Appeal from the United States District Court for the Eastern District of California John A. Mendez, District Judge, Presiding D.C. No. 2:06-cv-01169-JAM-KJM.
The opinion of the court was delivered by: W. Fletcher, Circuit Judge
Submitted November 5, 2009*fn1 -- San Francisco, California
Before: Alfred T. Goodwin and William A. Fletcher, Circuit Judges, and Richard Mills,*fn2 District 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.
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 U.S.C. § 2801 et seq. NCCC receives money from the state and federal governments to fund programs that provide work-force 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 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 "unsatisfactory." 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 ...