NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 12 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELENA RODRIGUEZ-MALFAVON, No. 16-17076
Plaintiff-Appellant, D.C. No.
2:12-cv-01673-APG-PAL
v.
CLARK COUNTY SCHOOL DISTRICT; et MEMORANDUM*
al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Andrew P. Gordon, District Judge, Presiding
Argued and Submitted December 6, 2017
San Francisco, California
Before: M. SMITH and IKUTA, Circuit Judges, and MCAULIFFE,** District
Judge.
Plaintiff Elena Rodriguez-Malfavon (Plaintiff) appeals from the district
court’s order granting summary judgment to Defendants Clark County School
District (CCSD), Edward Goldman, and Anita Wilbur (collectively, Defendants)
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Steven J. McAuliffe, Senior United States District
Judge for the District of New Hampshire, sitting by designation.
on her First Amendment retaliation claim under 42 U.S.C. § 1983. We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse and remand for
proceedings consistent with this disposition.
First Amendment retaliation claims are governed by the five-step framework
outlined in Eng v. Cooley, 552 F.3d 1062 (9th Cir. 2009). The Eng factors inquire:
(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 plaintiff’s protected
speech was a substantial or motivating factor in the
adverse employment action; (4) whether the state had an
adequate justification for treating the employee differently
from other members of the general public; and (5) whether
the state would have taken the adverse employment action
even absent the protected speech.
Id. at 1070. If the plaintiff successfully meets her burden on the first three factors,
the burden shifts to the defendants on the last two. See id. at 1070–72.
The fifth factor allows a defendant to “avoid liability by showing that the
employee’s protected speech was not a but-for cause of the adverse employment
action.” Id. at 1072. We have emphasized that “[i]mmunity should be granted on
this ground only if the state successfully alleges, without dispute by the plaintiff, that
it would have made the same employment decisions even absent the questioned
speech.” Id. (emphasis added). The but-for causation inquiry is a question of fact.
Id.
2
Here, the district court erred in granting Defendants’ motion for summary
judgment on the basis of the fifth Eng factor.1 In opposition to Defendants’ motion
for summary judgment, Plaintiff proffered an affidavit disputing several of the bases
of the second unsatisfactory evaluation she received from Wilbur. Viewing the
evidence in the light most favorable to Plaintiff, and mindful that Defendants bear
the burden of proof on the issue of but-for causation, we conclude that Plaintiff’s
evidence created a genuine issue of material fact on the fifth Eng factor.
REVERSED AND REMANDED.
1
Because the district court relied solely on the fifth Eng factor in granting
summary judgment, we limit our discussion to the fifth factor and express no view
on the merits of the remaining factors. See Desrochers v. City of San Bernardino,
572 F.3d 703, 709 (9th Cir. 2009).
3