Friday, July 11, 2014

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Ninth Circuit Upholds Ruling That LAPD Officer Was Retaliated Against Over Testimony in Labor Case

By KENNETH OFGANG, Staff Writer

The Ninth U.S. Circuit Court of Appeals yesterday upheld a judgment in favor of a Los Angeles Police Department officer whom a jury found was retaliated against for testifying in support of a fellow officer in an action based on the Fair Labor Standards Act.

In a 2-1 decision, the court rejected the city’s contentions that Leonard Avila’s suit should be barred because he lost an LAPD Board of Rights decision on the same issue, and that jurors should have been instructed not to rule in the plaintiff’s favor if the city would have fired him even if it lacked a retaliatory motive.

Avila was charged with insubordination after testifying in the FLSA case brought by Edward Maciel, a former officer who claimed that supervisors pressured officers into working through their lunch hours without claiming overtime. The department claimed that Avila knowingly violated departmental orders when, as he testified in the Maciel case, he himself worked through lunch hours without claiming overtime, and failed to report pressure he was receiving to do so.

Avila resigned from the LAPD during the lunch break in his Board of Rights hearing, after receiving a job offer from another agency. The hearing continued without him, however, and he the board recommended he be terminated, a recommendation accepted by the chief of police.

He then sued the city in U.S. district court, claiming violations of the anti-retaliation provision of the FLSA, and of 42 U.S.C. §1983 and state law. A jury found in his favor of the FLSA claim only and awarded him $50,000.

On post-trial motions, Judge S. James Otero awarded him an additional $50,000 under the FLSA’s liquidated damages provision, and $579,000 in attorney fees.

Judge Andrew Hurwitz, writing for the Ninth Circuit, said the Board of Rights decision and the chief’s termination order did not have preclusive effect on the FLSA claim because they dealt with the issue of insubordination, not retaliation.

The board’s sole finding, Hurwitz noted, was that Avila was “insubordinate to the department when [he] failed to submit requests for compensation for overtime that [he] had worked, as directed through department publications.” Otero, Hurwitz said, “properly concluded that the agency had not determined the motive for the disciplinary action.”

The city wasn’t entitled to a “same decision” instruction, the appellate jurist went on to say. He said the city had abandoned the issue on appeal, and that even if it hadn’t, there was no evidentiary basis for such a charge to the jury.

“The uncontested evidence in this case is that Avila would not have been fired had he not

Testified,” Hurwitz wrote. “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.”

Hurwitz also concluded that the liquidated damages award was appropriate and that the attorney fee award was well supported by the district judge’s analysis of the plaintiff’s request and not excessive.

Hurwitz was joined by Judge Barry G. Silverman, while visiting Senior District Judge Roger Vinson of the Northern District of Florida wrote a lengthy dissent.

Vinson argued that the “same decision” instructional issue was preserved on appeal because it was “inextricably interrelated” with the issue of whether the district judge erred in failing to give other instructions requested by the city. And there was plenty of evidence to support the instruction, the dissenting judge argued.

“[W]here there is evidence before the jury that an employee admitted under penalty of perjury that he was knowingly and repeatedly insubordinate for many years, that testimony is automatically “some objective evidence” for the “same decision” defense,” Vinson wrote. “This is because, in such a case, the jury could easily determine that the employer would have done the same thing independent of the fact that the employee had testified (for example, if the misconduct had been discovered in some other way). The jury would, of course, not be required to make such a finding — it might find that the adverse action was retaliatory — but it could, depending on all of the evidence in the case.”

The appeal was argued by Gregory Wedner of Lozano Smith for the city and Stuart Esner of Esner, Chang & Boyer for the plaintiff.

The case is Avila v. Los Angeles Police Department, 12-55931.