Wallace v. City of San Diego

• Decision Date: 25 August 2006
• Docket Number: No. 03-56552.,03-56552.
• Citation: 460 F.3d 1181
• Parties: James D. WALLACE, Plaintiff-Appellant, v. CITY OF SAN DIEGO; City of San Diego Police Department, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

460 F.3d 1181

James D. WALLACE, Plaintiff-Appellant, v. CITY OF SAN DIEGO; City of San Diego Police Department, Defendants-Appellees.

No. 03-56552.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 4, 2005.

Filed August 25, 2006.

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Carolyn Chapman, Coronado, CA, for the appellant.

Mark Stiffler, Deputy City Attorney, San Diego, CA, for the appellee.

Appeal from the United States District Court for the Southern District of California; Jeffrey T. Miller, District Judge, Presiding. D.C. No. CV-01-00703-JM/RBB.

Before JAMES R. BROWNING, RAYMOND C. FISHER, and JAY S. BYBEE, Circuit Judges.

BROWNING, Circuit Judge.

Plaintiff-Appellant James D. Wallace appeals the district court's order granting the Defendant-Appellee City of San Diego's ("City") motion for judgment as a matter of law and conditionally granting a new trial. The district court issued its order after a jury found that the City retaliated against Wallace in violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. §§ 4301 et seq., and awarded him $256,800 in damages. Wallace also appeals the district court's finding that the jury verdict "was against the great weight of the evidence." In addition, Wallace seeks reversal of the jury's finding that the City's violations of USERRA were not willful, precluding an assessment of liquidated damages.

We have jurisdiction over this appeal of the final judgment of the district court under 28 U.S.C. § 1291(a). We reverse the district court's grant of judgment as a matter of law as well as its conditional grant of a new trial. We hold that the jury's finding that the City constructively discharged Wallace and took other retaliatory actions against him in violation of USERRA was supported by substantial evidence and was not contrary to the great weight of the evidence. However, we affirm the jury's determination that liquidated damages should not be awarded because Wallace failed to preserve the issue for appeal.

I.

Wallace was employed as a police officer with the San Diego Police Department ("SDPD") from March 28, 1975 until October 10, 2000. In 1981, Wallace applied and was selected for a position as a police detective. In 1984, the SDPD promoted Wallace to the position of Sergeant.

Beginning in 1982, Wallace served as an officer in the Naval Reserve. As a reserve officer, Wallace served annual tours of active duty of two to three weeks, typically using paid leave time from the SDPD to do so. In 1991, Wallace was called up on active duty and served seven months in Operation Desert Storm in Iraq. Upon his return to the SDPD from Iraq, Wallace applied numerous times for promotions beyond the level of Sergeant, but was never considered. After serving in Iraq, Wallace continued to serve annual tours of duty. Upon returning from military leave in 1994, and again in 1995 and 1996, the SDPD assigned Wallace to a division of the department far from his home and gave him undesirable or reduced responsibilities. This occurred despite Wallace's seniority and that there were more convenient and more desirable assignments available within the department.

In December 1996, after serving 97 days of active duty, Wallace was assigned to the SDPD's Southern Division and began reporting to Lieutenant Jorge Guevara. In 1997, Guevara initiated an investigation of an incident in which Wallace was accused of striking a female police officer on the buttocks with a newspaper. The incident occurred as Wallace instructed the officer and several other officers with whom she was talking after a meeting to get back to their duty stations. During the investigation, Wallace stated that he was not aware that the newspaper he was carrying had struck the officer, and that, if it had, it was accidental. Nevertheless, in April 1997, three days before Wallace again left for military duty, Guevara issued Wallace a reprimand and a disciplinary transfer. Wallace testified that in his experience as a supervisor, this discipline was unusually harsh. However, Wallace did not appeal the decision as department policy permitted him to do, because he was leaving on active duty in three days, and as it was the first discipline he had received, he had no reason to believe it would become part of a pattern.

In July 1997, Wallace was assigned to investigate a citizen's complaint about a subordinate officer, James Needham. Shortly thereafter, in August 1997, Wallace served a brief tour of active duty. Upon his return, he completed his investigation and submitted it to Guevara. Guevara rejected the report and asked Wallace to make a number of changes. Wallace testified that in his time as a sergeant, he had never had a report rejected by a superior. Nevertheless, he made the requested changes and again turned the report in to Guevara, who again rejected it requesting further changes. Wallace once more made the requested changes. In October 1997, prior to having the completed report of the investigation approved, Wallace was called up for an extended tour of active duty. Prior to leaving on active duty, Wallace gave a copy of the draft report and underlying investigative materials to Officer Needham, the subject of the investigation. Wallace testified that he believed that under the State law, Needham had a right to see a copy of the report, and that this right trumped contrary department regulations, which in any event predated the state law. However, when Wallace returned from active duty in April of 1998, he was faced with an investigation and disciplinary proceedings concerning this conduct. As a result, Guevara served Wallace with a notice of adverse action which Wallace appealed to the police chief, who affirmed the disciplinary action.

In addition, upon his return, Wallace received his annual performance evaluation from Guevara, which covered the period September 1996 to September 1997. It was the first "below standard" evaluation he had received in his career with the SDPD. The evaluation cited a number of reasons for the below standard rating, including the alleged newspaper incident. It also included a number of other instances of alleged misconduct which Guevara testified he had been informed of but, contrary to department policy, had not investigated. Wallace testified that in his experience, annual evaluations were not to be based on unsubstantiated or uninvestigated allegations, and he believed these instances were improperly considered in his rating. As a result of this evaluation, Wallace was placed on a 90 day supplemental performance review. In July of 1998, he received a rating of "competent."

Wallace testified that the usual procedure in the SDPD was to give an officer the annual performance evaluation very soon after the end of the year the evaluation covered, in this instance, in September 1997. Wallace told the jury that a supplemental performance review is intended to allow an officer a chance to correct poor performance, and is therefore intended to be imposed as soon after the incidents giving rise to the poor performance review as possible. In this instance, Wallace did not receive the supplemental performance review until many months after the end of the period for which he received the negative evaluation. Had Lieutenant Guevara put Wallace on a supplemental performance review in September 1997, Wallace would have been on military leave during most of the supplemental review period. Wallace suggested that Guevara departed from department practices and gave him the performance review when he returned as a punitive measure.

In August 1998, Wallace served a three week tour of active duty. In September, shortly after his return, he again received an annual rating of "below standard" predicated primarily on the disclosure of the investigatory information to Officer Needham.

In February 1999, Wallace learned that he was going to be called up for an extended tour of duty in Bosnia. At around the same time, division Captain Cheryl Ann Meyers denied Wallace's request to teach at the police academy on his day off, though he had been doing so regularly since the early 1980s. Also in February, Guevara inquired whether Wallace could provide documentation of his attendance at weekend naval reserve drills. Wallace testified that his drills had never conflicted with his work schedule, and that such documentation had never been required of him before. He knew of no other reservist in the department who was required to provide it. On March 2, 1999, Wallace was given a one-day suspension as a result of the Needham incident.

In March 1999, Wallace was called up for active duty in Bosnia, and received orders running through July 1999. At that point, Wallace had attended no weekend drills since Guevara's request for documentation. Subsequently, Wallace's orders were extended until September 29.

On August 2, after Wallace had been away on military leave for over four months, and at about the time his tour was extended for a further 60 days, Guevara initiated an investigation of Wallace for teaching at the police academy on his day off without approval. In the same disciplinary package, Guevara initiated disciplinary action for Wallace's failure to provide documentation from his naval reserve commanding officer that he had attended his weekend drills, even though he had only inquired about such documentation two weeks prior to Wallace's leaving for Bosnia and had not ordered him to provide it, and despite Wallace's having attended no drills since that inquiry.

On August 4, while still in Europe, Wallace received the orders extending his tour of duty until September 29. Because the orders were back to back with his previous orders, Wallace was not required to fill out an additional notice of leave form with the police department. On the day he received his new orders, he faxed them to Guevara. On that same day, however, Guevara...