concurring in part and dissenting in part:
I respectfully dissent from Part IV.B but concur in the remainder of the revised majority opinion. I commend the majority for revising the opinion to correct and clarify the law on the First Amendment claims in this appeal. However, I must dissent from its failure to consider all of the evidence adduced by Keyser and Rob-ledo and to view the evidence in the light most favorable to them.
In Part IV.B, the majority affirms the district court's grant of summary judgment to Sweeney on Keyser and Robledo's First Amendment claims. The majority contends that Keyser and Robledo have produced only "mere evidence that Sweeney knew of their charges" and that this is not enough to create a genuine issue of material fact as to whether S~eeney's allegedly adverse employment actions were motivated by their charges. Majority Opinion at 751. If that were so, I would agree. However, viewing the evidence in the light most favorable to Keyser and Robledo, as we must, I conclude that they have presented sufficient evidence for their First Amendment claims to survive summary judgment.
The majority asserts that we have held that a plaintiff creates a genuine issue of material fact regarding an employer's retaliatory motive when the plaintiff produces, in addition to evidence that the employer knew of the protected speech, (1) evidence of proximity in time between the protected speech and the allegedly retaliatory employment decision, (2) evidence that the employer expressed opposition to the speech, or (3) evidence that the employer's proffered reason for the adverse employment action was false or pretextual. Id. at 751-52. It concludes that the district court was right to grant Sweeney summary judgment because Keyser and Robledo failed to provide any of these three types of evidence. Id. at 751 -52. However, Keyser and Robledo have met their burden.
It is "well established that a plaintiff need not prove allegations with direct evidence and that circumstantial evidence can be sufficient" to prove that retaliatory intent was a motivating factor for a public *756employer’s adverse employment decision. Erickson v. Pierce County, 960 F.2d 801, 805 (9th Cir.1992) (citing U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716-17, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983)); see also Magana v. Commonwealth of the N. Mariana Islands, 107 F.3d 1436, 1448 (9th Cir.1997).
In this case, Keyser and Robledo have presented the following circumstantial evidence that Sweeney’s employment decisions were motivated by his desire to retaliate for the charges they brought against him. Sweeney evaluated Robledo and Keyser’s job performance in late January 1995. In both cases, his evaluations were critical but constructive, suggesting ways in which Robledo and Keyser could improve their performance in their present jobs. In his evaluations, Sweeney told Robledo that she has “the skills to be most successful in a top leadership role.” He told Keyser that he wanted to provide her with “maximum support.” In February 1995, a Board member told Sweeney that Keyser and Robledo had alleged that Sweeney had misused federal funds. Less than a month later, Sweeney recommended that Keyser be reassigned. The Board approved the reassignment, but Keyser kept her position because of a defect in the notice given to her. In November or December of 1996, four “pro-Sweeney” Board members were elected. However, before the new members took office, the old Board voted unanimously to call for a federal investigation of Sweeney’s alleged misuse of federal funds. After the new members took office, the Board made Sweeney Interim Superintendent on February 3, 1997, placing him in a position to affect Keyser and Robledo’s employment status.1 Sweeney “refocused” Robledo’s job and immediately removed her from his cabinet. In May 1997, Sweeney recommended that the Board adopt the Vogel reorganization plan. He presented the Board with personnel recommendations, including reassignment of Keyser and Robledo. On May 12, 1997, the Board adopted the Vo-gel plan and approved Sweeney’s personnel recommendations.
Keyser and Robledo have presented evidence of both proximity and pretext. With regard to proximity, Sweeney took adverse employment action against Roble-do within two to three months of the Board’s voting for an investigation of the charges against him. Moreover, he acted as soon as he had power to do so. The majority discounts the fact that Sweeney’s action towards Robledo occurred on the heels of the Board’s vote for a federal investigation. Majority Opinion at 752 & n. 4. The Board’s vote was the first indication that Keyser and Robledo’s whistle-blowing might adversely affect Sweeney. Since the Board’s vote resulted directly from Keyser and Robledo’s charges, and since Sweeney knew this, the Board’s vote is a salient point from which to measure the amount of time that elapsed between the plaintiffs protected conduct and the defendant’s adverse action. The majority asserts that our precedent “indicates that the proper starting point for measuring proximity is the time the ‘protected action’ took place.” Id. at 752 (citing Schwartzman v. Valenzuela, 846 F.2d 1209, 1212 (9th Cir.1988)). That simply was the starting point in that case. Nothing in our precedent compels us to measure from that point in every case. The present case demonstrates why such a rule would be inadvisable: Here the employer may *757not have viewed the employee’s protected action as a threat until after the protected action had consequences and may not have decided to retaliate until then. In such cases, a plaintiff should be able to demonstrate proximity by measuring the time between the employer’s adverse action and the consequences of the employee’s protected action. The majority gives no reason for its failure to recognize the evi-dentiary value of the proximity in time between the Board’s vote and Sweeney’s action toward Robledo.
Similarly, the majority discounts the proximity in time between the Board’s vote and Sweeney’s successful reassignment of Keyser. But even if we assume that the Board’s vote is not a salient point from which to measure proximity, Sweeney attempted to take adverse employment action against Keyser less than a month after hearing that she and Robledo had levied charges against him. Only a procedural failure (improper notice) saved Keyser’s position. The majority ignores this evidence, claiming that, at the very least, one and one-half years separate the time when Sweeney learned of Keyser and Robledo’s charges to the time he took action against them. Id. at 752 n. 4. The majority would have it that Sweeney’s attempt to reassign Keyser less than a month after being informed that she and Robledo had alleged that he misused federal funds “is not even a potentially viable adverse employment action because the reassignment never came to fruition.” Id. But whether the employment action “came to fruition” is not the issue. The fact that Sweeney tried to reassign Keyser just after hearing about her whistle-blowing even though just before that time he had indicated his intent to keep her in her present position is clearly probative of Sweeney’s motivation.2 The majority fails to view the evidence through the lense that sheds the light most favorably on Keyser. The majority errs in not concluding that Keyser and Robledo introduced evidence of proximity that is sufficient to withstand Sweeney’s motion for summary judgment.
Keyser and Robledo also have presented evidence of pretext. Here again the evidence, viewed in the light most favorable to Keyser and Robledo, shows that after he evaluated them in January 1995, Sweeney intended Keyser and Robledo to remain in their present jobs. It was only after he learned that they had brought charges against him that Sweeney had a change of heart and attempted to remove Keyser and Robledo from their positions. In addition, Keyser and Robledo submitted affidavits of two former Board members and a former Deputy Superintendent. All stated that they believed that Sweeney reassigned Keyser and Robledo because of the investigation and that Sweeney retaliates against anyone who opposes him.3 *758This is plainly more than a scintilla of evidence of pretext. It is enough to defeat Sweeney’s motion for summary judgment.
Keyser and Robledo presented evidence of proximity and pretext. Thus, the majority is simply wrong when it states that none of this evidence “fall[s] into the three categories of additional evidence that we have deemed sufficient in the past to create a genuine issue of material fact.” Id. at 753 n. 6. Nor is it correct to say, as the majority does, that this evidence is nothing more than “the alleged adverse employment actions themselves.” Id. Circumstantial evidence such as we have here is sufficient to merit factfinding by a jury. See Perez v. Curdo, 841 F.2d 255, 258 (9th Cir.1988). Moreover, “courts have traditionally held that summary judgment is inappropriate when questions of motive predominate in the inquiry about how big a role the protected behavior played in the employment decision.” Peacock v. Duval, 694 F.2d 644, 646 (9th Cir.1982) (internal quotation marks and citation omitted). The majority has taken on the role of the jurors. I would reverse the district court’s grant of summary judgment in Sweeney’s favor on Keyser and Robledo’s First Amendment claims and remand for trial by real jurors. Accordingly, I dissent.
. According to his deposition, Sweeney did not supervise Keyser or Robledo between June 1996 and February 1997.
. In addition, I note that the majority fails to include in its calculation the fact that Keyser was away on medical leave from May 1995 until March 1996.
. Former Board member Virgil Price stated that he has "seen a paLlern with ... Sweeney that anyone who challenges anything [he] advocate[s] was in trouble. Typically, it started with ostracism and then removal from their position.” Former Board member Gaspar Garcia stated that "I know Sweeney to be a very vindictive individual who has very little regard for legal constraints as I have watched him demote or dismiss [Keyser and Robledo among others] since taking office in February 1997. I believe this is all because of his penchant for retaliation.” Former Deputy Superintendent Charles Miura stated that it "was clear that Sweeney wanted [Keyser and Robledo] out of the way because of their vocal opposition to ... him in the past.” The majority discounts this evidence, asserting that Price, Garcia, and Muria’s testimony is not “specific” and "substantial” circumstantial evidence of Sweeney’s discriminatory intent. Majority Op. at 752-53 n. 5 (citing Blue v. Widnall, 162 F.3d 541, 546 (9th Cir.1998) *758(Title VII case)). The majority mischaracter-izes the evidence. The testimony is certainly specific: Each affiant testified that he believed that Sweeney removed Keyser and Robledo in retaliation for their actions against him. The testimony is also substantial: Each testified that his belief was based on observations of the way Sweeney typically treated subordinates who crossed him. This sort of evidence could lead a rational factfinder to conclude that Sweeney’s proffered explana-lion was pretextual. Thus, the evidence is sufficient to defeat Sweeney’s motion for summary judgment. Cf. Magana, 107 F.3d at 1448 ("The evidence presented is highly circumstantial and the allegations have yet to be measured against conflicting evidence and inferences to be drawn therefrom. At this stage of the proceedings, however, the circumstantial evidence of intent presented by Appellant is sufficient to create a genuine issue of material fact and to defeat a summary judgment motion.").