Leslie Kerr v. Kenneth Salazar , 549 F. App'x 635 ( 2013 )

FILED
NOT FOR PUBLICATION DEC 09 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LESLIE A. KERR, No. 12-35084
Plaintiff - Appellant, D.C. No. 3:08 cv-0230 RRB
v.
MEMORANDUM**
SALLY JEWELL,* Secretary of United
States Department of the Interior,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, Chief District Judge, Presiding
Argued and Submitted May 22, 2013
Anchorage, Alaska
Before: TASHIMA, TALLMAN, and N.R. SMITH, Circuit Judges.
_____________
*
Sally Jewell is substituted for her predecessor in office, Kenneth Lee Salazar
pursuant to Fed. R. App. P. 43(c)(2).
**
This disposition is not appropriate for publication and is not precedent,
except as provided by Ninth Cir. R. 36-3.
Plaintiff-Appellant Leslie Kerr, formerly the manager of the Kodiak
National Wildlife Refuge (“Kodiak”), asserts claims for unlawful retaliation under
Title VII of the Civil Rights Act of 1964 and under the Whistleblower Protection
Act of 1989 (“WPA”). The district court granted summary judgment to the
government. We reverse. With respect to the Title VII claim, we hold that Kerr
has raised a triable issue of fact as to whether the government’s articulated reasons
for her permanent reassignment are mere pretexts for unlawful retaliation. With
respect to the WPA claim, we conclude that Kerr’s disclosures are protected under
the WPA as originally enacted in 1989.
I.
Kerr was employed by the Fish and Wildlife Service (“FWS”) as the
manager of Kodiak. In May 2005, a report was issued summarizing the findings of
an administrative inquiry regarding the conduct of certain other employees. The
report recommended that Kerr be placed on a performance improvement plan to
address her purportedly uncompromising management style.
In July 2005, Michael Boylan, Kerr’s immediate supervisor, conducted a
performance review with Kerr, during which the administrative inquiry report was
discussed. At one point, Boylan stated to Kerr, “This is going to sound sexist as
hell, but couldn’t you learn to be more feminine?” Boylan does not deny having
-2-
made a statement to this effect. During her performance review, Kerr also
complained to Boylan about problems with alcohol abuse among Kodiak
personnel.
In November 2005, a controversy arose after the suicide of Wilker, who had
a history of alcohol and mental health problems. Wilker’s suicide followed shortly
after his forced resignation from the FWS. On the day of his suicide, Wiliker was
cleaning out his office when Kerr invited him into her office in the presence of
another employee. There, she held Wilker’s hand for one to two minutes while
speaking to him about his departure and complimenting him. Afterwards, Wilker
told the other employee who had been in the room that he was uncomfortable with
the situation.
On January 26, 2006, Boylan issued a letter of warning to Kerr as a result of
the Wilker incident.1 Boylan also completed a performance evaluation of Kerr and
rated her as “minimally successful” in the category of leadership and supervision.
This resulted in an overall rating of minimally successful.
1
Wilker had previously complained of sexual harassment by Kerr
following a 2004 incident in which Kerr allegedly told Wilker that she loved him
(Kerr disputes the nature of this incident). Boylan issued Kerr a verbal warning
following the 2004 incident.
-3-
That same day, Logan informed Kerr that she was being assigned to a 60-
day detail in Anchorage to serve as Division Chief for Conservation Planning and
Policy. Logan and Boylan contend that the primary reason Kerr was selected for
this detail was her expertise in planning. Logan also contends that it was only a
secondary benefit that removing Kerr from Kodiak could relieve some of the
tension among the personnel there. Kerr began the Anchorage detail on February
5, 2006.
On February 6, 2006, Kerr sent Boylan a written request for reconsideration
of his January 26, 2006, performance evaluation. In this request, Kerr raised the
comments Boylan had made in July 2005 about needing to be more feminine. Kerr
also wrote:
As I have learned more about typical behaviors of alcoholics in the
aftermath of this tragedy, I am becoming more aware of the
extraordinary role that alcohol has played and continues to play in the
workplace environment at Kodiak Refuge. During the performance
year under discussion, the staff included one admitted alcoholic, two
additional staff members who had conduct problems related to abuse
of alcohol, one other staff member known to regularly consume
alcohol and three more staff members who come from alcohol family
systems . . . . This is the real systemic problem that must be addressed
at Kodiak.
On February 8, 2006, Kerr sent another letter to Boylan, this time objecting
to the January 26, 2006, warning letter that resulted from the incident with Wilker.
-4-
This letter again raised Boylan’s comment about being more feminine, and also
related how, when Kerr first arrived as manager of Kodiak, she discovered Playboy
magazines in a cabin in the refuge. Kerr also asserted that there had been
excessive alcohol consumption under the prior refuge manager.
On February 20, 2006, Kerr sent a letter to Human Resources (“HR”) and
the Performance Review Board, requesting reconsideration of Boylan’s January
2006, performance evaluation. The letter also recounted Boylan’s feminine
comment, the Playboy magazines Kerr had found, and the generous treatment that
had been afforded to the prior refuge manager. Kerr also discussed the alcohol
problems at Kodiak that she had communicated to Boylan.
Separately, on February 20, 2006, Kerr filed a formal grievance with FWS’
Personnel Office, in which she protested the January 26, 2006, letter of warning
concerning the Wilker incident. In the grievance, Kerr wrote:
Although it would be unnecessary for resolution of this grievance, and
is not a part of this grievance, I believe this is an appropriate
document in which to call to FWS management’s attention the
existence of my superiors’ gross mismanagement of the FWS
operations at the Kodiak National Wildlife Refuge. As I recently
detailed in my request for reconsideration to the Performance Review
Board, there is a serious alcohol problem by FWS employees at
Kodiak. Despite my repeated requests for assistance and seeking of
resources, this problem remains unaddressed by upper management
and has resulted in the referenced staff member suicide. This alcohol
abuse problem has been brought to the attention of Mr. Boylan by me
-5-
in the past and again recently. A problem of this magnitude
fundamentally threatens the FWS mission and operations at Kodiak.
On March 3, 2006, Logan informed Kerr that she was being permanently
reassigned to the policy planning position in Anchorage. Logan cited Kerr’s
“technical expertise and leadership skills” as rendering her well-qualified for the
position, but he added that “the Kodiak Refuge would benefit from new
leadership.” Logan informed Kerr that she could be subject to removal if she
declined the reassignment.
On March 30, 2006, Kerr filed a formal complaint with the Department of
the Interior’s Office of Inspector General (“OIG”). In the complaint, Kerr raised
her allegations of alcohol abuse at Kodiak.
Kerr declined the permanent reassignment, Logan subsequently initiated
removal proceedings, and Kerr retired involuntarily. Kerr filed a formal Equal
Employment Opportunity (“EEO”) complaint, which the Department of the
Interior’s Office of Civil Rights rejected.
Kerr then filed this action. Among other claims, Kerr asserted causes of
action under Title VII and the WPA for alleged unlawful retaliation. The district
court granted summary judgment to the government on all of Kerr’s claims. With
respect to the Title VII retaliation claim, the district court held that Kerr had
-6-
established a prima facie case of retaliation, but that the government presented
legitimate reasons for the adverse actions, and Kerr had not met her burden in
demonstrating pretext. With respect to the WPA claim, the district court first held
that Kerr’s only protected disclosures for purposes of her WPA claim were those in
her OIG complaint, and then held that, because Kerr did not contact OIG until after
she was permanently reassigned to the Anchorage position, she could not
demonstrate that the adverse actions occurred “because of” the protected
disclosures made in the OIG proceedings.
Kerr timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291.
II.
We review the district court’s grant of summary judgment de novo. Wood v.
Beauclair, 692 F.3d 1041, 1045 (9th Cir. 2012).
The familiar burden-shifting framework set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), governs Kerr’s Title VII retaliation claim.
Under this framework, a plaintiff must first establish a prima facie case of
retaliation. See Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1155 (9th Cir.
2010). At oral argument, the government conceded that Kerr’s complaints of
gender discrimination – during her July 2005 performance review and in her
-7-
February 2006 letters – constitute protected activities for purposes of Title VII.2
The government also does not dispute that the temporary detail to the Anchorage
position on January 26, 2006, as well as the permanent reassignment to that
position on March 3, 2006, represent adverse employment actions.
The final factor needed for a prima facie case is to establish “a causal link
between the protected activity and the adverse employment action.” Cornwell v.
Electra Cent. Credit Union, 439 F.3d 1018, 1034-35 (9th Cir. 2006). We may
infer the requisite causal link from “the proximity in time between the protected
activity and the adverse action.” Dawson v. Entek Int’l, 630 F.3d 928, 936 (9th
Cir. 2011). Here, such proximity is readily apparent; Kerr’s February 2006 letters
were sent less than a month prior to her permanent reassignment.
The government advances two legitimate, non-retaliatory reasons for the
challenged actions. First, It asserts that Kerr was uniquely qualified for the
planning position in Anchorage. Second, the government asserts that Kodiak
would benefit from new leadership given the tension that existed between Kerr and
some of her subordinates. Kerr does not contest that these explanations satisfy the
government’s burden at the second step of the McDonnell Douglas framework.
2
In making this concession, the government expressly withdrew
arguments to the contrary raised in its answering brief.
-8-
Kerr must therefore demonstrate a triable question of fact as to whether the
explanations put forward by the government are mere pretexts for retaliatory
animus. Where, as here, the evidence of pretext is circumstantial, a plaintiff “must
produce ‘specific’ and ‘substantial’ facts to create a triable issue of pretext.” Earl
v. Nielsen Media Research, Inc., 658 F.3d 1108, 1113 (9th Cir. 2011). We have
repeatedly cautioned, however, that this standard is “tempered” by the observation
that “a plaintiff’s burden to raise a triable issue of pretext is ‘hardly an onerous
one.’” Id. (quoting Noyes v. Kelly Servs., 488 F.3d 1163, 1170 (9th Cir. 2007)).
We conclude that, with regard to her permanent reassignment, Kerr has
raised a sufficient question of pretext to survive summary judgment. Specifically,
Kerr has raised a material question as to why the transfer to Anchorage was
changed from its original temporary nature. Logan informed Kerr of the 60-day
detail on January 26, 2006. Various persons have testified that this assignment was
in fact intended to be temporary. Yet roughly a month later, on March 3, 2006,
Logan notified Kerr that the reassignment was permanent, without explanation for
the change in duration from temporary to permanent. Kerr’s February 2006,
complaints of gender bias to Boylan and HR occurred in the intervening period of
time. The temporal proximity of these complaints to the permanent reassignment
alone provides a sufficient basis from which to infer pretext. See Dawson, 630
-9-
F.3d at 937 (“In some cases, temporal proximity can by itself constitute sufficient
circumstantial evidence of retaliation for purposes of both the prima facie case and
the showing of pretext.”). But the timing of the complaints is all the more
suggestive when considered in the context of the change from the original
temporary assignment and the lack of a full explanation for that change.
Kerr further points to evidence of pretext in asking why she was terminated
from her employment when she declined the permanent reassignment. Logan
testified that when he placed Kerr on the original detail in January 2006, he had not
“come to the conclusion that it was important to the effectiveness of the Kodiak
Refuge to have Ms. Kerr taken off the refuge.” A jury could reasonably question
why Logan reached a different conclusion only a month later.
We therefore hold that the district erred in concluding that Kerr has not
demonstrated a triable issue of pretext.3 Accordingly, we reverse the district
court’s grant of summary judgment on Kerr’s Title VII retaliation claim. On
3
In reaching the contrary conclusion, the district court gave no
consideration to the government’s continuing assertion that Kerr’s qualifications
were the primary motivation for the reassignment. Instead, the district court
focused exclusively on the problems between Kerr and the staff at Kodiak as the
reason for the transfer. Even if the government took this tack – which it does not –
the discrepancy between this explanation and the explanation advanced at the time
of the action would represent evidence of possible pretext. See Payne v. Norwest
Corp., 113 F.3d 1079, 1080 (9th Cir. 1997); Lindahl v. Air France, 930 F.2d 1434,
1438 (9th Cir. 1991).
-10-
remand, this claim shall be limited to Kerr’s permanent reassignment, and whether
this reassignment was attributable to her February 2006 complaints of gender
discrimination.
III.
Kerr’s WPA claim arises under 5 U.S.C. § 2302(b)(8)(A). At the time of the
events in question, this provision prohibited federal officials from taking personnel
actions against employees or applicants for employment because of:
any disclosure of information by an employee or applicant which the
employee or applicant reasonably believes evidences – (i) a violation
of any law, rule, or regulation, or (ii) gross mismanagement, a gross
waste of funds, an abuse of authority, or a substantial and specific
danger to public health or safety[.]
5 U.S.C. § 2302(b)(8)(A) (2006).
A plaintiff must establish four elements to succeed on a claim under this
provision: (1) the acting official had the authority to take, recommend, or approve
any personnel action; (2) the plaintiff made a protected disclosure; (3) the acting
official used his authority to take, or refuse to take, a personnel action against the
plaintiff; and (4) the acting official took, or failed to take, the personnel action
against the plaintiff because of the protected disclosure. Coons v. Sec’y of U.S.
Dep’t of Treasury, 383 F.3d 879, 888 (9th Cir. 2004).
-11-
The district court granted summary judgment based on the second and fourth
of these elements. It held that Kerr’s only protected disclosures were those in her
OIG complaint. The court then held that, because Kerr’s initial contact with OIG
was after both the temporary detail and the permanent reassignment, these adverse
actions could not have occurred “because of” the disclosures to OIG. Kerr does
not appeal this holding with respect to the OIG complaint.
Kerr does challenge, however, the district court’s determination that her pre-
OIG communications do not constitute protected disclosures. In reaching this
conclusion, the district court relied on a number of doctrines arising from cases in
the Federal Circuit. See Huffman v. Office of Personnel Mgmt., 263 F.3d 1341(Fed. Cir. 2001); Horton v. Dep’t of the Navy, 66 F.3d 279 (Fed. Cir. 1995); Spruill
v. Merit Sys. Prot. Bd., 978 F.2d 679 (Fed. Cir. 1992). The government urges us to
adopt these doctrines and reject Kerr’s WPA claims. We decline the invitation
and, instead, decide the question as a straightforward issue of statutory
interpretation. Section 2302(b)(8)(A) protects an employee making “any
disclosure” (emphasis added) where the employee reasonably believes that the
information evidences: “(i) a violation of any law, rule, or regulation, or (ii) gross
mismanagement, a gross waste of funds, an abuse of authority, or a substantial and
specific danger to public health or safety[.]” Clearly, we must take the language
-12-
“any disclosure” at face value, which compels us to conclude that Kerr’s
complaints fall within the broad protective scope of § 2302(b)(8)(A).
Because we hold that the district court erred in granting summary judgment
on the ground that Kerr’s pre-OIG disclosures were not protected, we need not
decide whether the WPEA should be retroactively applied.4
The government contends, in a single paragraph in its answering brief, that
even if Kerr did engage in protected activity prior to the adverse actions she
suffered, summary judgment is appropriate because Kerr cannot demonstrate that
those adverse actions occurred “because of” the protected activity. The district
court, however, did not reach this question, and we decline to do so in the first
instance. We are especially reluctant to rest on this basis given the evidence of
pretext previously described in the context of Kerr’s Title VII claim.
IV.
We reverse the district court’s grant of summary judgment on Kerr’s Title
VII retaliation claim and her WPA claim. We remand both claims for further
proceedings consistent with this disposition.
4
We note that the Merit Systems Protection Board recently held that
the WPEA does apply to conduct preceding its passage on the theory that the
WPEA was merely a clarification of existing law. See Day v. Dep’t of Homeland
Sec., 2013 M.S.P.B. 49 (2013).
-13-
REVERSED and REMANDED.
-14-