                            NOT FOR PUBLICATION                          FILED
                     UNITED STATES COURT OF APPEALS                       AUG 5 2016
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT


 RONNIE D. STILWELL; COURTNEY                    No.    14-15540
 STILWELL, husband and wife,
                                                 D.C. No. 3:12-cv-08053-HRH
             Plaintiffs - Appellants,

    v.                                           MEMORANDUM*

 CITY OF WILLIAMS, an Arizona
 Municipal Corporation; JOSEPH DUFFY,
 Interim City Manager of the City of
 Williams; LYDA DUFFY, husband and
 wife; RAYMOND GLENN CORNWELL,
 former Public Works Director of the City of
 Williams; ELSIE CORNWELL, husband
 and wife; BILLY PRUITT; BESSIE
 PRUITT, husband and wife; TRACY
 FULLER; KATHY FULLER, husband and
 wife,

             Defendants - Appellees.

                    Appeal from the United States District Court
                             for the District of Arizona
                    H. Russel Holland, District Judge, Presiding

                       Argued and Submitted March 14, 2016
                            San Francisco, California

Before: FERNANDEZ, GOULD, and FRIEDLAND, Circuit Judges.

         *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      Plaintiff-Appellant Ronnie Stilwell appeals the district court’s grant of

summary judgment in favor of the City of Williams on claims Stilwell brought

relating to his termination from City employment. Specifically, Stilwell appeals

the District Court’s grant of summary judgment with respect to the following

claims: (1) Age Discrimination Employment Act (“ADEA”) retaliation; (2)

common law wrongful discharge; (3) Fourteenth Amendment Due Process

violation; (4) breach of implied contract; (5) intentional interference with contract;

(6) breach of implied covenant of good faith and fair dealing; (7) negligent

infliction of emotional distress; and (8) First Amendment retaliation. We affirm

the grant of summary judgment with respect to claims five, six, and seven, and we

reverse and remand on claims one through four.1

                                          I.

                                          A.

      The district court erred in granting summary judgment on Stilwell’s ADEA

retaliation claim brought under 29 U.S.C. § 623(d). Stilwell presented sufficient

evidence to survive summary judgment on the elements of a prima facie case of

1
  Stilwell’s challenge to the district court’s grant of summary judgment on his
§ 1983 First Amendment claim is resolved in a published opinion filed
concurrently with this memorandum disposition.

                                           2
retaliation: “(1) he was engaged in a protected activity; (2) he was thereafter

subjected by his employer to an adverse employment action; and (3) a causal link

exists between the protected activity and the adverse employment action.” Wallis

v. J.R. Simplot Co., 26 F.3d 885, 891 (9th Cir. 1994). Neither party disputes the

first element. As to the second and third factors, Stilwell offered evidence that the

hostile treatment he received from Duffy began shortly after Stilwell agreed to

testify on behalf of Carolyn Smith. See Clark Cty. Sch. Dist. v. Breeden, 532 U.S.

268, 273-74 (2001) (per curiam) (citing cases for the proposition that “mere

temporal proximity between an employer’s knowledge of protected activity and an

adverse employment action [is] sufficient evidence of causality to establish a prima

facie case,” when the “temporal proximity [is] ‘very close.’” (quoting O’Neal v.

Ferguson Constr. Co., 237 F.3d 1248, 1253 (10th Cir. 2001))).

      Although the City offers legitimate, nondiscriminatory reasons for its

adverse employment action, see Wallis, 26 F.3d at 889, Stilwell in turn has met his

burden of demonstrating “a genuine issue of material fact as to whether [these]

reasons were pretextual.” Coleman v. Quaker Oats Co., 232 F.3d 1271, 1286-87

(9th Cir. 2000); see Wallis, 26 F.3d at 890 (To demonstrate pretext this, the

plaintiff “must do more than establish a prima facie case and deny the credibility of

                                           3
[the employer’s] witnesses,” but instead must produce “specific, substantial

evidence of pretext.” (first quoting Schuler v. Chronicle Broad. Co., 793 F.2d

1010, 1011 (9th Cir. 1986); then quoting Steckle v. Motorola, Inc., 703 F.2d 392,

393 (9th Cir. 1983)). Certainly there were problems with management of the

water department, but Stilwell offered evidence, including in his own declarations,

suggesting that his negative performance reviews, Duffy’s hostility towards him,

and Duffy’s ultimate decision to fire him, were all tied to Stilwell’s decision to

testify. See Nigro v. Sears, Roebuck & Co., 784 F.3d 495, 497 (9th Cir. 2015)

(“[T]he district court may not disregard a piece of evidence at the summary

judgment stage solely based on its self-serving nature.”).

                                          B.

      The district court also erred in granting summary judgment on Stilwell’s

Arizona state law wrongful discharge claim. See A.R.S. § 23-1501(c)(ii). The

court granted summary judgment as to this claim for the sole reason that there was

no nexus between Stilwell’s speech and his termination. As explained with

respect to the ADEA retaliation claim, there are genuine issues of material fact as

to nexus, so we reverse the district court’s decision on the Arizona state law

wrongful discharge claim as well.

                                           4
                                          C.

      The district court likewise erred in granting summary judgment on Stilwell’s

Fourteenth Amendment Due Process claim. “Property interests . . . are not created

by the Constitution. Rather they are created . . . by existing rules or

understandings that stem from an independent source such as state law-rules or

understandings that secure certain benefits and that support claims of entitlement to

those benefits.” Blantz v. Cal. Dep’t of Corr. & Rehab., Div. of Corr. Health

Care Servs., 727 F.3d 917, 922 (9th Cir. 2013) (first alteration in original) (quoting

Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972)). Under Arizona

law, an implied-in-fact contract altering at-will employment can result from

“statements or conduct of the parties,” and from “an employer’s policy statements

regarding job security or employee disciplinary procedures, such as those

contained in personnel manuals or memoranda.” Roberson v. Wal-Mart Stores,

Inc., 44 P.3d 164, 169 (Ariz. Ct. App. 2002). Essentially, “[a]n implied-in-fact

contract term is formed when ‘a reasonable person could conclude that both parties

intended that the employer’s (or the employee’s) right to terminate the employment

relationship at-will had been limited.’” Id. (first quoting Demasse v. ITT Corp.,

984 P.2d 1138, 1143 (Ariz. 1999) (en banc); then quoting Metcalf v. Intermountain

                                           5
Gas Co., 778 P.2d 744, 746 (Idaho 1989)). Whether there is an implied-in-fact

contract is a question of fact. Id. (citing Leikvold v. Valley View Cmty. Hosp., 688

P.2d 170, 174 (Ariz. 1984) (in banc)).

      The City of Williams’ employee manual provides terminated employees the

right to appeal the cause underlying their termination. These provisions create a

genuine dispute of material fact about whether a reasonable person could conclude

that both parties intended to limit the right to terminate an employee. Summary

judgment on this claim was therefore inappropriate.

                                         D.

      For similar reasons, the district court erred in granting summary judgment

on Stilwell’s breach of contract claim. Because there is a genuine dispute of

material fact about whether there was an implied contract, there is also a genuine

dispute of material fact as to whether the City breached that contract when it

terminated Stilwell.
                                         E.

      The district court did not err in granting summary judgment on Stilwell’s

intentional interference of contract claim. Arizona has “‘long recognized’ that a

person who intentionally interferes with contractual relationships between other



                                          6
parties can be held liable under certain circumstances to a party injured by the

interference.” Safeway Ins. Co. v. Guerrero, 106 P.3d 1020, 1024 (Ariz. 2005)

(en banc) (emphasis added) (quoting Wells Fargo Bank v. Ariz. Laborers,

Teamsters & Cement Masons Local No. 395 Pension Tr., 38 P.3d 12, 31 (Ariz.

2002) (en banc)). If Cornwell and Duffy “were acting for the [City], they were the

[City]” and thus any interference would not have been with a contract between

other parties. Barrow v. Ariz. Bd. of Regents, 761 P.2d 145, 152 (Ariz. Ct. App.

1988) (explaining that summary judgment in favor of defendants is proper where

the “plaintiff [] failed to produce any evidence that the defendants were acting

other than within the scope of their authority as management representatives”).

Stilwell has produced no evidence that Cornwell and Duffy acted outside the scope

of their employment with the City, so he has not made a sufficient showing to

support a claim on intentional interference with contract under Arizona law.

                                                F.

         We decline to reach the question whether the district court correctly granted

summary judgment on Stilwell’s claim for breach of the implied covenant of good

faith and fair dealing because Stilwell waived this claim by waiting until his Reply

Brief to discuss it. Image Tech. Serv., Inc. v. Eastman Kodak Co., 136 F.3d 1354,

1356–57 (9th Cir. 1998). Accordingly, we affirm the district court’s ruling on this

issue.


                                            7
                                          G.

      Finally, the district court did not err in granting summary judgment on

Stilwell’s negligent infliction of emotional distress claim because Stilwell offered

no proof that his emotional injuries manifested themselves in a physical manner.

See Quinn v. Turner, 745 P.2d 972, 973 (Ariz. Ct. App. 1987) (“Physical impact to

the plaintiff is not necessary, but the emotional distress must manifest itself in

some physical way.”).

                                          II.

      For the foregoing reasons, we REVERSE in part, AFFIRM in part, and

REMAND.

      Each party shall bear its own costs on appeal.




                                           8
