Tarbuck v. Nevada, Ex Rel. Nevada Youth Training Center
691 F. App'x 426
| 9th Cir. | 2017Background
- Plaintiff Steve Tarbuck, represented by counsel, sued NYTC under 42 U.S.C. § 1983 (free speech) and Title VII (retaliation) following his termination from NYTC.
- The district court dismissed Tarbuck’s § 1983 free speech claim with leave to amend; Tarbuck did not replead that claim in his second amended complaint.
- The district court granted summary judgment to NYTC on the Title VII retaliation claim.
- NYTC defended termination based on documented performance problems and specific incidents listed in a timeline leading to discharge.
- Tarbuck argued his satisfactory evaluations and timing of complaints showed retaliation and pretext; several probationary evaluations nonetheless rated him deficient in supervision duties before he complained.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Tarbuck preserved his § 1983 free-speech claim for appeal | Tarbuck treated dismissal with leave to amend as preserving the claim on appeal | NYTC argued the claim was waived because it was not repleaded after dismissal | Claim waived for appeal: failure to replead = forfeiture |
| Standard of review for district rulings | N/A | N/A | 12(b)(6) dismissal reviewed de novo; summary judgment reviewed de novo |
| Whether Tarbuck established prima facie Title VII retaliation | Tarbuck contended he engaged in protected activity and was terminated thereafter | NYTC did not dispute prima facie elements for purposes of summary judgment (court assumed prima facie) | Court assumed prima facie could be met but proceeded to burden-shifting |
| Whether Tarbuck produced specific, substantial evidence of pretext | Tarbuck pointed to allegedly satisfactory evaluations and temporal proximity | NYTC pointed to contemporaneous negative evaluations and a timeline of performance incidents predating complaints | No genuine issue: evaluations and documented incidents amounted to legitimate reasons; Tarbuck failed to show specific, substantial evidence of pretext; summary judgment for NYTC affirmed |
Key Cases Cited
- Lacey v. Maricopa Cty., 693 F.3d 896 (9th Cir. 2012) (claims voluntarily dismissed and not repleaded are waived on appeal)
- Ho v. ReconTrust Co., NA, 840 F.3d 618 (9th Cir. 2016) (discussing circumstances where a claim must be repleaded; context of pro se litigant given particular instructions)
- Las Vegas Sands, LLC v. Nehme, 632 F.3d 526 (9th Cir. 2011) (de novo review standard for summary judgment)
- Little v. Windermere Relocation, Inc., 301 F.3d 958 (9th Cir. 2002) (Title VII retaliation framework and requirement to show specific, substantial evidence of pretext)