Avila v. L. A. Police Dep't

• Decision Date: 10 July 2014
• Docket Number: Nos. 12–55931,12–56554.,s. 12–55931
• Citation: 758 F.3d 1096
• Parties: Leonard AVILA, Plaintiff–Appellee, v. LOS ANGELES POLICE DEPARTMENT, Defendant, and City of Los Angeles; Commander Stuart Maislin, Defendants–Appellants. Leonard Avila, Plaintiff–Appellee, v. Los Angeles Police Department, Defendant, and City of Los Angeles, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

758 F.3d 1096

Leonard AVILA, Plaintiff–Appellee,

v.LOS ANGELES POLICE DEPARTMENT, Defendant,andCity of Los Angeles; Commander Stuart Maislin, Defendants–Appellants.

Leonard Avila, Plaintiff–Appellee,

v.Los Angeles Police Department, Defendant,andCity of Los Angeles, Defendant–Appellant.

Nos. 12–55931, 12–56554.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Feb. 6, 2014.

Filed July 10, 2014.

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, CA; Stuart B. Esner (argued) and Andrew N. Chang, Esner, Chang & Boyer, Pasadena, CA, for Plaintiff–Appellee.

Appeal from the United States District Court for the Central District of California, S. James Otero, District Judge, Presiding. D.C. No. 2:11–cv–01326–SJO–FMO.

Before: BARRY G. SILVERMAN and ANDREW D. HURWITZ, Circuit Judges, and C. ROGER VINSON, Senior District Judge.^*

OPINION

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.

I

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.¹

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.² 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.

II

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 (1966)). We give state administrative agency judgments the same preclusive effect they receive in state court. Univ. of Tenn. v. Elliott, 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.

III

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.

A.

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).³

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...