Avila v. Los Angeles Police Department

liability requiring joint case and several pointed Nor has AUO 173. imposing recovery” rule. suggested interpretation, “one supports its contrary plain to the text of the which is AFFIRMED. statute.10 fix conspiracy is the AUO’s offense

prices for TFT-LCDs. The found gains from that of- gross million $500 unambiguous language of the fense. The im- permitted the district court to statute million fine based on the pose $500 AVILA, Plaintiff-Appellee, Leonard gross coconspirators. to all the gains

v. Liability B. LOS POLICE ANGELES anb Several Joint DEPARTMENT, argues that the AUO also district Defendant, by failing to principles court erred follow liability joint imposing and several fine, an re approach would have Angeles; of Los Commander quired a from the fine amount of reduction Maislin, Stuart Defendants- already cocon portion paid AUO’s Appellants. However, spirators. sup AUO offers no 3571(d) § port proposition for the in Avila, Plaintiff-Appellee, Leonard joint corporates principles of and several liability. The cases it cites do not address Angeles Department, Los Police recovery” joint whether the “one rule of Defendant, 3571(d), liability applies § and several 3571(d). § nor do even discuss At best, two of the cited cases establish that Angeles, of Los Defendant-

joint liability an option and several avail Appellant. sentencing able to a court. See United Pruett, 232, States v. 681 F.3d 12-55931, Nos. 12-56554. Cir.2012); Radtke, United States v. United of Appeals, States Court (8th Cir.2005). The other Ninth Circuit. cases, imposition which address the of civil penalties proseсutions RICO and civil Argued and Submitted Feb. 2014. forfeiture, similarly asset are inapposite July Filed 2014. purpose because the of criminal fines is to offender, punish compensate not to disgorge ill-gotten gains.

victim or See Comm’r., Schachter v. 255 F.3d (9th Cir.2001). statutory 1034-35 No au thority precedent or supports AUO’s inter

pretation of the Alternative Fine Statute points legislative history, unambiguous, stop

10. AUOalso to the statute is we with the text Guidelines, Sentencing comment from and do not refer to extrinsic sources to divine O’Donnell, lenity. meaning. and the rule of Because the text its

Gregory (argued), A. Wedner Mark K. Kitabayashi, Simmons, and Sloan R. Loza- Smith, no Angeles, Los for Defendants- Appellants.

Matthew S. McNieholas and Douglas D. Winter, McNieholas, LLP, McNieholas & (ar- CA; Angeles, Los Stuart B. Esner gued) Esner, and Andrew Chang, N. Pasadena, CA, Chang Boyer, & for Plain- tiff-Appellee.

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

HURWITZ, Judge: Circuit Avila, officer,

Leonard police periodi- cally worked through his lunch break but did not claim According overtime. to his officer, commanding Avila was a model officer. Angeles The Los Depart- Police (LAPD), however, ment deemed in- Avila subordinate for not claiming overtime and fired him. coincidentally,

Not that termination oc- curred after Avila had testified in a (FLSA) Fair Labor Standards Act lawsuit officer, brought by Maciel, fellow Edward sought working overtime for pay through his lunch hours. Avila then Vinson, Roger Florida, *The Honorable C. Senior Dis- sitting by desig- Northern District of Judge trict for the U.S. District Court for the nation. action, proceeded against that he was The BOR nonethelеss claiming brought this in viola- testifying, fired retaliation Avila absentia. The board found Avila provision, anti-retaliation tion of the FLSA guilty of insubordination and recom- 215(a)(3). § The evidence ‍​‌‌​‌‌​​‌‌‌‌​​​​​​‌​​​‌‌‌​‌​‌‌‌‌​​​‌‌​​​​‌​​‌‌‌‌‍29 U.S.C. termination, mended and the of Po- Chief disciplined officers trial was that the Romney lice then so ordered. was also were those who claiming for not overtime fired.1 LAPD in the Maciel testified LAPD Avila then sued the and the suit, evidence notwithstanding uncontested Angeles (collectively, “City”) of Los in the practice widespread California, asserting the Central District of LAPD. provision claims under the anti-retaliation jury A returned a verdict in favor of (29 215(a)(3)), § of FLSA U.S.C. U.S.C. on his FLSA anti-retaliation claim. § law.2 and California Angeles of Los and the appeal, On summary for judgment, arguing moved LAPD that the was not cor- contend that Avila sought judicial because never find no rectly instructed. We reversible decision, review of the BOR federal his affirm. error and precluded.

claims were The district court I motion, precluded denied the but Avila challenging any findings from factual made 2008, January Leonard Avila testified by the BOR. in subpoena against under a FLSA suit Angeles of Los in the Central District trial, After Avila rested at the court Maciel, by brought of California granted City’s judgment motion for sought pay overtime under 29 U.S.C. a matter of law on the state claims. law 207(a)(1) § lunch working through for his found favor of Avila on his many hour. Avila testified that he and claim, him against FLSA but on the officers, including supervi- other LAPD claim, § damages and awarded of sors, policy under an unwritten of operated $50,000. The district court entered a claiming working through not overtime for verdict, judgment on the and later testified, LAPD lunch. After Avila $50,000 liqui- it to award amended investigation complaint filed internal $579,400 attorney’s damages dated against him and another officer who testi- jurisdiction City’s fees. have over the trial, We Romney, fied at the Maciel Richard § affirm. appeal under 28 U.S.C. 1291 and alleging they had been insubordinate submitting requests not for overtime. appear The officers were ordered to be- II (BOR), Rights fore the LAPD Board of first contends that the BOR disciplinary body. review Avila was sworn employment that Avila’s recommendation in, plea guilty, entered a of not heard precludes his FLSA retalia- be terminated statements, resigned during opening but tion claim. review the district court’s We accept job lunch hearing’s break novo. agency. rejection argument de with another law enforcement provided "probably” that he violated the overtime 1. Officer Teresa Anderson similar rules, disciplined. case; supervisor but the was not deposition in a in the Maciel fired. A California state court found she was Stuart Maislin was also named 2. Commander retaliatory and was rein- her termination she appealed the as a defendant. Avila has not disciplinary complaint stated. A also was ini- judgment below in Maislin’s that was entered supervisor, tiated Avila’s who testified favor. Airlines, Inc., Here, quite Frank v. 216 F.3d This case is United different. Cir.2000). 845, 849-50 neither the BOR decision nor the termi nation order addressed the issuе of retalia agency A determination state proceedings tion. The administrative sim preclusive entitled to effect three re ply guilty found Avila of the one count in “(1) are quirements satisfied: the ad complaint: you, “Prior to while judicial agency capaci ministrative act duty, depart insubordinate to the (2) ty, agency disputed resolve you requests ment when failed to submit (3) it, properly issues of fact before compensation you for overtime that parties adequate opportu have an worked, had as directed through depart nity litigate.” Cnty. Miller v. Santa publications.” ment The district court (9th Cir.1994) Cruz, 39 F.3d properly agency thus concluded that (citing v. United States Utah Constr. & determined the for the motive Co., 394, 422, Mining 384 U.S. 86 S.Ct. disciplinary action. See L.A. Police Pro (1966)). 1545, 16 L.Ed.2d 642 giveWe Gates, League tective agency administrative judgments state (9th Cir.1993) (holding 1474-75 that a BOR preclusive same effect receive state determination “could not preclusive have Elliott, court. Univ. Tenn. v. 478 U.S. effect on the different issue the 788, 799, 106 S.Ct. 92 L.Ed.2d 635 faced”). There is no preclusion. issue (1986). dispositive question The is whether the Ill actually BOR decided whether Avila was Avila claimed that the real reason he fired in retaliation for in testifying was fired was not because he worked City heavily Maciel action. The relies on through lunch without requesting over- Pasadena, City White v. 671 F.3d 918 time, but rather because he testified in the (9th Cir.2012), in urging preclusion. issue Maciel lawsuit. City dispute The does not plaintiff The in a police White was officer true, that if claim Avila’s is the termination challengеd who her in griev- termination FLSA, violated which makes it “unlawful ance proceeding. Id. at 922. At an ad- for any person ... to discharge any or arbiter, hearing ministrative before an other manner discriminate against any em- presented White “evidence that City’s ployee because such ... has tes- investigation and her termination were in tified ... proceeding....” [FLSA] retaliation” for a lawsuit she had filed 215(a)(3). § 29 City U.S.C. Nor does the against City. Id. 924. The arbiter contend that the evidence below was insuf- City found that the had not demonstrated support ficient to verdict. Rath- just termination, cause but also found er, City’s only argument appeal on is that White had not shown that she awas properly instructed. victim of retaliation. indepen- Id. After an record, City dent review of the Manag- A. termination, upheld er specifically re- jecting White’s retaliation important claims. Id. It to note at the outset subsequent White’s civil rights precisely action what issues are and are not be- City again raised the retalia- fore respect this court with to the tion claim. Id. at 925. The City district court requested instructions. The an in- claim, affirmed, dismissed the and we find- struction that Avila required prove ing administrative determination testifying issue that his at the trial Maciel was a preclusive. Id. at 930-31. “motivating factor” in his termination. sponte, an instruc- the result would be the same. contrast, requested prove evidentiary that his be a sufficient required that he was “There must tion cause” of the testifying support giving was the “but-for the instruc- foundation gave L.A., court The district City termination. tion.” v. 717 F.3d Gantt instruction, (9th Cir.2013). which was City’s requested The 706-07 uncontested law. Ninth Circuit consistent with in this case is that Avila would evidence Stockton, 81 F.3d v. Knickerbocker not have been fired had he not testified. Cir.1996) (requiring that re- Indeed, LAPD at trial an official confirmed factor” in ad- taliation a “substantial be disciplined for the officers action). argue does not on verse overtime violations were those testi- giv- court erred appeal that the district action, fied in the Maciel and that Avila “motivating factor” instruction. See ing the disciplined would never have been had he Guthrie, United States v. City’s can- not testified. The counsel also error).3 (9th Cir.1991) (discussing invited didly argument. conceded this at oral And, evidence introduced at the request an instruction that did liability disciplinary hearing under the FLSA was Avila’s there was no if the “same deci- provision anti-retaliation in the Maciel matter. There thus was made had Avila not evidentiary sion” would have been foundation for a simply no developed Title Originally, testified. same decision instruction. See Lambert v. cases, affirmative (9th Cir.1999) the same decision VII Ackerley, 180 F.3d liability shields an from (en banc) defense (holding a court’s failure district action is based both when adverse harm- give a same decision instruction activities; unprotected less because “the evidence before the “proving that employer has the burden of strongly supported] the conclusion made the same decision it would have discharged in retaliation plaintiffs activity. the absence of’ the complaints overtime and that for their Hopkins, 490 U.S. Price Waterhouse discharged had they would not have been 228, 1775, 104 L.Ed.2d 268 109 S.Ct. protected in this con- engaged not Knickerbocker, (1989); at 81 F.3d see also duct”). 911. B. But, do City’s appeal briefs on actually only issue on the merits court’s The assign as error the district by instruc is whether the district give refusal to “same decision” raised clearly and Arguments tion. “not raised error in declin- court committed reversible distinctly opening in brief’ are waived. requested special two ing give n. McKay Ingleson, 891 5 pro- and to several instructions submit Cir.2009). questions verdict tied to posed special those instructions. if, Indeed, dissenting even like our were: up proposed the issue sua The instructions colleague, we were to take today whether a "but-for” instruction appeal pending, the Su address 3. While required FLSA retaliation is now also in preme Court held that a "but-for” instruction Ackerley, Lambert v. required plaintiff makes “a retali cases. But see is when the banc) (9th Cir.1999) (en 2000e-3(a),” (rejecting § claim under the Title VII ation argument of Title VII's “that the breadth provision. Univ. Tex. S.W. anti-retaliation of Nassar, -, provision dictates the con- anti-retaliation -U.S. 133 S.Ct. Med. Ctr. v. 2517, 2534, (2013). provi- give the FLSA struction we should L.Ed.2d 503 Given issue, sion”). City’s to raise the we do not failure 16th, January in On Plaintiff Avila engages pro- who employee 1. An appeared pursuant in federal court to a not insulated from ad- activity tected is subpoena gave testimony sworn violating workplaсe action for verse trial the Maciel case. The rules, employer’s an belief giving protected of this is ac- misconduct is le- employee committed tivity under the Fair Labor Standards nondiscriminatory reason for gitimate, Act. adverse action. forbidden to discrim-

2. An The district court then instructed the employee an inate or retaliate as follows: activity in an deemed participates plaintiff damages against The seeks de- under federal or state protected to be fendant L.A.P.D. for retaliation under doesn’t insulate participation law. But plaintiff has the burden FLSA. being discharged from proving following each ele- that, conduct if it occurred outside the preponderance ments of the evi- activity, would warrant termi- protected dence: nation.4 Plaintiff engaged engaging 1. or was questions proposed special verdict activity protected in an under federal were, appeal: law, as relevant to this that is he testified in a ac- FLSA tion. Angeles’s

2. Los deci- Was discharge sion to Leonard based employer subjected plaintiff 2. The activity in a upon engaging employment an adverse action. FLSA, admitting miscon- under the or protected activity 3. The was a moti- duct, or both? vating employ- reason for the adverse

ment action. your engaging If 2 is question answer to plaintiff If the has all proven three of protected activity, ques- then answer elements, plaintiff these is entitled to your engag- tiоn If answer is both 3.... However, your verdict. if the defendant activity admitting ing proven aby preponderance has misconduct, go question plaintiffs evidence that the participation 3. Was the Defendants’ conduct sub- protected activity in a played no role causing stantial factor in harm to Leon- employment of the adverse deci- ard Avila? sions, your the defendant is entitled to

verdict. proved, by 4. Has the Defendant City object The did not to these instruc- preponderance of the evidence that the tions. Defendant would have made same question After the asked about discharge decision to Plaintiff even protected activity, renewed its protected activity played

Plaintiffs requests for supplemental instructions no role in the Defendant’s decision to? special and the The district verdicts. After declining proposed rely original instruc- court told the to on its tions, the following district court read the instructions. The verdict in favor of Avila stipulation jury: to the on the claim FLSA followed. City requested special failing give by

4. The a third district court erred it. instruc- tion, appeal ‍​‌‌​‌‌​​‌‌‌‌​​​​​​‌​​​‌‌‌​‌​‌‌‌‌​​​‌‌​​​​‌​​‌‌‌‌‍but does not contend on that the Romero-Avila, States v.

C. (9th Cir.2000); see also United States special instruc- City requested the The Alvarez-Valenzuela, 1198, 1202 231 F.3d it had argument of its that support tions (9th Cir.2000) (noting practice that testified, he but fired Avila because “possible avoids error sometimes found request over- he failed to rather because trying given to elaborate on a instruс argues that FLSA also time. tion”). The supplemental instructions on the adverse action based only prohibits have done more to confuse than to would trial, at the Maciel that Avila testified fact Cross, clarify. Dang v. testimony. not the use of his (9th Cir.2005) (noting that in urging that is To the extent misleading”) (quo structions “must not be the same deci- it would have reached omitted). tation marks citation terminating Avila in the absence of sion on jury that argued never to the his testimo above, the testimony, as we have noted his ny insulated him from adverse action or well its discretion district court was within disciplinary it used in a could not be in- refusing give supplemental he claim that proceeding. Nor did sup- There no evidence to structions. was failing request could not be fired for defense; City’s the same decision port Rather, overtime.5 Avila’s claim was that only those plain made own witness the true reason he was fired because in the Maciel suit were disci- who testified in a against he testified failing take overtime. It plined for action, FLSA not because he violated the record simply argued cannot be on this overtime rules. have been fired had he that Avila would not testified. Indeed, representative LAPD’s hearing the BOR conceded Avila had firing that the City’s argument investigated been because he testified anti- was not in contravention of FLSA trial, testifying at the Maciel retaliation clause because was based a result investigation was conducted as testimony, the content of Avila’s not on thе by testimony given of sworn [Avila “testified,” mere fact that he had fails Romney] during surrounding a civil trial the same reason. The evidence allegations [FLSA].... of a violation testimony in Avila was his provided tran- Commander [Maslin] action, and it conceded that FLSA testimony given by seven scripts of the ac only those who testified the FLSA during that court case.... After officers disciplined seeking tion were for not over and af- having transcripts reviewed the day for another whether time. We leave consideration, Mas- ter due Commander employee’s of an trial use initiate a com- personnel lin elected to in an adverse action entirely forbidden against Officer Avila and Officer plaint when there is also other evidence Romney. infraction before the decision mak alleged

er; proffered no such evidence was Maslin admit- tellingly, More Commander City here. evidence that despite ted that uncontested officers, including Avila’s su- thousands court abuse its dis-

Nor did district overtime routinely did not claim periors, jury, posed after it a telling cretion in lunch, singled out for only for officers activity, rely on question at the discipline were those who testified original instructions. See United effect, seeking contest that not decision that Avila could not 5. Because of the district court’s firing preclusive offense. limited overtime was a the BOR determination had 1104 — Franks, U.S. -, 2369, 134 189 Nor was claim S.Ct.

Maciel action.6 there (2014). disciplined anything for L.Ed.2d 312 that Avila was resigned, his command- else. Avila When differently, Put issue for the a that “Officer ing officer wrote City this case was whether the per- an individual of employee and stellar truth in that it a telling claiming fired performed honor. He integrity sonal (who model was hired anoth well, well with his co- got along his duties er force even as the termination police workers, respected by peers. and was pending),7 seeking action was for all valuably losing is Department This pay might have. The district trained asset.” court did not abuse its discretion declin tried, short, as this case was issue ing give requested supplemental was not whether the resolution Fang Du v. instructions. See Yan Allstate claiming LAPD Avila for not could fire (9th Cir.2012) Co., 753, Ins. 697 F.3d 757 his trial overtime or whether (“Whether there is sufficient evidence to could be used in the administrative hear support an instruction is reviewed for Rather, ing. issue was whether discretion.”); abuse of Hunter v. Cnty. of LAPD given by the reason for the Sacramento, (9th 652 F.3d Cir. That pretext. pre termination was a 2011) (noting that we review formulation of cisely pro anti-retaliation what the FLSA discretion). instructions for abuse of 215(a)(3) § vision forbids. 29 U.S.C. discharge an em (making it unlawful to IV ployee employee ... has “because such action); testified” in a see also Kas FLSA City also contends that the district Plastics ten v. Saint-Gobain Performance court in awarding abused its discretion — U.S. -, 1325, 1333, Corp., 131 S.Ct. attorney’s liquidated damages.8 fees and (2011) (holding that the 179 L.Ed.2d 379 disagree. We provision anti-retaliation makes FLSA’s by prevent “enforcement scheme effective A.

ing ‘fear of economic retaliation’ from in ducing ‘quietly accept workers sub FLSA authorizes an award of reason ”) (quoting attorney’s prevailing plaintiff standard conditions’ Mitchell v. able fees to a Inc., Jewelry, Robert DeMario 361 U.S. anti-retaliation suits. 29 U.S.C. 216(b). 288, 292, § 4 L.Ed.2d 80 S.Ct. We review fee awards for abuse (1960)). Cnty. Amendment similar of discretion. v. “[T]he First Mendez San Bernardino, (9th ly protects public employee provided 540 F.3d Cir. 2008). testimony, compelled by truthful sworn does not contest subpoena, party, outside the course of his ordi Avila was the successful rather nary job responsibilities.” large. Lane contends that the award was too action, appeal, In addition to the Maciel there were filed notice 8.After its at least four other FLSA actions filed preparation district court awarded trial costs alleging the LAPD similar overtime violations. to Avila. Because the never filed an brought One of the cases was collection separate appeal, amended or notice of we action, 2,300 2,500 officers, in which detectives, ser- jurisdiction lack to review that award. Whit- geants, joined. and lieutenants Garcetti, aker v. Cir. 2007). resignation 7. Avila’s did not moot his retalia- proceeded tion claim because the BOR against Avila in absentia. requested V originally court, in $748,522.50 district in fees. The above, For the reasons stated we AF- order, instead awarded thorough judgment. FIRM court’s the district $579,400. the lead The court reduced VINSON, Judge, dissenting: District rate, eliminated ad requested counsel’s ministrative, clerical, unproductive very troubling This is a case that raises I hours, significant legal of the time with a number of issues. will and deducted 30% dissent, however, my limit the focus of to district billing descriptions. The vague what I believe is the most serious and a 10% reduc granted court also error: the instructions. manifest overall amount of the fees re tion “expended time to account for quested very important This is also a claims,” notwithstanding the failed retaliation claims on federal statutes based the same upon claims were “based these major increasingly part employ- are legal generally core set of facts and related in federal Recent litigation ment courts. claim. Given Supreme theories” as the successful cases from the Court of the Unit- States, infra, note 3 have explanations highlight- careful of ed see the district court’s award, interpretations ed new of the causation for the we find no abuse its reasons par- of these cases. All standard some discretion. laws, including

ties who deal with those attorneys, employers employees, their B. juries, judges, district and trial need more certainty clarification and in this area. plaintiff a successful FLSA also allows Unfortunately, majority’s opinion does liqui- in an anti-retaliation suit to recover provide that. 216(b). § damages. 29 U.S.C. We dated for abuse of discretion. review such awards I Billings, v. First Citizens Bank EEOC instructions, turning Before to the (9th Cir.1985). helpful briefly discuss the might be testimony at issue nature of the liqui The district court awarded majority repeatedly states that case. The damages they because “would work dated officers, Romney and Avila and two fellow delay pay for a compensate [Avila] Anderson, they disciplined only after provide and also wages ment of owed See, litigation. e.g., in Maciel testified employees report for future incentive (“[The] termination oc- Maj. Op. at 1098 employ hour violations their wage and after Avila had testified only [the curred latter contends that ers.” (“The suit.]”); at 1099 accord id. Maciel of the court’s statement shows part officers evidence at trial was damages improp award was liquidated testified disciplined ... were those who however, judge, The trial erly punitive. suit[.]”). LAPD in the Maciel against the compensatory purpose, indicated a plainly true, technically the substance of Although are not rendered liquidated damages critical, Avila, testimony is their Maciel have an merely they because also punitive also the Romney, and Anderson were Brooklyn incidental deterrent effect. See openly admitted to insub- officers who had 709-10, O’Neil, they Specifical- Bank v. 324 U.S. testified. Sav. ordination while (1945) years (noting that for several ly, they 65 S.Ct. 89 L.Ed. admitted faded report overtime—and “plainly intended” section failed to Congress 16(b) effect”). allegedly told report supervisors to have “deterrent

1106 though they them to do so—even knew it “virtually every” be fired and that in such they was “serious misconduct” for which case the would be entitled to Accordingly, could be fired. when the ma- summary judgment, absent direct evidence jority says only singled “the officers out of pretext); retaliation or Lane v. cf. — Franks, -, for discipline were those who testified at U.S. 134 S.Ct. action”, 1103-04, (2014) the Maciel id. at it is n. 2381 189 L.Ed.2d 312 (noting complete factually more and accurate to in a First Amendment retaliation case: say singled that “the officers out for “Of course ... wrongdoing that an em- discipline were those who testified at ployee testifying may admits to while abe action Maciel and admitted under valid basis for termination or other disci- years they knowingly oath that pline.”). Although and testifying the act of is for repeatedly policies violated were protected, testimony privi- itself is not specifically subject leged. told would them to ter- This distinction is rooted both important keep mination.” It is in reason and common sense.2 Avila, Romney, mind that and Anderson Now to the instruction problem. “testify” did more than in the Maciel case.1 II majority To the extent that the appears The FLSA to believe that someone who makes it unlawful to take testifies an protected is, against adverse action an hearing ipso facto, employee otherwise “be- cause such consequences immunized from the has ... of testified” 215(a)(3). self-incriminating proceeding. § FLSA during admissions made U.S.C. As testimony, previously I this court disagree. explained There is a clear in the context, legally Title VII recognized prove distinction a violation between statute, such a testifying and, employee may mere act of on one hand have hand, on the other evidence from which “the making only reasonable admissions testifying provide while conclusion a independent could reach is that dis- grounds discipline. criminatory See Merritt v. Dil- animus is the sole cause for Co., Paper lard challenged employment 1188-91 action or that (11th Cir.1997) (concluding employ- that an discrimination played no role at all in the ee who testified in a protected employer’s Title decisionmaking!.]” VII See Costa case Palace, Inc., and admitted sexual harassment could v. Desert clear, suggesting 1. To be I am not that a when there is also other evidence of the al- necessarily infraction!)]’' have leged must believed that Avila Maj. Op. at 1103. The disciplined for implication his admitted insubordination. clear employee’s is that use of an (and argue He could based on the evidence "entirely testimonial admission is forbidden” argue) (he did investiga- the LAPD internal discipline) is immune from unless there is deficient, proceedings tion and BOR bi- alleged "other evidence of the infraction” ased, targeted, against (and and used to retaliate forbidden). may even then it still be properly jury might him—and a law, instructed implication That is not the as even Avi- agreed. problem have in this as recognized argument, la's counsel at oral shortly, will be seen is that the here was agreed when he that an officer could be disci- propеrly instructed. if, plined testifying during while hearing, "widespread beating he admitted to Further, Perhaps infra, apparent, reading this is civilians.” but in noted majority's opinion, during argument issue was interpret one could discussed at trial it oth- erwise, states, jurors’ questions everyone Avila, when it inter on the alia: "The — City, evidence testimony judge agreed Avila was his the trial — the FLSA action.... We day leave for another there ais difference between the act employee’s whether use of an testifying admitting trial to misconduct entirely forbidden in an adverse testifying. action while Cir.2002) trial, proposed Before (emphasis original), “sole aff'd 2148, 156 90, 123 L.Ed.2d 84 539 U.S. S.Ct. cause” instruction under Ninth Circuit (or (2003). “pretext”) In such “sole cause” 10:3, provid- Model Instruction No. which cases, jury be instructed “to de the must prevail ed that he would on his claim if he challenged action was termine whether the (1) engaged showed: that he reason,” prohibited taken ‘because (2) conduct; subjected that he was to an was, and, if the jury the finds (3) action; job adverse he was If, prevails. Id. on the other subjected to that action of’ “because hand, “played that it jury determines City objected conduct. The all”, employer prevails. no role at Id. the instruction as it did not account for its However, of valid, where there is evidence indepen- defense that there potential cause for the ad- dent, more than one nonretaliatory grounds for Avi- (so-called motive” verse action “mixed in- namely, la’s his admitted termination-— cases), a instruction should be different subordination —and that the LAPD “would Thus, at trial used. if the evidence “could regardless have acted as it did of finding a that discrimination is one support protected activity by plaintiff.” challenged of two or more reasons for the in- requested jury thus a “mixed motive” decision, may which at least one of be “motivating struction with the factor” cau- legitimate, jury should be instructed to standard, along following sation with the discriminatory first whether the determine “same decision” affirmative defense: motivating reason was ‘a factor’ If plaintiff proved has all three of action.” Id. at 856-57. If challenged elements, plaintiff these is entitled to question answers that the affirma- verdict, your unless the has defendant tive, employee prevails unless the em- by proved preponderance the evi- of ployer prove can then that it would have dence that it would have made the same if im- made the “same decision” even plaintiffs partic- even if the decision (protected activity) factor permissible ipation protected activity in a had played 857; not been considered. See id. at ac- In employment no role in the decision. Stockton, cord Knickerbocker v. of event, the defendant is entitled to (9th Cir.1996) (holding 911 & n. verdict, plaintiff your even has context). in the retaliation In same FLSA proof met his burden all three of words, if enough other there is evidence to the above elements. it, support the “mixed motive” in- added). (Emphasis This “same decision” for, appropri- struction is called where the defense instruction was taken verbatim only “a motivat- ate causation standard is motive” alternative in- from the “mixed coupled but must be with ing factor” which Ninth struction in the then-current Circuit in- a “same decision” affirmative defense No. 10:3.3 struction. Model Instruction Servs., instruction, pattern very v. FBL Financial 557 U.S. 3. This which its Gross cases, (2009), applied amended title to Title VII 129 S.Ct. 174 L.Ed.2d 119 year alterna- last to omit the "mixed motive” interpreted which similar "because of” statu- Supreme deci- tive on the basis of the Court’s tory language and held that a mixed motive University S.W. Med. Center v. sion in Texas improper Age Dis- instruction was under the - Nassar, -, U.S. 133 S.Ct. Employment Act. Whether and crimination in (2013), analyzed which had L.Ed.2d 503 may and Gross have to what extent Nassar statutory language reject- "because [of]” bearing under the FLSA on retaliation claims motivating ed a factor test in the Title VII unclear, although point the FLSA reaching retaliation context. this conclu- statutory lan- [of]" uses similar “because ‍​‌‌​‌‌​​‌‌‌‌​​​​​​‌​​​‌‌‌​‌​‌‌‌‌​​​‌‌​​​​‌​​‌‌‌‌‍sion, Supreme relied decision Court on its proposed special language also the two fense from this circuit’s model majority quoted has and, instead, instructions instruction instructing the Maj. Op. in full. at 1101-02. The City’s as follows on the defense: underlying purpose of these instructions proved by pre- the defendant has [I]f was to tell the of the distinction be- ponderance of the evidence that the the act testifying, tween the which cannot decisions, employment adverse the de- action, serve as a basis for adverse your fendant is entitled to verdict. admitting to while testifying, misconduct nothing This instruction has to do with the can. which defense, “same decision” and it mixes ap- rejected judge special The trial both in- ples oranges. with It told the that structions, appeared agree but he to that prevail Avila would if proved he that his supported the evidence a “mixed motive” participation protected activity in the was Yet, instruction. he ended up giving a (i.e., “a motivating contributing factor” a portion a combination of of the “mixed others) among reason for the adverse ac- portion motive” and a of the “sole cause” tion, which only could then be overcome if First, instructions.4 he instructed the the could turn prove around and that prevail proved that Avila would if he that protected the activity “played no role” at in Maciel “a motivating illogical all. This internally inconsis- action, challenged factor” for the which the tent instruction was not the same decision court defined as “a reason that contributed affirmative defense set out in the Ninth to the decision to take certain action even instructions, pattern jury Circuit which the though other reasons may also have con- requested.5 far, tributed to the decision.” good. So so However, issue, judge the went On this astray by omit- Knickerbocker is instruc- ting the “same decision” affirmative de- tive. That was a mixed motive FLSA Neverthelеss, is, date, guage. there to discriminatory Ninth could reach is that ani- authority providing Circuit that the mixed challenged mus is the sole cause em- motive/motivating analysis factor ployment available played action or that discrimination to retaliation claims under that statute. See employer’s no role at all in the decisionmak- Knickerbocker, Thus, ”) added). 911 & n. 2. I ing (emphasis In mixed motive (as accept this, that is still the law in this circuit employer cases such as has no bur- case), regard- was at the time of trial in this prove protected activity den to that Supreme may of what the less Court decide Knickerbocker, in "played no role.” See 81 F.3d FLSA retaliation cases in the future. language at 911 & n. 2. That is not even compatible, since in mixed motive cases it is parties 4. dispute appeal do not that presumed activity may "played that the have a role,” a majori- "mixed motive” case. The employer opportunity but the has ty judge "gave City’s states that the trial try prove that it would have taken the instruction,” requested Maj. [mixed motive] anyway. same Oregon action See Ostad Op. at but that Univ., is not accurate. The Health Sciences 327 F.3d 884-85 City requested the mixed motive instruction (9th Cir.2003) (citing Knickerbocker and not- incorporated which included the “same deci- ing that in a employ- "mixed motive” case the defense, sion” affirmative as set out in the prove protected ee activity must that the pattern judge significantly instruction. The factоr, motivating” a "substantial or after instruction, changed that as will be seen. despite that it was a factor—the em- which— ployer prevail proves will if it that "the ad- appears portion It that the "no role” anyway”). verse action would have occurred was, substance, instruction employers derived from If in mixed motive cases were re- (and show, here, previously properly) Avila's rejected quired protected Costa, action, "sole cause” instruction. "played conduct no role” then (describing at 856 employer "sole cause” prevail cases as those no could ever on its affirma- in which "the reasonable conclusion a tive defense. an pivotal taking ar- distinction between employee ease in which retaliation testified, action employment action because that the adverse gued retaliatory pro- if the taking an action because admitted “should be deemed any way’ part ‘in testifying. conduct was misconduct while There are tected decision”, n. 81 F.3d at 911 employer’s why apply two reasons waiver does not way of merely the inverse which is here. must employer, prevail, arguing that the First, though spe- did not even conduct demonstrate object cifically to the instructions as decision. This no role” “played can originally given, we review rejected argument, stating circuit plain instructions for error civil cases. mixed to conclude FLSA it was “wiser” 51(d)(2). Plain error is: See Fed.R.Civ.P. need motive сases that the (3) “(1) (2) error, plain, that is that, although conduct prove rights.... If all three affects substantial role,” it would have done “played met, may an appellate conditions are court proper reason thing even “the same then exercise its discretion to notice id. at 911 & n. 2.6 alone had existed.” See (4) error, if only forfeited but the error majority opinion does not Notably, the seriously fairness, integrity, affects the or “no role” instruction was dispute that the judicial proceedings.” public reputation Instead, appears suggest it to erroneous. Cotton, 625, 631, United U.S. States that error does not why three reasons 1781, 1785, 152 L.Ed.2d 860 122 S.Ct. waiver, insufficient evi- warrant reversal: (2002) marks, citations, and (quotation dence, and harmless error. omitted) added). It is (emphasis brackets give to me that the failure to the apparent A. City that the “same decision” instruction rationale, majority con- For its first the facts requested plain had error the has been waived be- that the error tends deprived City the of its of this as City clearly did not and distinct- cause the seriously and thus affected entire defense opening in brief. See ly raise the issue its trial. integrity fairness and of the the Although City the Maj. Op. at 1100-01. claim, retaliation the pattern prevail To on his requested had the Ninth Circuit’s to instructed that Avila had instruction —which includ- “mixed motive” (1) protect- engaged affir- that he was incorporated prove: the “same decision” ed object activity when he testified the Maciel expressly not ed mative defense—it did (2) case; subjected to an that he was then giv- “no role” instruction that was to the (3) action; and assign employment than error to that adverse en.7 Rather testimony “motivating instruction, argued his Maciel City has instead take that adverse factor” in the decision to giving that the court erred not the two case in unique action. is a somewhat sought explain This special instructions City making this comes to that the 7. The closest 6. Avila maintains in his brief instruc- brief, judge gave points was "in substance” argument reply tion the trial where it is in its request- City the same as the one that the pos- quite rightly it could not have out— sibly —that the Maciel ed, actually contradictory. the two are but testimony played shown that Requiring prove for its affirmative City’s when the no role in the adverse action the same defense that it would have made appro- defense was that the action was entire activity protected was a decision even “during admission priate based on Avila’s manifestly motivating not the same factor ” original). testimony! (Emphasis in City prove protect- requiring the that the activity "played ed no role.” Furthermore, jury’s judge’s even if the trial elements —from the that all three give failure to the “same decision” instruc- essentially indisputable. perspective —were error, not plain tion was issue was two, obviously en- the first As for in- plus waived because that omission activity by testifying gaged consistent “no role” instruction that was action, after which he was obvi- the Maciel given directly aggravated tо—and led —the ously subjected to adverse action. As confusion, jury’s and it cannot be obvious element, City’s third because the en- from separated equally meritorious that it took the adverse tire defense was special argument instructions that Avi- upon action the misconduct based seen, appeal. has advanced on As will be testimony, during pro- la admitted arguments inextricably the two are in- to” activity obviously “contributed tected terrelated. that action. The trial the decision to take jury that: full judge specifically During day instructed the their first of delibera- (who tions, jurors had deliberated “If all three of plaintiff proved has before) part day sent out a note elements, plaintiff is entitled to these asking following questions: three are your verdict.” These the first three pattern elements of this circuit’s “mixed testimony given Is at an FLSA action judge motive” instruction —but the left out Then, protected? testimony can that be defense, the same decision affirmative in a phys- used as evidence trial? Is the which is what the “mixed motive” instruc- testifying ical act of activi- Consequently, FLSA, all ty tion is about. under or is the way protected or both? was told that the for the liability, judge’s the per avoid deviation judge agreed Both counsel and the trial instruction, if pattern from the was it could questions that the answer to the first two prove testimony that the trial in somehow “yes,” disagreement but there was as in “played Maciel no role” the action— lawyer suggested to the third. Avila’s which, course, of it could not possibly do. testifying the time that the act of the words, way In other there was no testimony protected, itself were both but prevail to under the instructions as City’s lawyer legally believed that was given jury, to the and the outcome because, “obviously, incorrect there’s ex- of predetermined. I case believe this amples, you committing admitted a plain.8 proceeding, instructional error was homicide in an FLSA I don’t majority says "the [for issue ond issue is whether the would have jury given resolve] to was whether the reason anyway. made the same decision See id. at pre the LAPD for the termination awas issue, noted, 1067-68. As for the first as added). Maj. Op. (emphasis at 1104 text.” testimony clearly trial Avila's in Maciel "con- But, tried a this action was as mixed motive action, and, job tributed to” the adverse case, pretext a sole cause so as therefore, "motivating it was a factor” in the Stegall not an at trial. v. Citadel issue to take the for the decision action. As second Co., Broadcasting 350 F.3d 1061 Cir. issue, majority opinion attempt makes no 2003), this court discussed the differences be explain jury possibly to how could have types tween the two “it of cases noted question resolved that in favor of the in employer's does not make sense to ask if the light given. of the instruction that it was It terminating stated reason for is jury couldn't. The law that the was told to pretext a case; a for retaliation” in mixed motive wrong pure simple follow was rather, in such сases issue is — —and first defense, a entire result the was denied its protected activity whether the was a motivat action, ing plain factor in the adverse and the sec- which was error.

lili that replied “generally think Avila’s counsel he argue that would be anybody would judge activity.” Although agree[d] trying with what the court is to ques- the third easily However, answered could have he maintained communicate.” (with tion, ultimately decided both precisely that it was “more stated” by simply re- agreeing) respond counsel (erroneous) “motivating role” in- factor/no reflecting stipulation reading previous a already given that had struction been in the Maciel ac- Avila had testified that jury. from that instruc- quoting After giving of this testimo- tion and that “[t]he tion, attorney Avila’s stated as follows: activity under ny is So, jury say in order for the [FLSA].” law that there is not a case under the the rest to deliberate continued reason, motivating they must be able to on the third day. Still confused of affirmatively say the defendant has however, it sent out a second series day, proved by preponderance of the evi- questions: plaintiffs testimony dence that Ma- proceed- in an FLSA testimony given If no role in of the played ciel adverse to use that legal is is it ing protected, employment decisions. testimony person testifying? against upon the Because what is incumbent testimony legal If it is use motivating to show is it’s not a defense then, testifying, how person flip And the side of a motivat- reason. testimony protected? is I ing say rеason —or should the inverse following summary judge’s The trial motivating pro- reason is that the began his discussion questions these as he role, is activity played tected no which accurately describes with counsel in the instruction that the covered jury’s dilemma: given. court has caught is My sense is that the added).9 counsel re- (Emphasis Defense reasoning process. ap- It would circular with the trial sponded by agreeing what that a that the should be told pear beginning had said at the judge proceed- testify can an FLSA person discussion, i.e., is “a distinction that there protected, ing, ... versus testifying the act of between LAPD could not termi- in this case the He then testimony!.]” the content ... plaintiff nate the for —the two proposed the court: “We reminded pro- testified in the FLSA fact that he directly address special instructions that ceeding. were pivotal issue. Those instructions termi- follow-up they is that could Let me reoffer rejected by the court. him if the concluded department nate the court to consider because them for that he made an admission that testi- jury has the [“motivat- does seem since the good but mony provided separate that they’re ing instruction] role” factor/no to terminate him. cause judge again it.” The once struggling with So, testify- him for they can’t terminate and rejected special the two instructions him he they can terminate if ing, but decided to re- City’s objection) the {over sepa- provided made an admission that jury to the the erroneоus instruction read that arose grounds rate for termination because, said, way getting he “this is too good to cause. cases, only employer need “flip motive the again, incorrect. The mixed 9. Once this is made the "same deci- motivating it would have "inverse” of a factor is show side” or regardless the "played of the role that no sion” not that conduct Instead, supra activity play. did note 5. job action. role” in the adverse majority says that the two judge special After the announced complicated.” do, “would have done more to con- one instructions City he made planned what clarify”, Maj. than to atOp. fuse but in the alterna- requested, attempt last jury it is hard see how the could have tive, give jury judge at least they than possibly been more confused you provided that explanation “the already giv- were with the instructions as bench, you came on to the counsel when To special en. the extent the instructions giving between the of testi- the distinction confusingly-written, were themselves and contents of the mony and the use judge City have done what could replied The court “that will testimony.” requested giving alternative to those time.” not be done at this just jurors instructions: tell the as he suc- thus not failed to judge The trial cinctly lawyers: “they told the can’t termi- by giv- correct the erroneous instruction — testifying, they nate him but can ter- for that could have ing “special instructions” minate him he made an admission that clearly struggling jury freed the from the separatе grounds provided termination him- reasoning process” “circular good simple that arose to cause.” That “caught it was in”—but he self believed clarifying and uncomplicated statement actually repeated compounded not would have confused the just original by re-reading error the same provided would have answer to the sequence This erroneous instruction. problem that had been created the er- overlap inseparable shows the between the roneous instruction. original regarding instructional error was, however, judge As it the trial twice proper lack of a “same decision” defense City, instructed the prove (which directly has not been raised on defense, its must show Avila’s testi- appeal) response to the court’s mony “played Maciel no role” in the jury questions give spe- and refusal to action, challenged legally which was incor- (which clarifying cial instructions has Thus, rect. quite easily once Avila met his been). threshold did have the sum, obviously engaged pro- opportunity for the to even consider Model, activity tected when he testified its defense: that it took the action because but it is also that he admitted to obvious misconduct, of the admitted and not for during testimony, “serious misconduct” testifying. the mere act of I believe this provided legitimate which basis for disci- error, only plain was not it was so but trial, pline. City requested Prior to closely persuasive related to the special issue, special instructions to address that instructions argument has rejected. but After the clearly raised that the issue has not been inexplicably told that the could waived. prevail proved if it that the Model B. role,” testimony “played

trial the no (and understandably) clearly was confused that, majority The next maintains even about whether it could separate Avila’s waived, if the error had not been the result for ground admitted misconduct as disci- change literally would not as there was “no pline testifying. from the act of evidence” to warrant the “same decision” try remedy problem, City To and 1103, Maj. Op. at instruction. See again proposed judge once the trial (emphasis original). With this as- —but (and again once instructions rejected special representations), sertion other similar — up jury’s that could have cleared con- majority appears suggest point. fusion on this at trial was indicative of evidence so retali- anyone pressure further told that felt or basically had no de- that ation overtime, report to not all of their coercion and careful review A close fense.10 “affirmative obligation” to they was had the there record reveals full trial or report pressure the source of that coer- the same deci- support ample evidence cion, anonymously could do so defense, much closer the case was as sion chain of command. regular and outside the suggests. majority’s opinion than the report all overtime and the to the The failure to presented was following evidence report supervisors failure to who encour- jury: insubordination, conduct was aged such municipal very large The LAPD is to be “serious mis- which was considered 10,000 sworn approximately with conduct.” here, it At the time relevant members. time, this point during At some any offi- policy LAPD “official” management” “top of Police and their 45-minute Chief through cers who worked and decision that made the determination known as “Code generally lunch break — investigate LAPD claims of report would slip, fill an overtime out 7”—should alleged violations where Activity Report FLSA Daily their Field it on It specifically identified. (“DFAR”), accordingly. violators paid and be on the individual mak- each was thus incumbent completed at the end of DFARs were adequate in- ing charge(s) provide shift, problems with the and if there were names, dates, and times— submitted, a “Kick-back Ser- formation —like report LAPD investigation as the following day to to facilitate return it the geant” would and could not do had limited resources Although this was corrected. be investigations of hun- allega- “fishing expedition” policy, there were LAPD’s “official” thousands) of unnamed (potentially adhered to an dreds supervisors tions some function as a law enforce- officers and still coercing and discour- policy” “unwritten presented to agency. over- ment The evidence reporting officers from aging the alleged that whenever viola- There were less than one hour. time for identified, they were specifically filed tors were overtime cases multiple FLSA investigated by Internal Affairs. City involving allegation, against the had large class actions that including some LAPD in and he joined Avila The cases of class members. thousands Divi- in the Central assigned patrol the LAPD and “big problems” for posed the “distinct recollection” He had sion. “huge liability.” it to exposed both the having received and reviewed memos. policy So, again in June March 2008 June in March 23, 2007, joined February On or about policy LAPD two memos issued ongoing “un- one of the lawsuits that there was no expressly stating LAPD had de- alleged that the being paid overtime policy” of not written pay under the FLSA. nied him overtime prop- hours must be and that all overtime Angeles, Los be Roberto Alaniz or the would erly reported (doc. 637).11 2:04-CV-8592-GAF The officers were subject to termination. states, majority to Avila as a twice refers majority example, 11. The 10. Maj. Op. at officer. See in this case is that "model” uncontested evidence "[t]he Putting that he aside the evidence he not would not have been fired had complaints and personnel (emphasis sustained Maj. Op. at 1101 five testified.” See (for seen, added). a total of 18 suspended four times As will be that is contradicted misconduct, record, whether he testimony days) various including by the trial as there good is irrelevant was a Avilahimself. year supervisors possibly after he named and January In almost hundreds lawsuit, officers, Avila testified joined provided in the Alаniz of unnamed but he al- Bass, a litigation. Yvette the Maeiel support his nothing most claims. He Management for the detective with Risk readily that he never provided any admits LAPD, courtroom to observe was in the times, specific dates or and he admits that testifying, Avila admitted the trial. While fact, provided he almost no names.13 years for several he and under oath that though even he claimed that it had been knowing- “other officers” myriad unnamed years, going on for he identified two violated the FLSA and ly repeatedly and supervisors allegedly pressured him who reporting policy LAPD “official” report Sergeant to not overtime: Walker through when worked their overtime Sergeant Miyazaki. Sergeant Walker this, He testified that he did Code 7s. before, years died but Sergeant Miyazaki he “seri- though even knew constituted LAPD, and, fact, was still with the had misconduct,” he felt “intimi- ous because During also testified in the Maeiel case. by supervisors “discouraged” dated” who testimony litigation, Miyazaki his in that in that situ- requesting him from overtime “probably” stated that he had violated the any of the reported ation. He never su- overtime rules. however, which he knew was pervisors,

separate misconduct. He further testified reported Detective Bass what ob- she put he would sometimes missed Code trial, served at the Maeiel after an which DFARs, Ser- 7s but Kick-back complaint internal was brought against him geants give would them back to Sergeant Miyazaki. both Avila and him following day falsify and order complаint brought against Sergeant report records. He did not ever of the Miyazaki for two reasons: because Avila allegedly Sergeants Kick-back told ‍​‌‌​‌‌​​‌‌‌‌​​​​​​‌​​​‌‌‌​‌​‌‌‌‌​​​‌‌​​​​‌​​‌‌‌‌‍specifically him identified and accused this, him to do and he testified he (like Avila) misconduct, and “because he again”, falsified DFARs “over and over might have implicated himself his own though even he knew it was even still more testimony.” During investigation, In- misconduct.12 multiple ternal Affairs asked Avila times to Maeiel, testimony trial confirm if his Maeiel With his been implicated accurate, of un- potentially agreed hundreds he that it was. Sub- during

has been no claim that he was fired for be- conduct” such that led to his Rather, termination. ing employee. a bad he was termi- allegedly nated after —and because—he knowingly 12. Since Avila had admitted to admitted under oath that he committed “ser- repeatedly violating policy separate in three And, ious misconduct.’’ there is evidence ways many years, over there was much more from which a could have found that is "serious misconduct” at issue in this case happened example, what here. For nine just “periodically work[ing] than an officer lawsuit, joined months he through seeking his lunch break” and "not all Alaniz after pay might Maj. Op. that he have.” See performance Avila received a review that 1098, 1104. “possesses good said work ethic’’ and is “dedicated,” professional,” "courteous and single 13. Avila was not able name a Kick- "exemplaiy” "consistently outstanding.” Sergeant, provide back but he able to (and timing very exclusively) of this fa- they allegedly estimate of when ordered him appear vorable review would to undermine falsify his DFARs: sometime between suggestion partic- that it was his mere help 2004-2006. field, however, did not narrow the This LAPD, ipation in a FLSA case Sergeants as the Kick-back opposed change every day. to his admissions of "serious mis- almost

1H5 with Avila’s claim that such overtime him was sus- charge against sequently, routinely was denied. adjudicator tained, complaint deter- as the investigation, After the Chief ordered (based testimony) that on his sworn mined hearing to a before the Avila BOR. policies of the FLSA clearly “was aware he response, complaint filed a in state Avila anyway.” The com- violated them but hearing moving to from stop court Miyazaki, mean- Sergeant plaint against and, in pro- forward connection with that while, to be unfounded.14 was deemed ceeding, he filed a sworn declaration respect follows with adjudicator found as (1) again: which he admitted that for Miyazaki: years knowingly report he failed to over- 7s, through time when he his worked Code he self-serving. was And Avila’s claim (2) confirmed that his Maciel testimo- and plaintiff as a in a law- made it court Ultimately, accurate. he his ny was lost for un- suit [.Alaniz ] against from stop holding bid the BOR its hear- compensated overtime. ing. being trained on Avila admitted to appeared at the BOR with counsel right policy and his FLSA-related charge. to contest the He decided to re- compensation. sign day from the LAPD on the first of the after lunch hearing and did not return unsupported Avila’s statement was procedure Pursuant to BOR and break. as, dates, notes, facts, any specific such Chief, written direction from the the hear- for supervisors or notifications to other ing continued without him for the next have been a clear violation what would days, during attorney fully three which his of policy. witnesses, lodged participated, examined evidence, objections, put presented and part investigation, not While evidence, hearing his defense. After adjudicator personally aware (which assigned to the case panel the BOR for no granted employees overtime Captains of two LAPD comprised by supervisors basis regular Code 7 on civilian) guilty found Avila of “serious one Miyazaki. including and recommended termi- misconduct” up 7 overtime makes about 3 No Code “terminated”, nation. He was thereafter ex- percent of Central Area’s overtime though already resigned he had even accepted.15 resignation This fact is inconsistent penditures. quoted adjudicator accepted, as in the be-

14. There were some notable distinctions Miyazaki Avila was un- text. tween and Avila. knowingly equivocal he had committed Romney majority 15. The notes that Officers years. Miyazaki tes- misconduct over several LAPDin testified adverse to the and Anderson "probably” tified he violated the overtime too, they, the BOR Maciel and were sent to manner, policy in some but it was unclear Maj. Op. at 1098-99 & n. 1. As and fired. See might he have done so. Review his how before, Avila—ad- stated both officers—like that, extent testimony in Maciel reveals to the under oath. mitted to "serious misconduct” policies, violating the official he admitted to Romney know- Specifically, admitted that he very than what Avila had con- different ingly report for almost two failed to overtime supervisor, Sergeant Miyazaki to. As fessed (even mem- after the 2003 decades os), duty” to make reason- had the "affirmative admitted while Officer Anderson to be that his officers were able efforts sure testimony, in her Maciel but to misconduct (or through) being paid working taking guilty charges that, actually pled to one of the she He testified due to the their Code 7s. Romney and the BOR. her being watch commander and demands of allegedly supervisors who Anderson identified duty his affirmative re- confusion as to what policies well. None the overtime policies. violated quired, might have violated the he But, supervisors admitted to the miscon- of these strongly that he ever discour- denied rather, overtime, (but, wrongdoing), denied aged seeking which duct officers from appeal Avila did not the thing BOR’s determi- the same independent of the fact means, nation. this Importantly, (for as the employee had testified exam- held, district court had earlier that he is ple, if the misconduct had been discovered “bound the factual findings of the way). would, in some other departmental poli- BOR—that he violated course, required not be to make such a cy and that such insubordination was finding might find that the adverse —it grounds for termination —and [he] cannot could, action retaliatory de- —but challenge findings[.]” those pending on all of the evidence the case. mind, foregoing Accordingly, With the I do not “same decision” defense agree had “no evidence” to instruction is if warranted an support the “same decision” affirmative admits to testifying. misconduct while that, defense. This court has said for the Consider the facts of this case. Avila proof required defense, to assert this an (albeit “model”) very good not a employer objective need have “some police per- officer who received favorable evidence” that it would have taken the formance reviews—even he sued the after notwithstanding same action allegedly LAPD for violating his FLSA activity. Chassman, Metoyer See 504 rights. supra See note 11. There does Cir.2007) (citation 939-40 appear not have been reason for omitted). Because the inquiry is “an in- adverse action him he took before one”, tensely factual mixed motive defens- the stand in Maciel and testified as he did. generally es “are for the to decide.” If knowing and repeated “serious mis- (citation omitted). Id. at 940 conduct” that he admitted to during his I have included evidentiary these details testimony is not sufficient sup- evidence to from the record because majority port the samе decision defense in and of simply states cannot argued “[i]t be on this itself, logic of that position would nec- record that Avila would have been fired essarily mean that he could have admitted had he not Maj. testified.” See atOp. just about anything including “wide- — my opinion, 1103. In majority fails to spread beating of civilians”—and still not draw the critical distinction between the have been fired as his mostly record was act testifying admitting to insubor- unblemished and did not otherwise war- dination testifying. while There legal is no rant discipline. To the extent treating basis for as privi- majority suggests there must be “other leged. An employee is not entitled to full evidence alleged separate infraction” use immunity when he during testifies from stand, the admissions on Maj. see otherwise proceeding. He can Op. law, simply that is not the as testify reprisal without fear of unless he even Avila’s counsel conceded in the dis- implicates Thus, himself in some manner. trict court and on appeal. supra this case, as in this where there is evidence note 2. before the that an employee admitted Moreover, even if Avila’s admissions on penalty under perjury that he was the stand could not be used as the basis knowingly repeatedly insubordinate instruction, for the “same decision” many there years, that testimony is automat- separate ically “other evidence” that objective “some would evidence” for qualify. “same decision” For because, example, defense. This Avila testified case, in such easily could this case that he saw deter- Detective Bass in the mine that would Maciel, have done courtroom before he testified in following tigations. exonerated internal inves- Finally, appeal him Avila did not or chal- and told introduced herself and she ruling. Consequently, lenge the trial for BOR’s there to watch that she was earlier in this significantly, Av- the district court held Very Management. Risk dispute ap- had told her and as does ila has conceded to, by the factual testify peal, she he is bound BOR’s he was about to exactly what him, “that he report findings, including violated de- “required” to would have been partmental policy and that such insubordi- to be disci- “expect[ed]” and he would have grounds termination[.]” conver- nation pre-testimony that plined. While separate independent never took This is “other Detective Bass sation with support his evidence” to the “same decision” accuracy of place, Avila confirmed affirmative he defense. testimony investigators Maciel after fired). (and If before he testified Thus, even if Avila’s admitted miscon- according admission pre-testimony could— objec- testifying while was not “some duct justify discipline and to Avila himself— support the “same deci- tive evidence” a “same deci- provide a foundation for thus (and I instruction all itself believe sion” defense, con- posi-testimony then his sion” was), there considerable other evi- as of those admissions should firmation post-testimony at trial: his confir- dence well. insubordination, of the his sworn mation declaration, legally binding administra- Further, that majority’s statement testimony findings, in is factual and his be- evidence this case tive uncontested “[t]he in this case that he would not have been fired had fore that Avila would testified”, if he had said the Maj. Op. disciplined at is have been he not see Far thing testifying. while not with Avila’s own testi- exact same difficult to reconcile noted, support “no evidence” to expressly being con- from there mony. just As he was, defense, affirmative there exactly City’s he that if he had said what ceded fact, ample in evidence from which a rea- in the Maciel case other testified to sonable could have found “expect[ed]” he would have setting then made the “same decision” him. That conces- would have discipline the LAPD to sufficient sup- evidence to this case. by itself is sion decision” defense instruc-

port the “same Westminster, C. tion. Gilbrook Cf. (9th Cir.1999) (stating 855 harm- As to whether the error here was protected con- “an cannot use less, majority’s opinion and Avi- both the a dismissal that as a shield duct Ackerley, rely on Lambert v. la’s brief absence have occurred even would (9th Cir.1999) (en banc), which F.3d 997 conduct”). give failure to that the district court’s held harmless. addition, decision instruction was declaration same sworn course, analysis, error “rests try stop the BOR hear- Harmless Avila filed to facts” of each individual knowingly particular that he on the ing further affirmed Frazin, States v. policy by official case. See Unitеd violated the LAPD’s (9th Cir.1986). What reporting and not su- reporting overtime well, in one case “could him do so. harmless error allegedly told pervisors facts,” set of not be from under a different separate apart This evidence— in another case. See considered harmless provided other Maciel— compare important It is thus decision” instruc- id. grounds for the “same presented to the facts facts of Lambert tion. here, significant ways and note the three See (citing id. 1009-10 cases where it very which the cases are different. was held that “an instructional error re- garding liability light [is] harmless in of a First, recognized, the court the evi- award”). punitive damages Not overwhelming, dence in Lambert was itas punitive damages not awarded in this awas “rare” mixed motive case that had but the awarded Availa about 1% of (to wit, direct evidence of retaliation compensatory damages supervisor plaintiff statement from a sought.16 “definitely job” would not have a Third, would “be fired” if she filed a jurors FLSA in Lambert did not ask claim). panel 180 F.3d at 1008-09. The multiple questions two sets of while delib- (after “strongly said that the direct evidence sup- erating day into third hearing ported]” finding. evidence), its harmless error days three strongly sug- id.; Merritt, 120 accord F.3d at gesting they 1188-91 by were confused (concluding employee that an who admits instructions and having a difficult time rec- testifying misconduct while in a protect- onciling them with the evidence. Rose Cf. ed proceeding may Lane, (7th Cir.1990) be 400, terminated and the v. 910 F.2d 403 granted summary will bе judg- (stating in a habeas case that involved an ment, unless there is “direct evidence of erroneous instruction which led to follow- motive”). retaliatory jury There was no direct up question: question “While this here, evidence and there was sufficient variety could have a implications, circumstantial evidence to support a ver- possible jury indicates confusion over the dict for City. manslaughter instructions and therefore contributes finding to our that the instruc- Second, the Lambert court very found it harmless.”).17 tions were not important spent pages two discuss- —and ing the jury fact—that case, awarded the In this the absence of the “same million in punitive damages. $12 decision” defense instruction and the inclu- During closing argument, attorney appeal, Avila's suggests the issue on 16. jury which "the $230,000.00 requested had in economic dam- actually struggled question”; with that col ages and 4.5 million in non-economic dam- lecting multiple involving juror requests cases $50,000.00. ages. jury gave him "lengthy and deliberations” between two to days five that showed the evidence was close Although always try it is difficult to " expect ‘one would that if the evidence ... thinking ques infer what a with its overwhelming would have suc tions, case, questions on the facts of this ”); cumbed much Aguilar sooner' see also v. telling. jurors astutely are asked five 970, Woodford, (9th Cir.2013) 725 F.3d 984 questions related that centered on the exact (questions days and notes over four of deliber problem that was created the erroneous close) ations showed the (citing сase was Rho questions instruction. The last two asked Rowland, 633, (9th den v. 172 F.3d 637 Cir. "legally]” whether the LAPD could use Avi 1999) (deliberations of nine hours over the him, la’s testimonial admission days course of three indicated that the jurors given were not the answer. If the cut”); "did not find the case to be clear Gib evidence of retaliation in this case was so Clanon, 851, (9th son v. 633 F.2d 855 n. 8 overwhelming that the error could be harm 1980) (“it Cir. less, possible does not seem that the unlikely it is would have jury would have deliberated nine hours over question asked that day on the third of delib days jurors [the course of two] if the did Chappell, erations. See not Thomas v. 678 F.3d 1086, (9th Cir.2012) questions”)); have serious United (referencing 1103-04 States v. (7th Ottersburg, 1996) "objective two "strongly suggest 76 F.3d 140 clues” that Cir. (nine close”, namely, that the case was hours of deliberations the fact that "makes clear that jurors day deliberated easy into the fifth this case was not an one for those called requests fact”). sent two specifically” that "related to serve as finders of

1119 error, That chance to defend itself. based “no role” instruction sion of its depriving jury questions, appears to have effect practical and several This circuit defense. entire While rea- been outcome-determinative. (but held, mostly not albeit have (and others may disagree jurors judges) sonable context, that an criminal exclusively) on the merits of this what should be “pre if it found harmless cannot be error beyond disagreement is that presentation [a impairs or cludes were denied thе fundamental its citizens means of defense.” sole defendant’s] to which were enti- right of defense Carter, 491 F.2d v. States United error oc- tled under the law. Reversible (5th Cir.1974); States v. see also United curred, and this case should be remanded Cir.1988); Peak, F.2d 834-35 trial. for new Harris, v. States United I dissent. respectfully (2d Cir.1984); accord United States (9th Cir.2013) Evans, 953, 967 ex judge’s trial erroneous (concluding that piece of evidence” of the “central

clusion and which “main defense” for defendant’s dispute “very heart” of went to the harmless, notwithstanding the could be “overwhelming volume and substance evidence”); & government’s Ashcraft AMADO, Petitioner-Appellant, Randall 948, 949, Coady, v. Gerel (D.C.Cir.2001) trial error in a (holding that very heart of case which went “to the civil GONZALEZ, Warden, Terri California “cen defense” and was defendant’s] [the Colony, Respondent- Men’s could not be deemed tral to defense” [his] Appellee. any steps by “in the absence of harmless No. 11-56420. mitigate the effects of the district court error”). Appeals, United States Court harmless, not The error was Ninth Circuit.

but, me, objectively plain. seems ‍​‌‌​‌‌​​‌‌‌‌​​​​​​‌​​​‌‌‌​‌​‌‌‌‌​​​‌‌​​​​‌​​‌‌‌‌‍8, 2013. Argued and Submitted Jan.

Ill July Filed provision anti-retaliation The FLSA’s However, it does purpose. a noble

serves immunize an em- not extend so far as to admits to takes the stand and ployee who public in- misconduct. While serious may application favor a liberal terest cases, it is statutes some retaliation whether that interest highly questionable inherent unfair- being served here. The (i.e., taxpayers of public ness is pay Angeles) required will be about Los where, $700,000.00in because of an a case given twice instruction erroneous (and that were twice special instructions

denied), city deprived their

Case Details

Case Name: Avila v. Los Angeles Police Department

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jul 10, 2014

Citation: 758 F.3d 1096

Docket Number: 12-55931, 12-56554

Court Abbreviation: 9th Cir.