FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NELSON H. ANTHOINE, 

Plaintiff-Appellant, No. 08-16803

v. D.C. No.  2:06-cv-01169- NORTH CENTRAL COUNTIES

CONSORTIUM; LORI BROWN; CINDY JAM-KJM

NEWTON, OPINION

Defendants-Appellees. 

Appeal from the United States District Court

for the Eastern District of California

John A. Mendez, District Judge, Presiding

Submitted November 5, 2009*

San Francisco, California

Filed May 24, 2010

Before: Alfred T. Goodwin and William A. Fletcher,

Circuit Judges, and Richard Mills,** District Judge.

Opinion by Judge William A. Fletcher

*The panel unanimously finds this case suitable for decision without

oral argument. See Fed. R. App. P. 34(a)(2). 

**The Honorable Richard Mills, Senior United States District Judge for

the Central District of Illinois, sitting by designation. 

7395
COUNSEL

Michael Edward Adams, Redwood City, California, for the

appellant.

ANTHOINE v. NORTH CENTRAL COUNTIES CONSORTIUM 7399
Mark Henry Van Brussel, Joel Van Parys, SEYFARTH

SHAW FAIRWEATHER & GERALDSON, Sacramento,

California, for the appellees.

OPINION

W. FLETCHER, Circuit Judge:

In Garcetti v. Ceballos, 547 U.S. 410 (2006), the Supreme

Court held that public employees do not have First Amendment protection for statements made pursuant to their official

duties. In this case we consider the application of Garcetti to

plaintiff-appellant Nelson Anthoine, a low-level employee

who jumped the chain of command to report directly to the

chairman of his employer’s governing board that his immediate supervisor had misrepresented the status of the employer’s

compliance with its legal obligations. Anthoine was disciplined and terminated soon thereafter. Anthoine brought various claims in federal district court, and the court granted

summary judgment against Anthoine. We hold that Anthoine

has presented triable issues of fact on his First Amendment

retaliation claim, and we reverse the summary judgment on

that claim. We affirm the summary judgment against

Anthoine on his gender discrimination and wrongful termination claims.

I. Background

In reviewing the summary judgment against Anthoine, we

take undisputed facts as true and consider disputed facts in the

light most favorable to him. Cripe v. City of San Jose, 261

F.3d 877, 881 n.1 (9th Cir. 2001).

Defendant-appellee North Central Counties Consortium

(“NCCC”) is a public entity created by five California counties to administer the Workforce Investment Act (“WIA”), 29

7400 ANTHOINE v. NORTH CENTRAL COUNTIES CONSORTIUM
U.S.C. § 2801 et seq. NCCC receives money from the state

and federal governments to fund programs that provide workforce development activities. Defendant-appellee Lori Brown

served as the interim Executive Director of NCCC from January 27, 2005 to December 31, 2005. Defendant-appellee

Cindy Newton worked as NCCC Program Director, directly

supervising Anthoine and two other Program Analysts. Anthoine worked as a Program Analyst at NCCC from 1988 until

his termination in May 2005. His duties included working

with NCCC-funded programs to ensure compliance with the

WIA.

Anthoine received seven written performance reviews

between 1988 and 2001. His evaluations ranged from “improvement needed” (second on a five-part scale) to between

“standard” and “above standard” (between third and fourth on

the scale). Between 1998 and 2002, Anthoine received three

reprimands. In 1998, he was given a counseling memo for his

delay in commencing a project and for directly contacting

Deputy Director Bill Rottman, rather than his supervisor

Newton, to get clarification of an instruction. In 2000, he was

criticized for having directly emailed Executive Director

Charles Peterson to express his concerns about how the office

was run and his desire to be treated with respect and to be

included in decision-making processes. In March 2002, he

received a counseling memo for negligence in failing to prepare an inventory list in a timely manner. This memo warned

that future unacceptable work performance would result in

disciplinary action.

From 2002 to early 2004, Anthoine worked largely from

home on a job-survey project. He returned to compliancemonitoring duties at the NCCC office in February 2004. In

October 2004, Anthoine was admonished by his supervisor

Newton for not following directions on four occasions

between June and October 2004. Newton warned him that further misbehavior could result in disciplinary action.

ANTHOINE v. NORTH CENTRAL COUNTIES CONSORTIUM 7401
On January 25, 2005, Anthoine arranged a meeting with

Gary Freeman, the chairman of NCCC’s governing board, at

a restaurant after work. Anthoine reported to Freeman that

Newton had falsely reported to the board that NCCC was current in reporting to the state certain data from NCCC’s case

management system (“CMS”). Anthoine also expressed concerns about flaws in CMS, complained that his work was “not

being considered properly,” and complained about Rottman,

the Deputy Director of NCCC. Anthoine called Freeman the

next day to reiterate his concerns.

Freeman communicated Anthoine’s concerns to Brown,

who became interim executive director on January 27, 2005.

Brown met with Anthoine soon thereafter. She investigated

and confirmed that there was a problem with CMS and data

reporting. Brown confronted Newton, asking her why she had

incorrectly reported that the data was current.

On February 7, 2005, Newton gave Anthoine a verbal

warning for a “pattern of incidents of insubordination.” Anthoine had previously been reprimanded for “failure to follow

instructions,” but the word “insubordination” had been used

only once before, in the 1998 counseling memo. As later

memorialized in a memo, Newton’s February 7 warning cited

the four 2004 incidents that had been listed in the earlier

October 2004 warning, as well as an additional incident that

occurred in January 2005. (The memo states that the additional incident occurred in January 2004, but it appears to

have occurred in January 2005.)

On February 14, 2005, Anthoine responded to Newton’s

verbal warning by giving her a 207-page document. In an

email to Brown, Newton commented, “Looks like good

insomnia reading. Here’s another whirl on Mr. Toad’s wild

ride.” Brown responded, “wow . . . 207 pages?! I cannot wait

for the revision of those policies!!!”

On February 17, 2005, Brown informed Anthoine that there

would be no response to his document. On February 24,

7402 ANTHOINE v. NORTH CENTRAL COUNTIES CONSORTIUM
Brown, Newton, and Anthoine met. On February 25, Anthoine submitted a formal grievance to Brown regarding his

work assignments. He also challenged the February 7 disciplinary action and requested that he be included in meetings

when Newton met jointly with the two other Program Analysts she supervised. Anthoine contends that the other analysts

met to discuss matters that affected his job, but that they met

without him because he was male and had “male qualities”

and because they wanted to talk about personal matters. In

Anthoine’s view, Brown tended to treat male employees in a

“gruff and standoffish” manner, while having a “greater sort

of leniency or flexibility in appraisals of behavior of the

women in the office.”

On March 25, 2005, Brown denied Anthoine’s grievance,

including his request that he always be included in meetings

between Newton and the other analysts. However, she stated

that NCCC would begin holding periodic program analyst

meetings where they could “share ideas and resolve issues as

a team.” On April 7, 2005, Anthoine appealed Brown’s denial

of his grievance to the governing board. On May 16, 2005, the

full governing board heard Anthoine’s grievance. Anthoine

did not tell the board or other NCCC personnel of his complaints of gender discrimination, but he testified in his deposition that he had such discrimination in mind when he

complained of unfair treatment by Newton and Brown. The

board unanimously denied the grievance.

Meanwhile, on March 17, 2005, Anthoine had been given

his evaluation for 2004. He received an “unsatisfactory” rating, the lowest rating on a new four-part scale. An earlier

draft of the evaluation, originally prepared for delivery on

January 28, 2005, would have given him a “needs improvement” rating, the second-lowest rating. Brown had been dissatisfied with the “needs improvement” rating and instructed

Newton to revise it downward to “unsatisfactory.” Brown

requested similar adverse revisions in the performance evaluation for Ed Morrison, the only other low-level male

ANTHOINE v. NORTH CENTRAL COUNTIES CONSORTIUM 7403
employee. She concurred in “excellent” overall ratings for the

two female Program Analysts and for Newton.

At about this time, Anthoine told Newton and Brown of his

concern that Upward Bound, one of the programs that Anthoine monitored, was misusing a portion of its NCCC funds in

violation of the WIA. Newton and Brown disagreed with

Anthoine but agreed to contact NCCC’s state WIA liaison for

advice. Newton states that she believes that she told Anthoine

not to discuss his concern with Upward Bound staff in

advance of receiving an answer from the state liaison. Anthoine denies that she gave him any such direction.

On April 20, 2005, Anthoine attended a monitoring meeting at Upward Bound during which he told staff members

Maria Moreno and Dave Ferguson that their manner of using

funds for classroom training might not be allowable under the

WIA. He also told them that, in his personal opinion, Upward

Bound’s use of funds seemed excessive when programs in

other counties were starved for funds. He told them that he

was trying to influence NCCC to direct more of its funds to

work-site experiences for disadvantaged youth, in contrast to

the Upward Bound program which provided academic training.

On May 5, 2005, Moreno called Newton, telling her about

Anthoine’s comments regarding the possible disallowance of

wages for classroom training. In a written follow-up email

sent on May 10 at Newton’s request, Moreno stated that

Anthoine “informed us that we were most likely in violation

of the WIA regulations,” and that “it was a possibility we

would have to return funds to the consortium for money

already spent or money that would be spent this summer on

class time.” On May 11, Ferguson emailed Newton, indicating that Anthoine had stated that Upward Bound was in jeopardy of having to return funds that it planned to spend in the

future.

7404 ANTHOINE v. NORTH CENTRAL COUNTIES CONSORTIUM
On May 13, 2005, Newton and Brown met with Anthoine

to discuss Upward Bound’s complaints. At this meeting,

Newton stated her belief that she had told Anthoine not to discuss his concern about the use of state funds with Upward

Bound staff; Anthoine denied that she ever gave him such

direction. Anthoine also denied having spoken to Upward

Bound about any risk of having to repay previously expended

funds, acknowledging only that he offered guidance about

planning for future expenditures.

On May 16, 2005, Brown informed the NCCC governing

board that she had decided to discharge Anthoine. The board

ratified Brown’s decision. On May 20, NCCC gave Anthoine

notice that he was terminated effective May 26, because of

unsatisfactory performance, insubordination, and discourteous

treatment of the public or other employees. Bill Rottman and

Ed Morrison, the only other men on the eleven-person NCCC

staff, were terminated on the same day as Anthoine.

Anthoine brought suit in federal district court, asserting,

inter alia, claims for retaliation in violation of the First

Amendment; gender-based employment discrimination in violation of the Equal Protection Clause; and wrongful discharge

in violation of California law. The district court granted summary judgment against Anthoine on all three of these claims.

Anthoine timely appealed.

II. Standard of Review

We review de novo a grant of summary judgment. Huppert

v. City of Pittsburg, 574 F.3d 696, 701 (9th Cir. 2009).

III. Discussion

A. First Amendment Claim

Anthoine contends that he engaged in protected speech

when he informed Freeman, the chairman of NCCC’s board,

ANTHOINE v. NORTH CENTRAL COUNTIES CONSORTIUM 7405
that NCCC was in violation of its legal obligations and that

Newton had misrepresented to the board that NCCC was current in meeting those obligations. Anthoine contends that he

was subjected to a “cascade of adverse employment actions”

in retaliation for having communicated this information to

Freeman.

[1] “The First Amendment shields a public employee if he

speaks as a citizen on a matter of public concern.” Huppert,

574 F.3d at 702. However, “when public employees make

statements pursuant to their official duties, the employees are

not speaking as citizens for First Amendment purposes, and

the Constitution does not insulate their communications from

employer discipline.” Garcetti v. Ceballos, 547 U.S. 410, 421

(2006). We employ a “sequential five-step series of questions” to determine whether an employer impermissibly retaliated against an employee for protected speech:

(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.

Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009); see Huppert, 574 F.3d at 702 (applying Eng test). For the reasons that

follow, we conclude that summary judgment should not have

been granted against Anthoine on his First Amendment retaliation claim. We analyze the five steps of the test in turn.

1. Matter of Public Concern

“Speech involves a matter of public concern when it fairly

can be said to relate to any matter of political, social, or other

7406 ANTHOINE v. NORTH CENTRAL COUNTIES CONSORTIUM
concern to the community.” Huppert, 574 F.3d at 703 (internal quotation marks and alterations omitted). “Public concern” does not have a precise definition, but “the essential

question is whether the speech addressed matters of ‘public’

as opposed to ‘personal’ interest.” Desrochers v. City of San

Bernardino, 572 F.3d 703, 709 (9th Cir. 2009). Subjects of

public concern include “unlawful conduct by a government

employee” and the “misuse of public funds, wastefulness, and

inefficiency in managing and operating government entities.”

Huppert, 574 F.3d at 703-04 (citing cases). “[S]peech that

deals with individual personnel disputes and grievances and

that would be of no relevance to the public’s evaluation of the

performance of governmental agencies is generally not of

public concern.” Eng, 552 F.3d at 1070 (quoting Coszalter v.

City of Salem, 320 F.3d 968, 973 (9th Cir. 2003)) (internal

quotation marks omitted). The public concern inquiry is a

question of law. Eng, 552 F.3d at 1070. A court must consider

“the content, form, and context of a given statement, as

revealed by the whole record.” Connick v. Myers, 461 U.S.

138, 147-48 (1983). Of these, content is the most important

factor. Desrochers, 572 F.3d at 710.

[2] We hold that Anthoine’s speech qualifies as a matter of

public concern. A report regarding the agency’s failure to

comply with its legal obligations is clearly relevant to the

public’s evaluation of NCCC’s performance. Moreover, misrepresentation to the governing board of a public entity by an

employee of that entity falls squarely within the subjects of

public concern delineated in Huppert. 574 F.3d at 703-04.

It is not determinative that Anthoine did not air his concerns publicly. See Thomas v. City of Beaverton, 379 F.3d

802, 810 (9th Cir. 2004) (“That [plaintiff] chose to convey her

views privately rather than publicly is not determinative of

whether her expression is entitled to protection.”); see also

Connick, 461 U.S. at 148 n.8 (noting that the “right to protest

. . . a matter inherently of public concern[ ] is not forfeited

by” use of a private rather than public forum); Givhan v. W.

ANTHOINE v. NORTH CENTRAL COUNTIES CONSORTIUM 7407
Line Consol. Sch. Dist., 439 U.S. 410, 415-16 (1979)

(“Neither the [First] Amendment itself nor our decisions indicate that this freedom is lost to the public employee who

arranges to communicate privately with his employer rather

than to spread his views before the public.”). Anthoine

expressed his concerns about Newton’s misrepresentation

directly to Freeman, the chairman of the board, because he

believed (correctly) that Freeman would be able to address

and correct the problem. See Thomas, 379 F.3d at 811.

2. Speech as a Private Citizen or Public Employee

“Statements are made in the speaker’s capacity as citizen if

the speaker had no official duty to make the questioned statements, or if the speech was not the product of performing the

tasks the employee was paid to perform.” Eng, 552 F.3d at

1071 (internal quotation marks omitted) (citing cases). Statements do not lose First Amendment protection simply because

they concern “the subject matter of [the plaintiff’s] employment.” Freitag v. Ayers, 468 F.3d 528, 545 (9th Cir. 2006);

see Garcetti, 547 U.S. at 421. However, “speech which ‘owes

its existence to an employee’s professional responsibilities’ is

not protected by the First Amendment.” Huppert, 574 F.3d at

704 (quoting Garcetti, 547 U.S. at 421). “[W]hether the plaintiff spoke as a public employee or a private citizen [ ] is a

mixed question of fact and law.” Posey v. Lake Pend Oreille

Sch. Dist. No. 84, 546 F.3d 1121, 1129 (9th Cir. 2008).

In Garcetti, Ceballos, a deputy district attorney, wrote a

memo informing his supervisors that a search warrant affidavit contained serious misrepresentations. The supervisors

allegedly retaliated against him as a result. The Court held

that Ceballos’s speech was not protected by the First Amendment because the memo was written pursuant to his official

duties.

In Freitag v. Ayers, Freitag was a prison guard who first

complained to officials in her chain of command that inmates

7408 ANTHOINE v. NORTH CENTRAL COUNTIES CONSORTIUM
were sexually harassing her. After the officials failed to take

action, Freitag eventually wrote to the Director of the prison

system, to a state senator, and to California’s Inspector General. Because Freitag was required to report inmate misconduct, we concluded that her complaints to the officials in the

chain of command were made pursuant to her official duties.

We held, however, that her speech to the state senator and the

Inspector General was protected because her official duties

did not include reporting to them. We remanded for a determination of whether Freitag’s letter to the Director of the

prison system was sent pursuant to her official duties because

we could not determine based on the record before us

“whether prison guards are expected to air complaints . . . all

the way up to the Director.” 468 F.3d at 546.

In Marable v. Nitchman, 511 F.3d 924 (9th Cir. 2007),

Marable was a Chief Engineer in charge of the engine department of a Washington State ferry. Marable complained of corrupt financial practices by managers in the ferry system. We

held that his internal and external complaints, made to the

Maintenance Director of the ferry system, a former CEO of

the ferry system, a Washington Department of Transportation

auditor, and the Washington Executive Ethics Board, were

protected speech. We held that complaining about corrupt

practices of higher-level officials was entirely outside the

duties of a ferry engineer.

[3] In the case before us, appellees have not shown that

Anthoine’s statements to Freeman were made pursuant to his

official duties, that is, that his speech was “the product of performing the tasks the employee was paid to perform.” Eng,

552 F.3d at 1071 (internal quotation marks omitted). Anthoine

discovered Newton’s misrepresentation about NCCC’s compliance by reading generally distributed minutes of a board

meeting that he had not attended. There is no evidence in the

record that Anthoine had a duty, like the prison guard in

Freitag and the deputy district attorney in Garcetti, to report

such misconduct within the proper channels. See Garcetti,

ANTHOINE v. NORTH CENTRAL COUNTIES CONSORTIUM 7409
547 U.S. at 421 (concluding that the distinguishing consideration was that in sending the memo, Ceballos “spoke as a

prosecutor fulfilling a responsibility to advise his supervisor

about how best to proceed with a pending case”); Alaska v.

EEOC, 564 F.3d 1062, 1070 (9th Cir. 2009) (holding that an

aide to the governor who spoke publicly about misconduct

was not acting within the scope of her official duties, because

those duties “didn’t require her to complain”). But even

assuming that Anthoine had such a duty, there is no evidence

in the record that his speech directly to the chairman of the

NCCC board was within the scope of his duties. Accordingly,

we hold that Anthoine has presented an issue of fact as to

whether he spoke as a private citizen, rather than a public

employee, in reporting Newton’s misrepresentations to Freeman.

3. Substantial or Motivating Factor for Adverse

Employment Action

“Th[e] third step is purely a question of fact.” Eng, 552

F.3d at 1071. In a First Amendment case, “[t]o constitute an

adverse employment action, a government act of retaliation

need not be severe and it need not be of a certain kind.” Coszalter v. City of Salem, 320 F.3d 968, 975 (9th Cir. 2003).

“Depending on the circumstances, even minor acts of retaliation can infringe on an employee’s First Amendment rights.”

Id. A plaintiff can establish a valid claim of retaliation by

showing that “the actions taken by the defendants were reasonably likely to deter [plaintiff] from engaging in protected

activity under the First Amendment.” Id. at 976 (internal quotation marks and alterations omitted). Anthoine was subjected

to a series of adverse actions following his statements to Freeman: a verbal warning for a “pattern of incidents of insubordination,” an unsatisfactory evaluation, and termination of his

employment.

[4] To show that retaliation was a substantial or motivating

factor behind an adverse employment action, a plaintiff can

7410 ANTHOINE v. NORTH CENTRAL COUNTIES CONSORTIUM
(1) introduce evidence that the speech and adverse action

were proximate in time, such that a jury could infer that the

action took place in retaliation for the speech; (2) introduce

evidence that the employer expressed opposition to the

speech; or (3) introduce evidence that the proffered explanations for the adverse action were false and pretextual. Id. at

977. Anthoine relies on the first and third prongs.

[5] Anthoine has provided evidence of a very close temporal link. His statements to Freeman were made on January 25,

2005. The process of downgrading his performance evaluation began within days, he was disciplined on February 7, and

he was given an “unsatisfactory” rating on March 17. He was

then given notice of his termination on May 20.

[6] We have held that proximity in time may support an

inference of retaliation sufficient to survive summary judgment. See Allen v. Iranon, 283 F.3d 1070, 1077-78 (9th Cir.

2002) (“This proximity in time constitutes circumstantial evidence of retaliatory motive.”). In the analogous Title VII context, we have come to a similar conclusion. See Davis v. Team

Elec. Co., 520 F.3d 1080, 1094 (9th Cir. 2008) (“We have

held that ‘causation can be inferred from timing alone where

an adverse employment action follows on the heels of protected activity.’ ” (quoting Villiarimo v. Aloha Island Air,

Inc., 281 F.3d 1054, 1065 (9th Cir. 2002)); Passantino v.

Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493,

507 (9th Cir. 2000) (“[W]hen adverse employment decisions

are taken within a reasonable period of time after complaints

of discrimination have been made, retaliatory intent may be

inferred.”).

[7] In Coszalter, we cautioned that courts should not

engage in a mechanical inquiry into the amount of time

between the speech and alleged retaliatory action. Reversing

a district court’s determination that adverse employment

actions taken three to eight months after protected speech

were too distant in time to support an inference of retaliation,

ANTHOINE v. NORTH CENTRAL COUNTIES CONSORTIUM 7411
we held that “[w]hether an adverse employment action is

intended to be retaliatory is a question of fact that must be

decided in the light of the timing and the surrounding circumstances.” 320 F.3d at 977-78. Contrary to appellees’ suggestion, however, Coszalter did not repudiate Allen’s holding that

proximity in time may constitute circumstantial evidence of

retaliatory motive. Rather, it rejected adoption of a bright-line

rule providing that a certain period of time is per se too long

to support an inference of retaliation. See id. at 977-78.

[8] Anthoine has also provided evidence showing that

appellees’ “proffered explanations for the adverse employment action[s] were false and pretextual.” Id. at 977 (quoting

Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741,

752 (9th Cir. 2001)). During the seventeen years Anthoine

worked at NCCC, he was hardly a model employee. He questioned his superiors, failed to follow their directions, and

undertook, to their dismay, “improvements” on his own initiative. But only after his statements to Freeman informing him

of Newton’s misrepresentation did Anthoine receive discipline for a “pattern of incidents of insubordination” (four out

of five of which had already been documented without use of

the word “insubordinate”), a downwardly revised performance rating of “unsatisfactory,” and notice of termination.

The facts in Anthoine’s case are similar to those in Allen,

in which we held that the evidence was sufficient to support

an inference of retaliatory motive:

Allen had worked at Halawa for years, during which

he was involved in several disputes over security,

without his performance being found deficient

enough to warrant discipline or an Internal Affairs

investigation. After he began to criticize the prison

under Hall’s administration, his conduct was found

to be so serious that it warranted Internal Affairs

investigations and a lockout. This proximity in time

constitutes circumstantial evidence of retaliatory

7412 ANTHOINE v. NORTH CENTRAL COUNTIES CONSORTIUM
motive. The protected statement was made eleven

months before the first lockout and the initiation of

the Internal Affairs investigations. Although an

inference from temporal proximity would have been

stronger had the gap in time been smaller, an elevenmonth gap in time is within the range that has been

found to support an inference that an employment

decision was retaliatory.

283 F.3d at 1077-78 (internal citation omitted).

[9] There is thus evidence in the record from which a jury

could conclude that the disciplinary actions taken against

Anthoine were reasonably likely to deter him from engaging

in activity protected by the First Amendment. See Coszalter,

320 F.3d at 976-77 (describing adverse employment actions).

And there is evidence from which a jury could conclude that

these actions were taken to retaliate against him for his statements to Freeman.

4. Adequate Justification

[10] Once a plaintiff has satisfied the first three steps, the

burden shifts to a defendant to show whether it “had an adequate justification for treating the employee differently from

any other member of the general public.” Garcetti, 547 U.S.

at 418. For a court “to find that the government’s interest as

an employer in a smoothly-running office outweighs an

employee’s first amendment right, defendants must demonstrate actual, material and substantial disruption, or reasonable

predictions of disruption in the workplace.” Robinson v. York,

566 F.3d 817, 824 (9th Cir. 2009) (internal quotation marks

and alteration omitted). This issue is ultimately a legal determination but often turns on questions of fact. Eng, 552 F.3d

at 1071-72. Appellees have not attempted to show that Anthoine’s statements to Freeman caused any disruption or could

have been predicted to cause a disruption.

ANTHOINE v. NORTH CENTRAL COUNTIES CONSORTIUM 7413
5. Adverse Employment Action Absent the Protected

Speech

[11] If defendants fail to carry their burden on the fourth

part of the test, they are nonetheless entitled to summary judgment if they can demonstrate that they “would have reached

the same adverse employment decision even in the absence of

the employee’s protected conduct.” Eng, 552 F.3d at 1072.

“In other words, [they] may avoid liability by showing that

the employee’s protected speech was not a but-for cause of

the adverse employment action.” Id.; see Mt. Healthy City

Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977).

“This question relates to, but is distinct from, the plaintiff’s

burden to show the protected conduct was a substantial or

motivating factor.” Eng, 552 F.3d at 1072.

[12] The “but-for causation inquiry” is “purely a question

of fact.” Robinson, 566 F.3d at 825. Appellees contend that

Anthoine has not carried his burden at the third step of showing that his statements to Freeman were a substantial or motivating factor in any adverse employment action. But appellees

do not directly address the related question, at the fifth step,

of whether they have carried their own burden of showing that

his statements were not a but-for cause of the adverse actions.

As we have already discussed, Anthoine has provided evidence from which a jury could conclude that his protected

speech was a motivating factor in the adverse actions. In light

of the absence of conclusive evidence that Anthoine’s unprotected behavior was the but-for cause of the adverse actions,

that question cannot be resolved on summary judgment.

6. Summary

[13] We therefore reverse and remand for further proceedings on Anthoine’s First Amendment claim of retaliation for

his statements to Freeman.

7414 ANTHOINE v. NORTH CENTRAL COUNTIES CONSORTIUM
B. Gender Discrimination Claim

[14] Anthoine also brings a § 1983 claim for gender-based

employment discrimination under the Equal Protection Clause

of the Fourteenth Amendment. Although we are not bound by

the “formal Title VII disparate treatment burden shifting

framework when trying § 1983 claims,” we agree with the

parties that it is appropriate to apply the McDonnell Douglas

burden-shifting framework to Anthoine’s claim. See Keyser,

265 F.3d at 754; see also Demoret v. Zegarelli, 451 F.3d 140,

149 (2d Cir. 2006); Smith v. City of Salem, Ohio, 378 F.3d

566, 576-77 (6th Cir. 2004). To establish a prima facie case

under McDonnell Douglas, a plaintiff must demonstrate that:

(1) he belonged to a protected class; (2) he was qualified for

his job; (3) he was subjected to an adverse employment

action; and (4) similarly situated employees not in his protected class received more favorable treatment. Moran v.

Selig, 447 F.3d 748, 753 (9th Cir. 2006); see McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).

[15] If Anthoine makes out a prima facie case, the burden

shifts to defendants to provide non-discriminatory reasons for

the adverse action. Wallis v. J.R. Simplot Co., 26 F.3d 885,

889 (9th Cir. 1994). If they do so, the prima facie case “drops

out of the picture,” and a court evaluates the evidence to

determine whether a reasonable jury could conclude that

defendants discriminated against Anthoine based on gender.

Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028

(9th Cir. 2006). Defendants do not challenge Anthoine’s

prima facie case, and Anthoine does not dispute that Defendants have articulated non-discriminatory reasons for the

adverse employment action.

Anthoine may defeat summary judgment by offering direct

or circumstantial evidence “that a discriminatory reason more

likely motivated the employer,” or “that the employer’s proffered explanation is ‘unworthy of credence’ because it is

internally inconsistent or otherwise not believable.” Chuang

ANTHOINE v. NORTH CENTRAL COUNTIES CONSORTIUM 7415
v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1127 (9th

Cir. 2000); see Cornwell, 439 F.3d at 1028-29. “These two

approaches are not exclusive; a combination of the two kinds

of evidence may in some cases serve to establish pretext so

as to make summary judgment improper.” Chuang, 225 F.3d

at 1127. However, “[a] plaintiff may not defeat a defendant’s

motion for summary judgment merely by denying the credibility of the defendant’s proffered reason for the challenged

employment action.” Cornwell, 439 F.3d at 1028 n.6. When

the evidence on which a plaintiff relies is circumstantial, “that

evidence must be specific and substantial to defeat the

employer’s motion for summary judgment.” See EEOC v.

Boeing Co., 577 F.3d 1044, 1049 (9th Cir. 2009); see Cornwell, 439 F.3d at 1029.

Anthoine seeks to show discriminatory motive by arguing

that Brown fired the only three males employed by NCCC on

the same day, and that Brown used different tones of voice

and “nonverbal” behaviors when speaking with male and

female employees. Evidence that an employer terminated all

three of its male employees on the same day could show

gender-based animus. In this case, however, Anthoine has not

offered any specific evidence about the circumstances in

which the other men were terminated. Anthoine also contests

the reasons for his reprimand and termination. Even taking his

evidence as true, however, Anthoine has failed to carry his

burden of showing his employer’s explanation was unworthy

of credence.

[16] Assessing in combination Anthoine’s evidence challenging the employer’s proffered explanation and his evidence ostensibly setting forth discriminatory motive, as

Chuang requires, Anthoine has not carried his burden. The

evidence Anthoine has set forth is not “specific and substantial” and does not create a triable issue of fact as to ultimate

issue of gender-based discrimination.

7416 ANTHOINE v. NORTH CENTRAL COUNTIES CONSORTIUM
C. Wrongful Discharge Claim

[17] Finally, Anthoine asserts a state-law claim for wrongful termination in violation of public policy. In Miklosy v.

Regents of University of California, 188 P.3d 629, 643-44

(Cal. 2008), the California Supreme Court held that a state

common law claim for wrongful termination in violation of

public policy, known as a Tameny action, cannot be brought

against a public entity. According to the Court, § 815 of the

California Government Claims Act abolished common law

tort liability for public entities. Id. at 643; see Cal. Gov. Code

§ 815 (“Except as otherwise provided by statute . . . [a] public

entity is not liable for an injury . . . .”). As a public entity,

NCCC may not be held liable for such a claim. Nor may a

wrongful discharge claim be brought against individual defendants such as Brown and Newton. As Miklosy explains,

[A] Tameny action for wrongful discharge can only

be asserted against an employer. An individual who

is not an employer cannot commit the tort of wrongful discharge in violation of public policy; rather, he

or she can only be the agent by which an employer

commits that tort.

Miklosy, 188 P.3d at 644 (emphasis in original).

[18] Because Anthoine may not bring a wrongful termination claim against NCCC, Brown, or Newton, we affirm the

district court’s grant of summary judgment on this claim.

Conclusion

We hold that Anthoine has presented a triable issue of

material fact on his First Amendment retaliation claim but has

failed to do so on his gender discrimination and wrongful discharge claims. We reverse and remand the grant of summary

judgment on Anthoine’s First Amendment claim of retaliation

for his statements to Freeman. We affirm the grant of sumANTHOINE v. NORTH CENTRAL COUNTIES CONSORTIUM 7417
mary judgment on his other claims. Each side is to bear its

own costs on appeal.

AFFIRMED IN PART; REVERSED and REMANDED

IN PART. 

7418 ANTHOINE v. NORTH CENTRAL COUNTIES CONSORTIUM