                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       DEC 12 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

ELENA RODRIGUEZ-MALFAVON,                       No.    16-17076

                Plaintiff-Appellant,            D.C. No.
                                                2:12-cv-01673-APG-PAL
 v.

CLARK COUNTY SCHOOL DISTRICT; et MEMORANDUM*
al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                            for the District of Nevada
                   Andrew P. Gordon, District Judge, Presiding

                     Argued and Submitted December 6, 2017
                            San Francisco, California

Before: M. SMITH and IKUTA, Circuit Judges, and MCAULIFFE,** District
Judge.

      Plaintiff Elena Rodriguez-Malfavon (Plaintiff) appeals from the district

court’s order granting summary judgment to Defendants Clark County School

District (CCSD), Edward Goldman, and Anita Wilbur (collectively, Defendants)


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Steven J. McAuliffe, Senior United States District
Judge for the District of New Hampshire, sitting by designation.
on her First Amendment retaliation claim under 42 U.S.C. § 1983. We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse and remand for

proceedings consistent with this disposition.

      First Amendment retaliation claims are governed by the five-step framework

outlined in Eng v. Cooley, 552 F.3d 1062 (9th Cir. 2009). The Eng factors inquire:

             (1) whether the plaintiff spoke on a matter of public
             concern; (2) whether the plaintiff spoke as a private citizen
             or public employee; (3) whether the plaintiff’s protected
             speech was a substantial or motivating factor in the
             adverse employment action; (4) whether the state had an
             adequate justification for treating the employee differently
             from other members of the general public; and (5) whether
             the state would have taken the adverse employment action
             even absent the protected speech.

Id. at 1070. If the plaintiff successfully meets her burden on the first three factors,

the burden shifts to the defendants on the last two. See id. at 1070–72.

      The fifth factor allows a defendant to “avoid liability by showing that the

employee’s protected speech was not a but-for cause of the adverse employment

action.” Id. at 1072. We have emphasized that “[i]mmunity should be granted on

this ground only if the state successfully alleges, without dispute by the plaintiff, that

it would have made the same employment decisions even absent the questioned

speech.” Id. (emphasis added). The but-for causation inquiry is a question of fact.

Id.




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      Here, the district court erred in granting Defendants’ motion for summary

judgment on the basis of the fifth Eng factor.1 In opposition to Defendants’ motion

for summary judgment, Plaintiff proffered an affidavit disputing several of the bases

of the second unsatisfactory evaluation she received from Wilbur. Viewing the

evidence in the light most favorable to Plaintiff, and mindful that Defendants bear

the burden of proof on the issue of but-for causation, we conclude that Plaintiff’s

evidence created a genuine issue of material fact on the fifth Eng factor.

      REVERSED AND REMANDED.




1
 Because the district court relied solely on the fifth Eng factor in granting
summary judgment, we limit our discussion to the fifth factor and express no view
on the merits of the remaining factors. See Desrochers v. City of San Bernardino,
572 F.3d 703, 709 (9th Cir. 2009).

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