NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT A. EATON, 

Plaintiff-Appellant, 

 v. 

MONTANA SILVERSMITHS, 

Defendant-Appellee.

No. 22-35480 

D.C. No. 1:18-cv-00065-SPW 

MEMORANDUM*

Appeal from the United States District Court

for the District of Montana

Susan P. Watters, District Judge, Presiding

Submitted October 31, 2023**

Before: BENNETT, SUNG, and H.A. THOMAS, Circuit Judges.

Plaintiff Robert A. Eaton sued his former employer Defendant Montana 

Silversmiths (“MTS”) alleging seven causes of action: (1) retaliation; (2) wrongful 

termination; (3) disability discrimination; (4) age discrimination; (5) hostile work 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes that this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

OCT 31 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

environment; (6) defamation; and (7) breach of contract.

1

 Eaton appeals the 

district court’s judgment in favor of MTS.

2

 Exercising jurisdiction pursuant to 28 

U.S.C. § 1291, we AFFIRM in part, REVERSE in part, and REMAND.

1. The district court incorrectly dismissed Eaton’s claim under the 

Family and Medical Leave Act (“FMLA”). We review de novo a district court’s 

grant of a motion to dismiss under Rule 12(b)(6), taking all allegations of material 

fact as true and construing them in the light most favorable to the nonmoving 

party. Mudpie, Inc. v. Travelers Cas. Ins. Co. of Am., 15 F.4th 885, 889 (9th Cir. 

2021).

The district court found that Eaton did not allege a claim under the FMLA or

for a wrongful denial of his FMLA leave. The district court held that Eaton’s 

FMLA allegation was not “separate and independent” from his claim alleging that 

1 Eaton does not make any arguments on appeal about his defamation claim. 

He also does not make any arguments on appeal about his breach of contract claim 

apart from the argument under the Family and Medical Leave Act, which we 

address infra.

2 Eaton’s Notice of Appeal states that he is appealing from the district 

court’s order dismissing his breach of contract claim; order partially granting 

MTS’s motion for summary judgment; order granting MTS’s second motion for 

summary judgment; and judgment in favor of MTS. In an addendum to his Notice 

of Appeal, Eaton states that he is also appealing the district court’s order denying 

his motion for clarification and/or reconsideration. In his appellate briefing, Eaton 

also raises arguments concerning the district court’s decision to grant MTS leave to 

file a second motion for summary judgment. We construe pro se pleadings 

“liberally,” Draper v. Rosario, 836 F.3d 1072, 1080 (9th Cir. 2016), and therefore 

address each of Eaton’s arguments.
3 

his termination also constituted breach of contract—with the “contract” being

MTS’s employee handbook. Therefore, according to the district court, Eaton’s 

FMLA grievance, due to its connection with his breach of contract claim, was

barred by a Montana statute that is the “exclusive remedy for wrongful discharge”

in the state. Ruzicka v. First Healthcare Corp., 45 F. Supp. 2d 809, 811 (D. Mont. 

1997); see also Mont. Code Ann. § 39-2-902(3).

But the district court failed to construe Eaton’s pro se pleadings “liberally,” 

Draper v. Rosario, 836 F.3d 1072, 1080 (9th Cir. 2016), and erred in its narrow 

view of FMLA rights. Under the FMLA, it is “unlawful for any employer to 

interfere with, restrain, or deny the exercise of or the attempt to exercise, any right 

provided under” the Act. 29 U.S.C. § 2615(a)(1) (emphases added). 

“Interference” includes “not only refusing to authorize FMLA leave, but 

discouraging an employee from using such leave.” 29 C.F.R. § 825.220(b)

(emphasis added). Eaton adequately alleged an interference with his FMLA leave. 

An HR staff member told Eaton that he did not qualify for FMLA leave because he 

was already on worker’s compensation and that she would not provide him with a 

“certification form to fill out, or request FMLA.” Taken together, these actions 
4 

could be viewed as “discouraging” Eaton from using his FMLA leave; he did not 

need to plead a denial of his FMLA leave.

3

Thus, we reverse the dismissal of the FMLA claim.

2. We review the district court’s grant of summary judgment de novo. 

See Soc. Techs. LLC v. Apple Inc., 4 F.4th 811, 816 (9th Cir. 2021). We must 

determine whether, viewing the evidence in the light most favorable to the 

nonmoving party, “there are any genuine issues of material fact and whether the 

district court correctly applied the relevant substantive law.” Id. (citation omitted). 

Montana’s Wrongful Discharge from Employment Act (“WDEA”) provides 

the exclusive remedy for an alleged wrongful discharge under Montana law.4

Under the WDEA, a discharge is wrongful only if:

(a) it was in retaliation for the employee’s refusal to violate 

public policy or for reporting a violation of public policy;

(b) the discharge was not for good cause and the employee 

had completed the employer’s probationary period of 

employment; or

(c) the employer violated the express provisions of its own 

written personnel policy.

3 The same staff member stated in her deposition that a person is eligible to 

go on FMLA leave in conjunction with their worker’s compensation leave. 

According to Eaton’s pleadings, this is contrary to what she told him when he 

asked her for FMLA forms.

4 Mont. Code Ann. § 39-2-902 (2020). Like the district court, we cite to the 

2020 version of the WDEA, even though certain sections were amended in 

immaterial ways in 2021. See 2021 Mont. Laws 319.
5 

Mont. Code Ann. § 39-2-904(1). “‘Good cause’ means reasonable job-related 

grounds for dismissal based on a failure to satisfactorily perform job duties,

disruption of the employer’s operation, or other legitimate business reason.” Id.

§ 39-2-903(5). “A legitimate business reason is one that is not false, whimsical,

arbitrary, or capricious, and . . . must have some logical relationship to the needs of

the business.” Putnam v. Cent. Mont. Med. Ctr., 460 P.3d 419, 423 (Mont. 2020)

(internal quotation marks and citation omitted). 

Eaton argues that the district court erred in finding that there was a 

legitimate business reason to lay him off.

5

 MTS executed a three-phase reduction 

in force (“RIF”) from 2016 to 2017, after it learned in 2016 that a major client was 

not renewing its contract with MTS—which would lead to a loss of substantial 

revenue for the company. MTS states that Eaton was laid off in the third phase of 

the RIF because Eaton lacked internal cross-training for different tasks and 

received the lowest total score on MTS’s employee cross-training matrix.

“To defeat a motion for summary judgment on the issue of good cause [in a 

WDEA case], the employee may either prove that the given reason for the 

discharge is not good cause in and of itself, or that the given reason is a pretext and 

5 Eaton abandoned his challenge to whether MTS complied with its 

personnel policy in connection with his termination. See Acosta-Huerta v. Estelle,

7 F.3d 139, 144 (9th Cir. 1992) (deeming issues raised in a pro se litigant’s brief 

but not supported by argument abandoned).
6 

not the honest reason for the discharge.” Becker v. Rosebud Operating Servs., Inc., 

191 P.3d 435, 441 (Mont. 2008) (internal quotation marks and citation omitted). 

Eaton argues only that the district court did not look at his evidence in ruling on 

the summary judgment motions. But the district court fully considered the 

appropriate factual evidence in the record. Eaton only presented his own testimony 

and uncorroborated answers to interrogatories. Eaton’s proffered evidence did not 

suffice to create a material issue of disputed fact.

Eaton could not “merely set forth conclusory statements,” and instead

needed to provide “material and substantial evidence” to support his claim that 

MTS’s offered business reason was pretext. Rolison v. Bozeman Deaconess 

Health Servs. Inc., 111 P.3d 202, 208 (Mont. 2005). Here, the district court found 

that Eaton “fail[ed] to proffer any evidence in support” of his contention that 

MTS’s offered reason was pretextual or that his score on the matrix was 

inaccurate. We agree. Eaton’s response to MTS’s summary judgment motion did 

not create a disputed issue of fact concerning MTS’s showing that its reason for 

terminating Eaton was “not false . . . [and had] some logical relationship to the 

needs of the business.” Putnam, 460 P.3d at 423 (emphasis added) (citation 

omitted).

3. The Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et 

seq., “prohibits an employer from discriminating against a qualified individual 
7 

with a disability because of the disability.” Nunes v. Wal-Mart Stores, Inc., 164 

F.3d 1243, 1246 (9th Cir. 1999) (internal quotation marks and citation omitted). 

The ADA defines disability as “a physical or mental impairment that substantially 

limits one or more major life activities of [an] individual; . . . a record of such an 

impairment; . . . or being regarded as having such an impairment.” 42 U.S.C. 

§ 12102(1). The district court correctly found that Eaton had failed to establish 

such disability. The district court noted that Eaton suffered from carpal tunnel 

syndrome and underwent corrective surgery, but pointed out that Eaton had offered 

no evidence “illustrating that the impairment limited one or more major life 

activities or, in the alternative, that after surgery was performed he could be

regarded as having such an impairment.”

Eaton argues that the district court erred by not referring to the 2008 

amendments to the ADA, but the district court correctly referred to all relevant 

provisions of the ADA. To dispute on appeal the finding that he is not disabled, 

Eaton points to medical records that were filed after the district court’s grant of 
8 

summary judgment with respect to his disability discrimination claim and thus

were not before the district court at the time of that ruling.

6, 7

4. Under the Age Discrimination in Employment Act (“ADEA”), 29 

U.S.C. § 621 et seq., it is unlawful to discharge any individual aged forty or older

“because of [the] individual’s age.” Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 

1201, 1207 (9th Cir. 2008) (quoting 29 U.S.C. § 623(a)(l)). ADEA claims (like 

ADA claims) employ a three-stage burden-shifting framework. First, the claimant

must establish a prima facie case; then, the employer must articulate a legitimate,

nondiscriminatory reason for the adverse employment action; and last, the

employee must prove that the reason advanced by the employer is mere pretext for

unlawful discrimination. Id.

6 Eaton’s disability discrimination claim also fails because Eaton has not 

shown a triable issue as to MTS’s claimed legitimate business reason for 

terminating his employment. See Snead v. Metro. Prop. & Cas. Ins. Co., 237 F.3d 

1080, 1093 (9th Cir. 2001) (explaining that, after an employer proffers a legitimate 

business reason for an employee’s termination, the employee bears the burden of 

showing that the offered reason is pretextual).

7 Eaton appeals the district court’s grant of summary judgment to MTS on 

Eaton’s hostile work environment claim, but bases his appeal only on his ADA 

argument. Thus, we also affirm the district court’s summary judgment grant to 

MTS on the hostile work environment claim.
9 

Even if Eaton could establish a prima facie case of age discrimination,

8 his 

ADEA claim would fail because MTS has provided a legitimate business reason 

for terminating his employment—and Eaton has not pointed to specific evidence 

establishing that the reason was pretextual. 

5. Eaton challenges the district court’s summary judgment grant to MTS 

on Eaton’s claim of retaliation under Title VII of the Civil Rights Act of 1964, 42 

U.S.C. § 2000e-3(a).

9

To survive a motion for summary judgment, a plaintiff first must establish a 

prima facie case of retaliation: “(1) that [he] was engaging in protected 

activity/opposition, (2) that [he] suffered an adverse employment decision, and (3)

that there was a causal link between [his] activity and the employment decision.” 

Folkerson v. Circus Circus Enters., Inc., 107 F.3d 754, 755 (9th Cir. 1997). If a 

plaintiff does so, we then use the burden-shifting framework described above.

Eaton alleges that MTS retaliated against him by changing his work 

schedule for “bringing forth concerns in the company”; giving him an unjustified, 

8 The district court noted that Eaton could point to no evidence—apart from 

his own “Statement of Disputed Facts” and his own submission to the Montana 

Human Rights Bureau for an investigation—that his employer gave preferential 

treatment to younger employees. On appeal, Eaton does not point to any evidence 

that the district court failed to consider.

9 The district court did not abuse its discretion in allowing MTS to file a 

second motion for summary judgment. See Hoffman v. Tonnemacher, 593 F.3d 

908, 911 (9th Cir. 2010).
10 

poor performance evaluation in retaliation for raising concerns about sexual/racial 

harassment in the workplace; and laying him off for being on worker’s 

compensation.

The district court originally held that Eaton had failed to make a prima facie 

case on his claim of being terminated for being on worker’s compensation, because 

that was not a protected activity. The court also held that Eaton’s schedule change 

was not an adverse employment action, because MTS put Eaton on the same 

schedule as all other employees and gave him additional time to adjust to the 

standardized schedule. Eaton does not challenge those holdings on appeal. We 

thus only address the performance evaluation retaliation claims.

In Eaton’s initial 2017 Annual Performance Evaluation (“PE v.1”), Eaton 

received the lowest possible marks in two categories, “Interaction with coworkers” and “Resolves conflicts in an appropriate manner.” The “Comments” 

section stated: “At times [Eaton] creates unwelcoming environment in regard[] to 

Travis while at the same time interacting well with Rick and Brian” and 

“[s]idesteps proper reporting of concerns outside of management hierarchy.” 

Eaton then met with Lance Neirby, the Vice-President of Operations at MTS, and 

Justin Deacon, Eaton’s supervisor. In the meeting, Neirby changed Eaton’s 

performance evaluation (“PE v.2”). Neirby kept Eaton’s low scores the same. But 

Neirby changed the comment accompanying “Interaction with co-workers” to 
11 

“Challenging relationship exists between employee and direct supervisor.” Neirby 

stated that he changed the comment because Eaton screamed, yelled obscenities, 

and exhibited aggressive behavior toward Deacon, and Neirby wanted to calm 

Eaton down.

Eaton claims that the low marks in PE v.1 were retaliatory. Eaton presented

admissible evidence that he had never received any notice of the supposed 

concerns in PE v.1 and that there were no documented concerns filed by other 

employees, and that he had received strong positive prior ratings regarding his 

ability to work with teammates.10 Eaton also notes that the “sidestepping” 

comment directly contravenes MTS’s 2015 Employee Handbook, which states that

individuals who experience or witness harassment “must discuss their concerns 

with their immediate supervisor, Human Resources or any member of 

management.” And Deacon testified that the negative comments regarding Eaton’s 

relationship with Travis were inserted at the direction of Neirby, contrary to the 

wishes of Deacon as his reviewing supervisor. Deacon also testified that before 

10 Eaton’s 2014 and 2015 annual performance reviews both rated him 

“Good” on both “Interaction with co-workers” and “Resolves conflicts in an 

appropriate manner.” Eaton’s 2016 annual performance review rated him 

“Excellent” on “Interaction with co-workers” and “Good” on “Resolves conflicts 

in an appropriate manner.” In addition, the 2016 reviewer included a comment that 

Eaton “is always in good spirit and is easy to get along with.”
12 

the performance evaluation meeting that led to PE v.2, Deacon and Eaton got along 

“pretty good” and never “g[o]t into a fight about anything.”

In its first order partially denying summary judgment, the district court

found that Eaton “presented sufficient evidence to support a prima facie case of 

retaliation” and that MTS did not offer any legitimate, nondiscriminatory reason 

for PE v.1.

In its second summary judgment order, however, the district court did not 

discuss Eaton’s claim that the PE v.1 negative evaluation was retaliatory. Instead, 

it focused entirely on whether MTS articulated a legitimate, nondiscriminatory 

reason for the change from PE v.1 to PE v.2, and whether the proffered legitimate 

reason was pretextual. Because we review summary judgment decisions de novo, 

we will analyze the PE v.1 claim based on the record before the district court.11

Eaton established a prima facie case showing that PE v.1 was retaliatory. 

First, Eaton engaged in protected activity when he repeatedly reported alleged 

instances of sexual harassment and racial discrimination to the Human Resources 

Department and other members of management. Second, PE v.1, which gave 

Eaton the lowest possible marks for two categories, was final, shared with his 

11 Eaton’s briefs do not appear to argue that the change made in PE v.2 was 

retaliatory, and thus that claim is waived. But even were we to analyze that claim 

on the merits, we would agree with the district court that Eaton did not present any 

specific or substantial evidence regarding that claim.
13 

supervisors, submitted to the Human Resources Department, and listed as one of 

the criteria to be considered in the RIF. Eaton thus suffered an adverse 

employment decision.12 Third, there was evidence to suggest that a causal link 

existed between the protected activity and the adverse employment decision. 

Eaton filed a personal knowledge affidavit stating that he continued to observe 

instances of harassment, and that he repeatedly contacted other higher-ups in the 

company about it to no avail from 2015 through 2017. And Neirby’s comment 

accompanying the low marks stating that Eaton “[s]idesteps proper reporting of 

concerns outside management hierarchy” could be read by a reasonable juror as 

referring to Eaton’s repeated reporting of suspected sexual and racial harassment.

Because Eaton has established a prima facie case of retaliation, the burden 

shifts to MTS “to articulate some legitimate, nondiscriminatory reason” for the 

adverse employment action. Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 

253 (1981) (citation omitted). MTS, in its Answering Brief, does not proffer any 

business justifications for issuing Eaton the lowest possible marks in two 

12 In its first summary judgment order, the district court discussed Supreme 

Court and Ninth Circuit precedent and held that “whether a negative evaluation 

constitutes an adverse employment action depends on the facts and circumstances 

of each case,” which includes “whether the evaluation was . . . negative, how 

widely it was disseminated, if it was final, and whether it resulted in any adverse 

employment consequences.” The district court found such an adverse employment 

action here. We agree. See, e.g., Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th 

Cir. 1987) (“[U]ndeserved performance ratings, if proven, would constitute 

‘adverse employment decisions’ cognizable under this section.”).
14 

categories in PE v.1, focusing (as the district court did in its second order) only on 

the changes from PE v.1 to PE v.2. Even if we ignore MTS’s briefing failure and 

look to MTS’s evidence before the district court, we are still left with a triable 

issue of fact as to pretext.

In the district court, MTS stated, without providing a citation, that “[t]he 

uncontroverted testimony of both Deacon and Neirby demonstrate that Eaton had a 

couple of areas that required improvement, and that needed to be brought to his 

attention as an employee.” MTS also pointed to Neirby’s deposition testimony: 

“The reason those comments were added is because your inability to effectively 

communicate was leaving the team feeling as if they were walking on eggshells 

around you at all times because they didn’t know how you would react, nor would 

you be cordial or not cordial. It was sometimes as if they didn’t even exist, you 

would not acknowledge their existence.”

Eaton has presented sufficient evidence that a reasonable juror could view 

MTS’s proffered business justifications as pretextual. Eaton averred that he 

continued to report instances of sexual harassment and racial harassment 

throughout 2015 and 2017. Before PE v.1, Eaton had never received any notice of 

the supposed concerns. Indeed, he had received strong positive prior ratings 

regarding his ability to work with teammates. The comment for allegedly 

sidestepping MTS’s proper channels to report concerns contravenes MTS’s 2015 
15 

Employee Manual. And Deacon, who testified that he and Eaton got along before 

PE v.2, stated that the negative comments in PE v.1 were inserted at the direction 

of Neirby. Viewing the evidence in the light most favorable to Eaton, there are 

genuine issues of material fact that should be left for a jury to decide.

Because Eaton has provided sufficient evidence of a triable issue of fact as 

to whether MTS’s proffered business justifications for PE v.1 were pretextual, we 

reverse the district court’s grant of summary judgment as to the retaliation claim 

with respect to PE v.1.

13

For the foregoing reasons, we reverse the dismissal of Eaton’s FMLA claim 

and the grant of summary judgment to MTS on Eaton’s retaliation claim with 

respect to PE v.1. We affirm the grant of summary judgment to MTS on Eaton’s 

claims under the WDEA, the ADA, and the ADEA.

AFFIRMED in part, REVERSED in part, and REMANDED.

14

13 Eaton argues for the first time on appeal that the former counsel for MTS 

defamed him, and that the district court judge failed to recuse herself due to a “pro 

se litigant bias.” These arguments were never presented to the district court, and 

we do not consider them for the first time on appeal. See Maronyan v. Toyota 

Motor Sales, U.S.A., Inc., 658 F.3d 1038, 1043 n.4 (9th Cir. 2011).

14 The parties shall bear their own costs on appeal.