#### Elena RODRIGUEZ-MALFAVON, Plaintiff-Appellant, v. CLARK COUNTY SCHOOL DISTRICT; et al., Defendants-Appellees.

No. 16-17076

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 6, 2017 San Francisco, California

Filed December 12, 2017

Richard Segerblom, Attorney, Las Vegas, NV, for Plaintiff-Appellant

Patrick H. Hicks, Esquire, Attorney, Ethan Thomas, Esquire, Attorney, Littler Mendelson, Las Vegas, NV, for Defendant-Appellee Clark County School District

Patrick H. Hicks, Esquire, Attorney, Littler Mendelson, P.C., Walnut Creek, CA, Ethan Thomas, Esquire, Attorney, Littler Mendelson, Las Vegas, ÑV, for Defendants-Appellees Edward Goldman, Anita Wilbur

Before: M. SMITH and IKUTA, Circuit Judges, and MCAULIFFE,* District Judge.

*

The Honorable Steven J. McAuliffe, Senior United States District Judge for the District of New Hampshire, sitting by designation.

MEMORANDUM **

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) 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 plaintiffs 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.” *349*Id.*at 1072. We have emphasized that “[ijmmunity 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.*

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 Plaintiffs evidence created a genuine issue of material fact on the fifth *Eng*factor.

REVERSED AND REMANDED.

**

 This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

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).