NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 21 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILLIAM C. DISS, No. 16-36067

Plaintiff-Appellant, D.C. No. 3:14-cv-01649-PK

v.

MEMORANDUM*

PORTLAND PUBLIC SCHOOLS, a public entity; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Oregon Paul J. Papak II, Magistrate Judge, Presiding

Argued and Submitted May 9, 2018 Portland, Oregon

Before: RAWLINSON and CHRISTEN, Circuit Judges, and GARBIS,** District Judge.

After William C. Diss (“Diss” or “Appellant”) was terminated from his

teaching position at Portland Public Schools, he alleged that there were improper

pretextual reasons for his termination, including discrimination against his Catholic

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Marvin J. Garbis, United States District Judge for the District of Maryland, sitting by designation. beliefs and his pro-life activities. Appellees contended that he was terminated for

denigrating students, being disrespectful to colleagues, and refusing to follow

directives. The lower court granted summary judgment for Appellees.

We have jurisdiction under 28 U.S.C. § 1291, and review de novo. Or.

Paralyzed Veterans of Am. v. Regal Cinemas, Inc., 339 F.3d 1126, 1130 (9th Cir.

2003). We affirm.

The key issue underlying all of Appellant’s claims is the motivation for his

termination. There is no genuine dispute that Appellant was terminated for his

inappropriate and inflammatory behavior toward students and other staff; we find a

lack of specific and substantial evidence showing that the termination was for

improper pretextual reasons.

Regarding Appellant’s free speech claim, we agree with the lower court’s

decision under Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205, 391 U.S. 563

(1968). Any restriction placed on Appellant’s speech activities within the school

reaches only speech within the scope of his official duties as a teacher or involves

staff disputes that are not matters of public concern. These restrictions cannot

form the basis of a First Amendment retaliation claim. See Eng v. Cooley, 552

F.3d 1062, 1070-72 (9th Cir. 2009). The limited restrictions placed on his outside

activities, i.e., requests for Diss to refrain from associating the school with his

political or religious views, are supported by adequate justifications in the record

2 16-36067 under the Pickering balancing test. See id. at 1071. Regarding his free association

and free exercise claims, Appellant has failed to show that any protected

association “was a ‘substantial’ or ‘motivating’ factor” for the termination, Strahan

v. Kirkland, 287 F.3d 821, 825 (9th Cir. 2002), or that the requirement for him to

facilitate the Teen Outreach Program (“TOP”) presentation was not a neutral or

generally applicable directive, see Stormans, Inc. v. Wiesman, 794 F.3d 1064,

1075-76 (9th Cir. 2015).

Regarding his Fourteenth Amendment claim, the record shows that

Appellant has failed to create a genuine dispute regarding whether he faced

intentional discrimination on the basis of his religion. See Fed. Deposit Ins. Corp.

v. Henderson, 940 F.2d 465, 471 (9th Cir. 1991). Appellees’ knowledge of Diss’s

religious beliefs and his association with anti-abortion groups prior to termination

is insufficient by itself to show discriminatory intent. See Pers. Adm’r of Mass. v.

Feeney, 442 U.S. 256, 279 (1979) (“‘Discriminatory purpose,’ . . . . implies that the

decisionmaker . . . selected or reaffirmed a particular course of action at least in

part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable

group.”) (citations omitted).

Regarding Appellant’s state and federal statutory claims, the record reflects

that there was a legitimate basis to terminate Appellant based on his prior record of

demeaning actions toward students and staff. Because Appellees can make this

3 16-36067 showing under the burden-shifting framework, Appellant “must then raise a triable

issue of material fact as to whether the [employer’s] proffered reason[] for [his]

termination[] [is] mere pretext for unlawful discrimination.” Hawn v. Exec. Jet

Mgmt., Inc., 615 F.3d 1151, 1155 (9th Cir. 2010). This requires “specific,

substantial evidence of pretext” to defeat an employer’s motion for summary

judgment. Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir. 1983). Appellant

falls short of this standard.

Finally, regarding Appellant’s failure-to-accommodate theory, Appellant has

not created a genuine dispute of fact about whether he was terminated for his

refusal to allow TOP presentations in the classroom, as opposed to being

terminated for his demeaning conduct and insubordination. See Peterson v.

Hewlett-Packard Co., 358 F.3d 599, 606 (9th Cir. 2004).

Accordingly, the judgment of the lower court is AFFIRMED.

4 16-36067