                                                                           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                           NOT FOR PUBLICATION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


                                           3
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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