                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 11 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


THOMAS FRONAPFEL,                                No. 11-17349

              Plaintiff - Appellant,             D.C. No. 3:09-cv-00562-LRH-
                                                 VPC
  v.

FARROKH HORMAZDI and EDGAR                       MEMORANDUM*
ROBERTS,

              Defendants - Appellees.


                    Appeal from the United States District Court
                             for the District of Nevada
                     Larry R. Hicks, District Judge, Presiding

                             Submitted May 17, 2013**
                              San Francisco, California




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

                                          1
Before: CLIFTON and BEA, Circuit Judges, and KORMAN, Senior District
Judge.***

      Thomas Fronapfel was terminated from his position as Field Services

Administrator for the State of Nevada Department of Motor Vehicles (“DMV”).

He filed an action for money damages under 42 U.S.C. § 1983 against Edgar

Roberts, the DMV Director, and Farrokh Hormazdi, the Deputy Director, alleging

gender discrimination and First Amendment retaliation claims. The district court

granted the Defendants’ motion for summary judgment. Fronapfel timely appealed

and argues that the district court erred by holding that (1) he failed to adduce

evidence sufficient to create a triable issue as to whether the Defendants’ proffered

reasons for his termination were pretextual, and (2) the speech in question was part

of his job duties. We have jurisdiction under 28 U.S.C. § 1291. We review the

district court’s decision de novo, see Godwin v. Hunt Wesson, Inc., 150 F.3d 1217,

1219–20 (9th Cir. 1998), and affirm.

      To survive summary judgment on his equal protection claim, Fronapfel must

adduce evidence that the several legitimate, non-discriminatory reasons Defendants

proffered to justify his termination were pretextual. See Keyser v. Sacramento City

Unified Sch. Dist., 265 F.3d 741, 754–55 (9th Cir. 2001) (explaining that summary

        ***
             The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.

                                           2
judgment for an employer is appropriate where “1) there was little to no direct

evidence of discriminatory intent, 2) the employer offered legitimate,

non-discriminatory reasons for its actions, and 3) the employee did not show these

reasons were false or pretextual”). Here, Fronapfel has offered no direct evidence

of discriminatory intent, and the Defendants offered several non-discriminatory

reasons for the termination. While Fronapfel disputed the validity of some

proffered justifications, those he admitted are sufficient to undermine his allegation

that the termination decision was based on discriminatory animus. In particular,

Fronapfel conceded that he (1) played Sudoku in his office when he was supposed

to be working, and (2) cut his fingernails and toenails in his office when he was

supposed to be working. Because Fronapfel was an at-will employee, he could be

fired for playing Sudoku or grooming himself at work. See Engquist v. Oregon

Dep’t of Agriculture, 553 U.S. 591, 606 (2008) (stating that it is a “basic principle

of at-will employment . . . that an employee may be terminated for a good reason,

bad reason, or no reason at all” (internal quotation marks and citations removed)).

Because Fronapfel adduced no evidence that these non-discriminatory reasons

were pretextual, the district court was correct to grant the Defendants summary

judgment on Fronapfel’s equal protection claim.




                                          3
      To survive summary judgment on his First Amendment retaliation claim,

Fronapfel must show that he engaged in some constitutionally protected speech.

See Garcetti v. Ceballos, 547 U.S. 410, 415–20 (2006). Fronapfel based his First

Amendment retaliation claim on his (1) speech against denying overtime pay to

employees, (2) speech expressing a concern that employee timesheets had been

altered to take away earned overtime, and (3) statement that a failure to pay

overtime would violate the law. The record shows that the DMV conducted

extensive discussions on how to implement the state’s new furlough and overtime

policies. The record also reveals that Fronapfel took part in these discussions. It

was in this context that Fronapfel made his statements about overtime. Thus,

Fronapfel acted as a public employee when he spoke about overtime issues; he did

not speak as a private citizen. “[W]hen public employees make statements

pursuant to their official duties, the employees are not speaking as citizens for First

Amendment purposes, and the Constitution does not insulate their communications

from employer discipline.” Id. at 421.

      AFFIRMED.




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