Lakeside-Scott v. Multnomah County

IV unambiguous, an has 77p(d)(B)(ii)(I) § to no need meaning, seewe sense common complaint Madden’s conclude that We Congress chose other statutes look to of the Delaware requirements meets Accordingly, we to cross-reference. not carve-out, 77p(d). § The com- 15 U.S.C. to an refers 77p(d)(B)(ii)(I) § conclude of the state on the law is based plaint a communi- entity that makes individual the rele- (California) the issuer of in which in the stockholders to an issuer’s cation incorporat- was (St.Joseph) securities vant of, the of, representative or as interest (Cow- ed, a communication and it involves issuer. respect with opinion) fairness en’s The communica- securities. of those sale this common adopt if we Even “on behalf of’ made Cowen St. tion of,” Cowen of “on behalf definition sense Joseph, of St. Joseph, to the shareholders only on behalf of acting it that was argues response to concerning the shareholders’ Coast, addressed because Cowen Orange exchange offer. an company. We opinion to that its fairness appli- carve-out Because Delaware howevеr, allegations bound, by the are suit, VACATE the Madden’s we cable Mortgage, U.S. complaint. See Madden’s and RE- district court of the judgment (9th Saxton, Inc. v. to re- instructions the case with MAND Cir.2007) (SLUSA removal “authorizes state court. mand to in the allegations based dismissal any addi require and does complaint par either from evidentiary showing

tional complaint, According to Madden’s

ty.”). and St. Orange Coast management of to “as Special

Joseph formed Committee strategic affili for opportunities

sess the alleges that Madden or sale.” ation LAKESIDE-SCOTT, Lea Committee, mem included which Special Plaintiff-Appellee, of St. Jo directors the boards of bers of Coast, retained Cowen Orange seph and “[Rendering Defendant, COUNTY, included for tasks MULTNOMAH financial not the to whether or opinion as fair, from a acquisition were of terms Defendant-Appellant. view, Jann to the shareholders point of

financial Fur Joseph.” Orange Coast St. No. 05-35896. that Cowen’s ther, complaint alleges Appeals, States United Court to the share provided opinion fairness Ninth Circuit. consent Joseph with Cowen’s of St. holders on the relied the shareholders and that 9, 2007. Nov. Argued and Submitted merg voting in when favor opiniоn 12, 2009. Filed Feb. suffi therefore complaint er. Madden’s that Cowen’s ciently alleges communica Joseph behalf of’ St.

tion was “on carve-out, re Delaware

purposes its let addressed Cowen

gardless whether only Orange Coast.

ter Portland, OR, Attorney, County

tant defendant-appellant. C. FISHER and Before: RAYMOND BERZON, Judges MARSHA S. Circuit BARZILAY, Judge.* and JUDITH M. FISHER; Opinion by Judge by Judge BERZON. Concurrence FISHER, Judge: Circuit alleged retaliato- appeal This involves discharge employee of an after she com- ry and one of her plained about co-workers presents question supervisors and yet circuit answered: Can this has wholly independent, final decision maker’s legitimate to terminate em- decision liability a lower-level ployee from insulate process involved in the who had to have the motive that, We conclude record fired? case, yes, must be because this answer decision was not shown the termination by the subordinate’s retalia- be influenced tory motives. Lea plaintiff-appellee,

The Lakeside- (“Scott”), position was fired from her Scott systems specialist as an information County’s Department Com- Multnomah (“DCJ”), ostensibly for munity her Justice computers and use of DCJ’s improper brought then this system. Scott email termination was alleging that her lawsuit engaging actually in for retaliation OR, Fisher, Portland, P. George the First Amend- protected under speech plaintiff-appellee. pro- whistleblower by Oregon’s ment and employed While she (argued), Assistant tection statute. Jenny M. Morf Lane, DCJ, about co- complained had A. Assis- Scott Attorney; Katie County * designation. Barzilay, M. United Judith The Honorable Trade, sitting by Court of International States in- County policies, frequently complained Scott to Gorton

workers’ violations supervisors of her cluding Hogue perceived problems one and about her —Jann she also accused of favor- Brown—whom grievances per- the office. Her included ing hiring and lesbian gay sonality employ- with other conflicts DCJ played promotion decisions. ees, promotions she did not receive process that led to Scott’s ter- role alleged County computer misuse of the mination, although the ultimate decision system by managers. co-workers and In Fuller, independently was made Joanne October Scott filed formal com- systems director of DCJ’s information de- plaint Oregon with the Bureau of Labor contends that Brown partment. (“BOLI complaint”) Industries alleg- against to retaliate Scott for her wanted ing, amоng things, gave other that Brown Brown, un- against accusations and thus preferential gays treatment and to lesbians lawfully Fuller’s decision to influenced fire hiring in and Brown promotions. learned Scott. complaint shortly about the BOLI thereaf- retaliatory discharge Scott filed her ter; by allegations she was shocked its of County in against claim and Brown favoritism, personally. which took she trial, jury federal district court. After In November Fuller ordered favor, awarding in found Scott’s her Brown employee, to search the email of an $650,000 compensatory punitive in Landis, part investigation David as of an of damages against Brown.1 The district another employee allegedly DCJ who had judgment court Brown’s motion for denied racially discriminatory sent emails at work. (“JMOL”), as a matter of law and this Lacking ability the technical to do the appeal followed. We conclude there was herself, search Brown directed Tami support insufficient evidence to the verdict Williams to do it. Williams sent emails against given the evidence that it during and attachments she recovered her independent decision to termi- was Fuller’s search depart- to the human resources nate therefore reverse the Scott. We dis- ment. Attached to one of these emails was of trict court’s denial Brown’s JMOL and journal, by written Scott and sent her entry judgment remand for in her favor. Landis, to discriminatory contained BACKGROUND2 excerpts comments and employ- other ees’ work documents. It is unclear wheth- began Scott her in DCJ’s journal er Williams knew about the when unit in August information services she sent the emails human to resources. During period, the relevant time her direct personnel After human Hogue. resources discover- Hogue was Monna re- Gorton, ported journal, they ed the reported to Dan who to either or Fuller in- Brown, who, turn, reported structed de- Brown to look for additional ma- director, partment’s Fuller. terial Ms. from Scott.3 Cir.2004); Univ., ultimately 1. The district court dismissed all of Ostad v. Or. Health Sci. (9th Cir.2003). County, the claims which are not appeal. issue this again assigned 3. Brown the search to Williams, gathered who some additional in light 2. We view the evidence most timetable, formation within weeks. On this party favorable to the in whose favor the completed assign Williams would have her returned a verdict and draw all reasonable ment while the discussed below Settlegoode inferences in favor. See progress. was in Scott did not call Williams Sch., (9th Portland Pub. as a witness and there no evidence about in- charges ultimately meantime, in hu- misconduct. The either someone In the County conduct- misusing property, in- cluded perhaps Williams man resources time, County in- ing personal business on having Brown about Scott’s formed accessing the emails and appropriately among Landis’ email docu- found been engag- documents of other journal, Brown read the ments. When prohibited workplace harassment ing emails excerpts personal which included sent Scott a prejudicial acts. Fuller co-workers and su- from and documents notify charges her of these as letter apparently as several pervisors as well homosexuals, began investigation. Turner his remarks about derogatory it to Fuller. At immediately showed she investigation, of his Over the course Fuller, ensuing meeting attended witnesses, including Turner interviewed counsel, County Fuller decid- and a He also reviewed Brown and Scott. on administrative leave place ed journal and several of her emails. (standard in- during practice limit- Brown’s role to write a vestigation) and directed Brown questions; Turner’s answering ed to informing her of this deci- letter to Scott provide did not him with written mate- human assistance of the With the sion. admitted to part, rials. For her own Scott prepared Brown department, resources in engaged the con- Turner that she had advising letter signed and a standardized charges against duct that had led to the being placed on administra- she was Scott her, fully that she was and she conceded hu- consulting with the tive leave. After policies, procedures of the and rules aware and Fuller department man resources County property— the use of governing Scott, the letter to present about how to prohibiting harassment particularly those the had come to ‍​‌‌​‌​​​‌‌​​​​​​‌‌‌​​​​​​​​‌​​​‌‌​‌​‌​‌​‌​‌​‌​‌‌‍her office Brown Scott accessing and databas- and discrimination manag- with two other morning along next or non-business related personal es for Scott, ers, in case there Gorton and Rich however, said, that she did reasons. She meeting, After the any “was trouble.” violated of not know her behavior managers to un- instructed the twо Brown Hogue claimed that knew these rules and computer, they placed which plug Scott’s many of her about and had authorized office, op- it “made where was actions. erational.” investigation, At the conclusion of his placed was on administrative

Once Scott Fuller detail- produced report Turner Turner, leave, an in- Fuller directed John recommending that all findings his and ing staff, to conduct an inter- vestigator on her be sustained. charges against Scott possible into Scott’s violations inquiry describing nal sent a letter to Scott Fuller policies. and, rules or County meeting work after with report’s findings framing charges opportunity not involved with an provide Scott to her actions, outlining the direction of to terminate investigated, explain be her decided wit- that al- providing employment. list of Fuller testified her Rather, the reason she though Turner met with Collette nesses. Scott’s Umbras, investigation, she department human relations decided to initiate on all of to fire Scott official work based her decision manager, to outline which procured during that Turner supposed the evidence implicated were rules so, inсluded, superiors. passed on to her whether it what this additional information and, it if whether Brown herself ever received investigation. his As detailed her termi- Brown’s motion for timely JMOL and this Scott, appeal nation letter to Fuller “removed” followed.4 charges certain but nevertheless concluded STANDARD OF REVIEW remainder of the sustained County

charges-misusing property, con- ‘We review the denial of a mo time, ducting County business on personal judgment tion for a as a matter of law de accessing employees’ Univ., other Oregon emails and doc- novo.” Ostad v. Health Sci. (9th Cir.2003). engaging workplace uments and harass- We view prejudicial light ment the evidence in the acts-warranted most favorable to party The in whose magnitude Scott’s termination. favor the returned verdict and draw all Scott’s misconduct was on scale that was reasonable infer id; ences her favor. completely different from what See Fuller had Gilbrook Westminster, City seen in destroyed other 847-48 (9th Cir.1999). “Judgment ability as a matter of uphold poli- to trust Scott to DCJ’s law is proper when the permits evidence Throughout cies in the future. her trial only one reasonable conclusion and the testimony, Fuller reiterated that Brown contrary conclusion is to that reached played no role in her decision to fire Scott. Ostad, jury.” 327 F.3d at 881. Never produce any Scott did not evidence to the theless, a reasonable inference “cannot be contrary.

supported by only conclusory threadbare brought dis significant statements instead of probative charge lawsuit in federal district court evidence.” Barnes v. Mayfair, Arden County alleging Inc., (9th Cir.1985) 680-81 she wrongfully (internal terminated because quotation omitted); marks see complaint had filed the BOLI Lincoln, and also Genthe v. 713, 383 F.3d 716 (8th Cir.2004) openly criticized both DCJ and (noting within the context of claiming protected these were activities a motion for JMOL that an inference is under the First Amendment and 42 U.S.C. may reasonable “when it be drawn from § 1983 as well Oregon’s as under Whistle- the evidence without speculation” resort to (internal blower Act. After Brown moved quotation omitted)); unsuccess marks Wil fully summary judgment, jury found County lis v. Marion Office, Auditor’s 118 (7th 542, Cir.1997) Scott’s favor and awarded her economic F.3d 545 (noting within damages $140,000, of noneconomic dam the context of a motion for JMOL that a ages $10,000 of punitive damages of “mere scintilla is not enough” to sustain a $500,000. The court district denied prevailing verdict for the party).5 Conse- (1) appeal, 1352, 4. challenges On Corp., (9th Brown also Servs. 833 F.2d 1359 Cir. 1987); Kramer, district see also Price court's denial of her motions for sum- v. 200 F.3d 1237, (9th Cir.2000). Finally, 1243 mary judgment deny we and to exclude Landis' testi- request ignore that we (2) sup Scott’s mony and punitive damages. the award of plemental excerpt of "Although record. JMOL, Because we reverse the denial of we Rules, compliance models of with the do not reach the denial of Brown's motion in excerpts ... [Scott’s] of record are sufficient question limine punitive damages. or the of apprise this court of the relevant issues We do pretrial not review the district court's it.” Dominguez-Curry before Transp. v. Nev. denial summary judg- Brown's motion for 1027, Dep’t, (9th 424 F.3d 1033 n. 2 Cir. ment because denial of a "[t]he motion for 2005). summary judgment is not reviewable on an appeal judgment from a final entered after a Although analyzed summary judg- Barnes full trial on the Legal merits.” Locricchio v. motion, Supreme ment Court ex- has

803 ... even in the absence the same decision when the is appropriate JMOL quently, ” protected conduct.’ Gil only speculation [plaintiffs] have relied could brook, (quoting at 854 Mt. 177 F.3d reach its verdict. 568). 287, 97 S.Ct. Healthy, 429 U.S. I. expressly Brown assumed Amendment a First “To state that Scott’s BOLI appellate briefs employer, an em public against claim speech.6 Scott’s complaint protected (1) en show: ployee must as an adverse plainly qualifies termination speech; constitutionally protected gaged Umbehr, action. 518 U.S. See (2) employ ‘adverse employer took Henderson, 2342; 675, Ray 116 v. S.Ct. (3) employee; ment action’ (9th Cir.2000).7 1234, 1237 Thus was a ‘substantial speech employee’s Healthy’s pri- Mt. prongs the first two ac the adverse motivating factor for Instead, facie test are not at issue. ma ” Nitchman, F.3d 511 Marable v. tion.’ protected con argues Cir.2007) (9th 924, (quoting Coszalter 929 motivating was not a “substantial or duct (9th Salem, 968, 973 320 City v. termination, in her which would factor” Comm’rs, Cir.2003), County citing Bd. of in the absence of this have occurred even Umbehr, 518 County, v. Kan. Wabaunsee conduct, assuming that the because even 2342, 675, 135 L.Ed.2d 668, 116 U.S. S.Ct. reasonably found that jury could have Ceballos, (1996)); v. see also 843 Garcetti Scott, animosity toward Brown harbored 1951, 410, L.Ed.2d 126 S.Ct. 547 U.S. independent de Fuller made the final and (2006); City Dist. Healthy Sch. Mt. terminate Scott. cision to 287, Doyle, 429 U.S. Bd. of Educ. liability of sub We have assessed the (1977); Settle 50 L.Ed.2d 5.Ct. final was not the ordinate who Sch., v. Portland Pub. goode Healthy’s under Mt. “sub Cir.2004). decision maker (9th plaintiff makes “If as motivating” standard as well stantial or burden shifts showings, those then the Compare Os approach. mixed motive its ‘by preponderance to show the defendant tad, (analyzing facts 327 F.3d at 882-83 have reached that it would of the evidence scope inquiry to Scott’s summary judg- We limit the our inquiry 7. of plained under that the being placed Although motions is in essence termination. ment and JMOL ultimate Inc., Liberty Lobby, might qualify See Anderson v. as an same. leave on administrative 2505, 251-52, 242, 91 106 S.Ct. 477 U.S. sug- we have adverse action (1986). 202 L.Ed.2d might investigation employee gested an of see, Chertoff, e.g., v. 494 qualify, so Poland request subsequent for denyWe Brown's 1174, (9th Cir.2007); City v. Ulrich F.3d 1180 421, Garcetti, light 547 U.S. remand in Francisco, County San 308 Supreme Court 126 S.Ct. which (9th Cir.2002), argued these neither 977 state- public make held that "when court nor in her briefs theories in the district duties, ... pursuant official ments to their consistently stating that her retal- appeal, on their communi- does not Constitution insulate solely on her iatory claim based conduct employer discipline." Brown's cations from discharge. Accordingly, we do not consider challenged nor re- JMOL motion for neither inquiry ac- initiating the into Scott’s whether ap- speech protected for the issue of served leave placing her administrative tivities or on appellate that an peal. “It is well-established employment actions were themselves adverse issues that were court will not consider held liable inde- court.” which Brown be properly the district could raised before Corp., pendent Doi v. Halekulani of Scott's termination. (9th Cir.2002) (internal quotation marks omit- ted). motivating” stan- under “substantial II. Gilbrook, dard), 177 F.3d at with 853-56 Most of this retaliatory circuit’s motiva- under (analyzing facts mixed motive stan- jurisprudence tion has arisen from cases dard). rubric, however, either Under which the issue has been whether the final question focus is on the of causation. See decision maker was liable because Ostad, (relying F.3d at 882-83 Gil- retaliating against or her Gilbrook, analysis); brook its decision was tainted retaliatory mo- (citing opinions addressing prima at 855 See, tivation e.g., of subordinate. Poland analy-

facie of discrimination in cases its (9th Cir.2007). Chertoff, 494 F.3d 1174 sis). the dispositive Causation is issue situation, In the latter the subordinate’s Consequently, here as well. the critical unlawful motivation has imputed up- been (1) questions are: whether a final decision stream to the final maker. In decision maker’s independent and ter- present case it is the decision, supposedly biased responding mination ato biased subordinate, Brown, misconduct, being initial who is herself report subordinate’s Nonetheless, negate any charged liability. can causal link with between the these retaliatory “upstream imputation” subordinate’s motive and an cases are relevant (2) termination; and, so, employee’s Gilbrook, if analysis. to our See compels whether the record here the con- (citing imputation cases in its discus- clusion that Fuller conducted an indepen- sion of liability).8 subordinate If a final wholly dent and made a inde- decision maker is not liable when her deci- pendent decision to terminate Scott such plaintiff sion to terminate a sufficiently that Brown cannot held be liable for caus- independent from a subordinate’s unlawful ing her to be fired. motive, the circumstance proving that in- dependence may also show thаt the subor-

In we established that a “sub- dinate did not plaintiffs cause the termi- ordinate ‍​‌‌​‌​​​‌‌​​​​​​‌‌‌​​​​​​​​‌​​​‌‌​‌​‌​‌​‌​‌​‌​‌‌‍cannot use the non-retaliatory nation. superior motive of as a shield

liability superior if that never would have Gilbrook, in specifically address

considered dismissal but for the subor- ing a supervisor’s liability, subordinate did dinate’s conduct.” 177 F.3d at observe that declined, general as a however, matter the na expressly 855. We § ture of be, decide is such that “what the result should “the as a ‘requisite law, causal matter of if the facts connection can be showed that the estab only by final lished not wholly decision-maker made a some kind of inde- direct personal pendent, legitimate participation [termination], discharge decision to by but plaintiff, by setting uninfluenced also in the retaliato- motion a series of ry Id.; a by motives of subordinate.” see acts others also which the actor knows or Ostad, reasonably 327 F.3d at 883. The record before should know would cause oth ” us requires us to answer this heretofore ers to inflict injury.’ the constitutional open question. 177 (citing F.3d at 854 quoting John- Iranon, brought 1070, 8. Age Claims under Title (9th VII and the 1074-75 Cir. 2002). Rather, Employment apply Discrimination in Aсt we cite these cases for their shifting different burden framework than informative discussions about causation. See claims, Gilbrook, § 1983 and we do not intimate (analyzing that § F.3d at 855 Poland, controlling these cases are here. See discussing retaliation claim but Title VII retal 1; Freitag Ayers, 494 F.3d at 1180 n. iation and discrimination cases for their anal (9th Cir.2006); causation). F.3d 543 n. ysis Allen v. of (9th aware of its existence employees became 743-44 Duffy, 588 son v. Cir.1978) contemporaneously be liable with Brown. Brown (holding sheriff could imposed duties perform typical ap- in engaged omission activities for his plaintiff of deprived by law position state when she be- propriate for her This process)). due without property his journal journal. of the The came aware within the applied principle, as general during accidentally discovered itself was setting, cannot context con- employee’s of another into a literally as to convert taken so be duct, allege not that Brown and Scott did supervi- a subordinate tort constitutional for or selective- targeted her in, perform- while participation sor’s mere Brown was ly reported her misсonduct.10 responsibili- supervisory ing her normal process of a that included part at most a process ties, disciplinary of a the initiation other who were focused several otherwise employee’s in an that results workplace of disciplining on violations termination. As and lawful appropriate policies. Given the numerous rules itself, superi- in recognized we Gilbrook revealed potential rules violations decision nonretaliatory employment or’s by the hu- journal and the actions taken automatically immunize subor- “does it unreason- department, man resources retaliatory liability for against dinate had al- to conclude Fuller —who able turns acts”; liability instead subordinate into another ready inquiry initiated the of factual” determination “intensely of emails-would not employee’s misuse would have superior never whether to the been informed of or reacted have subor- “but for the made this decision against animus journal but for Brown’s retaliatory conduct.” dinate’s Scott. added). (emphasis 854-55 evidence that Fuller made Given the Here, it is not clear Scott decision for her independent, principled jour bringing on Brown’s role relies eventually investigate and reasons to own partic attention or her nal to Fuller’s Scott, no there was definition terminate decision leave ipation in the administrative Scott injury.” Id. 854. “constitutional jury’s support as alone sufficient violating County and terminated for for Scott’s finding Brown liable verdict through actions she admitted rules DCJ if those Even we consider termination.9 emphasized As we had committed. any events, however, negates the evidence that a final do not hold “[w]e not have taken that Fuller would inference improper any who lacks decision-maker but for Brown’s against action can absolve a subordinate motive never The sur retaliatory motivations. acts, any liability for his or her possi workplace investigation faced that such a decision- than we hold misconduct, more and several DCJ ble reporting her closely hopes of in the more supra. 9. See n. misconduct; indeed, Brown found says not see a dif- Judge Berzon she does investigating another journal in the course in- "targeting someone for between ference relevant employee. This distinction is retaliating them vestigation and was not showing misconduct that Scott's at 1743. reporting them.” Concurrence solely brought attention because to Fuller’s claim that that Scott did not What we mean is never would that Fuller Brown's animus such employee regula- selectively enforced for decision but made the termination have her, ignoring viola- only while tions Gilbrook, at 177 F.3d conduct. See employees. Nor did Scott by other tions 854-55. monitored her behavior that Brown show can always maker absolve the subor- The specifically requested the investigation, at (emphasis lengthy dinate.” 177 F.3d sent a memo and supporting case, documentation nu outlining the facts of this original). On where merous plaintiffs incidents of the alleged “that the final the evidence shows decision- provided malfeasance and the list of 21 wholly independent, legiti- made a maker witnesses who during were contacted the discharge plaintiff, mate decision to the id.; investigation. See see also Domin by the of’ uninfluenced motives guez-Curry v. Nevada Transp. Dep’t, 424 neutrality we hold the of the (9th 1027, 1032-33, Cir.2005) F.3d 1039-40 process decisionmaking eliminated (imputing animus in a Title VII failure-to- link to Brown’s “causal” bias. Id. promote claim when the subordinate was “upstream” A case in recent which employees one of two who interviewed and biased subordinate’s involvement in an ad- Curcio, ranked petitioner); Perez v. employment action rose verse to the level (9th 255, Cir.1988) 841 F.2d (imputing tainting the final decision to terminate is age animus in an discrimination action Poland, illustrative. See 494 F.3d 1174. when the final decision maker relied on Poland held that the Custom Service’s ad- reports written the subordinate both in supervi- ministrative initiating the investigation ultimately retaliatory charges sor’s did not “shield[ ]” in demoting plaintiff).11 We have like imputed from liability Customs Service wise liability affirmed the of subordinates allegedly independent because “the ad- when they wielded a similarly significant employment verse decision was not actual- degree of influence over the final decision ly independent” due to the subordinate employment maker’s adverse decision. supervisor’s significant involvement in the Gilbroolc, For example, in we held that a decisionmaking process. Id. at 1182. We final, unbiased decision maker did not held that while initiation of an investi- eliminate liability of two subordinates gation would not “on its own” be enough to where the “participated subordinates had animus, impute subordinate’s the biased directly” in a multitiered pro termination pervasive subordinate “had a influence on cess. There, 177 F.3d at 853. inquiry the administrative that led to the one subordinate was “driving force” adverse action.” Id. at 1183. behind the investigation of the terminated Compare, e.g., Principi, Gee v. [plaintiff], helped terminate develop ... (5th Cir.2002) 346-47 & n. 4 (holding [plaintiff], tests used to responsible assess precluded evidence of subordinates’ animus evaluating [plaintiff's] success on those judgment summary regarding the final deci- tests, and was in contact with mak- [decision liability sion maker's when the subordinates every significant step er] at of the decision- plaintiff "made comments critical" of the making process”); Long College, v. Eastfield meeting” "the critical with the final decision (5th Cir.1996) (holding 307 n. 8 party present maker and a third who was evidence of precluded subordinates’ animus meeting impression "stated that it was his summary judgment regarding final decision meeting, negative the end of the liability maker’s when subordinates recom- general statements had created a consensus plaintiffs’ mended termination and directed petitioner] selected"); that [the would not be other prepare written state- Ctr., Washington Convention Griffin maker, presented ments to final decision (D.C.Cir.1998) (holding evi- only explanation plaintiffs received from dence of subordinate's animus relevant to fi- final regarding decision maker their dis- nal decision maker's when he "was charge was that he up- "made a decision to [the decision maker's] chief source of infor- hold the your supervi- recommendation of regarding [plaintiff's] mation job perform- your employment”). sor^] terminate ance, repeatedly urged [decision maker] to

807 “that ing question made the initial decision to the ultimate of the sub- employees and subordinate terminate them. The second liability ordinate’s an intensely ‘is factual hearings employees’ then conducted on the one, vary depend- the results of which will and affirmed the terminations. appeals circumstances,”’ Ostad, ing on the 327 that a third and final decision We held Gilbrook, F.3d at (quoting 883 power ratify, reject the maker with 855), we hold that Brown cannot be found modify decisions did not the termination liable based on her limited involvement in the cut off the biased subor- the chain of ultimately events that led to dinates because there was evidence that jury Scott’s termination. The could have not have would been disci- reasonably found that Brown was involved plined but for the subordinates’ actions in initiating investigation of Scott after charges place. in the first bringing the discovery of her and in the 850-51, 853; Ostad, See id. at see also 327 place decision to her on administrative (holding F.3d at 883 subordinate liable leave. But neither Brown’s role in the primary when he source of provided leading up events to the investigation nor final information on which the decision the evidence of her participation in that “substantially maker relied ... to reach inquiry rises to the level of involvement in terminate”). decision or influence on termination Fuller’s deci- The facts before us here show a work- sion that would allow reasonably place report possible which the initial “ to find that Brown’s animus was a ‘sub- employee presum- misconduct came from ‍​‌‌​‌​​​‌‌​​​​​​‌‌‌​​​​​​​​‌​​​‌‌​‌​‌​‌​‌​‌​‌​‌‌‍a ‘motivating’ stantial’ or factor” in Fuller’s ably supervisor, biased but whose subse- decision to fire Scott. quent disciplinary pro- involvement in the (quoting Healthy, at 853-54 Mt. 429 U.S. cess minimal as to negate was so 568). Instead, 97 S.Ct. the record inference that the and final independent of Fuller’s actions judg- termination decision were made than other compels ments the conclusion that she was independently and without bias. must We by any retaliatory not influenced motive on “place employee an in a ‘position worse part. aas result of the exercise of constitutional- ly protected conduct than he would have discovery As to apparently of Scott’s ” Gilbrook, occupied nothing.’ had he done improper journal triggered inqui- (citing Healthy, Mt. conduct, ry into her it is relevant 568). U.S. at But S.Ct. concomi- only Brown became aware of the document tantly Supreme Court has admonished incidentally an- through an “place that we must not in a employee other initiated Fuller and the position better as a result of the exercise of Moreover, department. human resources constitutionally protected conduct than he although present at the meet- occupied would have had he done noth- where, ing according practice, to standard ... ing. [employee] ought not to be [T]hat it placed was decided that Scott would be able, conduct, by engaging pre- such pending on administrative leave the inves- employer vent his from assessing per- his ” tigation, that decision did not make Scott’s formance record.... Mt. Healthy, foregone termination a In- conclusion. 285-86, U.S. at 97 S.Ct. 568. stead, management, senior aware of Scott’s III. misconduct, apparent pursued inquiry is no alleged into the violations. There foregoing principles spec- With the trum guide, recogniz- of cases as our evidence that but for Fuller would 808 as no journal pure speculation, presented and let the mat- Scott ignored

have in- employees, DCJ any other evidence that Brown discovered infor- drop. ter That manager, be- resources the human cluding computer mation from Scott’s or from reacted to the Williams, came aware any much less that she provided Accordingly, very opposite. suggests Sig- such information to Turner or Fuller. whether question remains the relevant nificantly, deposed but nei- Williams influenced the subsе- improperly deposition testimony ther introduced her or the decision to ter- investigation quent nor called her as witness to tell the such that she can be itself minate Scott what, if anything, she had turned over to Fuller’s decision. On this for held liable suppositions “only Brown. Scott’s are finding that record, only reasonable conclusory threadbare that statements” not.12 she did support cannot that reasonable inference that Brown out is no evidence Brown influenced the decision to terminate There Barnes, discharge reasons for Scott’s possible lined Scott. 680-81 Cf. termination, (internal omitted). either at or recommended quotation marks meeting or thereafter. Gil the initial Cf. Instead, the record that Brown shows Ostad, 850, 853-55; brook, 327 F.3d at 177 very played investiga- limited role contrary, To the Um F.3d at provide tion. She did not a witness list or violations Turner potential bras outlined any documentary during Turner’s evidence and it Turner investigate, was who was to investigation, and there is no that evidence in at the conclusion of his recommended anything inappropriate Brown told Turner charges should be sus vestigation which Poland, during their interview. Cf. hold that asks us to a rea tained. Scott 1183. Nor did the juror could have inferred that sonable “substantially rel[y]” “depend[] or heavi- (1) investigation” because Brown “was the ly” on who one of 22 was witnesses computer placed Brown’s Ostad, Turner interviewed. Cf. placed on office after Scott adminis (holding subordinate liable (2) completed leave and Williams trative when the decision maker “depended heavi- ordered the hu up the follow research ly” testimony, up on his which “took if ... department man “to see resources pages hearing’s tran- 403-page e-mails from there were other [Scott] script”); Pages, Stacks v. Sw. Bell Yellow jobs anything pertained or else that Inc., (8th Cir.1994) conducting her” while Turner was still his (noting a final decision maker cannot es- appears argue investigation. Scott cape liability when the facts which he permitted alone these circumstances “reifies] have been filtered” a subor- jury to find that Brown was influential motives). illegitimate dinate with Brown’s in Turner’s who player participation minimal documentary was too limited and provided for and searched actually investiga- led to Scott’s termi constrained to have tainted the evidence process, particularly part nation. But such inference would be tive when it was First, Hackenberg, Hackenberg 12. Rebecca another DCJ em- Scott’s termination. did ployee, Hogue that she told the ad- throughout testified not mention Brown her entire tes- ministrative leave "sure seems like retaliation timony, implicate let alone her as a source for it?”, complaint, about that BOLI doesn’t Second, alleged we retaliation. as have Hogue sideways "kind of looked out of noted, the administrative leave did not make ” window, went, ‘yeah.’ [] This testi- foregone Scott's termination a conclusion. mony does not establish investigative process was fa- County’s Turner’s cooperate with job of irrevocably by Brown’s tally and tainted inquiry. stymie overall limited involvement would process in the role Fuller’s substantial legitimate corporate management and dis- is as termination resulted Scott’s that necessarily which must involve and cipline, partic- minimal as Brown’s important supervisory City staff. rely upon Cf. of thorough Fuller authorized ipation. Roe, 77, 125 Diego San v. 543 U.S. S.Ct. charges against Scott. (2004) 521, (noting 410 160 L.Ed.2d report, she received Turner’s Once she that govern- “common-sense realization contents, meeting critically examined its every if ment offices could not function any present to allow her to with Scott decision became a constitu- employment ultimately reject- and mitigating evidence matter”); City v. San tional Brooks of Turner’s recommendations. ing two of (9th Cir.2000) Mateo, 229 F.3d admitted, thought actually “I herself (limiting type of behavior consti- listening, and she said she that she was tutes an adverse action based outlined everything.” consider As would employers the concern “that will be composed letter in the termination paralyzed into inaction once Fuller, analysis in the final signed by conduct], [engaged protected has mak- formal work for violations of fired Scott ing ‘get such tantamount to a out [conduct] rules, orders and contractual executive jail employees engaged free’ card for fully she was agreements. Scott admitted misconduct”). job Absent evidence that a rules, and both policies of these aware supervisor participation abuses her to ad- they emphasized Fuller and Umbras retаliatory agenda, vance a we decline to of this never before seen violations had in this case. endorse such result circumstances, these magnitude. Under juror have concluded no reasonable could CONCLUSION was a “sham investigative process that the presented jury, to the On the evidence animosity or that conduit” for Brown’s or a matter of law that Fuller’s we hold as terminating “duped” into Scott. Fuller decisionmaking negat- wholly independent Willis, the con- F.3d at 547-48. To between Brown’s any ed causal connection trary, the record shows that Fuller’s deci- termination. retaliatory bias and Scott’s analysis that based on her own sion was not liable for dam- Brown therefore is jaded by anyone subjective “was not else’s a result of her ages Scott suffered as Id. [illegitimate] evaluation.” possibly discharge, and the district court incorrect- that, Accordingly, hold as a at 547. we ly Brown’s motion for JMOL. We denied law, “wholly indepen- Fuller’s matter of and remand judgment the court’s reverse dent, discharge decision to legitimate for Brown. entry judgment for [Scott], retaliatory mo- uninfluenced prohibited tives of subordinate” and REMANDED. REVERSED ter- finding from Brown liable BERZON, Judgе, concurring

mination. Circuit judgment: ani- Finally, practical considerations also above, in the result of this Although I concur our conclusion. As discussed mate majority’s case, with the agree I do not of Brown’s limited involvement aspects all insufficient evi- conclusion that there was express at the direction in this case were jury could from which a reasonable authority superiors of her in dence or under the retaliatory ani- found that Brown’s say To have management structure. Univ., 327 motivating Oregon fac- tad v. Health Sci. a “substantial mus was Westminster, (9th Cir.2003)); tor,” City see also id. see Gilbrook (9th Cir.1999), in Full- (“Judgment proper as a matter of law is As the to terminate Scott. er’s decision permits only when the evidence one rea- intimates, who, with majority sonable conclusion and the conclusion is intent, selectively reports an retaliatory contrary by jury.”). that reached the for the em- superior is liable employee to Alternatively, majority possibly the can if supervisor even the termination ployee’s holding supervisor, that a even be read as resulting investiga- the influence does not animus, by retaliatory may if motivated Maj. Op. decision. See tion or termination instigating not be held liable for an investi- case, majority the con- In this at 804-05. action, in an gation likely to result adverse jour- discovered Scott’s that Brown cludes superior long as as the who makes the it to Fuller while “en- reported nal and so, final If independently. decision does so typical and appropriate in activities gaged holding squarely the conflicts with Gil- position,” and then states for her brook, contrary. which held to the allege “targeted not that Brown Scott does selectively report- or her for time, At the same the facts of this case misconduct.” See id. But Scott ed her indicate Fuller’s would allege, main- obviously does so she has occurred even have without Brown’s insti- jury the outset—and the must tained from I would therefore hold that gation. Brown reported found—that Brown her to have burden, part also met her under two of the for a reason. The dif- Fuller two-part Healthy burden- Gilbrook/Mt. targeting in- between someone for ference framework, shifting showing that Scott’s retaliating against them vestigation and discharge would have occurred “even in them, knowing they reporting would there- prоtected the absence conduct.” investigated, entirely upon escapes be me. Gilbrook, 854; Maj. Op. See at So, majority only holding can be the 803, My 807-08. decision to reverse the animus that har- any retaliatory words, judgment, in other rests against Scott did not motivate her bored defense, Brown’s successful affirmative not Fuller, and that report decision to Scott to failure on Scott’s to establish her initial jury a reasonable could not have concluded case. otherwise. disagree. I I would hold that Scott met Motivating A. The or “Substantial establishing her burden of that Brown’s Requirement Factor” retaliatory animus was “substantial or two-part burden-shifting Under the in motivating factor” Fuller’s decision to Supreme framework outlined the Court Gilbrook, 177 terminate Scott. See F.3d at Healthy City in Mt. School District Board majority’s implicit The conclusion to 274, Doyle, Education v. 429 U.S. contrary Brown was moti- the —that (1977), ap S.Ct. 50 L.Ed.2d 471 by retaliatory just vated reasons but was Gilbrook, by this in plied plain Court the job disregards our mandate to doing — tiff the initial bears burden of demonstrat light in view “the evidence most favor- that her ing protected conduct was a party jury in whose favor the able to the “ factor in ‘motivating’ all ‘substantial’ returned a verdict and draw reasonable favor,” defendant’s decision.” in her and fails to accord Gil inferences brook, (quoting 177 F.3d at 853-54 Mt. required deference to reasonable 568). Maj. (citing Healthy, 97 S.Ct. Op. decision. Os- U.S. and, essence, plaintiff showing, willfully ignoring makes this er Once Thus, to the defendant to show bias of a subordinate. inquiry burden shifts “ liability of the evidence that ‘by preponderance vicarious case is into whether the it have reached the same decision superior’s investigation would and termination plaintiffs ... truly even the absence of decision were independent. ” protected (quoting conduct.’ Id. Mt. contrast, By in a concern subor- 568). Healthy, 429 U.S. at 97 S.Ct. dinate case is that too lenient a case, In this as the defen permit supervisors standard will deliber- initially report dant is the who ately target who individuals have en- misconduct, not the em plaintiffs ed the gaged protected activity, knowing that ployer or the individual who made the their superiors lacking actions will lead ultimate decision to terminate. See Gil retaliatory animus to harm the individual. brook, 177 F.3d at 853-54. For this rea not, words, The issue is in other whether son, liability vicarious eases such as Pо acting the is willful employer igno- with (9th Chertoff, 494 land v. Cir. (which rance an “independent investiga- 2007), are, contrary majority’s to the reli requirement tion” good measuring), is them, not analogous. ance on Those cases rather super- but whether the subordinate in identifying are concerned with situations deliberately placing visor is the subor- equitable which it would be to hold (which way in dinate of harm the “in- superior otherwise faultless liable for the dependent investigation” requirement only admittedly culpable acts of an subordinate. measures). partly Accordingly, ap- as will SpeiseR al, See et. The AMERICANLaw of pear, inquiry in a liability subordinate (“[Vicarious liability] § 4:1 an in is Torts broader, case is requiring only a deter- adjustment teresting policy form of social investigation mination as to whether the which, ... though person under even a is and termination decision were influenced fault, personally legal pub himself without subordinate, by the biased but also wheth- policy lic renders him nevertheless lia proceed- er the subordinate initiated those ble.”). result, As a the focus of vicarious in ings employee’s pro- retaliation for the liability properly cases is on the actions of activity. tected superior, and therefore on whether ‍​‌‌​‌​​​‌‌​​​​​​‌‌‌​​​​​​​​‌​​​‌‌​‌​‌​‌​‌​‌​‌​‌‌‍one, The focus in a as this case such by those actions were tainted the subor then, must be on supervisor’s con- dinate’s animus. specifically on that whether conduct duct— addition, In im- liability vicarious cases (a) motivating a or “substantial factor” plicate very policy different considerations (b) termination, employee’s in the cases, liability particular- than subordinate by retaliatory motivated animus. ly respect protection with to the of an that, I employee’s rights. agree majority First Amendment In with the on this context, record, the vicarious the concern Brown did not in substantial that, imposing way investigation is in the absence of a rule influence Fuller’s once it liability, employer began, vicarious could evade or Fuller’s ultimate decision to ter- liability by isolating Maj. Op. the final deeision-mak- minate Scott.1 See 807-08. tence, page majority quotes passage it in On states that from Poland "significant” supervisor must have a influ- which the court noted that the superior's investigation pervasive had ence on a in order for that casе “had a influence on investigation impermissibly inquiry to have been the administrative that led to the ad- Maj. Op. tainted. at 806. In the next sen- verse action.” Id. I do not read reported determining whether the actor’s conduct conduct after bringing factor in Fuller was therefore not cause substantial about

journal to (b) termination, harm to ... the ac- regardless its another: whether of Scott’s created a force or series tor’s conduct has motivation. ac- of forces which are continuous and participation lack of But Brown’s operation up tive to the time of the to ter decision Fuller’s harm.”).3 inquiry.2 minate not end the causation does Rather, whether It is that Fuller launched the undisputed we must also consider with ani led to termi- acting while mus, immediately by presented in motion a series of acts nation after Brown “set[] reasonably journal. or her with Scott’s Because Scott’s [she knew] others which journal significant cause others to contained evidence of would known] shouldfhave misconduct, injury.” inflict the constitutional See Gil either knew should brook, (noting that presenting 177 F.3d at 854 have known can be Fuller “requisite causal connection estab would motion series of “set[] kind of direct acts” Fuller that only lished not some “would cause [Fuller] i.e., deprivation, injury,” in the personal participation inflict constitutional in motion a series of by setting but also terminate Scott. See result, by acts others which the actor knows or 854. As a Brown’s act of reporting reasonably would oth should know cause Scott to Fuller was a “cause” of Scott’s termination, injury”) though ers to inflict the constitutional even she did not “di- Duffy, rectly] ... in (quoting participate]” Johnson the ultimate (9th Cir.1978)); see also 743-44 decision to terminate. See Restate (1965) (“The (Sec- 854; § (seoond) F.3d at see also Restatement ment of ToRts ond) 433, 441, important §§ are ... following considerations of Torts 442A. quoted majority’s passage supervisory responsibilities,” to the the reference normal thus in- suggesting dicating hypothetical supervisor, as that an must show that the al- biased, supervisor "pervasive,” though generally acting that the had a rather without a just "significant,” retaliatory instigating influence on the investiga- than motive in the tion; investigation. superior's The Poland court's otherwise she would not have been sim- high supervi- ply carrying lеvel supervisory conclusion about the out "her normal re- merely sponsibilities.” a statement about sor's influence was case, the facts in that not a statement of the principle directly 3. This causation is analo- required employee is standard an meet. gous "intervening concept to the force” Every generally appli- the time Poland states law, critically basic tort standard, differs from the "perva- cable it excludes the term principles See, Poland, that underlie vicarious ("In e.g., sive.” "intervening law. An tort force” is one which summary, plaintiff ... we hold that the must "actively operates producing harm to an- allegedly independent show that the adverse negligent other after the [defendant's] act or actually decision was not inde- omission has been committed.” See Restate- pendent the biased subordinate influ- because § Despite 441. (Second) enced or was involved in the decision or the ment Torts presence "intervening thereto.”) force”—in this investigation leading case, Fuller's and decision to majority’s point view on this is not The terminate —the defendant remains liable to pages majority plaintiff "reasonably clear. On 804 and if the defendant may suggesting supervisor that a anticipated be biased could have or foreseen the inter- disciplinary process vening retal- consequences." who initiates acts and its See 3 iatory necessarily is not liable for a reasons Speiser, Krause, Gans, Stuart Charles & Alfred (1986); passage § But the constitutional tort. refers to 11:9 Re- The American Law of Torts (Second) performing § who acts "while statement of Torts 442A. Also, majority suggest, personally. howev- tions appears The Brown was asked er, report Scott, but, that Brown’s decision to to look for other material from Scott’s journal support to Fuller cannot so, doing before she finished she reported claim, jour- Brown discovered the because to Fuller journal Scott based on the alone. it attention brought nal and to Fuller’s provided These combined facts sufficient “engaged typical while she was activities albeit, concede, I not with much evidence— Maj. appropriate position.” for her spare room to which a reasonable —from result, Op majority sug- at 805. As a jury could havе concluded that Brown’s gests, any retaliatory animus Brown har- report decision to thereby Scott and set in be, could not as a bored motion the chain of events that led to law, a motivating matter of “substantial or termination Scott’s was motivated retal- discharge. Maj. Op. factor” in at animus, iatory just practice. routine 807-08. Moreover, majority if wrong it is Although support the evidence could suggesting that the fact that ac- majority’s it interpretation, does not fore bringing tion in to Fuller’s Ostad, opposite close the conclusion. See attention occurred while “Brown was en- (“Judgment as matter of gaged typical activities and appropriate proper permits law is when the evidence position,” Maj. for her Op. pre- only one conclusion and the reasonable jury’s cludes the verdict that she none- contrary conclusion is to that reached theless acted with a motive. jury.”). “The causal link between Supervisors have the power to retaliate protected activity alleged and the retaliato precisely responsibilities because their in- ry ‘can be timing action inferred from authority clude the steps to take that will proximity alone’ when there is a close be foreseeably harm their subordinates’ em- City tween the two.” See Thomas v. (9th Cir.2004) Beaverton, 802, ployment 379 F.3d If circumstances. we absolve Air, (quoting Villiarimo v. Aloha Island liability from supervisors First Inc., (9th Cir.2002)). 281 F.3d they Amendment violations whenever case, reported jour In this Brown engaged take actions while into their nor- nal approximately to Fuller one month af mal responsibilities, they then will almost complaint. ter Scott filed her BOLI This liable, never even if the be motive for temporal proximity probably close was suf retaliatory. challenged action was ficient evidence on support its own to the Here, jury necessarily the found that at jury’s conclusion that motivat Brown was least one substantial reason Brown by retaliatory ed report animus when she brought the to Fuller’s attention Thomas, ed Scott. See 379 F.3d angry was that was about the BOLI (holding that sufficient evidence of causa and, shown, charge, as I have that factual tion existed where adverse conclusion, debatable, although quite occurred protect action seven wеeks after supported by adequate evidence. That Thomas, activity); ed see also Yartzoff bringing work Fuller’s (9th Cir.1987) infractions to atten- (three part job tion was of Brown’s does not lapse protected month time between con law, any a negate finding the as matter of retaliatory alleged provided duct and act connection). responsi- more than a with the sufficient evidence causal addition, bility hire and fire for rule infractions In Brown admitted at trial that to complaint surprised up liability would be absolved of as a matter Scott’s BOLI her, allega- and that if a who en- set she took Scott’s of law he fires subordinate liability for the supervisors’ of that subordinate part because speech

gages fact, court termination. In the employees’ speech. rejected argument, made the expressly jury could have reasonable a Because supe supervisors, the subordinate the retaliatory with a acted that Brown found nonretaliatory motive “legitimate, rior’s journal to brought Scott’s when she motive of his subordinates” ‘cuts off attention, act and because that Fuller’s Gilbrook, as a matter of law. link in and foreseeable substantial was a termi- that led to Scott’s causal chain majority nation, agree with I cannot law, failed, a matter of as

that Scott Affirmative Defense B. Brown’s activity “a protected that her show present- hold that Scott Because I would motivating her or factor” substantial jury a evidence from which ed sufficient termination. protected could concluded have concluding that rather than possible It is motivating or conduct a “substantial retaliatory did not act with that Brown termination, I would reach factor” in her Fuller, reported Scott when she intent question whether Brown established that, if holding even majority is instead in Mt. defense outlined affirmative motive, Brown acted with required That defense Healthy. investigation and ter- independent Fuller’s demonstrate, by preponderance of the Brown of absolved mination decision evidence, disciplinary that “the action so, If a matter of law. liability as taken even [Scott] would have been in tension with majority’s holding is Gil- protected the absence conduct.” brook. Gilbrook, (citing 177 F.3d at 855 Mt. plaintiffs-employees In 568); see Healthy, 429 U.S. at 97 S.Ct. supervisors their subordinate sued both Ostad, (holding 327 F.3d at 883 also made thе ultimate superior who and the supervisor liable where su- subordinate Gilbrook, 177 F.3d terminate. decision to instigated investigation, partic- pervisor The concluded “the at 852-53. ipated actively investigation, in that played conduct had protected plaintiffs’ prove failed to that the “would motivating’ role sub [the ‘substantial ... have terminated even in the ab- been against supervisor’s] actions ordinate protected speech”).4 sence of his a role in played had not such plaintiff, but that here. She in- Brown met burden superior made the who [the actions journal initially that the troduced evidence at final to Id. 853. terminate].” decision an inves- through unrelated uncovered jury that the absolved the Despite the fact Fuller, instigated by of another tigation, liability presum final decision-maker — employee; that Brown herself did not dis- independent deci ably he made because journal; employees in the cover the upheld court sion terminate —the department human were inde- resources supervi subordinate verdict journal; words, pendently aware of the In other sors. Id. 855-56. journal, by length virtue of its decision acted fаct the final maker content, attract inflammatory likely and without a independently war- automatically negate attention from HR and to did not motive Maj. performs analysis, part of Brown's affirmative defense. majority 4. ‍​‌‌​‌​​​‌‌​​​​​​‌‌‌​​​​​​​​‌​​​‌‌​‌​‌​‌​‌​‌​‌​‌‌‍this see The 807-08, acknowledge Op. does not it as but Winterrowd; management. Yurkus; Giv- Neil report rant a to senior Kevin evidence, Gregory Stopp, en that I would hold that a rea- Plaintiffs- Appellees, only could have concluded sonable jour- that Fuller would have learned of the nal, instigated Annuity American General Insurance and reached the same conclusion even Co., Corporation; a Texas Patrick prompting without from and there- Grady; Corpo- The Western National fore Scott’s termination would have oc- Security Plan, ration Job Defendants- protect- curred “even in the absence of the Appellants. ed conduct.” See 07-56541, Nos. 07-56711. 855. Appeals, United States Court of sum, In I jury’s would reverse the ver- Ninth Circuit. two, one, part part dict under Healthy burden-shifting Mt. framework on Argued and Submitted Nov. 2008. that, grounds pre- on the facts based Filed Feb. sented, Fuller’s hence —and Scott’s termination —was inevitable. Such holding acknowledges the deference we

must afford to a reasonable decision

jury, placing great avoids too evi-

dentiary on a plaintiff seeking burden

vindicate her First rights. Amendment reasons,

For all I concur in these

judgment, majority opinion. but not in the WINTERROWD; Yurkus;

Neil Kevin

Gregory Stopp, Plaintiffs-

Appellants,

AMERICAN GENERAL ANNUITY IN CO., Corporation;

SURANCE a Texas Grady; does, inclusive;

Patrick 1-10 Corporation

The Western National Security Plan, Defendants-Appel

Job

lees.

Case Details

Case Name: Lakeside-Scott v. Multnomah County

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Feb 12, 2009

Citation: 556 F.3d 797

Docket Number: 05-35896

Court Abbreviation: 9th Cir.