In
Garcetti v. Ceballos,
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,
Defendant-appellee North Central Counties Consortium (“NCCC”) is a public entity created by five California counties to administer the Workforce Investment Act (“WIA”), 29 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 compliance-monitoring 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.
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 *746 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, 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 “un *747 satisfactory.” Brown requested similar adverse revisions in the performance evaluation for Ed Morrison, the only other low-level male 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.
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,
*748 III. Discussion
A. First Amendment Claim
Anthoine contends that he engaged in protected speech when he informed Freeman, the chairman of NCCC’s board, 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.
“The First Amendment shields a public employee if he speaks as a citizen on a matter of public concern.”
Huppert,
(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.
Eng v. Cooley,
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 concern to the community.”
Huppert,
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
*749
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.
It is not determinative that Anthoine did not air his concerns publicly.
See Thomas v. City of Beaverton,
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,
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 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.”
*750
In
Marable v. Nitchman,
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,
3. Substantial or Motivating Factor for Adverse Employment Action
“Th[e] third step is purely a question of fact.”
Eng,
To show that retaliation was a substantial or motivating factor behind an adverse employment action, a plaintiff can (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.
*751 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.
We have held that proximity in time may support an inference of retaliation sufficient to survive summary judgment.
See Allen v. Iranon,
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, 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.”
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.,
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 motive. The protected statement was made eleven months before the first lockout and *752 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 eleven-month gap in time is within the range that has been found to support an inference that an employment decision was retaliatory.
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,
4. Adequate Justification
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,
5. Adverse Employment Action Absent the Protected Speech
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,
The “but-for causation inquiry” is “purely a question of fact.”
Robinson,
6. Summary
We therefore reverse and remand for further proceedings on Anthoine’s First *753 Amendment claim of retaliation for his statements to Freeman.
B. Gender Discrimination Claim
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 Keyset,
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.,
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 v. Univ. of Cal. Davis, Bd. of Trs.,
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 *754 burden of showing his employer’s explanation was unworthy of credence.
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.
C. Wrongful Discharge Claim
Finally, Anthoine asserts a state-law claim for wrongful termination in violation of public policy. In
Miklosy v. Regents of University of California,
[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,
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 summary judgment on his other claims. Each side is to bear its own costs on appeal.
AFFIRMED IN PART; REVERSED and REMANDED IN PART.