Lea LAKESIDE-SCOTT, Plaintiff-Appellee, v. MULTNOMAH COUNTY, Defendant, and Jann Brown, Defendant-Appellant, 556 F.3d 797

Opinion by Judge FISHER; Concurrence by Judge BERZON. FISHER, Circuit Judge: This appeal involves an alleged retaliatory discharge of an employee after she complained about co-workers and one of her supervisors and presents a question that this circuit has not yet answered: Can a final decision maker’s wholly independent, legitimate decision to terminate an employee insulate from liability a lower-level supervisor involved in the process who had a retaliatory motive to have the employee fired?

We conclude that, on the record in this case, the answer must be yes, because the termination decision was not shown to be influenced by the subordinate’s retaliatory motives. The plaintiff-appellee, Lea Lakeside-Scott (“Scott”), was fired from her position as an information systems specialist at Multnomah County’s Department of Community Justice (“DCJ”), ostensibly for her improper use of DCJ’s computers and email system.

Scott then brought this lawsuit alleging that her termination was actually in retaliation for her engaging in speech protected under the First Amendment and by Oregon’s whistleblower protection statute. While she was employed at DCJ, Scott had complained about coworkers’ violations of County policies, including by one of her supervisors — Jann Brown — whom she also accused of favoring gay and lesbian employees in hiring and promotion decisions.

Brown played a role in the process that led to Scott’s termination, although the ultimate decision was made independently by Joanne Fuller, director of DCJ’s information systems department. Scott contends that Brown wanted to retaliate against Scott for her accusations against Brown, and thus unlawfully influenced Fuller’s decision to fire Scott. Scott filed her retaliatory discharge claim against the County and Brown in federal district court. After a trial, a jury found in Scott’s favor, awarding her $650,000 in compensatory and punitive damages against Brown.

The district court denied Brown’s motion for judgment as a matter of law (“JMOL”), and this appeal followed. We conclude there was insufficient evidence to support the verdict against Brown, given the evidence that it was Fuller’s independent decision to terminate Scott. We therefore reverse the district court’s denial of Brown’s JMOL and remand for entry of judgment in her favor. BACKGROUND Scott began her employment in DCJ’s information services unit in August 1997. During the relevant time period, her direct supervisor was Monna Hogue.

Hogue reported to Dan Gorton, who reported to Brown, who, in turn, reported to the department’s director, Ms. Fuller. Scott frequently complained to Gorton and Hogue about her perceived problems in the office. Her grievances included personality conflicts with other DCJ employees, promotions she did not receive and alleged misuse of the County computer system by co-workers and managers. In October 2001, Scott filed a formal complaint with the Oregon Bureau of Labor and Industries (“BOLI complaint”) alleging, among other things, that Brown gave preferential treatment to gays and lesbians in hiring and promotions.

Brown learned about the BOLI complaint shortly thereafter; she was shocked by its allegations of favoritism, which she took personally. In November 2001, Fuller ordered Brown to search the email of an employee, David Landis, as part of an investigation of another DCJ employee who had allegedly sent racially discriminatory emails at work. Lacking the technical ability to do the search herself, Brown directed Tami Williams to do it. Williams sent the emails and attachments she recovered during her search to the human resources department.

Attached to one of these emails was a journal, written by Scott and sent by her to Landis, that contained discriminatory comments and excerpts of other employees’ work documents. It is unclear whether Williams knew about the journal when she sent the emails to human resources. After human resources personnel discovered the journal, either they or Fuller instructed Brown to look for additional material from Scott. In the meantime, either someone in human resources or perhaps Williams informed Brown about Scott’s journal having been found among Landis’ email documents.

When Brown read the journal, which included excerpts of personal emails and documents from co-workers and supervisors as well as several apparently derogatory remarks about homosexuals, she immediately showed it to Fuller. At an ensuing meeting attended by Fuller, Brown and a County counsel, Fuller decided to place Scott on administrative leave (standard practice during an employee investigation) and directed Brown to write a letter to Scott informing her of this decision.

With the assistance of the human resources department, Brown prepared and signed a standardized letter advising Scott she was being placed on administrative leave.

After consulting with the human resources department and Fuller about how to present the letter to Scott, Brown had Scott come to her office the next morning along with two other managers, Gorton and Rich Scott, in case there “was any trouble.” After the meeting, Brown instructed the two managers to unplug Scott’s computer, which they placed in Brown’s office, where it was “made operational.” Once Scott was placed on administrative leave, Fuller directed John Turner, an investigator on her staff, to conduct an internal inquiry into Scott’s possible violations of County work rules or policies.

Brown was not involved in framing the charges to be investigated, outlining the direction of the investigation or providing a list of witnesses. Rather, Turner met with Collette Umbras, the human relations department manager, to outline which official work rules were implicated by Scott’s supposed misconduct. The charges ultimately included misusing County property, conducting personal business on County time, inappropriately accessing the emails and documents of other employees and engaging in prohibited workplace harassment and prejudicial acts.

Fuller sent Scott a letter to notify her of these charges as Turner began his investigation. Over the course of his investigation, Turner interviewed 22 witnesses, including Brown and Scott. He also reviewed Scott’s journal and several of her emails. Brown’s role in the investigation was limited to answering Turner’s questions; she did not provide him with any written materials.

For her own part, Scott admitted to Turner that she had engaged in the conduct that had led to the charges against her, and she conceded that she was fully aware of the policies, procedures and rules governing the use of County property— particularly those prohibiting harassment and discrimination and accessing databases for personal or non-business related reasons. She said, however, that she did not know her behavior violated any of these rules and claimed that Hogue knew about and had authorized many of her actions.

At the conclusion of his investigation, Turner produced a report to Fuller detailing his findings and recommending that all of the charges against Scott be sustained. Fuller sent a letter to Scott describing the report’s findings and, after meeting with Scott to provide her with an opportunity to explain her actions, decided to terminate her employment. Fuller testified that although Scott’s journal was the reason she decided to initiate the investigation, she based her decision to fire Scott on all of the evidence that Turner procured during his investigation.

As detailed in her termination letter to Scott, Fuller “removed” certain charges but nevertheless concluded that the remainder of the sustained charges-misusing County property, conducting personal business on County time, accessing other employees’ emails and documents and engaging in workplace harassment and prejudicial acts-warranted Scott’s termination. The magnitude of Scott’s misconduct was on a scale that was completely different from what Fuller had seen in other employees and destroyed her ability to trust Scott to uphold DCJ’s policies in the future.

Throughout her trial testimony, Fuller reiterated that Brown played no role in her decision to fire Scott. Scott did not produce any evidence to the contrary. Scott brought a retaliatory discharge lawsuit in federal district court against the County and Brown, alleging she was wrongfully terminated because she had filed the BOLI complaint and openly criticized both DCJ and Brown, and claiming these were protected activities under the First Amendment and 42 U.S.C. § 1983 as well as under Oregon’s Whistle-blower Act. After Brown moved unsuccessfully for

summary judgment, a jury found in Scott’s favor and awarded her economic damages of $140,000, noneconomic damages of $10,000 and punitive damages of $500,000. The district court denied Brown’s motion for JMOL and this timely appeal followed. STANDARD OF REVIEW ‘We review the denial of a motion for a judgment as a matter of law de novo.” Ostad v. Oregon Health Sci. Univ., 327 F.3d 876, 881 (9th Cir.2003). We view the evidence in the light most favorable to the party in whose favor the jury returned a verdict and draw all reasonable inferences in her favor. See id; Gilbrook v.

City of Westminster, 177 F.3d 839, 847-48 (9th Cir.1999). “Judgment as a matter of law is proper when the evidence permits only one reasonable conclusion and the conclusion is contrary to that reached by the jury.” Ostad, 327 F.3d at 881. Nevertheless, a reasonable inference “cannot be supported by only threadbare conclusory statements instead of significant probative evidence.” Barnes v. Arden Mayfair, Inc., 759 F.2d 676, 680-81 (9th Cir.1985) (internal quotation marks omitted); see also Genthe v.

Lincoln, 383 F.3d 713, 716 (8th Cir.2004) (noting within the context of a motion for JMOL that an inference is reasonable “when it may be drawn from the evidence without resort to speculation” (internal quotation marks omitted)); Willis v. Marion County Auditor’s Office, 118 F.3d 542, 545 (7th Cir.1997) (noting within the context of a motion for JMOL that a “mere scintilla is not enough” to sustain a verdict for the prevailing party). Consequently, JMOL is appropriate when the jury could have relied only on speculation to reach its verdict.

I. “To state a First Amendment claim against a public employer, an employee must show: (1) the employee engaged in constitutionally protected speech; (2) the employer took ‘adverse employment action’ against the employee; and (3) the employee’s speech was a ‘substantial or motivating factor for the adverse action.’ ” Marable v. Nitchman, 511 F.3d 924, 929 (9th Cir.2007) (quoting Coszalter v. City of Salem, 320 F.3d 968, 973 (9th Cir.2003), citing Bd. of County Comm’rs, Wabaunsee County, Kan. v. Umbehr, 518 U.S. 668, 675, 116 S.Ct. 2342, 135 L.Ed.2d 843 (1996)); see also Garcetti v.

Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006); Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 5.Ct. 568, 50 L.Ed.2d 471 (1977); Settlegoode v. Portland Pub. Sch., 371 F.3d 503, 510 (9th Cir.2004). “If the plaintiff makes those showings, then the burden shifts to the defendant to show ‘by a preponderance of the evidence that it would have reached the same decision ... even in the absence of the [plaintiffs] protected conduct.’ ” Gilbrook, 177 F.3d at 854 (quoting Mt. Healthy, 429 U.S. at 287, 97 S.Ct. 568).

Brown expressly assumed in her appellate briefs that Scott’s BOLI complaint was protected speech. Scott’s termination plainly qualifies as an adverse employment action. See Umbehr, 518 U.S. at 675, 116 S.Ct. 2342; Ray v. Henderson, 217 F.3d 1234, 1237 (9th Cir.2000). Thus the first two prongs of Mt. Healthy’s pri-ma facie test are not at issue.

Instead, Brown argues that Scott’s protected conduct was not a “substantial or motivating factor” in her termination, which would have occurred even in the absence of this conduct, because even assuming that the jury could have reasonably found that Brown harbored animosity toward Scott, Fuller made the final and independent decision to terminate Scott. We have assessed the liability of a subordinate supervisor who was not the final decision maker under Mt. Healthy’s “substantial or motivating” standard as well as its mixed motive approach.

Compare Ostad, 327 F.3d at 882-83 (analyzing facts under “substantial or motivating” standard), with Gilbrook, 177 F.3d at 853-56 (analyzing facts under mixed motive standard). Under either rubric, however, the focus is on the question of causation. See Ostad, 327 F.3d at 882-83 (relying on Gil-brook in its analysis); Gilbrook, 177 F.3d at 855 (citing opinions addressing prima facie cases of discrimination in its analysis). Causation is the dispositive issue here as well.

Consequently, the critical questions are: (1) whether a final decision maker’s independent investigation and termination decision, responding to a biased subordinate’s initial report of misconduct, can negate any causal link between the subordinate’s retaliatory motive and an employee’s termination; and, if so, (2) whether the record here compels the conclusion that Fuller conducted an independent investigation and made a wholly independent decision to terminate Scott such that Brown cannot be held liable for causing her to be fired.

In Gilbrook, we established that a “subordinate cannot use the non-retaliatory motive of a superior as a shield against liability if that superior never would have considered a dismissal but for the subordinate’s retaliatory conduct.” 177 F.3d at 855. We expressly declined, however, to decide “what the result should be, as a matter of law, if the facts showed that the final decision-maker made a wholly independent, legitimate decision to discharge the plaintiff, uninfluenced by the retaliatory motives of a subordinate.” Id.; see also Ostad, 327 F.3d at 883.

The record before us requires us to answer this heretofore open question. II. Most of this circuit’s retaliatory motivation jurisprudence has arisen from cases in which the issue has been whether the final decision maker was liable because she was retaliating against the employee or her decision was tainted by the retaliatory motivation of a subordinate. See, e.g., Poland v. Chertoff, 494 F.3d 1174 (9th Cir.2007). In the latter situation, the subordinate’s unlawful motivation has been imputed upstream to the final decision maker.

In the present case it is the supposedly biased subordinate, Brown, who is herself being charged with liability. Nonetheless, these “upstream imputation” cases are relevant to our analysis. See Gilbrook, 177 F.3d at 855 (citing imputation cases in its discussion of subordinate liability). If a final decision maker is not liable when her decision to terminate a plaintiff is sufficiently independent from a subordinate’s unlawful motive, the circumstance proving that independence may also show that the subordinate did not cause the plaintiffs termination.

Gilbrook, in specifically addressing a subordinate supervisor’s liability, did observe that as a general matter the nature of § 1983 liability is such that “the ‘requisite causal connection can be established not only by some kind of direct personal participation in the [termination], but also by setting in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury.’ ” 177 F.3d at 854 (citing and quoting John son v.

Duffy, 588 F.2d 740, 743-44 (9th Cir.1978) (holding sheriff could be liable for his omission to perform duties imposed by state law that deprived the plaintiff of his property without due process)). This general principle, as applied within the context of the employment setting, cannot be taken so literally as to convert into a constitutional tort a subordinate supervisor’s mere participation in, while performing her normal supervisory responsibilities, the initiation of a disciplinary process that results in an employee’s otherwise appropriate and lawful termination.

As we recognized in Gilbrook itself, a superi- or’s nonretaliatory employment decision “does not automatically immunize a subordinate against liability for her retaliatory acts”; subordinate liability instead turns on the “intensely factual” determination of whether the superior never would have made this decision “but for the subordinate’s retaliatory conduct.” 177 F.3d at 854-55 (emphasis added).

Here, it is not clear that Scott relies on Brown’s role in bringing the journal to Fuller’s attention or her participation in the administrative leave decision as alone sufficient to support the jury’s verdict finding Brown liable for Scott’s termination. Even if we consider those events, however, the evidence negates any inference that Fuller would not have taken any action against Scott but for Brown’s retaliatory motivations. The journal surfaced in a workplace investigation of possible employee misconduct, and several DCJ employees became aware of its existence contemporaneously with Brown.

Brown was engaged in activities typical and appropriate for her position when she became aware of the journal. The journal itself was accidentally discovered during an investigation of another employee’s conduct, and Scott did not allege that Brown targeted her for investigation or selectively reported her misconduct. Brown was at most a part of a process that included several other employees who were focused on disciplining violations of workplace rules and policies.

Given the numerous potential rules violations revealed in the journal and the actions taken by the human resources department, it is unreasonable to conclude that Fuller — who had already initiated the inquiry into another employee’s misuse of emails-would not have been informed of or reacted to the journal but for Brown’s animus against Scott. Given the evidence that Fuller made an independent, principled decision for her own reasons to investigate and eventually terminate Scott, there was by definition no “constitutional injury.” Id. at 854.

Scott was terminated for violating County and DCJ rules through actions she admitted she had committed. As we emphasized in Gilbrook, “[w]e do not hold that a final decision-maker who lacks any improper motive never can absolve a subordinate of liability for his or her retaliatory acts, any more than we hold that such a decision-maker always can absolve the subordinate.” 177 F.3d at 855 (emphasis in original).

On the facts of this case, where the evidence shows “that the final decision-maker made a wholly independent, legitimate decision to discharge the plaintiff, uninfluenced by the retaliatory motives of’ Brown, we hold that the neutrality of the decisionmaking process eliminated any “causal” link to Brown’s bias. Id. A recent “upstream” case in which a biased subordinate’s involvement in an adverse employment action rose to the level of tainting the final decision to terminate is illustrative. See Poland, 494 F.3d 1174.

Poland held that the Custom Service’s administrative investigation of the supervisor’s retaliatory charges did not “shield[ ]” the Customs Service from imputed liability because “the allegedly independent adverse employment decision was not actually independent” due to the subordinate supervisor’s significant involvement in the decisionmaking process. Id. at 1182.

We held that while an initiation of an investigation would not “on its own” be enough to impute a subordinate’s animus, the biased subordinate “had a pervasive influence on the administrative inquiry that led to the adverse employment action.” Id. at 1183. The supervisor specifically requested the investigation, sent a lengthy memo and supporting documentation outlining numerous incidents of the plaintiffs alleged malfeasance and provided the list of 21 witnesses who were contacted during the investigation. See id.; see also Dominguez-Curry v. Nevada Transp.

Dep’t, 424 F.3d 1027, 1032-33, 1039-40 (9th Cir.2005) (imputing animus in a Title VII failure-to-promote claim when the subordinate was one of two employees who interviewed and ranked the petitioner); Perez v. Curcio, 841 F.2d 255, 258 (9th Cir.1988) (imputing animus in an age discrimination action when the final decision maker relied on reports written by the subordinate both in initiating the investigation and ultimately in demoting the plaintiff).

We have likewise affirmed the liability of subordinates when they wielded a similarly significant degree of influence over the final decision maker’s adverse employment decision. For example, in Gilbroolc, we held that a final, unbiased decision maker did not eliminate the liability of two subordinates where the subordinates had “participated directly” in a multitiered termination process. Gilbrook, 177 F.3d at 853. There, one subordinate was the “driving force” behind the investigation of the terminated employees and made the initial decision to terminate them.

The second subordinate then conducted hearings on the employees’ appeals and affirmed the terminations. We held that a third and final decision maker with the power to ratify, reject or modify the termination decisions did not cut off the liability of the biased subordinates because there was evidence that the employees would not have been disciplined but for the subordinates’ actions in bringing the charges in the first place.

See id. at 850-51, 853; see also Ostad, 327 F.3d at 883 (holding subordinate liable when he provided the primary source of information on which the final decision maker “substantially relied ... to reach the decision to terminate”). The facts before us here show a workplace in which the initial report of possible employee misconduct came from a presumably biased supervisor, but whose subsequent involvement in the disciplinary process was so minimal as to negate any inference that the investigation and final termination decision were made other than independently and without bias.

We must not “place an employee in a worse ‘position as a result of the exercise of constitutionally protected conduct than he would have occupied had he done nothing.’ ” Gilbrook, 177 F.3d at 855 (citing Mt. Healthy, 429 U.S. at 285, 97 S.Ct. 568). But concomitantly the Supreme Court has admonished that we must not “place an employee in a better position as a result of the exercise of constitutionally protected conduct than he would have occupied had he done nothing. ... [T]hat [employee] ought not to be able, by engaging in such conduct, to prevent his employer from assessing his performance record.... ” Mt.

Healthy, 429 U.S. at 285-86, 97 S.Ct. 568. III. With the foregoing principles and spectrum of cases as our guide, and recognizing “that the ultimate question of the subordinate’s liability ‘is an intensely factual one, the results of which will vary depending on the circumstances,”’ Ostad, 327 F.3d at 883 (quoting Gilbrook, 177 F.3d at 855), we hold that Brown cannot be found liable based on her limited involvement in the chain of events that ultimately led to Scott’s termination.

The jury could have reasonably found that Brown was involved in initiating the investigation of Scott after the discovery of her journal and in the decision to place her on administrative leave. But neither Brown’s role in the events leading up to the investigation nor the evidence of her participation in that inquiry rises to the level of involvement in or influence on Fuller’s termination decision that would allow the jury reasonably to find that Brown’s animus was a “ ‘substantial’ or ‘motivating’ factor” in Fuller’s decision to fire Scott. Gilbrook, 177 F.3d at 853-54 (quoting Mt.

Healthy, 429 U.S. at 287, 97 S.Ct. 568). Instead, the record of Fuller’s independent actions and judgments compels the conclusion that she was not influenced by any retaliatory motive on Brown’s part. As to the discovery of Scott’s apparently improper journal that triggered the inquiry into her conduct, it is relevant that Brown became aware of the document only incidentally through an investigation of another employee initiated by Fuller and the human resources department.

Moreover, although Brown was present at the meeting where, according to standard practice, it was decided that Scott would be placed on administrative leave pending the investigation, that decision did not make Scott’s termination a foregone conclusion. Instead, senior management, aware of Scott’s apparent misconduct, pursued an inquiry into the alleged violations. There is no evidence that but for Brown, Fuller would have ignored the journal and let the matter drop. That other DCJ employees, including the human resources manager, became aware of and reacted to the journal suggests the very opposite.

Accordingly, the relevant question remains whether Brown improperly influenced the subsequent investigation or the decision to terminate Scott itself such that she can be held liable for Fuller’s decision. On this record, the only reasonable finding is that she did not. There is no evidence that Brown outlined possible reasons for Scott’s discharge or recommended her termination, either at the initial meeting or thereafter. Cf. Gilbrook, 177 F.3d at 850, 853-55; Ostad, 327 F.3d at 880, 883.

To the contrary, Umbras outlined potential violations Turner was to investigate, and it was Turner who recommended at the conclusion of his investigation which charges should be sustained. Scott asks us to hold that a reasonable juror could have inferred that Brown “was the investigation” because

(1) Scott’s computer was placed in Brown’s office after Scott was placed on administrative leave and

(2) Williams completed the follow up research ordered by the human resources department “to see if ... there were any other e-mails from [Scott] or jobs or anything else that pertained to her” while Turner was still conducting his investigation. Scott appears to argue that these circumstances alone permitted the jury to find that Brown was an influential player in Turner’s investigation who searched for and provided documentary evidence that actually led to Scott’s termination.

But such an inference would be pure speculation, as Scott presented no evidence that Brown discovered any information from Scott’s computer or from Williams, much less that she provided any such information to Turner or Fuller. Significantly, Scott deposed Williams but neither introduced her deposition testimony nor called her as a witness to tell the jury what, if anything, she had turned over to Brown. Scott’s suppositions are “only threadbare conclusory statements” that cannot support a reasonable inference that Brown influenced the decision to terminate Scott. Cf.

Barnes, 759 F.2d at 680-81 (internal quotation marks omitted). Instead, the record shows that Brown played a very limited role in the investigation. She did not provide a witness list or any documentary evidence during Turner’s investigation, and there is no evidence that Brown told Turner anything inappropriate during their interview. Cf. Poland, 494 F.3d at 1183. Nor did the investigation “substantially rel[y]” or “depend[] heavily” on Brown, who was one of 22 witnesses Turner interviewed. Cf.

Ostad, 327 F.3d at 880, 883 (holding subordinate liable when the decision maker “depended heavily” on his testimony, which “took up 217 pages of the hearing’s 403-page transcript”); Stacks v. Sw. Bell Yellow Pages, Inc., 27 F.3d 1316, 1323 (8th Cir.1994) (noting a final decision maker cannot escape liability when the facts on which he “reifies] have been filtered” by a subordinate with illegitimate motives). Brown’s minimal participation was too limited and constrained to have tainted the investigative process, particularly when it was part of Brown’s job to cooperate with Turner’s inquiry.

Fuller’s substantial role in the process that resulted in Scott’s termination is as important as Brown’s minimal participation. Fuller authorized the thorough investigation of the charges against Scott. Once she received Turner’s report, she critically examined its contents, meeting with Scott to allow her to present any mitigating evidence and ultimately rejecting two of Turner’s recommendations.

Scott herself admitted, “I actually thought that she was listening, and she said she would consider everything.” As outlined in the termination letter composed and signed by Fuller, in the final analysis she fired Scott for violations of formal work rules, executive orders and contractual agreements. Scott admitted she was fully aware of these policies and rules, and both Fuller and Umbras emphasized that they had never before seen violations of this magnitude.

Under these circumstances, no reasonable juror could have concluded that the investigative process was a “sham or conduit” for Brown’s animosity or that Fuller was “duped” into terminating Scott. Willis, 118 F.3d at 547-48. To the contrary, the record shows that Fuller’s decision was based on her own analysis that “was not jaded by anyone else’s subjective and possibly [illegitimate] evaluation.” Id. at 547.

Accordingly, we hold that, as a matter of law, Fuller’s “wholly independent, legitimate decision to discharge [Scott], uninfluenced by the retaliatory motives of a subordinate” prohibited the jury from finding Brown liable for Scott’s termination. Gilbrook, 177 F.3d at 855. Finally, practical considerations also animate our conclusion. As discussed above, all aspects of Brown’s limited involvement in this case were at the express direction or under the authority of her superiors in the management structure.

To say that the County’s investigative process was fatally and irrevocably tainted by Brown’s overall limited involvement would stymie legitimate corporate management and discipline, which must necessarily involve and rely upon supervisory staff. Cf. City of San Diego v. Roe, 543 U.S. 77, 125 S.Ct. 521, 160 L.Ed.2d 410 (2004) (noting the “common-sense realization that government offices could not function if every employment decision became a constitutional matter”); Brooks v.

City of San Mateo, 229 F.3d 917, 928 (9th Cir.2000) (limiting the type of behavior that constitutes an adverse employment action based on the concern “that employers will be paralyzed into inaction once an employee has [engaged in protected conduct], making such [conduct] tantamount to a ‘get out of jail free’ card for employees engaged in job misconduct”). Absent evidence that a supervisor abuses her participation to advance a retaliatory agenda, we decline to endorse such a result in this case.

CONCLUSION On the evidence presented to the jury, we hold as a matter of law that Fuller’s wholly independent decisionmaking negated any causal connection between Brown’s retaliatory bias and Scott’s termination. Brown therefore is not liable for any damages Scott suffered as a result of her discharge, and the district court incorrectly denied Brown’s motion for a JMOL. We reverse the court’s judgment and remand for entry of judgment for Brown. REVERSED and REMANDED. . The district court ultimately dismissed all of the claims against the County, which are not at issue in this appeal. .

We view the evidence in the light most favorable to the party in whose favor the jury returned a verdict and draw all reasonable inferences in her favor. See Settlegoode v. Portland Pub. Sch., 371 F.3d 503, 507 (9th Cir.2004); Ostad v. Or. Health Sci. Univ., 327 F.3d 876, 881 (9th Cir.2003). . Brown again assigned the search to Williams, who gathered some additional information within weeks. On this timetable, Williams would have completed her assignment while the investigation discussed below was in progress.

Scott did not call Williams as a witness and there is no evidence about what this additional information included, whether Brown herself ever received it and, if so, whether she passed it on to her superiors. . On appeal, Brown also challenges (1) the district court's denial of her motions for

summary judgment and to exclude Landis' testimony and (2) the award of punitive damages. Because we reverse the denial of JMOL, we do not reach the denial of Brown's motion in limine or the question of punitive damages. We do not review the district court's pretrial denial of Brown's motion for

summary judgment because "[t]he denial of a motion for

summary judgment is not reviewable on an appeal from a final judgment entered after a full trial on the merits.” Locricchio v. Legal Servs. Corp., 833 F.2d 1352, 1359 (9th Cir.1987); see also Price v. Kramer, 200 F.3d 1237, 1243 (9th Cir.2000). Finally, we deny Brown’s request that we ignore Scott’s supplemental excerpt of record. "Although not models of compliance with the Rules, [Scott’s] ... excerpts of record are sufficient to apprise this court of the relevant issues before it.” Dominguez-Curry v. Nev. Transp. Dep’t, 424 F.3d 1027, 1033 n. 2 (9th Cir.2005). . Although Barnes analyzed a

summary judgment motion, the Supreme Court has explained that the inquiry under

summary judgment and JMOL motions is in essence the same. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). .

We deny Brown's subsequent request for a remand in light of Garcetti, 547 U.S. at 421, 126 S.Ct. 1951, in which the Supreme Court held that "when public employees make statements pursuant to their official duties, ... the Constitution does not insulate their communications from employer discipline." Brown's motion for JMOL neither challenged nor reserved the issue of protected speech for appeal. “It is well-established that an appellate court will not consider issues that were not properly raised before the district court.” Doi v.

Halekulani Corp., 276 F.3d 1131, 1140 (9th Cir.2002) (internal quotation marks omitted). . We limit the scope of our inquiry to Scott’s ultimate termination. Although being placed on administrative leave might qualify as an adverse employment action and we have suggested an investigation of an employee might so qualify, see, e.g., Poland v. Chertoff, 494 F.3d 1174, 1180 (9th Cir.2007); Ulrich v.

City and County of San Francisco, 308 F.3d 968, 977 (9th Cir.2002), Scott neither argued these theories in the district court nor in her briefs on appeal, consistently stating that her retaliatory conduct claim was based solely on her discharge. Accordingly, we do not consider whether initiating the inquiry into Scott’s activities or placing her on administrative leave were themselves adverse employment actions for which Brown could be held liable independent of Scott's termination. .

Claims brought under Title VII and the Age Discrimination in Employment Act apply a different burden shifting framework than § 1983 claims, and we do not intimate that these cases are controlling here. See Poland, 494 F.3d at 1180 n. 1; Freitag v. Ayers, 468 F.3d 528, 543 n. 9 (9th Cir.2006); Allen v. Iranon, 283 F.3d 1070, 1074-75 (9th Cir.2002). Rather, we cite these cases for their informative discussions about causation. See Gilbrook, 177 F.3d at 855 (analyzing a § 1983 retaliation claim but discussing Title VII retaliation and discrimination cases for their analysis of causation). . See n. 8, supra. .

Judge Berzon says she does not see a difference between "targeting someone for investigation and retaliating against them by reporting them.” Concurrence at 1743. What we mean is that Scott did not claim that Brown selectively enforced employee regulations only against her, while ignoring violations by other employees. Nor did Scott show that Brown monitored her behavior more closely in the hopes of reporting her for misconduct; indeed, Brown found Scott’s journal in the course of investigating another employee.

This distinction is relevant in showing that Scott's misconduct was not brought to Fuller’s attention solely because of Brown's animus such that Fuller never would have made the termination decision but for Brown’s conduct. See Gilbrook, 177 F.3d at 854-55. . Compare, e.g., Gee v. Principi, 289 F.3d 342, 346-47 & n. 4 (5th Cir.2002) (holding evidence of subordinates’ animus precluded

summary judgment regarding the final decision maker's liability when the subordinates "made comments critical" of the plaintiff at "the critical meeting” with the final decision maker and a third party who was present at the meeting "stated that it was his impression that by the end of the meeting, the negative statements had created a general consensus that [the petitioner] would not be selected"); Griffin v.

Washington Convention Ctr., 142 F.3d 1308, 1311 (D.C.Cir.1998) (holding evidence of subordinate's animus relevant to final decision maker's liability when he "was [the decision maker's] chief source of information regarding [plaintiff's] job performance, repeatedly urged [decision maker] to terminate [plaintiff], ... helped develop the tests used to assess [plaintiff], was responsible for evaluating [plaintiff's] success on those tests, and was in contact with [decision maker] at every significant step of the decision-making process”); Long v.

Eastfield College, 88 F.3d 300, 307 n. 8 (5th Cir.1996) (holding evidence of subordinates’ animus precluded

summary judgment regarding final decision maker’s liability when subordinates recommended plaintiffs’ termination and directed other employees to prepare written statements presented to final decision maker, and the only explanation plaintiffs received from final decision maker regarding their discharge was that he "made a decision to uphold the recommendation of your supervisor^] to terminate your employment”). .

Rebecca Hackenberg, another DCJ employee, testified that she told Hogue the administrative leave "sure seems like retaliation about that BOLI complaint, doesn’t it?”, and that Hogue "kind of looked sideways out of the window, and [] went, ‘yeah.’ ” This testimony does not establish Brown’s liability for Scott’s termination. First, Hackenberg did not mention Brown throughout her entire testimony, let alone implicate her as a source for the alleged retaliation. Second, as we have noted, the administrative leave did not make Scott's termination a foregone conclusion.