Leonard Avila, a police officer at the Los Angeles Police Department (LAPD), testified in a Fair Labor Standards Act (FLSA) lawsuit brought by a fellow officer, Edward Maciel.  Maciel sought overtime pay for working through lunch.  Avila testified that he and many other LAPD officers, including his supervisors, operated under an unwritten policy of not claiming overtime for working through lunch.  After Avila testified, the LAPD filed an internal investigation compliant against him and another officer who testified at the Maciel trial, alleging that they had been insubordinate for not submitting overtime requests.  Shortly after a hearing began before the LAPD Board of Rights, an internal disciplinary review body, Avila resigned and accepted a job with another law enforcement agency.  The hearing proceeded in Avila's absence, and the Board found Avila guilty of insubordination and recommended termination.  The Chief of Police ordered termination of Avila and the other officer who testified.

Avila sued the LAPD and the City of Los Angeles asserting retaliation in violation of the FLSA and other federal and state laws.  The jury found in favor of Avila on his FLSA retaliation claim and awarded $50,000 in liquidated damages and nearly $580,000 in attorney's fees.  The City appealed, and the Court of Appeals for the Ninth Circuit affirmed. 

The City argued that the Board of Rights' recommendation to terminate Avila prevented Avila from bringing a lawsuit for FLSA retaliation.  If the Board of Rights actually decided whether Avila was fired in retaliation for testifying at the Maciel action, the Board's decision may have precluded Avila from then bringing a lawsuit for FLSA retaliation.  However, the Ninth Circuit held that neither the Board's decision, nor the termination order, addressed the issue of retaliation, and thus the Board did not consider the "motive" for the termination.  Therefore, the Board's decision did not have a preclusive effect on Avila's retaliation claim. 

The City also argued that the trial court erroneously declined to give the jury two requested special instructions.  The first instruction explained that an employee who engages in protected activity is not insulated from adverse action for violating workplace rules, and that an employer's belief that the employee committed misconduct is a legitimate, non-discriminatory reason for adverse action.  The second instruction stated that while an employer may not discriminate or retaliate against an employee for participating in activity protected by federal or state law, that participation does not insulate an employee from being discharged for conduct that would warrant termination if it occurred outside the protected activity.    

Instead, the court instructed the jury that if Avila's testimony in Maciel's FLSA action was a motivating reason for his termination, then Avila is entitled to the jury's verdict.  The City did not object to the instructions.  However, when the jury asked a question about protected activity, the City renewed its requests for the supplemental instructions. 

The Court of Appeals held that the trial court did not abuse its discretion by declining to give the City's proposed special instructions.  The City requested the instructions in support of its argument that it fired Avila because he failed to request overtime, not because he testified.  The Court stated that to the extent the City was urging that it would have made the same decision to terminate Avila in the absence of his testimony, there was no evidence to support the defense.  According to the City's own witness, only those who testified in Maciel's trial were disciplined for failing to take overtime. 

As for the argument that the City fired Avila based on the content of his testimony, not on the mere fact that he testified, the only evidence against Avila was his testimony in the FLSA action, and it was again conceded that only those who testified were disciplined for not seeking overtime.  The issue before the jury was whether the City was telling the truth in claiming that it terminated Avila's employment for not seeking all the pay he might have, not whether Avila's testimony could insulate him from adverse action or whether he could be fired for failing to claim overtime.  Thus, the Court of Appeals affirmed the trial court's decision not to give the City's proposed jury instructions, and affirmed the judgment. 


Judge Vinson, a senior district court judge sitting by designation, wrote a vigorous dissent.   He noted that the officers who were disciplined after Maciel's trial did not merely testify; they openly "admitted under oath that they had knowingly and repeatedly violated policies that they were specifically told would subject them to termination."  He then stated that "[t]here is a clear and legally recognized distinction between the mere act of testifying on one hand and, on the other hand, making admissions while testifying that provide independent grounds for discipline." 

Avila v. Los Angeles Police Dept. (9th Cir. 2014) ___ F.3d ____ [2014 WL 3361123].