*1
1022(b) (additional
§
See 29 U.S.C.
re- whether Greeley relied on or was preju-
quirements omitted); see also Palmisano
diced
the February 1998 memorandum,
'
v.
Inc.,
Allina
Sys.,
Health
because “an ERISA plan cannot be
(8th Cir.1999).
regulations
fur-
changed by informal amendments, even if
ther require that an SPD contain the em-
employees relied on those amendments.”
ployer identification
assigned
number
by Antolik,
number assigned by plan sponsor and
a statement plan of a participant’s ERISA
rights. § See 29 C.F.R. 2520.102-3.3
In holding Saks, letter Incor-
porated had directed to its employees did
not constitute an
law,
SPD as matter of
the Antolik court noted that
the letter
WALLACE,
James D.
Plaintiff-
lacked
indication that it intended to be
Appellant,
SPD,
nor did
explain
complex plan
provisions regarding termination
par-
of a
ticipant’s eligibility,
benefits,
available
CITY
DIEGO; City
OF SAN
of San
claims procedures and
remedies
claim
Diego
Department,
Police
denials.
orandum and its attachment do not identi- fy type of administration of the plan, Aug. 25, Filed 2006. the identity of organization through Amended Feb. which the LTD provided, benefits are date of the end plan year and how
plan records are kept, employer
identification plan number number.
See 29 1022(b); U.S.C. § 29 C.F.R.
§ 2520.102-3. Since February
memorandum does not substantially com-
ply statutory with the and regulatory re-
quirements SPD, for an it does not consti-
tute an SPD as a matter of law. See
Antolik,
Because would hold that February
1998 memorandum was not a faulty SPD
as a law, matter of I would not reach the
question today by court, addressed regulations further, 3. The impose lengthy though entirely it is not clear which of these quirements particular types plans, may apply here. *3 CA, Coronado, Chapman,
Carolyn appellant. *4 Attorney, City Stiffler, Deputy Mark CA, the appellee. for Diego, San BROWNING, R. Before: JAMES FISHER, S. and JAY C. RAYMOND Judges. BYBEE, Circuit ORDER for rehear- petitions us before haveWe City of San Appellee both ing from Wallace. Appellant Diego and I. vote Fisher Judge Browning and
Judge for petition Diego’s City of San deny votes Fisher Judge rehearing. panel banc, en rehearing petition deny recommends. Browning so Judge petition grant Bybee votes Judge petition rehearing for panel petition The banc. rehearing en full circulated en banc hearing a vote requested has judge and no court en banc. the matter rehear whether P. 35. RApp. Fed. PAN- FOR PETITION
APPELLEE’S REHEAR- AND REHEARING EL DENIED. BANC EN ING II. slip August filed opinion 1181], appearing F.3d [460
op. 10171 at is amended replace all the Uniformed Services Employment and within the text part V of opinion Reemployment Rights Act (USERRA), 38 (slip op. 1196) 460 F.3d at §§ U.S.C. seq., et and awarded him the following: $256,800 in damages, Wallace ap- also peals
We do not the district court’s consider the finding merits Wal- that the liquidated lace’s verdict damages “was argument great weight be- cause not preserve did evidence.” addition, the issue for appeal. A seeks reversal of renewed motion for judgment finding that the City’s as a matter of violations of preceded law must be USERRA were not willful, a motion precluding made at trial that sets forth assessment liqui- specific dated grounds damages. raised in the re- newed motion. See Fed.R.Civ.P. We jurisdiction over appeal 50(a)(2) (“The motion specify must ... the final judgment of the district court the law and facts that entitle the movant 1291(a). § 28 U.S.C. We reverse to the judgment.”); v. Walter Lifshitz the district grant court’s of judgment as a Sons, Inc., Drake & 1429 matter of law as well as its conditional *5 (9th Cir.1986) (“A directed verdict mo- grant of a new trial. We hold that the tion can therefore serve as the prerequi- jury’s finding that the City constructively j.n.o.v. site to a only if it includes the discharged Wallace and took other retalia- specific grounds in j.rno.v. asserted the tory actions against him in violation of motion”) When making his motion for USERRA was supported by substantial judgment as a matter of trial, law at evidence and was not contrary to great Wallace failed to articulate the issue for weight of the However, evidence. we af- which he was seeking judgment, let firm determination that liqui- alone the law and facts entitling him to dated damages should not be awarded be- that judgment. Consequently, the issue cause Wallace failed to preserve the issue properly before us on appeal. appeal. With this amendment, panel unani- I. mously votes to deny petition panel rehearing. employed Wallace was as a police officer with the San Diego Police Department
No further petitions for rehearing will (“SDPD”) 28, from March 1975 until Octo- entertained. 10, ber 1981, In applied Wallace and APPELLANT’S PETITION FOR was selected for position a as a police PANEL REHEARING DENIED. detective. In promoted SDPD Wallace to the position Sergeant. of OPINION Beginning in Wallace served as an BROWNING, Circuit Judge: officer in the Naval Reserve. As a reserve Plaintiff-Appellant James D. officer, Wallace Wallace served annual tours of ac- appeals the district court’s order granting duty tive of two to weeks, three typically the Defendant-Appellee City of San using Die- paid leave time from the SDPD to do go’s (“City”) motion for judgment as a so. In Wallace was called up matter of law and conditionally granting a active duty and served seven in months new trial. The district court issued Operation its Desert Storm Iraq. Upon his order after a found that the City return to the SDPD from Iraq, Wallace retaliated Wallace in violation of applied promotions numerous times for be- it Guevara. and submitted tigation never was but Sergeant, level of yond asked report and rejected the Guevara Iraq, Wallace serving After considered. changes. of number a to make Wallace duty. tours annual to serve continued time a in his that testified Wallace military leave from returning Upon re- report a had never sergeant, 1996, the and in 1995 again and Nevertheless, he superior. a jected ato division Wallace assigned again and changes requested made gave his home far department Guevara, who in to report turned responsibili- or reduced undesirable him further requesting rejected again se- despite Wallace’s occurred This ties. made the once more changes. Wallace more conve- were there niority and In October changes. requested assignments more desirable nient report completed having prior department. within available investigation approved, days serving 97 1996, after In December of active tour an extended up called assigned duty, Wallace of active duty, active leaving on Prior duty. began Division Southern SDPD’s report of the draft copy gave Jorge Guevara. Lieutenant porting materials investigative underlying investigation an initiated 1997, Guevara in- subject of Needham, the Officer accused which incident testified vestigation. officer police striking female law, Need- the State believed incident newspaper. with a buttocks copy see right ham the officer instructed as Wallace occurred trumped right report, *6 she whom with officers other several in regulations, which department trary to get back meeting to a talking after was How- law. the state predated any event investiga- During the duty stations. their active returned ever, when Wallace aware not he was tion, stated Wallace with 1998, faced he was April in duty carrying was he newspaper the pro- disciplinary investigation an had, it was that, if it officer, and the aAs struck conduct. this concerning ceedings 1997, Nevertheless, April in a accidental. served Wallace result, Guevara left again Wallace days before Wallace which three action of adverse notice a Wallace issued duty, chief, Guevarra af- military who police appealed transfer. disciplinary a action. reprimand disciplinary firmed as experience his in testified Wallace return, Wallace addition, his upon In unusually discipline was this supervisor, a evalua- performance annual his received appeal not did However, Wallace harsh. peri- Guevara, covered which tion from permit- policy department as decision 1997. It September September od leaving on he was do, because him ted evaluation standard” “below first was the it was as days, and duty in three active his career with in received he had no received, he had discipline first a number cited The evaluation SDPD. of a part become it would believe reason rating, in- standard below reasons pattern. It incident. newspaper alleged cluding the instances of other number a assigned also included was July In testi- Guevara which alleged misconduct a complaint about citizen’s investigate contrary but, informed had been fied he Needham. officer, James subordinate investigated. had not policy, department Wal- thereafter, August in Shortly experience, his testified duty. Wallace active tour brief served lace based on to be were evaluations annual inves- his return, completed Upon unsubstantiated or uninvestigated allega- inquired Guevara whether Wallace could tions, and he believed these were provide instances documentation of his attendance at improperly considered his rating. As a weekend naval reserve drills. Wallace tes- result evaluation, of this tified that his drills had never conflicted placed on a day supplemental perform- with schedule, his work and that such doc- ance review. In July of he received umentation had never been required of rating of “competent.” him before. He knew of no other reservist department who required Wallace testified that the usual proce- provide it. 2,1999, On March dure in the SDPD give was to an officer given a one-day suspension as a result of performance annual very evaluation the Needham incident. soon after the end year the evalua- covered, tion instance, in this in September In March Wallace was called up 1997. Wallace told that a supple- duty active Bosnia, and received performance mental review is intended to running orders through July 1999. At allow an officer chance to poor correct that point, Wallace had attended no week- performance, and is therefore intended to end drills since request Guevara’s for doc- be imposed as soon after the incidents umentation. Subsequently, Wallace’s or- giving rise to poor performance review ders were extended until September 29. possible. instance, Wallace did On August after Wallace had been not receive the supplemental performance away on military leave for over four review until many months after the end of months, and at about the time his tour was period for which he received the nega- extended for a further 60 days, Guevara tive evaluation. Had Lieutenant Guevara initiated investigation of Wallace for put Wallace on a supplemental perform- teaching at police academy on day ance review in September 1997, Wallace off without approval. In the same disci- would have been on military leave during plinary package, Guevara initiated disci- most of supplemental review period. plinary action for Wallace’s pro- failure to suggested that Guevara departed *7 vide documentation from his naval reserve from department practices gave and him commanding officer that he had attended the performance review when he returned his drills, weekend even though he had punitive as a measure. only inquired about such documentation
In August 1998, Wallace served three two prior weeks to Wallace’s leaving for week tour of active duty. In September, Bosnia and had not ordered him to provide shortly return, after his he again it, received and despite Wallace’s having attended rating annual of “below pred- standard” no drills since that inquiry. icated primarily on the disclosure of the On August 4, while still in Europe, Wal- investigatory information to Officer Need- lace received the orders extending his tour ham. of duty until September 29. Because the In February 1999, Wallace that learned orders were back to back previous with his he was going to be up called for an extend- orders, Wallace was required not to fill out ed tour of duty in Bosnia. At around the an additional notice of leave form with the time, same division Captain Cheryl Ann police department. On the day he re- Meyers denied request to teach ceived his orders, new he faxed them to the police academy on his off, day Guevara. On that day, same however, though been, he had doing so regularly began Guevara a disciplinary investigation since the early 1980s. Also in February, on Wallace for his failure to report to work Chief suspension, issuing sion. expected been 3, day he had August on had been Wallace that concluded Armstead orders. original his from back notifying [his] responsible than “less Sep- on from Bosnia returned Wallace in a duty military] status of [his command military days of four took 25 and tember and October August manner” timely 1999, 1, he received October On leave. it was that recognizing 1999, the while all duty in for a tour military orders new expect to for the reasonable not He through March running Bosnia duty at for report “to either on the SDPD to orders those delivered mili- is] [he when Department Police request leave out a 2, filled October a Leave out “to fill tary orders” was Guevara Because form. if timely [he] manner ain form Absence with Gue- the orders left office, Wallace extended country and under out orders, to his Pursuant assistant. vara’s addition, al- 65] In military [ER orders.” reviewing Upon for Bosnia. left he then that Gue- agreed Chief Armstead though leave, Gue- for request the orders deny authority to not have “did vara military approve vara refused military leave for request [Wallace’s] 2000, 5, while Wallace January On leave. absence,” issued she nonetheless Bosnia, Guevara duty on active was of miscon- instances warning “further for Wallace’s investigation another began strin- for “more grounds would be duct” on October to work report failure “termination.” action,” including gent leave without being absent 65] [ER his approve had refused after Guevara later, July days Four trial, testified At Guevara request. leave Division from the Eastern transferred discipline Wallace was to intent that his Division, closer much Northern of his department inform failure his he wel- testified home. failing to than for whereabouts, rather no he would because transfer comed However, he admitted work. port to Guevara, that working for longer report failure to charge su- new well” pretty along “[got] onwas active when Wallace a day work nega- he did not pervisors that he also He admitted military duty. However, on with them. experiences tive disapprove authority to without into 17, 2000, a month-and-a-half August request. the leave nonetheless Guevara assignment, new returned Shortly before Wallace evalua- performance on Wallace served Mey- Guevara in March Bosnia *8 previous for the “unacceptable” tion proceedings termination initiated ers tak- actions disciplinary on the year based disciplin- three upon him based against serving been him while against en Wal- filed while Guevara ary packages conjunction in Bosnia. duty active on termi- duty. The active away on lace was placed Wallace Guevara report, with this on on Wallace served package nation perform- 90-day supplemental another on Wal- return. after his 2, days a few April notwithstanding Wallace review, ance a Guevara to work lace returned command. his direct longer under no 19, his appealed May later, on month as- month, following Po- Chief the Assistant termination complaint a citizen’s investigate 27, signed Chief On June lice, Armstead. Rulette spoke heWhen officers. of his one against rescind- five-page order a issued Armstead as described citizen, whom for termination recommendation ing the file a threatened she mentally impaired, suspen- four-day a imposed instead 624 complaint against him if plaintiff
discrimination
he whether the
suffi
presented
has
support
jury’s
cient evidence to
complaint.
failed
substantiate her
With
conclu
sion.
id.
See
at 1227-28. While
the court
supplemen-
more than a month left
record,
must
evidentiary
review the entire
performance
period,
tal
review
it
all
disregard
must
evidence favorable to
10,
signed from
the SDPD
October
moving party
that the
is not re
quired to believe.
Id. at 1227. The evi
trial,
sought
At
un-
prove
must
light
dence
be viewed in the
most
resignation
der
that his
USERRA
fact
party,
to the nonmoving
favorable
and all
constituted constructive
reasonable inferences must be drawn in
a
of the City’s
number
favor
that party.
Judgment
Id.
as a
employment
other adverse
actions were
granted
where,
matter of law
be
only
exercising
undertaken
retaliation for
viewed,
so
permits only
the evidence
one
rights
military
as a
reservist. After
conclusion,
reasonable
and that conclusion
receiving instructions
that an adverse
contrary
jury’s
verdict. McLean
employment action includes constructive
(9th
1150,
v.
222
Runyon,
F.3d
Cir.
discharge,
reprimand,
suspension or a
2000).
causing a significant change
decision
In determining whether an em
benefits,
found that
ployer
against
retaliated
a reservist
had retaliated
Wallace in viola-
USERRA,
exercising his rights under
we
tion
damages
of USERRA and awarded
must first decide
the employee
whether
$256,800.
The district court set aside
rights,
thereby
exercised such
coming
supported by
this verdict
“not
as
sub-
within
of persons protected
the class
by
stantial
granted
evidence”
so,
If
statute.
then we apply the
SDPD’s
for judgment
renewed motion
burden-shifting
approved by
framework
law, or,
alternative,
a matter of
Supreme
Court in
Transpor
NLRB v.
new trial.
Management
393,
tation
Corp.,
U.S.
(1983).
103 S.Ct.
625 application reemployment. formal for per- such any person because tion However, date, (4) right provided a even before this exercised son ... has 4311(b).1 § his repeatedly exercised USERRA 38 U.S.C. chapter.” for in this right reemployment when on several court concluded to To extent the district the gave proper notice of his prior to the time Wal- occasions need that actions taken absence, a military for reem- for service-related took application his lace submitted totaling days a leave less than 31 on each 2000 could not as ployment April retaliatory, incor- and reported it was occasion to work within the matter of law be a provides prescribes. of time the statute See 38 U.S.C. rect. Section 4312 USERRA 4312(a) (e)(1)(A). Further, § for of the evidence right reemployment to members (1) notify suggests in the record relation- properly services who armed ship superiors need a with his was strained at employers their of the for service- (2) service, absence, part military ab- in due to take cumulative least his related (3) that years permits no than five which an inference adverse sence of more for taken even reapply employment to or actions were be- report work properly 2000 his upon length April the of fore because of exercise of employment, depending by § rights protected An em- USERRA. the 38 4312. absence. U.S.C. right exercises this whenever
ployee complying after reemployment
seeks B. of section.2 The em- requirements the discharge occurs Constructive appropriate sec- ployee need not cite when, totality “looking at the of the cir seeking when reem- tions of the statute cumstances, ‘a person [the reasonable its notify employer of ployment or felt employee’s] position would have obligation reemploy him. legal quit he was forced to because of intoler 4, 2000, discriminatory working mili condi taking able and April On after ” Co., Ins. tions.’ v. Nationwide tary days, more than 31 Watson leave of (9th Cir.1987) (alteration reemployment in con 823 F.2d 361 right invoked submitting original).3 We have said by “[i]n formance with USERRA "by employer of intent to return submit- Although is used the term "retaliation” USERRA, ting application reemployment not gravamen later of this section is peri- days completion prohibit than 14 after employment adverse actions taken 4312(e)(1)(C). § If rights pro- Id. at od service.” retaliation for exercise of days, period 180 by Gagnon Sprint v. of service was for more than See vided USERRA. (Sec- Cir.2002) appli- employee days 90 to submit an has Corp., 284 F.3d 853 4311(b) reemployment. Id. "[t]he sets out USERRA standard cation tion claims”). 4312(e)(1)(D). correctly § in- for retaliation statutory structed on the details Jury No. 15. See Instruction scheme. following require- 2. USERRA sets forth right reem- for the exercise ments plaintiff alleges military constructive dis- ployment: person leave was 3. Where A whose statute, charge days violation of a federal entitled to USERRA’s than is less per- governed a federal rights if structive reemployment and benefits Pennsylvania See State Police employer her] standard. of[his ... “notif[ies] son 129, 141, Suders, 124 S.Ct. employment U.S. position intent return " (2004) (setting standard upon out by reporting employer com- 159 L.Ed.2d .... VII). discharge under Title pletion period of service. 38 U.S.C. constructive contrast, 4312(e)(1)(A). suggests Wallace's USERRA By person § The dissent whose governed by days state law because period than claim of service was for more *10 discharge, as a required notify asserted vio- days to constructive here less than 181 is but 626 (2) simply cases the individual has imposing discriminatory
such
excessive and
enough;
anymore.”
disciplinary
can’t
in response
she
take
action
to actual
(the
Rochester, Inc.,
Draper
newspaper
v. Coeur
147 F.3d misconduct
and Needham
Cir.1998).
1104, 1110(9th
incidents);
(3) refusing
justifica-
“Whether work
without
explanation
tion or
to
ing
approve
conditions were so intolerable and dis
Wallace’s
requests for permission to teach
criminatory
justify
as to
a
at the
reasonable em
(4)
Academy;
initiating
Police
resign
disciplinary
ployee’s
normally
decision to
a
proceedings for
absence from
question
jury.”
factual
Schnidrig
Inc.,
military
work
on
Mach.,
duty
while
1406,
v. Columbia
80 F.3d
(5)
1999;
(9th Cir.1996).
August
refusing
Guevara’s
to
1411
In order
prevail,
to
“a
1999;
approve military
2,
on
leave October
plaintiff alleging
discharge
constructive
(6) initiating
proceedings
termination
factors,
aggravating
must show some
such
suspending
days
Wallace for four
based
pattern of discriminatory
as a continuous
foregoing discriminatory
disciplinary
Id. at
treatment.”
1412.
(7)
action;
threatening
fur-
Wallace that
Although
single
“a
inci
isolated
ther misconduct could
result
termi-
dent is insufficient as a matter
lawof
(8)
nation;
issuing
“unacceptable”
an
support
finding
of constructive dis
rating
putting
an
addition-
1411-12,
charge,”
upheld
id. at
“we have
90-day
al
supplemental performance re-
findings of
factual
constructive discharge
view as late as August
Although
plaintiff
subjected
when
to inci
permitted
evidence
have
dents of
peri
differential treatment
over
conclude
some
this conduct was not
Watson,
years.”
od of
or
months
823 F.2d
retaliatory
discriminatory,
legiti-
but
361;
Smith,
at
accord Satterwhite v.
744
discipline,
mate
compel
it did not
such a
1380,
Cir.1984);
1383
see also
conclusion, particularly
viewed,
when
as it
Co.,
Sys.
v.
Goss
Exxon
747 F.2d
Office
be,
light
must
most favorable
(3d
885,
Cir.1984);
887-89
v.
Real
Conti
Johnson,
Wallace. See
has, beginning, been issue actions taken him in the Eastern Divi- *11 in review 90-day supplemental related and considerable placed court district his new days into roughly 45 August work- that Wallace’s on evidence 2000— emphasis willing was still Guevara assignment in somewhat improved had conditions ing —that discriminatory continued to take his and able preceding immediately period time the his trans- after even delay against Wallace action been a had that there resignation, Moreover, Division.5 the Eastern discrimi- from overt fer the last of the time between light most sub- the evidence had been viewing to which natory action Wallace, jury could have the the to that and favorable resignation his jected condoned the resig- the SDPD his that determined immediately precipitating event behavior, the that de- given military discriminatory service to his unrelated nation action disciplinary part no on the had discriminatory action taken partment toor East- two of the Meyers, But none Guevara department. police carried that had who supervisors a conclusion precludes Division ern factors these retaliatory conduct. discharged. constructively the bulk of out the we the termi- rescinding that maintains Indeed, in her order Similarly, the dissent the that the imposing requirement the recommendation disregarded nation have of the time at Armstead exist Chief suspension, conditions four-day intolerable at Dissent the resignation. not au- “did have employee’s Guevara the ceded that that instead, conclude requests we deny” Not thority 632-33. to so— Thus, met here. this is case this standard absence. leave of military by cited from the cases distinguishable the to transfer First, although Wallace’s per- here dissent, evidence because incrementally have Division Northern that to conclude jury a reasonable mitted conditions, jury working improved had not conditions employment concluded, on Guevara’s based have could a con- preclude changed to sufficiently evaluation performance “unacceptable” Wallace, could light most favorable nothing that "there sion” the North- the transfer concluded have the situation.” to correct done have could put end to necessarily not Division did ern go holding does But our 1728. at Dissent working discriminatory his "intolerable proper finding in a preclude far as so jury could example, the For conditions.” have employment the conditions case super- retained that Guevara concluded of con- a claim changed bar sufficiently even authority over Wallace visory that, after Rather, we hold discharge. structive Division, on based Northern transfer the reason- nature given the fact-intensive performance 90-day supplemental Guevara’s at Schnidrig, inquiry, see ableness review, well after he issued which permitted case this the evidence Indeed, evidence transferred. had been person "a reasonable conclude that was fac- supports the inference [he] felt that would have position [Wallace’s] expira- at review performance ing another intolerable quit because was forced period supplemental review tion of conditions,” notwith- working discriminatory 17, 2000, input from with perhaps November changes employ- mitigating standing some likely Guevara, a review such and that trans- since his occurred conditions ment the citizen’s transpired from whatever include July 2000. Division to the Northern fer that in clear cases make complaint. Our weigh verdict, may not we juiy’s viewing a Gue- Although dissent characterizes would), because (as the dissent evidence "re- aas mere August 17 evaluation vara's determining wheth- only charged we are City cured the conduct minder supports evidence er transferring substantial earlier month-and-a-half it is discharge, "even if Division,” finding of constructive Dissent to the Northern contrary conclusion draw possible to also inference impermissible this is an n. Johnson, 251 F.3d evidence.” the same from in favor drawn evidence at 1227-28. evaluation Viewing Guevara’s SDPD. *12 628 claim, discharge
structive notwithstanding trary. The jury was permitted to consider his transfer to the Northern Division. See all of this evidence and against balance it Corp., Montero AGCO 192 F.3d 861 any that evidence Wallace’s working condi- (9th Cir.1999) (harassing supervisors disci- tions had See, improved. e.g., Draper, 147 plined or fired months before alleged con- F.3d at n. 2 1110 (noting that “[t]he fre- structive discharge); Steiner v. Showboat quency and of freshness the instances of Co., Operating harassment may enter into” a jury’s deter- Cir.1994) (same). mination of constructive discharge, but addition,
In
given
past
experi-
jury
that a
is free to find constructive
ence with
SDPD,
the jury could have discharge
“under all
the circum-
concluded that
reasonably
”)
feared
added).
stances
(emphasis
Thus, al-
subsequent
transfer
to a less desirable
though evidence of an improvement
in
post or to Guevara’s
again.
division
More- working conditions supported a conclusion
over, although he
longer
was no
working
contrary to that
reached
the jury, it did
Meyers,
Guevara
Assistant Chief not require such a conclusion.6 According-
Armstead
still
at the top of his chain ly,
the district court should not have
of command. She
imposed
the four- usurped
basic factfinding au-
day suspension and had issued the threat
thority,
including the authority to weigh
that further misconduct
grounds
would be
evidence and draw inferences from it. See
Indeed,
termination.
one witness testi-
Johnson,
taken against legitimate, Wallace were In the grant alternative to its and that it therefore rebutted show- of the City’s motion for judgment as a ing that the actions were discriminatory. law, matter of the district granted court City Even if the offered of legiti- evidence City’s motion for trial, a new finding mate, non-discriminatory reasons “against great verdict weight many of these adverse actions—an issue of the evidence.” We review the district on which it bore the burden of proof grant court’s of a new trial for abuse of —the *14 required was not to credit this evi- discretion. Partners, Silver Sage Ltd. v. Indeed, dence. City the presented Springs, evidence Desert Hot 251 F.3d of (9th Cir.2001). the permitted an may inference that district court these grant a new trial disciplinary actions, only jury’s if the while verdict depart- within against was weight the clear policy, ment the evi unusually were harsh and dence. Id. at 819. “[A] district may court simply provided pretext the City for grant not a new trial simply because it against discriminate Wallace because of would have arrived at a different verdict.” his military Moreover, status. City the Id. Accordingly, “if the verdict is not fails to take into account evidence offered against the clear weight of evidence, by Wallace suggested which these legiti- may we find that a district court abused its mate reasons were merely pretextual. discretion in granting a new trial.” Id. In For example, Everett Bobbitt testified addition, an “[i]f exercise of discretion is that in his experience, the SDPD had based on an erroneous interpretation of never required a reservist provide doc- law, the ruling should be overturned.” umentation of attendance at weekend Miles v. State California, drills, although City personnel procedures (9th Cir.2003) Arden, (citing In re permitted department to demand it. 1226, 1228 Cir.1999)). Accordingly, we cannot conclude that the As above, described the district court’s evidence compelled a finding that these ruling was based two erroneous inter- actions were not discriminatory. pretations First, of the law. the district Similarly, City argues court erroneously held only —and adverse court below held—that Wallace’s testimo- employment actions taken after an em- ny that he liked his superiors ployee immediate formally asserts his statutory rights and fellow officers in may retaliation, division to constitute which only he was such assigned actions subsequent his four- considered deter- day mining suspension whether precludes employment a finding of conditions rose to the required level discharge. finding structive for While improve- constructive discharge. Second, the dis- ment in certainly conditions is relevant to trict court that, erred concluding as a Wallace’s claim of constructive discharge, law, matter of the evidence not support did in light of the other presented, evidence he a finding of constructive discharge. Be- it does not compel a contrary conclusion cause the district court grant based its of a that of jury. new trial analysis on its City’s mo- Because substantial supported evidence tion for judgment law, as a matter of these verdict, the jury’s we conclude that errors of law compel us to conclude that district court erred in granting judgment the district court abused its discretion in as a matter of law. ordering a trial. new dissenting: BYBEE, Judge, Circuit review addition, a careful after was jury’s verdict record, hold that past we a checkered James Wallace the evi- weight of great Department Police Diego San occasions, (“SDPD”). well was numerous dence, this reason On for disciplined, reprimanded, court’s discretion had been the district abuse convinced suspended. Wallace new trial. for a motion City’s grant him, that his at least in for had it Myers and Lieuten- Captain supervisors, V. Guevara, him removed see wanted to ant further con- from the force. merits consider the do not We disap- Myers and Guevara’s vinced argument damages liquidated of Wallace’s to his service related of him was proval issue not preserve did because Reserves. On Naval the United States judgment motion A renewed appeal. being suspended after May aby preceded must be of law aas matter violations, multiple rules *15 the forth that sets at trial made motion last receiving his he was warned mo renewed grounds raised specific violations future any chance and (“The 50(a)(2) mo tion. See Fed.R.Civ.P. seriously. taken and facts law ... the specify must tion transferred Wal- July In of judgment.”); the movant that entitle as- more favorable work lace to much Sons, Inc., & Drake Walter Lifshitz Division—which Northern signment —the Cir.1986) (“A directed 1426, 1429 been Wallace assignment was the the as serve can therefore motion verdict assignment work seeking. new if it includes only j.n.o.v. to a prerequisite and Wallace home to Wallace’s was closer j.n.o.v. asserted specific grounds supervision longer no his motion motion.”) making When as- his new work In or Guevara. Myers trial, Wal of law a matter judgment well- two reported Wallace signment, issue which to articulate lace failed officers with well-respected liked the law let alone judgment, seeking he was any experienced had not Wallace whom judgment. to that entitling him and facts fact, testified Wallace problems. properly is not Consequently, issue new in his any have difficulties he did appeal. on before us working condi- that his assignment and quite Division were at the Northern
tions
working conditions
favorable.
VI.
favorable
remained
Division
the Northern
employment
of Wallace’s
the duration
reasons,
RE-
we
foregoing
For
until Wallace
SDPD, which lasted
with
judg-
grant
court’s
district
VERSE
10, 2000.
on
resigned
October
abruptly
its
law and
conditional
matter of
as a
ment
October, while Wal-
Accordingly, we VA-
beginning
trial.
In the
of new
grant
SDPD, a “5150”—a
duty with
and REMAND
judgment below
lace was
CATE
prob-
mental
apparent
instruc-
court with
woman
the district
case to
a racial discrimina-
to file
ver-
lem—threatened
judgment
tions
enter
Without
against Wallace.1
complaint
tion
dict.
the offi-
individuals
evaluation
treatment
& Inst.
Cal.
"5150” refers
1. The term
Welf.
mentally disturbed.
to be
cers believe
police
au-
grants
officers
which
§Code
term "5150”
use
officers
testified that
purpose of
custody for the
thority
take into
waiting to
if she filed
complaint
see
sion that Wallace was constructively dis-
consulting
and without
superiors,
charged.” Maj.
Wal-
op. at 627.
I disagree.
quit.
suit,
lace
He then filed this
com- The fact that Wallace’s working conditions
plaining that he
been constructively
were favorable for three months before he
discharged.
resigned vitiates
claim
have
had for constructive discharge. Further-
The district court held that Wallace
more, the fact that
attempted
SDPD had
not,
law,
could
as a
prevail
matter
on his
to accommodate
transferring
claim of
constructive
grant-
him to his desired
assignment,
work
where
city judgment
ed the
as a matter of law. I
enjoyed
admitted he
his work en-
think
got
the district
it right.
part
court
I
vironment, establishes that Wallace was
company
majority
with the
for two rea-
not being constructively discharged when
First,
sons.
I do
per-
not believe the law
quit.
majority’s
assertion to the
mits Wallace to claim constructive dis-
contrary belies the law of this circuit as
charge more than three months after the
well as California’s law governing con-
last incident of which Wallace could rea-
structive discharge.2
sonably complain, and at a time when
We
long required
that an employee
SDPD had made every effort to accommo-
asserting constructive discharge establish
Second,
date him.
cannot bring
that his or her working conditions were
constructive discharge claim
quit
when he
“intolerable ‘at the
employee’s
time
on his own terms
when
precipitat-
”
resignation.’
*16
Steiner v.
Oper
Showboat
ing event was the possibility that someone
Co.,
(9th
ating
1459,
Cir.1994)
25 F.3d
1465
outside SDPD would file a claim against
(quoting
Indus.,
Brady v. Elixir
196 Cal.
him.
knowing
Without
whether such a
1299,
App.3d
324,
242 Cal.Rptr.
(1987),
328
filed,
claim would be
whether
the claim
overruled by Turner
Anheuser-Busch,
sense,
would make
or whether SDPD
Inc.,
1238,
7 Cal.4th
223,
32 Cal.Rptr.2d
would
fairly,
treat him
quit
876
(1994));
P.2d 1022
see also Montero v.
claimed that he was constructively fired.
(9th
AGCO Corp.,
856,
192 F.3d
861
Cir.
I
Because
do not think there is such a
1999); King
Adver.,
v. AC
R&
65 F.3d
thing as a claim “anticipatory
for
construc-
764, 767
Cir.1995);
Turner,
accord
tive discharge,” I respectfully dissent.
Cal.Rptr
.2d
1026-27;
876 P.2d at
Gar
amendi v.
Eagle
Co.,
Golden
Ins.
128 Cal.
I
App.4th 452,
months prior admission, the time Wal- at By his own resigned she Plaintiff the time “By tion. abat- conditions had resigned, hostile lace working subject intolerable not was Wallace testified months. for three ed constructively not Plaintiff .... was ditions and the date July that between person no reasonable discharged, because 10, 2000, not ex- he did resigned, October felt have position in Plaintiffs unpleasantries or any friction perience Montero, did.” she when quit forced superiors.3 of his co-workers Steiner, we Similarly, at 861. asked, say “It’s fair when Specifically, employer judgment again upheld rug bug as a happy you were constructive employee’s on an up to [Division] of Eastern get out been employee had claim because [Division],” replied, Northern employ- and the shift her favored stored nice, very scenery was change of “The making manager who er had fired continued, “But city yes.” Counsel two-and- intolerable work environment her certainly more Division] Northern [the to- “Taken previously. months one-half fact that you terms favorable to ... [the suggest facts these gether, working for to be going now you were been sexual harassment manager’s] directly Lieu- more Captain Ramirez Stein- quit.” she before time halted some correct?” Wallace Swanger, Guy tenant courts er, at 1466. California to be going I “Correct. replied, considering whether strict in equally been Guevara, which Lieutenant working for intolerable working conditions were was the issue.” resignation. employee’s time of that he Furthermore, testified the California Garamendi, example, pretty “get along Swanger, employee and Lieutenant that an Appeal held *17 of Court asked, city counsel dis- When well.” his constructive sustain could not month three-and-a-half roughly in that re- “So employee because charge claim Divi- at the Northern [you worked period com- his control of one month after signed might suggests majority "unaccepta- The Although Wallace received supervisory on retained review that "Guevara performance concluded rating on his ble” 2000, willing 17, evaluation performance "was still August authority Wallace” over last change the fact Wallace's discriminatory ac- does not take continued able employment of months three-and-one-half & n. 5. Maj. op. at 627 against Wallace.” tion per- retaliatory conduct. were free evi- no I know of speculation. is This rank Wallace's was based evaluation formance continuing exercise Guevara could dence that prior to his during year performance Wallace, who had authority over supervisory The review Division. Northern transfer was, division. Guevara’s out of been transferred most, conduct reminder contrary Indeed, point majority’s earlier a month-and-a-half City had cured testimony after his transfer Divi- transferring to the Northern by working for Lieutenant longer "be no dat- receipt of the Additionally, if even sion. Guevara, was issue.” If which August 18 performance evaluation ed sug- speculation in the kind engaging work environment created an intolerable the district court majority, gested Wallace, complaints about no Wallace has verdict concluding that the August October fully justified 18 until conduct from SDPD's weight evi- great is still insufficient establish "against 10—which time Wallace at the structive dence.” signed. 634 sion], you didn’t have incidents what- a claim of retaliation, see v. Yartzoff
soever, negative experiences,
your
Thomas,
with
su-
(9th
1371,
809 F.2d
1376-77
Cir.
pervisor,”
replied,
1987)),
“Correct.”
the mere existence of
personnel
file
negative
information in
not,
it is
Furthermore,
the fact
that Wallace’s
more,
without
sufficient to create the intol
personnel file, which contained records of
erable working condition necessary to per
previous
misconduct
discipline,
ac-
mit a finding of constructive discharge.
companied him to the Northern Division
Compare Kortan
Auth.,
v. Cal. Youth
217
does not change the fact that Wallace’s
(9th Cir.2000)
F.3d
1113
(denying
last
three
employment
months of
were
claim for constructive discharge where
anything but intolerable. The mere exis-
negative evaluation had
tangible
no
conse
tence
derogatory
information in
per-
quences) with Sanchez
City
v.
Santa
sonnel file does not establish constructive
Ana,
915
(1990)
F.2d
431
(finding-
discharge. Personnel files are not intoler-
constructive discharge where unfounded
able working conditions; they may
lead
negative evaluation lead to denial of merit
some tangible action,
action,
but
is the
pay). Moreover,
ought
we
confuse
files,
not the
that we must consider. Con-
a claim of hostile work
“
environment with
structive discharge only occurs when
‘a
constructive discharge: Constructive dis
person
reasonable
employee’s]
[the
posi-
requires
charge
a “higher standard” —con
tion would have felt that he was forced to
ditions so intolerable that a reasonable
quit
because
intolerable
discrimina-
person must
job. Brooks,
leave the
”
229
tory working conditions.’ Watson Na-
930;
F.3d at
see also Manatt v. Bank of
Co.,
(9th
tionwide
Ins.
361
Am.,
(9th
Cir.2003) (de
F.3d
Cir.1987) (quoting
Smith,
Satterwhite v.
claring the standard for establishing con
Cir.1984)) (altera-
structive discharge significantly higher
tion in
fact,
original).
the work envi-
than the
standard
establishing a hos
ronment
to which an employee must be
environment).
tile work
subject before he or
she
sustain a
claim for constructive discharge
must
Even aside from the
time,
passage of
“ ‘sufficiently extraordinary
egregious
Wallace cannot claim constructive dis-
to overcome the normal motivation of a
charge because SDPD took substantial
competent, diligent, and reasonable em-
steps to defuse
complaints.
In Wal-
ployee to remain on
job
to earn a
testimony,
lace’s
he admitted that SDPD’s
livelihood and to serve his or her employ-
*18
actions had greatly improved his work en-
”
er.’
City
Brooks v.
Mateo,
San
Yet,
229 vironment.
if the majority’s theory is
(9th Cir.2000)
(quoting
correct,
Tur-
then Wallace could
quit
have
at
ner,
response to the “5150’s” threatened com- Instead,
plaint. he took matters into his hands,
own and now he wants SDPD to
pay for it. That is not constructive dis-
charge. I affirm judgment
the district court. respectfully
I dissent. COUNCIL; Oregon
The LANDS Natural Council; Canyon
Resources Hells Council, Oregon
Preservation an non
profit corporation; Club, Sierra a Cal corporation, Plaintiffs-Appel
ifornia
lants, MARTIN, Supervisor
Kevin Forest Forest,
the Umatilla National U.S. Service;
Forest United States Forest
Service, Defendants-Appellees, Council,
American Forest Resource an
Oregon corporation; Building Boise Manufacturing L.L.C.,
Solutions
Washington liability company; limited corporation,
Dodge Logging, Inc., Oregon ants-Intervenors-App
Defend
ellees.
No. 06-35781.
United Appeals, States Court of
Ninth Circuit.
Argued and Submitted Feb. 2007.
Filed Feb. 2007.
As Amended on Rehearing Denial of
March