Glenn Marr v. Peter Anderson

FILED
NOT FOR PUBLICATION MAR 12 2010

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

GLENN MARR, No. 09-15614

Plaintiff - Appellant, D.C. No. 3:06-cv-00354-LRH-
RAM
v.

PETER ANDERSON; et al., MEMORANDUM *

Defendants - Appellees.

Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding

Submitted March 10, 2010 **
San Francisco, California

Before: HALL, NOONAN and THOMAS, Circuit Judges.

Glenn Marr appeals from the district court’s grant of summary judgment.

We affirm. Because the parties are familiar with the facts and procedural history,

we will not recount it here.

*
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).
I

Marr fails to make any arguments in the opening brief specifically

challenging the district court’s grant of summary judgment with regard to

defendants Biaggi, Dondero, Ashworth, Mendenhall, and Wulfkuhle. “Issues

raised in a brief that are not supported by argument are deemed abandoned.” Leer

v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). Therefore, we affirm the district

court’s grant of summary judgment as to these defendants.

The district court did not err in granting summary judgment on Marr’s

claims against defendants Anderson and Cannizzaro. To establish his retaliation

claims, Marr must show: (1) he engaged in expressive conduct that addressed a

matter of public concern; (2) defendants, as government officials, took an adverse

action against him; and (3) plaintiff’s expressive conduct was a substantial or

motivating factor for the adverse action. Alpha Energy Savers, Inc. v. Hansen, 381

F.3d 917, 923 (9th Cir. 2004). Finally, even if Marr proves all three elements of

Alpha Energy Savers, defendants can escape liability under Mt. Healthy City

School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977), by showing they would

have taken the same action in the absence of plaintiff’s expressive conduct. Id. at

287.

2
The district court correctly concluded that Marr had not tendered sufficient

evidence to create a genuine issue of material fact as to whether his speech was a

substantial or motivating factor in Anderson’s decision to place Marr on

administrative leave and subsequently to terminate him. The undisputed evidence

was that Marr acted aggressively toward a federal inspector and his actions were

unprovoked. In response to this incident, Anderson launched an investigation,

which revealed both that Marr’s record-keeping regarding his flight hours for the

preceding twelve months was inaccurate, and that his time sheets for a training in

Orlando, Florida were false. The only evidence Marr offers in support of his

theory of retaliation is proximity in time, which is insufficient by itself to defeat

summary judgment, Coszalter v. City of Salem, 320 F.3d 968, 977 (9th Cir. 2003),

and a conversation between third parties to which Anderson was not a party.

The district court also properly concluded that Marr had failed to present

sufficient evidence to create a genuine issue of material fact as to whether his

protected speech was a substantial or motivating factor in Cannizzaro’s role in and

undertaking of the investigation of plaintiff. The undisputed record indicates that

Cannizzaro initiated his investigation due to inquiries made by federal inspectors,

not Marr’s speech.

3
III

The district court did not abuse its discretion in declining to allow Marr to

file a third amended complaint. United States v. SmithKline Beecham, Inc., 245

F.3d 1048, 1051 (9th Cir. 2001) (reciting standard of review).

AFFIRMED.