did not include reporting to them. We remanded for a deter-
mination of whether Freitag’s letter to the Director of the
prison system was sent pursuant to her official duties because
we could not determine based on the record before us
“whether prison guards are expected to air complaints . . . all
the way up to the Director.” 468 F.3d at 546.
In Marable v. Nitchman, 511 F.3d 924 (9th Cir. 2007),
Marable was a Chief Engineer in charge of the engine depart-
ment of a Washington State ferry. Marable complained of cor-
rupt financial practices by managers in the ferry system. We
held that his internal and external complaints, made to the
Maintenance Director of the ferry system, a former CEO of
the ferry system, a Washington Department of Transportation
auditor, and the Washington Executive Ethics Board, were
protected speech. We held that complaining about corrupt
practices of higher-level officials was entirely outside the
duties of a ferry engineer.
[3] In the case before us, appellees have not shown that
Anthoine’s statements to Freeman were made pursuant to his
official duties, that is, that his speech was “the product of per-
forming the tasks the employee was paid to perform.” Eng,
552 F.3d at 1071 (internal quotation marks omitted). Anthoine
discovered Newton’s misrepresentation about NCCC’s com-
pliance by reading generally distributed minutes of a board
meeting that he had not attended. There is no evidence in the
record that Anthoine had a duty, like the prison guard in
Freitag and the deputy district attorney in Garcetti, to report
such misconduct within the proper channels. See Garcetti,
7410 ANTHOINE v. NORTH CENTRAL COUNTIES CONSORTIUM
547 U.S. at 421 (concluding that the distinguishing consider-
ation was that in sending the memo, Ceballos “spoke as a
prosecutor fulfilling a responsibility to advise his supervisor
about how best to proceed with a pending case”); Alaska v.
EEOC, 564 F.3d 1062, 1070 (9th Cir. 2009) (holding that an
aide to the governor who spoke publicly about misconduct
was not acting within the scope of her official duties, because
those duties “didn’t require her to complain”). But even
assuming that Anthoine had such a duty, there is no evidence
in the record that his speech directly to the chairman of the
NCCC board was within the scope of his duties. Accordingly,
we hold that Anthoine has presented an issue of fact as to
whether he spoke as a private citizen, rather than a public
employee, in reporting Newton’s misrepresentations to Free-
man.
3. Substantial or Motivating Factor for Adverse
Employment Action
“Th[e] third step is purely a question of fact.” Eng, 552
F.3d at 1071. In a First Amendment case, “[t]o constitute an
adverse employment action, a government act of retaliation
need not be severe and it need not be of a certain kind.” Cos-
zalter v. City of Salem, 320 F.3d 968, 975 (9th Cir. 2003).
“Depending on the circumstances, even minor acts of retalia-
tion can infringe on an employee’s First Amendment rights.”
Id. A plaintiff can establish a valid claim of retaliation by
showing that “the actions taken by the defendants were rea-
sonably likely to deter [plaintiff] from engaging in protected
activity under the First Amendment.” Id. at 976 (internal quo-
tation marks and alterations omitted). Anthoine was subjected
to a series of adverse actions following his statements to Free-
man: a verbal warning for a “pattern of incidents of insubordi-
nation,” an unsatisfactory evaluation, and termination of his
employment.
[4] To show that retaliation was a substantial or motivating
factor behind an adverse employment action, a plaintiff can
ANTHOINE v. NORTH CENTRAL COUNTIES CONSORTIUM 7411
(1) introduce evidence that the speech and adverse action
were proximate in time, such that a jury could infer that the
action took place in retaliation for the speech; (2) introduce
evidence that the employer expressed opposition to the
speech; or (3) introduce evidence that the proffered explana-
tions for the adverse action were false and pretextual. Id. at
977. Anthoine relies on the first and third prongs.
[5] Anthoine has provided evidence of a very close tempo-
ral link. His statements to Freeman were made on January 25,
2005. The process of downgrading his performance evalua-
tion began within days, he was disciplined on February 7, and
he was given an “unsatisfactory” rating on March 17. He was
then given notice of his termination on May 20.
[6] We have held that proximity in time may support an
inference of retaliation sufficient to survive summary judg-
ment. See Allen v. Iranon, 283 F.3d 1070, 1077-78 (9th Cir.
2002) (“This proximity in time constitutes circumstantial evi-
dence of retaliatory motive.”). In the analogous Title VII con-
text, we have come to a similar conclusion. See Davis v. Team
Elec. Co., 520 F.3d 1080, 1094 (9th Cir. 2008) (“We have
held that ‘causation can be inferred from timing alone where
an adverse employment action follows on the heels of pro-
tected activity.’ ” (quoting Villiarimo v. Aloha Island Air,
Inc., 281 F.3d 1054, 1065 (9th Cir. 2002)); Passantino v.
Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493,
507 (9th Cir. 2000) (“[W]hen adverse employment decisions
are taken within a reasonable period of time after complaints
of discrimination have been made, retaliatory intent may be
inferred.”).
[7] In Coszalter, we cautioned that courts should not
engage in a mechanical inquiry into the amount of time
between the speech and alleged retaliatory action. Reversing
a district court’s determination that adverse employment
actions taken three to eight months after protected speech
were too distant in time to support an inference of retaliation,
7412 ANTHOINE v. NORTH CENTRAL COUNTIES CONSORTIUM
we held that “[w]hether an adverse employment action is
intended to be retaliatory is a question of fact that must be
decided in the light of the timing and the surrounding circum-
stances.” 320 F.3d at 977-78. Contrary to appellees’ sugges-
tion, however, Coszalter did not repudiate Allen’s holding that
proximity in time may constitute circumstantial evidence of
retaliatory motive. Rather, it rejected adoption of a bright-line
rule providing that a certain period of time is per se too long
to support an inference of retaliation. See id. at 977-78.
[8] Anthoine has also provided evidence showing that
appellees’ “proffered explanations for the adverse employ-
ment action[s] were false and pretextual.” Id. at 977 (quoting
Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741,
752 (9th Cir. 2001)). During the seventeen years Anthoine
worked at NCCC, he was hardly a model employee. He ques-
tioned his superiors, failed to follow their directions, and
undertook, to their dismay, “improvements” on his own initia-
tive. But only after his statements to Freeman informing him
of Newton’s misrepresentation did Anthoine receive disci-
pline for a “pattern of incidents of insubordination” (four out
of five of which had already been documented without use of
the word “insubordinate”), a downwardly revised perfor-
mance rating of “unsatisfactory,” and notice of termination.
The facts in Anthoine’s case are similar to those in Allen,
in which we held that the evidence was sufficient to support
an inference of retaliatory motive:
Allen had worked at Halawa for years, during which
he was involved in several disputes over security,
without his performance being found deficient
enough to warrant discipline or an Internal Affairs
investigation. After he began to criticize the prison
under Hall’s administration, his conduct was found
to be so serious that it warranted Internal Affairs
investigations and a lockout. This proximity in time
constitutes circumstantial evidence of retaliatory
ANTHOINE v. NORTH CENTRAL COUNTIES CONSORTIUM 7413
motive. The protected statement was made eleven
months before the first lockout and the initiation of
the Internal Affairs investigations. Although an
inference from temporal proximity would have been
stronger had the gap in time been smaller, an eleven-
month gap in time is within the range that has been
found to support an inference that an employment
decision was retaliatory.
283 F.3d at 1077-78 (internal citation omitted).
[9] There is thus evidence in the record from which a jury
could conclude that the disciplinary actions taken against
Anthoine were reasonably likely to deter him from engaging
in activity protected by the First Amendment. See Coszalter,
320 F.3d at 976-77 (describing adverse employment actions).
And there is evidence from which a jury could conclude that
these actions were taken to retaliate against him for his state-
ments to Freeman.
4. Adequate Justification
[10] Once a plaintiff has satisfied the first three steps, the
burden shifts to a defendant to show whether it “had an ade-
quate justification for treating the employee differently from
any other member of the general public.” Garcetti, 547 U.S.
at 418. For a court “to find that the government’s interest as
an employer in a smoothly-running office outweighs an
employee’s first amendment right, defendants must demon-
strate actual, material and substantial disruption, or reasonable
predictions of disruption in the workplace.” Robinson v. York,
566 F.3d 817, 824 (9th Cir. 2009) (internal quotation marks
and alteration omitted). This issue is ultimately a legal deter-
mination but often turns on questions of fact. Eng, 552 F.3d
at 1071-72. Appellees have not attempted to show that Anth-
oine’s statements to Freeman caused any disruption or could
have been predicted to cause a disruption.
7414 ANTHOINE v. NORTH CENTRAL COUNTIES CONSORTIUM
5. Adverse Employment Action Absent the Protected
Speech
[11] If defendants fail to carry their burden on the fourth
part of the test, they are nonetheless entitled to summary judg-
ment if they can demonstrate that they “would have reached
the same adverse employment decision even in the absence of
the employee’s protected conduct.” Eng, 552 F.3d at 1072.
“In other words, [they] may avoid liability by showing that
the employee’s protected speech was not a but-for cause of
the adverse employment action.” Id.; see Mt. Healthy City
Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977).
“This question relates to, but is distinct from, the plaintiff’s
burden to show the protected conduct was a substantial or
motivating factor.” Eng, 552 F.3d at 1072.
[12] The “but-for causation inquiry” is “purely a question
of fact.” Robinson, 566 F.3d at 825. Appellees contend that
Anthoine has not carried his burden at the third step of show-
ing that his statements to Freeman were a substantial or moti-
vating factor in any adverse employment action. But appellees
do not directly address the related question, at the fifth step,
of whether they have carried their own burden of showing that
his statements were not a but-for cause of the adverse actions.
As we have already discussed, Anthoine has provided evi-
dence from which a jury could conclude that his protected
speech was a motivating factor in the adverse actions. In light
of the absence of conclusive evidence that Anthoine’s unpro-
tected behavior was the but-for cause of the adverse actions,
that question cannot be resolved on summary judgment.
6. Summary
[13] We therefore reverse and remand for further proceed-
ings on Anthoine’s First Amendment claim of retaliation for
his statements to Freeman.
ANTHOINE v. NORTH CENTRAL COUNTIES CONSORTIUM 7415
B. Gender Discrimination Claim
[14] Anthoine also brings a § 1983 claim for gender-based
employment discrimination under the Equal Protection Clause
of the Fourteenth Amendment. Although we are not bound by
the “formal Title VII disparate treatment burden shifting
framework when trying § 1983 claims,” we agree with the
parties that it is appropriate to apply the McDonnell Douglas
burden-shifting framework to Anthoine’s claim. See Keyser,
265 F.3d at 754; see also Demoret v. Zegarelli, 451 F.3d 140,
149 (2d Cir. 2006); Smith v. City of Salem, Ohio, 378 F.3d
566, 576-77 (6th Cir. 2004). To establish a prima facie case
under McDonnell Douglas, a plaintiff must demonstrate that:
(1) he belonged to a protected class; (2) he was qualified for
his job; (3) he was subjected to an adverse employment
action; and (4) similarly situated employees not in his pro-
tected class received more favorable treatment. Moran v.
Selig, 447 F.3d 748, 753 (9th Cir. 2006); see McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
[15] If Anthoine makes out a prima facie case, the burden
shifts to defendants to provide non-discriminatory reasons for
the adverse action. Wallis v. J.R. Simplot Co., 26 F.3d 885,
889 (9th Cir. 1994). If they do so, the prima facie case “drops
out of the picture,” and a court evaluates the evidence to
determine whether a reasonable jury could conclude that
defendants discriminated against Anthoine based on gender.
Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028
(9th Cir. 2006). Defendants do not challenge Anthoine’s
prima facie case, and Anthoine does not dispute that Defen-
dants have articulated non-discriminatory reasons for the
adverse employment action.
Anthoine may defeat summary judgment by offering direct
or circumstantial evidence “that a discriminatory reason more
likely motivated the employer,” or “that the employer’s prof-
fered explanation is ‘unworthy of credence’ because it is
internally inconsistent or otherwise not believable.” Chuang
7416 ANTHOINE v. NORTH CENTRAL COUNTIES CONSORTIUM
v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1127 (9th
Cir. 2000); see Cornwell, 439 F.3d at 1028-29. “These two
approaches are not exclusive; a combination of the two kinds
of evidence may in some cases serve to establish pretext so
as to make summary judgment improper.” Chuang, 225 F.3d
at 1127. However, “[a] plaintiff may not defeat a defendant’s
motion for summary judgment merely by denying the credi-
bility of the defendant’s proffered reason for the challenged
employment action.” Cornwell, 439 F.3d at 1028 n.6. When
the evidence on which a plaintiff relies is circumstantial, “that
evidence must be specific and substantial to defeat the
employer’s motion for summary judgment.” See EEOC v.
Boeing Co., 577 F.3d 1044, 1049 (9th Cir. 2009); see Corn-
well, 439 F.3d at 1029.
Anthoine seeks to show discriminatory motive by arguing
that Brown fired the only three males employed by NCCC on
the same day, and that Brown used different tones of voice
and “nonverbal” behaviors when speaking with male and
female employees. Evidence that an employer terminated all
three of its male employees on the same day could show
gender-based animus. In this case, however, Anthoine has not
offered any specific evidence about the circumstances in
which the other men were terminated. Anthoine also contests
the reasons for his reprimand and termination. Even taking his
evidence as true, however, Anthoine has failed to carry his
burden of showing his employer’s explanation was unworthy
of credence.
[16] Assessing in combination Anthoine’s evidence chal-
lenging the employer’s proffered explanation and his evi-
dence ostensibly setting forth discriminatory motive, as
Chuang requires, Anthoine has not carried his burden. The
evidence Anthoine has set forth is not “specific and substan-
tial” and does not create a triable issue of fact as to ultimate
issue of gender-based discrimination.
ANTHOINE v. NORTH CENTRAL COUNTIES CONSORTIUM 7417
C. Wrongful Discharge Claim
[17] Finally, Anthoine asserts a state-law claim for wrong-
ful termination in violation of public policy. In Miklosy v.
Regents of University of California, 188 P.3d 629, 643-44
(Cal. 2008), the California Supreme Court held that a state
common law claim for wrongful termination in violation of
public policy, known as a Tameny action, cannot be brought
against a public entity. According to the Court, § 815 of the
California Government Claims Act abolished common law
tort liability for public entities. Id. at 643; see Cal. Gov. Code
§ 815 (“Except as otherwise provided by statute . . . [a] public
entity is not liable for an injury . . . .”). As a public entity,
NCCC may not be held liable for such a claim. Nor may a
wrongful discharge claim be brought against individual defen-
dants such as Brown and Newton. As Miklosy explains,
[A] Tameny action for wrongful discharge can only
be asserted against an employer. An individual who
is not an employer cannot commit the tort of wrong-
ful discharge in violation of public policy; rather, he
or she can only be the agent by which an employer
commits that tort.
Miklosy, 188 P.3d at 644 (emphasis in original).
[18] Because Anthoine may not bring a wrongful termina-
tion claim against NCCC, Brown, or Newton, we affirm the
district court’s grant of summary judgment on this claim.
Conclusion
We hold that Anthoine has presented a triable issue of
material fact on his First Amendment retaliation claim but has
failed to do so on his gender discrimination and wrongful dis-
charge claims. We reverse and remand the grant of summary
judgment on Anthoine’s First Amendment claim of retaliation
for his statements to Freeman. We affirm the grant of sum-
7418 ANTHOINE v. NORTH CENTRAL COUNTIES CONSORTIUM
mary judgment on his other claims. Each side is to bear its
own costs on appeal.
AFFIRMED IN PART; REVERSED and REMANDED
IN PART.