Steve Tarbuck v. State of Nevada , 691 F. App'x 426 ( 2017 )

FILED
NOT FOR PUBLICATION
MAY 24 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEVE TARBUCK, No. 14-15503
Plaintiff-Appellant, D.C. No.
3:12-cv-00454-RCJ-WGC
v.
STATE OF NEVADA, ex rel, its Nevada MEMORANDUM*
Youth Training Center; JOSEPH PAYNE;
JUSTIN HARDY; LANA NELSON;
MARVIN PIERCE; ERICA OLSON,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, Senior District Judge, Presiding
Argued and Submitted May 15, 2017
San Francisco, California
Before: W. FLETCHER and TALLMAN, Circuit Judges, and HUCK,** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Paul C. Huck, United States District Judge for the U.S.
District Court for Southern Florida, sitting by designation.
Plaintiff-Appellant Steve Tarbuck appeals the district court’s orders
dismissing his 42 U.S.C. § 1983 free speech claim for failure to state a claim and
granting summary judgment in favor of Defendant Nevada Youth Training Center
(“NYTC”) on his Title VII retaliation claim. We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
We review de novo the district court’s dismissal under Federal Rule of Civil
Procedure 12(b)(6), Lacey v. Maricopa Cty., 693 F.3d 896, 911 (9th Cir. 2012) (en
banc), and the district court’s decision to grant summary judgment, Las Vegas
Sands, LLC v. Nehme, 632 F.3d 526, 532 (9th Cir. 2011).
First, Tarbuck failed to preserve his § 1983 free speech claim for appeal,
because he did not reallege the claim in his second amended complaint after it was
dismissed with leave to amend. Lacey, 693 F.3d at 928 (“[F]or any claims
voluntarily dismissed, we will consider those claims to be waived if not repled.”);
Ho v. ReconTrust Co., NA, 840 F.3d 618, 626 (9th Cir. 2016) (explaining that
“claims dismissed without prejudice and not repleaded” are considered voluntarily
dismissed). Tarbuck’s reliance on Ho is misplaced, because Ho involved a pro se
plaintiff who was specifically instructed, as the district court dismissed her
amended complaint, not to “continue to maintain” her claim unless she could make
particular allegations in good faith. Ho, 840 F.3d at 626. By contrast, Tarbuck
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was represented by counsel, and the district court dismissed his first amended
complaint with leave to amend without articulating particular conditions on his
ability to reallege the claim.
Second, the district court did not err in granting summary judgment to
NYTC on Tarbuck’s Title VII retaliation claim. “To establish a prima facie
retaliation claim under the opposition clause of 42 U.S.C. § 2000e-3(a), Title VII,
[a plaintiff] must show 1) [his] involvement in a protected activity, 2) an adverse
employment action taken against [him], and 3) a causal link between the two.”
Little v. Windermere Relocation, Inc., 301 F.3d 958, 969 (9th Cir. 2002). After a
prima facie retaliation claim has been established, “the burden of production shifts
to the defendant, who must offer evidence that the adverse action was taken for
other than impermissibly discriminatory reasons.” Id. (internal quotation marks
omitted). Finally, the plaintiff must rebut this evidence with “specific, substantial
evidence of pretext” that goes beyond merely refuting “the employer’s legitimate
reason.” Id. (internal quotation marks omitted).
Even assuming Tarbuck successfully made out a prima facie retaliation
claim under Title VII, he failed to present “specific, substantial evidence of
pretext” to rebut NYTC’s legitimate reasons for his termination. Tarbuck’s work
evaluations reflect significant concerns about his performance, and a timeline in
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the record lists particular incidents that led to NYTC’s decision to terminate
Tarbuck’s employment. Tarbuck contends that his “satisfactory” evaluations are
evidence of pretext, but these evaluations contain substantial negative feedback
and are insufficient to rebut NYTC’s legitimate reasons for termination. Notably,
Tarbuck’s three-month and seven-month probationary evaluations both indicated
that he did not meet the standards for “supervision of youth,” the primary job of an
NYTC group supervisor. That first probationary evaluation occurred over three
months before Tarbuck’s complaints to the NYTC superintendent and later filing
of a formal complaint with the Nevada employee agency.
AFFIRMED.
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