Flores v. City of Westminster

• Decision Date: 11 October 2017
• Docket Number: No. 14-56832.,14-56832.
• Citation: 873 F.3d 739
• Parties: Jose FLORES; Ryan Reyes ; Brian Perez, Plaintiffs-Appellees, v. CITY OF WESTMINSTER; Mitchell Waller; Andrew Hall; Ron Coopman; Kevin Baker, in their individual capacities, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

873 F.3d 739

Jose FLORES; Ryan Reyes ; Brian Perez, Plaintiffs-Appellees,

v.CITY OF WESTMINSTER; Mitchell Waller; Andrew Hall; Ron Coopman; Kevin Baker, in their individual capacities, Defendants-Appellants.

No. 14-56832.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 11, 2017—Pasadena, California

Filed October 11, 2017

Justin Reade Sarno (argued), Steven J. Rothans, and Jill Williams, Carpenter Rothans & Dumont, Los Angeles, California, for Defendants-Appellants Mitchell Waller, Andrew Hall, Ron Coopman, and Kevin Baker.

Alison McIlvaine Turner (argued) and Timothy T. Coates, Greines Martin Stein & Richland LLP, Los Angeles, California; Leighton D. Henderson, Jeffery E. Stockley, and Melanie M. Poturica, Liebert Cassidy Whitmore, Los Angeles, California; for Defendant-Appellant City of Westminster.

Oliver B. Dreger (argued), Michael L. Kibbe, and Joseph M. Preis, Godes & Preis LLP, Irvine, California, for Plaintiffs-Appellees.

Before: Jerome Farris, Consuelo M. Callahan, and John B. Owens, Circuit Judges.

OPINION

FARRIS, Senior Circuit Judge:

Jose Flores, Ryan Reyes, and Brian Perez, three police officers of Latino descent (collectively, "Plaintiffs"), sued their employer and, after a nine-day jury trial, they won. The officers alleged that the City of Westminster ("the City" or "the Department") as well as current and former Westminster Police Chiefs Mitchell Waller, Andrew Hall, Ronald Coopman, and Kevin Baker ("the Chiefs"), discriminated and retaliated against them on the basis of race and national origin. As relevant here, the officers alleged causes of action for violation of the California Fair Employment and Housing Act ("FEHA"), Cal. Gov't Code §§ 12900 – 12996, and 42 U.S.C. § 1981. Specifically, they claimed they were denied special assignments that could increase their chances of promotion. Officers Flores and Reyes also alleged that the defendants retaliated against them for filing administrative complaints, in violation of FEHA and 42 U.S.C. § 1981.

After reviewing the evidence, the jury largely sided with the officers, finding that: 1) the City had retaliated against Officer Flores in violation of FEHA; 2) Chiefs Coopman and Hall had racially discriminated against all three officers in violation of 42 U.S.C. § 1981 ; and 3) Chiefs Coopman and Waller had retaliated against Officers Flores and Reyes and Chief Baker had retaliated against Officer Flores in violation of section 1981. The jury awarded the officers a total of $3,341,000.00 in general and punitive damages, and the court awarded $3,285,673.00 in attorney fees, $40,028.49 in expert fees, and $18,684.12 in costs. The City and the Chiefs¹ appeal numerous aspects of the trial, the judgment, and the resulting award of fees and costs. We affirm in part, and vacate and remand in part.

I

Our review of this case is circumscribed by the evidence presented to, and the facts as found, by the jury. The following evidence was adduced at trial:

A. Officer Jose Flores

Officer Flores was hired by the City of Westminster in 2002, after serving for ten years as a police officer with the City of South Gate. In 2004 or 2005, he applied for, but did not receive, a detective position with the fraud unit. He applied for one of three "motors" special assignments in 2006, but withdrew from consideration becausehe felt "demeaned" after the first two positions were awarded to others with less experience, and after he saw a sergeant asking another officer if she would be interested in testing out a motorcycle. In 2008, Officer Flores applied for, but did not receive, a domestic violence detective position, and in 2009 did not receive the juvenile detective position for which he applied. Again, he felt those positions were awarded to officers with less experience. Officer Flores received only one special assignment—a mall assignment—in twelve years with the Department. At times, he was called names by other officers, including "Dirty Sanchez," "Jorge," and "Silver" or "Silverback," and he was told that the gray streak in his hair was his "INS mark." In July 2010, Officer Flores filed an administrative complaint with the California Department of Fair Employment and Housing ("DFEH") in which he alleged discrimination on the basis of national origin. After that, he did not apply for further special assignments. On December 6, 2011, eighteen months after filing his first complaint, Officer Flores filed a second complaint with DFEH alleging retaliation.

According to Officer Flores, the following incidents were retaliation for his discrimination complaint:

• In November 2010, five months after Officer Flores filed his discrimination complaint, Chief Waller removed him from the list of available Field Training Officers ("FTO") (officers chosen to perform the collateral duty of mentoring and training new recruits).

• In June 2011, following an internal affairs ("IA") investigation, Officer Flores and Reserve Officer Phan received a written reprimand for failing to take reasonable action while on duty. The reprimand stemmed from a domestic violence call in April 2011 to which the officers did not respond, instead returning to the station to book evidence from a different crime scene. Although Officers Flores and Phan were the closest unit to the scene of the domestic violence incident, the dispatcher sent three other cars, and Officer Flores assumed those cars were closer than he was and that he did not need to respond. The incident resulted in serious injuries to the victim, and the perpetrator fled.

• In July 2011, Officer Flores received a Supervisor's Log entry² for a remark he made to a 14-year-old boy during a domestic violence call. As Officer Flores was working to deescalate the situation, he instructed the boy to go inside, whereupon the boy asked: "When did you become my dad?" Officer Flores responded: "I would not want to be your dad." The remark was deemed "mean spirited and discourteous," "not necessary," and "disrespectful."

• In June 2012, Officer Flores received a Supervisor's Log entry for his accidental discharge of a Taser during testing.

• In late 2013 or early 2014, Officer Flores was interviewed as part of an IA investigation into the failure to report criminal and/or policy violations, and was asked whether he was surreptitiously recording co-workers or knew of anyone doing so.

Before he filed his first DFEH complaint, Officer Flores had never been disciplined as a police officer or the subject of an IA investigation during his tenure with the City.³ Officer Flores also continued to receive commendations after filing his DFEH complaints, and was chosen by Chief Baker in August 2012 to serve on a patrol advisory group. He received regular pay increases throughout his employment with the City.

B. Officer Ryan Reyes

Officer Reyes was hired by the City in 1998 after graduating at the top of his class at the police academy, was named "Rookie of the Year," and performed collateral duties as an FTO and on the Department's SWAT team. Between 2002 and 2007, he applied for fourteen special assignments but received only a mall assignment. A more junior, white officer was selected over Officer Reyes as a narcotics detective,⁴ despite feedback from some supervisors that the junior officer was not ready for the position. Another white officer, whom Officer Reyes had trained as an FTO, was selected over Officer Reyes for a detective position in 2009. In January 2010, Officer Reyes filed a DFEH complaint alleging discrimination on the basis of national origin.

According to Officer Reyes, he suffered retaliatory actions after filing his discrimination complaint including Supervisor's Log entries, written reprimands, and a 10-hour suspension for late submission of daily logs, traffic citations, and an accident report. He was also placed into an IA investigation and disciplined in December 2010 for untimely booking of a pen into evidence, despite the fact that during the period of the delay Officer Reyes was away from the Department testifying in federal court in an unrelated work matter.

C. Officer Brian Perez

Officer Perez, an officer in the U.S. Marine Corps Reserve, was hired by the City in January 2004. He performed collateral duties including serving as an FTO and on SWAT, and creating, formalizing, and serving on the Department's Honor Guard. Between 2004 and 2014, Officer Perez applied for, but was denied, twelve special assignments. In particular, on four occasions special assignments for which he applied were awarded to allegedly less-qualified white officers, one of whom had lied extensively on his resume. Officer Perez was also threatened with termination when Chief Hall believed Officer Perez was not testifying truthfully regarding a use of force incident involving another officer. That officer was ultimately cleared, but the charge that Officer Perez lied remained in his record with a finding of "not sustained" rather than a full exoneration, and he was removed from his SWAT and Honor Guard duties by Chief Hall. Officer Perez spent considerable time away from the Department fulfilling his duties with the Marine Corps, and the jury heard evidence that he was not informed of potential openings within the Department while he was away on deployments.

D. Defendants

The City and the Chiefs disputed Plaintiffs' evidence and presented evidence that all officers, whether white, Latino, or Asian, had to apply numerous times before being promoted to Sergeant. The jury heard testimony that eight sergeants applied between two and five times before receiving their promotions. Defendants also presented evidence that at least seven officers identified by the City as Latino received special assignments between 2006 and 2013.

II

We first address the City's contention that as a matter of law Officer Flores failed to establish his claim of retaliation in violation of FEHA. After the jury returned its verdict, the City moved for a new trial and renewed its motion for...