Veronica Ortega-Gamez v. Auhsd ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 14 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
VERONICA ORTEGA-GAMEZ, No. 18-55832
Plaintiff-Appellant, D.C. No.
8:16-cv-01562-AG-AS
v.
ANAHEIM UNION HIGH SCHOOL MEMORANDUM*
DISTRICT; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
Submitted November 15, 2019**
Pasadena, California
Before: M. SMITH, MILLER, and COLLINS, Circuit Judges.
Veronica Ortega-Gamez, a former school psychologist for the Anaheim
Union High School District, appeals from the district court’s order granting
summary judgment in favor of the District on her claims of retaliation and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
interference with protected leave. We have jurisdiction under 28 U.S.C. § 1291.
We affirm.
1. Ortega-Gamez’s retaliation claims under the Rehabilitation Act and
California’s Fair Employment and Housing Act (FEHA) are governed by the
burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792(1973). See Coons v. Sec’y of U.S. Dep’t of Treasury, 383 F.3d 879, 887 (9th Cir.
2004); Lawler v. Montblanc N. Am., LLC, 704 F.3d 1235, 1242 (9th Cir. 2013).
Even assuming that Ortega-Gamez established the elements of a prima facie claim
of retaliation, she did not create a genuine issue of material fact as to whether the
District’s proffered legitimate, nonretaliatory reasons for her demotion were
pretextual. Where, as here, a plaintiff relies on circumstantial evidence, her
evidence of pretext “must be both specific and substantial.” Villiarimo v. Aloha
Island Air, Inc., 281 F.3d 1054, 1062 (9th Cir. 2002); Lawler, 704 F.3d at 1244.
Ortega-Gamez did not carry her burden. To the contrary, as the district court
observed, “[c]oncerns about Plaintiff’s job performance were . . . well documented
and corroborated.” Ortega-Gamez asserts that she had a “flawless performance
history” before she made a complaint, but she presented no evidence that her
performance deficiencies—which were noted by her colleagues, not by
supervisors—were somehow fabricated or exaggerated.
2. To establish a claim of retaliation under the California Family Rights
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Act (CFRA), Ortega-Gamez must show that she “suffered an adverse employment
action, such as termination, fine, or suspension, because of her exercise of her right
to CFRA leave.” Faust v. Cal. Portland Cement Co., 58 Cal. Rptr. 3d 729, 744
(Cal. Ct. App. 2007) (citation omitted). Here, Ortega-Gamez failed to show that
her CFRA-protected leave affected her demotion. Even if she had made such a
showing, she could not prevail because, as noted above, she did not establish that
the District’s nonretaliatory reasons for her demotion were pretextual.
Significantly, by extending her leave past the 12-week period, the District provided
Ortega-Gamez with benefits beyond what CFRA requires. See Nelson v. United
Techs., 88 Cal. Rptr. 2d 239, 250 (Cal. Ct. App. 1999) (“To say that [defendant]
provided [plaintiff] with more benefits than the CFRA required while
simultaneously intending to fire him for exercising his CFRA rights requires a leap
we are not prepared to take.”).
To establish a claim for interference under CFRA, Ortega-Gamez must show
that the District “denied [her CFRA] benefits to which [she] was entitled.”
Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1243 (9th Cir. 2014). There
is no legal support for Ortega-Gamez’s assertion that the communications she
received while on leave materially interfered with her CFRA benefits. See Cal.
Code Regs. tit. 2, § 11094.
3. To establish a claim of retaliation under the First Amendment, Ortega-
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Gamez must show that she “spoke as a private citizen.” Eng v. Cooley, 552 F.3d
1062, 1070–72 (9th Cir. 2009). Ortega-Gamez’s alleged protected speech related to
her employment as a school psychologist. Specifically, she made recommendations
for changes within her department, provided those recommendations to her
supervisor, and reported deficiencies within her department to the California
Department of Education. In so doing, she was acting within the scope of her
duties in an effort to improve the operations of her employer. Because Ortega-
Gamez spoke as a public employee, she cannot prevail on her First Amendment
claim. See Johnson v. Poway Unified Sch. Dist., 658 F.3d 954, 966 (9th Cir. 2011).
AFFIRMED.
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