                                                                             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                            NOT FOR PUBLICATION                               DEC 09 2013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the WPA as originally enacted in 1989.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-
