Rich Forsyth v. City of Buena Park
691 F. App'x 363
| 9th Cir. | 2017Background
- Plaintiffs Rich Forsyth, Steve Holliday, and Kevin Shea are lieutenants at the Buena Park Police Department who sued the City under the Fair Labor Standards Act for retaliation after filing an FLSA lawsuit.
- Police Chief Corey Sianez declined to promote the plaintiffs in the 2013 promotional process; the Chief cited lack of "loyalty" and not being "team players."
- The 2013 promotion was opened to external candidates, a departure from prior practice, and occurred while the FLSA suit was ongoing.
- Plaintiffs presented circumstantial evidence of retaliation (temporal proximity, Chief’s deviation from practice, testimony that promotions were used to reward/punish loyalty) and evidence contradicting the Chief’s stated reasons.
- Defendant relied on pre-lawsuit performance evaluations to justify non-promotions, but those evaluations were inconsistent or silent on the Chief’s asserted reasons.
- Forsyth failed the 2013 promotional exam (written and oral portions), making him ineligible for consideration; the district court granted summary judgment for the City, which Plaintiffs appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Plaintiffs raised triable issue that the Chief's stated reasons were pretext for retaliation under McDonnell Douglas | Plaintiffs argue the Chief’s loyalty/team-player reasons mask retaliatory motive; circumstantial evidence supports retaliation | City argues Chief’s proffered reasons (performance concerns, lack of loyalty) are legitimate, nonretaliatory reasons | Reversed as to Holliday and Shea — triable issues exist on pretext; case remanded for trial |
| Whether Chief’s loyalty/team-player justification is lawful when used to deny promotion after protected activity | Plaintiffs argue labeling opposition as "disloyal" can be pretext for retaliation and would strip protection | City contends loyalty concerns are legitimate managerial reasons for promotion decisions | Court held loyalty/team-player rationale can be consistent with retaliation; creates triable issue given surrounding evidence |
| Whether pre-lawsuit performance evaluations defeat inference of retaliation | Plaintiffs claim evaluations are inconsistent with the Chief’s later reasons and create conflicting inferences | City claims evaluations show preexisting, legitimate concerns about plaintiffs' performance | Court found evaluations conflicted with Chief’s stated reasons or were silent, producing genuine disputes of material fact for trial |
| Whether Forsyth’s 2013 non-promotion was caused by retaliatory animus | Forsyth argues Chief’s animus caused his non-promotion | City points to Forsyth’s failure of the promotional exam making him ineligible | Affirmed for Forsyth on 2013 non-promotion — failure on exam was the but-for cause of non-promotion |
Key Cases Cited
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (articulates burden-shifting framework for discrimination/retaliation cases)
- Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054 (9th Cir. 2002) (pretext may be shown directly or indirectly)
- Chuang v. Univ. of Cal. Davis, 225 F.3d 1115 (9th Cir. 2000) (discusses proof of pretext under McDonnell Douglas)
- EEOC v. Crown Zellerbach Corp., 720 F.2d 1008 (9th Cir. 1983) (noting opposition to unlawful practice may be characterized as "disloyal")
- Perez v. Curcio, 841 F.2d 255 (9th Cir. 1988) (conflicting evidence should preclude summary judgment)
- R & R Sails, Inc. v. Insur. Co. of Penn., 673 F.3d 1240 (9th Cir. 2012) (reversal of underlying judgment requires vacatur of district court costs)