NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 19 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
ANTHONY T. DEFRANCESCO, No. 21-16530
Plaintiff-Appellant, D.C. No. 4:20-cv-00011-CKJ
v. MEMORANDUM* ARIZONA BOARD OF REGENTS; et al.,
Defendants-Appellees.
Appeal from the United States District Court for the District of Arizona Cindy K. Jorgenson, District Judge, Presiding
Argued and Submitted December 9, 2022 Phoenix, Arizona
Before: WARDLAW and BUMATAY, Circuit Judges, and GLEASON,** District Judge.
Anthony T. DeFrancesco (DeFrancesco) appeals the district court’s order
dismissing his Title VII, Equal Protection Clause, and First Amendment claims
against the University of Arizona Health Sciences (UAHS), UAHS Senior Vice
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Sharon L. Gleason, Chief United States District Judge for the District of Alaska, sitting by designation. President Michael Dake (Dake), and President Robert Robbins (Robbins)
(collectively “Defendants”). DeFrancesco alleges that Defendants retaliated
against him after his spouse, then-UAHS Chief Financial Officer Gregg Goldman
(Goldman), opposed UAHS’ hiring of Dake. The complaint specifically alleges
that Dake subjected DeFrancesco to a months-long pattern of harassment,
culminating in his termination, motivated both by Goldman’s speech and
DeFrancesco’s sexual orientation.
The district court dismissed DeFrancesco’s First Amendment claims with
prejudice. The district court also ruled that DeFrancesco failed to allege a Title VII
or Equal Protection Clause claim, but allowed DeFrancesco leave to amend his
original complaint. Following amendment, the district court dismissed his Title
VII and Equal Protection Clause claims with prejudice.
We have jurisdiction under 28 U.S.C. § 1291. We affirm in part and reverse
in part.
1. The district court properly dismissed with prejudice DeFrancesco’s
claims of sexual orientation discrimination under Title VII and the Equal
Protection Clause. DeFrancesco correctly contends that the district court
erroneously applied the four-factor test from McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973), a summary judgment standard, to his Title VII claims.
See also Austin v. Univ. of Oregon, 925 F.3d 1133, 1136 (9th Cir. 2019) (citations
2 omitted) (“[T]he prima facie case under McDonnell Douglas . . . is an evidentiary
standard, not a pleading requirement.”). Nonetheless, because DeFrancesco failed
to allege facts leading to a reasonable inference that he suffered adverse
employment action on the basis of his sexual orientation, the district court properly
dismissed these claims.
Under Title VII, it is “unlawful . . . for an employer . . . to fail or refuse to
hire or to discharge any individual, or otherwise to discriminate against any
individual . . ., because of such individual’s race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e–2(a)(1). Discrimination based on sexual orientation
amounts to discrimination based on sex under Title VII. Bostock v. Clayton Cnty.,
Georgia, 140 S. Ct. 1731, 1741 (2020).
Here, DeFrancesco “failed to adequately allege discriminatory intent” on the
part of the Defendants. See, e.g., Wood v. City of San Diego, 678 F.3d 1075, 1081
(9th Cir. 2012). While it is undisputed that DeFrancesco is a member of a
protected class based on his sexual orientation, his factual allegations of
discrimination do not “raise a right to relief above the speculative level.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007). For example, DeFrancesco alleges
that because Robbins and Dake specialized in surgery—which he claims has “a
reputation for a jock/frat culture”—they must be biased against gay men, which is
an unreasonable, conclusory contention that reflects a mere stereotype of surgeons.
3 Additionally, while DeFrancesco alleges discrimination because “the University
hired a heterosexual male” for a promotion he wanted, the complaint also alleges
that DeFrancesco, a three-year employee at UAHS, was passed over in favor of a
fifteen-year employee of UAHS. These allegations give rise to an inference that
the Defendants promoted the more experienced employee. While the complaint
further alleges that, after Goldman left the University, “Dake told DeFrancesco that
he has ‘a decision to make’ now that DeFrancesco’s husband had left the
University,” that remark appears motivated by Goldman’s vocal opposition to
Dake’s hiring, not Dake’s animus toward DeFrancesco’s marriage.
As DeFrancesco failed to plead facts that “permit [us] to infer more than the
mere possibility of misconduct” under Title VII, his claim was properly dismissed.
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Because an Equal Protection Clause
claim also requires DeFrancesco to “show that the defendants acted with an intent
or purpose to discriminate against the plaintiff based upon membership in a
protected class,” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998), the
district court also properly dismissed his constitutional claim. As DeFrancesco
already had one opportunity to amend his complaint and does not assert that he can
plead additional facts to demonstrate Defendants’ bias, the district court did not
abuse its discretion in denying leave to amend his discrimination claims a second
time. Ultimately, DeFrancesco does not identify any facts linking his sexual
4 orientation to the termination decision or suggesting that the Defendants’ actions
reflected an intent to discriminate against him because he is gay. Instead, the facts
DeFrancesco pleads support an inference that he was terminated because he is
married to a person who spoke out against the Defendants’ actions.
2. The district court abused its discretion by denying DeFrancesco leave
to amend his First Amendment claim. The district court ruled that Goldman
engaged in unprotected speech, and alternatively, UAHS was entitled to qualified
immunity. The district court found that Goldman spoke pursuant to his official
duties on “individual personnel disputes and grievances,” Eng v. Cooley, 552 F.3d
1062, 1070 (9th Cir. 2009) (citation omitted), not a matter of public concern.
Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).
DeFrancesco’s original complaint alleged that Goldman reported to
President Robbins that “Dake did poorly in interviews” and that “hiring Dake
would be the worst mistake he could make.” While this speech can be construed to
Free access — add to your briefcase to read the full text and ask questions with AI
NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 19 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
ANTHONY T. DEFRANCESCO, No. 21-16530
Plaintiff-Appellant, D.C. No. 4:20-cv-00011-CKJ
v. MEMORANDUM* ARIZONA BOARD OF REGENTS; et al.,
Defendants-Appellees.
Appeal from the United States District Court for the District of Arizona Cindy K. Jorgenson, District Judge, Presiding
Argued and Submitted December 9, 2022 Phoenix, Arizona
Before: WARDLAW and BUMATAY, Circuit Judges, and GLEASON,** District Judge.
Anthony T. DeFrancesco (DeFrancesco) appeals the district court’s order
dismissing his Title VII, Equal Protection Clause, and First Amendment claims
against the University of Arizona Health Sciences (UAHS), UAHS Senior Vice
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Sharon L. Gleason, Chief United States District Judge for the District of Alaska, sitting by designation. President Michael Dake (Dake), and President Robert Robbins (Robbins)
(collectively “Defendants”). DeFrancesco alleges that Defendants retaliated
against him after his spouse, then-UAHS Chief Financial Officer Gregg Goldman
(Goldman), opposed UAHS’ hiring of Dake. The complaint specifically alleges
that Dake subjected DeFrancesco to a months-long pattern of harassment,
culminating in his termination, motivated both by Goldman’s speech and
DeFrancesco’s sexual orientation.
The district court dismissed DeFrancesco’s First Amendment claims with
prejudice. The district court also ruled that DeFrancesco failed to allege a Title VII
or Equal Protection Clause claim, but allowed DeFrancesco leave to amend his
original complaint. Following amendment, the district court dismissed his Title
VII and Equal Protection Clause claims with prejudice.
We have jurisdiction under 28 U.S.C. § 1291. We affirm in part and reverse
in part.
1. The district court properly dismissed with prejudice DeFrancesco’s
claims of sexual orientation discrimination under Title VII and the Equal
Protection Clause. DeFrancesco correctly contends that the district court
erroneously applied the four-factor test from McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973), a summary judgment standard, to his Title VII claims.
See also Austin v. Univ. of Oregon, 925 F.3d 1133, 1136 (9th Cir. 2019) (citations
2 omitted) (“[T]he prima facie case under McDonnell Douglas . . . is an evidentiary
standard, not a pleading requirement.”). Nonetheless, because DeFrancesco failed
to allege facts leading to a reasonable inference that he suffered adverse
employment action on the basis of his sexual orientation, the district court properly
dismissed these claims.
Under Title VII, it is “unlawful . . . for an employer . . . to fail or refuse to
hire or to discharge any individual, or otherwise to discriminate against any
individual . . ., because of such individual’s race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e–2(a)(1). Discrimination based on sexual orientation
amounts to discrimination based on sex under Title VII. Bostock v. Clayton Cnty.,
Georgia, 140 S. Ct. 1731, 1741 (2020).
Here, DeFrancesco “failed to adequately allege discriminatory intent” on the
part of the Defendants. See, e.g., Wood v. City of San Diego, 678 F.3d 1075, 1081
(9th Cir. 2012). While it is undisputed that DeFrancesco is a member of a
protected class based on his sexual orientation, his factual allegations of
discrimination do not “raise a right to relief above the speculative level.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007). For example, DeFrancesco alleges
that because Robbins and Dake specialized in surgery—which he claims has “a
reputation for a jock/frat culture”—they must be biased against gay men, which is
an unreasonable, conclusory contention that reflects a mere stereotype of surgeons.
3 Additionally, while DeFrancesco alleges discrimination because “the University
hired a heterosexual male” for a promotion he wanted, the complaint also alleges
that DeFrancesco, a three-year employee at UAHS, was passed over in favor of a
fifteen-year employee of UAHS. These allegations give rise to an inference that
the Defendants promoted the more experienced employee. While the complaint
further alleges that, after Goldman left the University, “Dake told DeFrancesco that
he has ‘a decision to make’ now that DeFrancesco’s husband had left the
University,” that remark appears motivated by Goldman’s vocal opposition to
Dake’s hiring, not Dake’s animus toward DeFrancesco’s marriage.
As DeFrancesco failed to plead facts that “permit [us] to infer more than the
mere possibility of misconduct” under Title VII, his claim was properly dismissed.
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Because an Equal Protection Clause
claim also requires DeFrancesco to “show that the defendants acted with an intent
or purpose to discriminate against the plaintiff based upon membership in a
protected class,” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998), the
district court also properly dismissed his constitutional claim. As DeFrancesco
already had one opportunity to amend his complaint and does not assert that he can
plead additional facts to demonstrate Defendants’ bias, the district court did not
abuse its discretion in denying leave to amend his discrimination claims a second
time. Ultimately, DeFrancesco does not identify any facts linking his sexual
4 orientation to the termination decision or suggesting that the Defendants’ actions
reflected an intent to discriminate against him because he is gay. Instead, the facts
DeFrancesco pleads support an inference that he was terminated because he is
married to a person who spoke out against the Defendants’ actions.
2. The district court abused its discretion by denying DeFrancesco leave
to amend his First Amendment claim. The district court ruled that Goldman
engaged in unprotected speech, and alternatively, UAHS was entitled to qualified
immunity. The district court found that Goldman spoke pursuant to his official
duties on “individual personnel disputes and grievances,” Eng v. Cooley, 552 F.3d
1062, 1070 (9th Cir. 2009) (citation omitted), not a matter of public concern.
Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).
DeFrancesco’s original complaint alleged that Goldman reported to
President Robbins that “Dake did poorly in interviews” and that “hiring Dake
would be the worst mistake he could make.” While this speech can be construed to
implicate only workplace grievances or a “personality dispute,” see Desrochers v.
City of San Bernardino, 574 F.3d 703, 712 (9th Cir. 2009), DeFrancesco contends
that, if permitted to amend his complaint, he would allege facts demonstrating that
Goldman spoke as a whistleblower on cronyism and corruption at UAHS, a “public
health organization . . . with an annual budget of over $1 billion and over 500
employees.” Allegations of government misconduct—including the rigging of the
5 executive search process and the mismanagement of a hospital—can constitute
protected speech as a matter of public concern. See Ulrich v. City & Cnty. of San
Francisco, 308 F.3d 968, 978 (9th Cir. 2002) (holding that a physician’s internal
protest of layoffs “touched on the ability of the hospital to care adequately for
patients” and was therefore a matter of public concern); Thomas v. City of
Beaverton, 379 F.3d 802, 811 (9th Cir. 2004) (holding that a genuine issue of
material fact existed as to whether speech addressed a matter of public concern
when an employee expressed disapproval of her employer’s allegedly unlawful
treatment of another employee). The district court should have permitted
DeFrancesco to amend his complaint to allege Goldman’s whistleblowing speech
and facts that demonstrate that Goldman spoke outside the “scope and content of
[his] job responsibilities.” Posey v. Lake Pend Oreille Sch. Dist. No. 84, 546 F.3d
1121, 1131 (9th Cir. 2008).
The district court also concluded that DeFrancesco’s claims were barred by
qualified immunity because DeFrancesco’s First Amendment right to be free from
retaliation for the speech of his spouse is not “clearly established.” Pearson v.
Callahan, 555 U.S. 223, 227 (2009). “Determining claims of qualified immunity
at the motion-to-dismiss stage raises special problems for legal decision making.”
Keates v. Koile, 883 F.3d 1228, 1234 (9th Cir. 2018). “If the operative complaint
‘contains even one allegation of a harmful act that would constitute a violation of a
6 clearly established constitutional right,’ then plaintiffs are ‘entitled to go forward
with their claims.’” Id. (quoting Pelletier v. Fed. Home Loan Bank of San
Francisco, 968 F.2d 865, 872 (9th Cir. 1992)).
Accordingly, the district court should have granted DeFrancesco leave to
amend his complaint and should reconsider its qualified immunity ruling under the
allegations of the amended complaint. We therefore need not and do not decide
whether there is a clearly established First Amendment right based on a plaintiff’s
intimate association with a person engaged in protected speech.
AFFIRMED IN PART AND REVERSED IN PART.