Argued and Submitted, Pasadena, California February 6, 2014.
Appeal from the United States District Court for the Central District of California. D.C. No. 2:11-cv-01326-SJO-FMO, D.C. No. 2:11-cv-01326-SJO-FMO. S. James Otero, District Judge, Presiding.
The panel affirmed the district court's judgment, after a jury trial, in favor of a police officer who claimed that the Los Angeles Police Department fired him in retaliation for testifying in a Fair Labor Standards Act lawsuit brought by a fellow officer.
The panel held that the officer's FLSA retaliation claim was not precluded by the LAPD Board of Rights' recommendation that he be terminated for insubordination in not claiming overtime.
The officer alleged that the real reason he was fired was not because he worked through lunch without requesting overtime, but rather because he testified in the prior lawsuit. The panel held that the district court did not err in declining to give two special jury instructions, and special verdict questions tied to those instructions, stating that an employee who engages in protected activity is not insulated from adverse action for violating workplace rules. The panel held that to the extent that the City of Los Angeles was urging that it would have reached the same decision on terminating the officer in the absence of his testimony in the prior lawsuit, the district court was well within its discretion in refusing to give the instructions because the evidence did not support the same decision defense, nor did it support the City's argument that the firing was based on the content of the officer's testimony, and not on the mere fact that he had testified. Because the City did not raise the issues in its briefs, the panel declined to address whether the district court erred in refusing to give a " same decision" instruction and an instruction that the officer was required to prove that his testimony was a " motivating factor" in his termination.
The panel held that the district court did not abuse its discretion in awarding attorney's fees and liquidated damages.
Dissenting, Judge Vinson wrote that the officer not only testified in the prior case, but also admitted to insubordination when he testified. Judge Vinson wrote that the district court plainly erred in failing to give the " same decision" instruction. He wrote that this issue was not waived because it was inextricably interrelated with the issue whether the district court erred in failing to give the special instructions. He also wrote that there was ample evidence to support the same decision defense. Judge Vinson wrote that reversible error occurred, and the case should be remanded for a new trial.
Gregory A. Wedner (argued), Mark K. Kitabayashi, and Sloan R. Simmons, Lozano Smith, Los Angeles, for Defendants-Appellants.
Matthew S. McNicholas and Douglas D. Winter, McNicholas & McNicholas, LLP, Los Angeles, California; Stuart B. Esner (argued) and Andrew N. Chang, Esner, Chang & Boyer, Pasadena, California, for Plaintiff-Appellee.
Before: Barry G. Silverman and Andrew D. Hurwitz, Circuit Judges, and C. Roger Vinson, Senior District Judge.[*] Opinion by Judge Hurwitz; Dissent by Judge Vinson. VINSON, District Judge, dissenting.
HURWITZ, Circuit Judge:
Leonard Avila, a police officer, periodically worked through his lunch break but did not claim overtime. According to his commanding officer, Avila was a model officer. The Los Angeles Police Department (LAPD), however, deemed Avila insubordinate for not claiming overtime and fired him.
Not coincidentally, that termination occurred only after Avila had testified in a Fair Labor Standards Act (FLSA) lawsuit brought by fellow officer, Edward Maciel, who sought overtime pay for working through his lunch hours. Avila then
brought this action, claiming that he was fired in retaliation for testifying, in violation of the FLSA anti-retaliation provision, 29 U.S.C. § 215(a)(3). The evidence at trial was that the only officers disciplined for not claiming overtime were those who testified against the LAPD in the Maciel suit, notwithstanding uncontested evidence that the practice was widespread in the LAPD.
A jury returned a verdict in favor of Avila on his FLSA anti-retaliation claim. On appeal, the City of Los Angeles and the LAPD contend that the jury was not correctly instructed. We find no reversible error and affirm.
In January 2008, Leonard Avila testified under subpoena in a FLSA suit against the City of Los Angeles in the Central District of California brought by Maciel, who sought overtime pay under 29 U.S.C. § 207(a)(1) for working through his lunch hour. Avila testified that he and many other LAPD officers, including his supervisors, operated under an unwritten policy of not claiming overtime for working through lunch. After Avila testified, the LAPD filed an internal investigation complaint against him and another officer who testified at the Maciel trial, Richard Romney, alleging that they had been insubordinate by not submitting requests for overtime.
The officers were ordered to appear before the LAPD Board of Rights (BOR), a disciplinary review body. Avila was sworn in, entered a plea of not guilty, heard opening statements, but resigned during the hearing's lunch break to accept a job with another law enforcement agency. The BOR nonetheless proceeded against Avila in absentia. The board found Avila guilty of insubordination and recommended termination, and the Chief of Police then so ordered. Romney was also fired.
Avila then sued the LAPD and the City of Los Angeles (collectively, the " City" ) in the Central District of California, asserting claims under the anti-retaliation provision of FLSA (29 U.S.C. § 215(a)(3)), 42 U.S.C. § 1983, and California law. The City moved for summary judgment, arguing that because Avila never sought judicial review of the BOR decision, his federal claims were precluded. The district court denied the motion, but precluded Avila from challenging any factual findings made by the BOR.
After Avila rested at trial, the court granted the City's motion for judgment as a matter of law on the state law claims. The jury found in favor of Avila on his FLSA claim, but against him on the § 1983 claim, and awarded damages of $50,000. The district court entered a judgment on the jury verdict, and later amended it to award Avila $50,000 in liquidated damages and $579,400 in attorney's fees. We have jurisdiction over the City's appeal under 28 U.S.C. § 1291 and affirm.
The City first contends that the BOR recommendation that Avila's employment be terminated precludes his FLSA retaliation claim. We review the district court's rejection of that argument de novo.
Frank v. United Airlines, Inc., 216 F.3d 845, 849-50 (9th Cir. 2000).
A state agency determination is entitled to preclusive effect if three requirements are satisfied: " (1) that the administrative agency act in a judicial capacity, (2) that the agency resolve disputed issues of fact properly before it, and (3) that the parties have an adequate opportunity to litigate." Miller v. Cnty. of Santa Cruz, 39 F.3d 1030, 1033 (9th Cir. 1994) (citing United States v. Utah Constr. & Mining Co., 384 U.S. 394, 422, 86 S.Ct. 1545, 16 L.Ed.2d 642, 176 Ct. Cl. 1391 (1966)). We give state administrative agency judgments the same preclusive effect they receive in state court. Univ. of Tenn. v. Elliot, 478 U.S. 788, 799, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986).
The dispositive question is whether the BOR actually decided whether Avila was fired in retaliation for testifying in the Maciel action. The City relies heavily on White v. City of Pasadena, 671 F.3d 918 (9th Cir. 2012), in urging issue preclusion. The plaintiff in White was a police officer who challenged her termination in a grievance proceeding. Id. at 922. At an administrative hearing before an arbiter, White presented " evidence that the City's investigation and her termination were in retaliation" for a lawsuit she had filed against the City. Id. at 924. The arbiter found that the City had not demonstrated just cause for termination, but also found that White had not shown that she was a victim of retaliation. Id. After an independent review of the record, the City Manager upheld the termination, specifically rejecting White's retaliation claims. Id. White's subsequent civil rights action against the City again raised the retaliation claim. Id. at 925. The district court dismissed the claim, and we affirmed, finding the administrative determination issue preclusive. Id. at 930-31.
This case is quite different. Here, neither the BOR decision nor the termination order addressed the issue of retaliation. The administrative proceedings simply found Avila guilty of the one count in the complaint: " Prior to 2008, you, while on duty, were insubordinate to the department when you failed to submit requests for compensation for overtime that you had worked, as directed through department publications." The district court thus properly concluded that the agency had not determined the motive for the disciplinary action. See L.A. Police Protective League v. Gates, 995 F.2d 1469, 1474-75 (9th Cir. 1993) (holding that a BOR determination " could not have preclusive effect on the different issue the jury faced" ). There is no issue preclusion.
Avila claimed that the real reason he was fired was not because he worked through lunch without requesting overtime, but rather because he testified in the Maciel lawsuit. The City does not dispute that if Avila's claim is true, the termination violated FLSA, which makes it " unlawful for any person . . . to discharge or in any other manner discriminate against any employee because such employee . . . has testified . . . in any [FLSA] proceeding . . . ." 29 U.S.C. § 215(a)(3). Nor does the City contend that the evidence below was insufficient to support the jury verdict. Rather, the City's only argument on appeal is that the jury was not properly instructed.
It is important to note at the outset precisely what issues are and are not before this court with respect to the jury instructions. The City requested an instruction that Avila was required to prove that his testifying at the Maciel trial was a " motivating factor" in his termination. In
contrast, Avila had requested an instruction that he was required to prove that his testifying was the " but-for cause" of the termination. The district court gave the City's requested instruction, which was consistent with Ninth Circuit law. See Knickerbocker v. City of Stockton, 81 F.3d 907, 911 (9th Cir. 1996) ( requiring that retaliation be a " substantial factor" in adverse action). The City does not argue on appeal that the district court erred in giving the " motivating factor" instruction. See United States v. Guthrie, 931 F.2d 564, 567 (9th Cir. 1991) (discussing invited error).
The City did request an instruction that there was no liability under the FLSA anti-retaliation provision if the " same decision" would have been made had Avila not testified. Originally, developed in Title VII cases, the same decision affirmative defense shields an employer from liability when an adverse action is based both on protected and unprotected activities; the employer has the burden of " proving that it would have made the same decision in the absence of" the protected activity. Price Waterhouse v. Hopkins, 490 U.S. 228, 254, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989); see also Knickerbocker, 81 F.3d at 911.
But, the City's briefs on appeal do not assign as error the district court's refusal to give the " same decision" instruction. Arguments " not raised clearly and distinctly in the opening brief" are waived. McKay v. Ingleson, 558 F.3d 888, 891 n.5 (9th Cir. 2009).
Indeed, even if, like our dissenting colleague, we were to take up the issue sua sponte, the result would be the same. " There must be a sufficient evidentiary foundation to support giving the instruction." Gantt v. City of L.A., 717 F.3d 702, 706-07 (9th Cir. 2013). The uncontested evidence in this case is that Avila would not have been fired had he not testified. Indeed, an LAPD official confirmed at trial that the only officers disciplined for the overtime violations were those who testified in the Maciel action, and that Avila would never have been disciplined had he not testified. The City's counsel also candidly conceded this at oral argument. And, the only evidence introduced at the disciplinary hearing was Avila's testimony in the Maciel matter. There thus was simply no evidentiary foundation for a same decision instruction. See Lambert v. Ackerley, 180 F.3d 997, 1009 (9th Cir. 1999) (en banc) (holding a district court's failure to give a same decision instruction harmless because " the evidence before the jury strongly support[ed] the conclusion that the plaintiffs were discharged in retaliation for their overtime complaints and that they would not have been discharged had they not engaged in this protected conduct" ).
The only issue on the merits actually raised by the City is whether the district court committed reversible error in declining to give the jury two requested special instructions and to submit several proposed special verdict questions tied to those instructions.
The proposed instructions were:
1. An employee who engages in protected activity is not insulated from adverse action for violating workplace rules, and an employer's belief that the employee committed misconduct is a legitimate, nondiscriminatory reason for adverse action.
2. An employer is forbidden to discriminate or retaliate against an employee who participates in an activity deemed to be protected under federal or state law. But participation doesn't insulate an employee from being discharged for conduct that, if it occurred outside the protected activity, would warrant termination.
The proposed special verdict questions were, as relevant to this appeal:
2. Was the City of Los Angeles's decision to discharge Leonard Avila based upon his engaging in a protected activity under the FLSA, or admitting misconduct, or both?
. . .
If your answer to question 2 is engaging in protected activity, then answer question 3. . . . If your answer is both engaging in protected activity and admitting misconduct, go to question 4.
3. Was the Defendants' conduct a substantial factor in causing harm to Leonard Avila?
. . .
4. Has the Defendant proved, by a preponderance of the evidence that the Defendant would have made the same decision to discharge Plaintiff even if Plaintiff's protected activity had played no role in the Defendant's decision to?
After declining the proposed instructions, the district court read the following stipulation to the jury:
On January 16th, 2008, Plaintiff Avila appeared in federal court pursuant to a subpoena and gave sworn testimony at the jury trial in the Maciel case. The giving of this testimony is ...