Leslie Kerr v. Kenneth Salazar
549 F. App'x 635
9th Cir.2013Background
- Leslie Kerr was manager of Kodiak National Wildlife Refuge and raised complaints about coworkers' alcohol problems and about her supervisor Michael Boylan's comment that she should be "learn to be more feminine."
- After a workplace suicide and a related incident, Boylan issued Kerr a warning and rated her "minimally successful." Kerr requested reconsideration and filed grievances and letters with HR and the Performance Review Board in Feb 2006, and later filed an OIG complaint.
- On Jan 26, 2006 Kerr was placed on a 60-day detail to an Anchorage planning post; on Mar 3, 2006 the detail was converted to a permanent reassignment, with management citing her planning expertise and a need for new leadership at Kodiak.
- Kerr declined the permanent reassignment, faced removal proceedings, and retired involuntarily; she filed EEO complaints that were dismissed and then sued alleging Title VII retaliation and violations of the Whistleblower Protection Act (WPA).
- The district court granted summary judgment to the government, finding Kerr had a prima facie Title VII claim but failed to show pretext, and holding only her OIG complaint was a protected WPA disclosure occurring before the adverse actions. Kerr appealed.
- The Ninth Circuit reversed in part: it held Kerr raised a triable issue of pretext as to the permanent reassignment (Title VII) and that her pre-OIG communications were protected disclosures under the WPA as written in 1989.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Kerr established pretext for Title VII retaliation based on the permanent reassignment | Kerr: timing of Feb complaints and unexplained change from temporary to permanent detail show retaliatory motive | Gov: reassignment was for legitimate reasons—Kerr's planning expertise and need for new Kodiak leadership | Reversed: triable issue of pretext exists as to the permanent reassignment (remanded limited to that action) |
| Whether pre-OIG complaints are protected disclosures under the WPA | Kerr: her HR/Performance Board letters and grievance disclosed gross mismanagement/alcohol problems and are protected as "any disclosure" | Gov: lower court and some Federal Circuit precedent exclude certain pre-OIG communications from protection | Reversed: pre-OIG communications are protected under 5 U.S.C. § 2302(b)(8)(A) as written in 1989 |
| Whether the district court properly limited protected disclosures to the OIG complaint | Kerr: limiting protection to OIG contact is incorrect; statute covers "any disclosure" | Gov: relied on prior doctrines to limit protection | Reversed: court must not limit protected disclosures to only OIG complaints; remand for further proceedings on causation |
| Whether the court should decide causation for WPA on summary judgment | Kerr: factual disputes (timing, change to permanent reassignment) preclude summary judgment | Gov: argued in brief that causation fails even if disclosures protected | Ninth Circuit: declined to decide causation; left for remand given unresolved factual issues and Title VII pretext evidence |
Key Cases Cited
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (burden-shifting framework for discrimination/retaliation)
- Dawson v. Entek Int’l, 630 F.3d 928 (temporal proximity can establish causation and pretext)
- Coons v. Sec’y of U.S. Dep’t of Treasury, 383 F.3d 879 (elements of WPA retaliation claim)
- Huffman v. Office of Personnel Mgmt., 263 F.3d 1341 (Fed. Cir. precedent on scope of protected disclosures)
- Earl v. Nielsen Media Research, Inc., 658 F.3d 1108 (standard for showing pretext with circumstantial evidence)