Jose Flores v. City of Westminster
2017 U.S. App. LEXIS 19894
9th Cir.2017Background
- Three Latino Westminster police officers (Flores, Reyes, Perez) sued the City and four former/current Chiefs alleging race and national-origin discrimination and retaliation under 42 U.S.C. § 1981 and California’s FEHA; the case proceeded to a nine-day jury trial and large verdicts/fee awards for plaintiffs.
- Core facts: plaintiffs were repeatedly passed over for special assignments/promotions in favor of some white officers; plaintiffs also experienced discipline, supervisory log entries, and internal‑affairs investigations after filing DFEH complaints or being otherwise active; Flores filed DFEH complaints in 2010 and 2011; Reyes filed in 2010; Perez served in Marine reserves and alleged missed notifications of openings.
- Jury findings included: City liable for FEHA retaliation against Flores; Chiefs Coopman and Hall liable under § 1981 for race discrimination against all three officers; several Chiefs individually liable for § 1981 retaliation; punitive damages awarded against individual Chiefs; total jury compensatory and punitive awards exceeded $3.3M and the district court awarded substantial attorney fees.
- On appeal the Ninth Circuit (Farris, J.) affirmed in part and vacated/remanded in part: it affirmed Flores’s FEHA retaliation verdict and damages against the City; affirmed most § 1981 individual liability and punitive awards; vacated the judgment against deceased Chief Waller and remanded to allow substitution of his estate under Rule 25(a)(1) and for the district court to determine survivability/enforceability issues under California law.
- The Court resolved threshold statutory questions: it held California public‑employment being statutory (not contractual) does not bar § 1981 suits by public employees after the 1991 amendments to § 1981, distinguishing prior Ninth Circuit precedent (Judie) and relying on California authority recognizing contract‑clause protection for statutory employment terms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| FEHA retaliation (Flores) — adverse action and causation | Flores: removal from FTO list, reprimand, and log entries were materially adverse and temporally/circumstantially linked to DFEH filings | City: actions were trivial, not materially adverse, and timing too attenuated to infer causation; proffered legitimate reasons | Affirmed: jury reasonably found adverse actions, proximate timing and circumstantial evidence supported causation and pretext; denial of JMOL/new trial proper |
| Double recovery concern for FEHA vs. § 1981 awards | Flores: FEHA award could reflect retaliation by non‑Chief supervisors and therefore not duplicate § 1981 awards against Chiefs | City: FEHA award necessarily overlaps with § 1981 awards against individual Chiefs, requiring new trial | Affirmed: permissible interpretation of verdict avoids double recovery; substantial evidence supports non‑overlap explanation |
| Availability of § 1981 claims by California public employees | Plaintiffs: § 1981 (post‑1991) protects rights to "make and enforce contracts," including statutory public employment terms | Chiefs: California statutory employment (not contract) precludes § 1981 claims; Judie controls | Rejected defense: post‑1991 § 1981 and California precedent (White v. Davis) permit § 1981 claims by public employees in these circumstances; Judie distinguished |
| Liability of deceased Chief Waller / substitution of estate | Plaintiffs: claim survives; estate may be substituted under Rule 25 and California survival law | Chiefs: Waller’s death before trial and failure to file statement of death/Rule 25 bars recovery; probate procedures may block enforcement | Vacated/remanded: judgment against Waller vacated; remand to allow plaintiffs leave to substitute estate per Rule 25 and for district court to resolve California probate/survival issues (including punitive damages recoverability) |
Key Cases Cited
- Yanowitz v. L’Oreal USA, Inc., 36 Cal.4th 1028 (Cal. 2005) (FEHA adverse‑action standard interpreted broadly to include actions likely to impair job performance or advancement)
- Coszalter v. City of Salem, 320 F.3d 968 (9th Cir. 2003) (timing of three to eight months can support an inference of retaliation)
- Judie v. Hamilton, 872 F.2d 919 (9th Cir. 1989) (framework for assessing § 1981 applicability to public employees; distinguished here)
- Patterson v. McLean Credit Union, 491 U.S. 164 (U.S. 1989) (interpretation of § 1981 prior to 1991 amendments)
- Burnett v. Grattan, 468 U.S. 42 (U.S. 1984) (three‑step process for borrowing state law under § 1988 analysis)
- White v. Davis, 30 Cal.4th 528 (Cal. 2003) (statutory public‑employment terms can invoke contract‑clause protections)
- Roby v. McKesson Corp., 47 Cal.4th 686 (Cal. 2009) (verdict interpretation to avoid double recovery; test for hopeless ambiguity)
- Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (U.S. 1978) (municipal liability requires policy/custom as moving force)
- BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (U.S. 1996) (guideposts for due‑process review of punitive damages)