NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JAN 14 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

VERONICA ORTEGA-GAMEZ, No. 18-55832

Plaintiff-Appellant, D.C. No. 8:16-cv-01562-AG-AS v.

ANAHEIM UNION HIGH SCHOOL MEMORANDUM*

DISTRICT; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Andrew J. Guilford, District Judge, Presiding

Submitted November 15, 2019** Pasadena, California

Before: M. SMITH, MILLER, and COLLINS, Circuit Judges.

Veronica Ortega-Gamez, a former school psychologist for the Anaheim

Union High School District, appeals from the district court’s order granting

summary judgment in favor of the District on her claims of retaliation and

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). interference with protected leave. We have jurisdiction under 28 U.S.C. § 1291.

We affirm.

1. Ortega-Gamez’s retaliation claims under the Rehabilitation Act and

California’s Fair Employment and Housing Act (FEHA) are governed by the

burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). See Coons v. Sec’y of U.S. Dep’t of Treasury, 383 F.3d 879, 887 (9th Cir.

2004); Lawler v. Montblanc N. Am., LLC, 704 F.3d 1235, 1242 (9th Cir. 2013).

Even assuming that Ortega-Gamez established the elements of a prima facie claim

of retaliation, she did not create a genuine issue of material fact as to whether the

District’s proffered legitimate, nonretaliatory reasons for her demotion were

pretextual. Where, as here, a plaintiff relies on circumstantial evidence, her

evidence of pretext “must be both specific and substantial.” Villiarimo v. Aloha

Island Air, Inc., 281 F.3d 1054, 1062 (9th Cir. 2002); Lawler, 704 F.3d at 1244.

Ortega-Gamez did not carry her burden. To the contrary, as the district court

observed, “[c]oncerns about Plaintiff’s job performance were . . . well documented

and corroborated.” Ortega-Gamez asserts that she had a “flawless performance

history” before she made a complaint, but she presented no evidence that her

performance deficiencies—which were noted by her colleagues, not by

supervisors—were somehow fabricated or exaggerated.

2. To establish a claim of retaliation under the California Family Rights

2 Act (CFRA), Ortega-Gamez must show that she “suffered an adverse employment

action, such as termination, fine, or suspension, because of her exercise of her right

to CFRA leave.” Faust v. Cal. Portland Cement Co., 58 Cal. Rptr. 3d 729, 744

(Cal. Ct. App. 2007) (citation omitted). Here, Ortega-Gamez failed to show that

her CFRA-protected leave affected her demotion. Even if she had made such a

showing, she could not prevail because, as noted above, she did not establish that

the District’s nonretaliatory reasons for her demotion were pretextual.

Significantly, by extending her leave past the 12-week period, the District provided

Ortega-Gamez with benefits beyond what CFRA requires. See Nelson v. United

Techs., 88 Cal. Rptr. 2d 239, 250 (Cal. Ct. App. 1999) (“To say that [defendant]

provided [plaintiff] with more benefits than the CFRA required while

simultaneously intending to fire him for exercising his CFRA rights requires a leap

we are not prepared to take.”).

To establish a claim for interference under CFRA, Ortega-Gamez must show

that the District “denied [her CFRA] benefits to which [she] was entitled.”

Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1243 (9th Cir. 2014). There

is no legal support for Ortega-Gamez’s assertion that the communications she

received while on leave materially interfered with her CFRA benefits. See Cal.

Code Regs. tit. 2, § 11094.

3. To establish a claim of retaliation under the First Amendment, Ortega-

3 Gamez must show that she “spoke as a private citizen.” Eng v. Cooley, 552 F.3d

1062, 1070–72 (9th Cir. 2009). Ortega-Gamez’s alleged protected speech related to

her employment as a school psychologist. Specifically, she made recommendations

for changes within her department, provided those recommendations to her

supervisor, and reported deficiencies within her department to the California

Department of Education. In so doing, she was acting within the scope of her

duties in an effort to improve the operations of her employer. Because Ortega-

Gamez spoke as a public employee, she cannot prevail on her First Amendment

claim. See Johnson v. Poway Unified Sch. Dist., 658 F.3d 954, 966 (9th Cir. 2011).

AFFIRMED.

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