Glenn Marr v. Peter Anderson;

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GLENN MARR,
Plaintiff - Appellant,
v.
PETER ANDERSON; et al.,
Defendants - Appellees.
No. 09-15614
D.C. No. 3:06-cv-00354-LRH-
RAM
MEMORANDUM *
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Submitted March 10, 2010**
San Francisco, California
Before: HALL, NOONAN and THOMAS, Circuit Judges.
Glenn Marr appeals from the district court’s grant of summary judgment.
We affirm. Because the parties are familiar with the facts and procedural history,
we will not recount it here.
FILED
MAR 12 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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I
Marr fails to make any arguments in the opening brief specifically
challenging the district court’s grant of summary judgment with regard to
defendants Biaggi, Dondero, Ashworth, Mendenhall, and Wulfkuhle. “Issues
raised in a brief that are not supported by argument are deemed abandoned.” Leer
v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). Therefore, we affirm the district
court’s grant of summary judgment as to these defendants.
II
The district court did not err in granting summary judgment on Marr’s
claims against defendants Anderson and Cannizzaro. To establish his retaliation
claims, Marr must show: (1) he engaged in expressive conduct that addressed a
matter of public concern; (2) defendants, as government officials, took an adverse
action against him; and (3) plaintiff’s expressive conduct was a substantial or
motivating factor for the adverse action. Alpha Energy Savers, Inc. v. Hansen, 381
F.3d 917, 923 (9th Cir. 2004). Finally, even if Marr proves all three elements of
Alpha Energy Savers, defendants can escape liability under Mt. Healthy City
School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977), by showing they would
have taken the same action in the absence of plaintiff’s expressive conduct. Id. at
287.

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3
The district court correctly concluded that Marr had not tendered sufficient
evidence to create a genuine issue of material fact as to whether his speech was a
substantial or motivating factor in Anderson’s decision to place Marr on
administrative leave and subsequently to terminate him. The undisputed evidence
was that Marr acted aggressively toward a federal inspector and his actions were
unprovoked. In response to this incident, Anderson launched an investigation,
which revealed both that Marr’s record-keeping regarding his flight hours for the
preceding twelve months was inaccurate, and that his time sheets for a training in
Orlando, Florida were false. The only evidence Marr offers in support of his
theory of retaliation is proximity in time, which is insufficient by itself to defeat
summary judgment, Coszalter v. City of Salem, 320 F.3d 968, 977 (9th Cir. 2003),
and a conversation between third parties to which Anderson was not a party.
The district court also properly concluded that Marr had failed to present
sufficient evidence to create a genuine issue of material fact as to whether his
protected speech was a substantial or motivating factor in Cannizzaro’s role in and
undertaking of the investigation of plaintiff. The undisputed record indicates that
Cannizzaro initiated his investigation due to inquiries made by federal inspectors,
not Marr’s speech.

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III
The district court did not abuse its discretion in declining to allow Marr to
file a third amended complaint. United States v. SmithKline Beecham, Inc., 245
F.3d 1048, 1051 (9th Cir. 2001) (reciting standard of review).
AFFIRMED.

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