FILED

NOT FOR PUBLICATION

OCT 2 2020

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JEFFREY GREEN, No. 19-16682

Plaintiff-Appellant, D.C. No. 2:15-cv-02570-DJH

v.

MEMORANDUM*

CITY OF PHOENIX,

Defendant-Appellee.

Appeal from the United States District Court for the District of Arizona Diane J. Humetewa, District Judge, Presiding

Argued and Submitted September 18, 2020 San Francisco, California

Before: SCHROEDER, W. FLETCHER, and HUNSAKER, Circuit Judges.

Jeffrey Green is a Sergeant in the Phoenix Police Department. In 2015, he

brought an action against the City of Phoenix alleging that, between 2012 and

2015, the City violated Title VII by retaliating against him for filing EEOC

charges, helping a subordinate file a sexual harassment complaint, and refusing to

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. aid his supervisor in conduct violating Title VII. Green’s alleged damages, which

were limited to pain and suffering, were not supported by any witnesses, evidence,

or documentation other than his own testimony. Throughout the period relevant to

his claims and continuing to the present time, Green has continued to be employed

by the Phoenix Police Department.

The case went to trial and a jury returned a $1.5 million verdict for Green.

The district court then vacated the jury verdict, granting the City’s Rule 50 motion

for judgment as a matter of law, which Green now appeals. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.

Green claims that the City took adverse action against him in retaliation for

engaging in activities protected by Title VII. To establish retaliation under Title

VII, an employee must show that (1) he or she engaged in protected activity, (2) he

or she experienced an adverse employment action, and (3) “his or her protected

activity was a but-for cause of the alleged adverse action by the employer.” Univ.

of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362 (2013); Cornwell v. Electra

Cent. Credit Union, 439 F.3d 1018, 1034–35 (9th Cir. 2006). It is not sufficient to

show that the protected activities were a motivating factor in the employer’s

decision. Nassar, 570 U.S. at 362–63.

2 The district court considered Green’s claims and correctly concluded that, as

to each, Green had failed to satisfy his burden to show a but-for causal connection

between his protected activities and the adverse employment actions he later

experienced.

First, Green did not establish but-for causation between his protected activity

and the fitness-for-duty evaluation he was ordered to undergo in May 2012. As

Green admits, no evidence shows that the Assistant Police Chief who ordered the

work fitness evaluation had any knowledge of Green’s prior protected activities.

Green attempts to impute knowledge onto the Assistant Chief by arguing that both

of Green’s immediate supervisors knew of his protected actions. But Green fails to

prove that his supervisors influenced the decision to order the evaluation. Without

such proof, Green cannot succeed on his “cat’s paw” theory. Acosta v. Brain, 910

F.3d 502, 514–15 (9th Cir. 2018). Regardless of whether temporal proximity alone

can suffice to demonstrate but-for causation, see Nassar, 570 U.S. 338, Green did

not satisfy his burden to prove causation under any but-for standard.

Second, Green failed to establish that his protected activity was a but-for

cause of his second work fitness evaluation in August 2012. Green alleges he was

required to undergo a second work fitness evaluation because he objected to his

supervisor’s disciplinary measures against a subordinate who made inappropriate

3 comments on Facebook: one calling another officer a hypocrite and one

questioning a different officer’s moral standards. Green claims that the

disciplinary measures were actually prompted by a sexual harassment complaint

that the subordinate had filed several months earlier, but Green’s own admissions

that the Facebook comments were inappropriate and disruptive show this claim to

be unreasonable.

Third, Green failed to show that the City’s claimed non-retaliatory reasons

for giving him a poor performance review—and consequently transferring him out

of his division—were mere pretext. Prior to receiving the unsatisfactory

performance review, Green received negative feedback from his supervisors on

multiple occasions. Green points to positive comments that he received alongside

the negative feedback, but mixed feedback is not proof that the poor performance

review was retaliatory or undeserved. The district court found that Green “failed to

present specific and substantial evidence of pretext,” and we agree.

Green also contends that the district court abused its discretion by excluding

three specific pieces of evidence at trial. We disagree. The district court did not

err by excluding as irrelevant testimony about Green’s performance in other units

before and after the period in question. Nor did the district court abuse its

discretion by admitting evidence that Green filed a largely unrelated EEOC hostile

4 work environment complaint in 2009 while declining to admit the report’s contents

as more prejudicial than probative. Finally, the district court reasonably limited the

testimony of a lay witness City employee to matters about which she had personal

knowledge.

AFFIRMED.

5