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July 18, 2014

Court Holds that Police Officer Termination Following Testimony in FLSA Lawsuit is Retaliation


On July 10, 2014, the United States Court of Appeals (“Court of Appeals”) issued its decision in Leonard Avila v. Los Angeles Police Department et al. (9th Circuit Case No. 12-55931) with important implications regarding an employer’s ability to use information gained from an employee’s protected activity for purposes of initiating an adverse employment action.

In January 2008, Avila testified against the City of Los Angeles (“City”) in a fellow Los Angeles Police Department (“LAPD”) officer’s lawsuit against the City for alleged violations of the Fair Labor Standards Act (“FLSA”).  Avila testified that he and other officers operated under an unwritten policy of not claiming overtime for working through lunch.  Following his testimony, the LAPD conducted an internal investigation against Avila regarding potential insubordination for not submitting requests for overtime.  The LAPD’s Board of Rights (“Board”) found Avila guilty of insubordination and recommended termination.  Thereafter, Avila filed a lawsuit against the LAPD and the City alleging a violation of the anti-retaliation provision of the FLSA for his testimony in the other officer’s lawsuit.

After the United States District Court (“District Court”) jury found in Avila’s favor, the City challenged the decision on a number of grounds.  First, the City argued that the Board’s decision to terminate Avila should have barred his FLSA retaliation claim.  The Court of Appeals held that the issue addressed by the Board - whether Avila was insubordinate - was materially different than the issue in his lawsuit as to whether he was the subject of retaliation.  Therefore, the Board’s decision had no preclusive effect.

Second, the City contended that the District Court improperly refused to make special instructions to the jury that it could not find in Avila’s favor if it found that the City would have made the “same decision” to terminate Avila had he not testified against the City in the FLSA lawsuit.  The Court of Appeals found that the City waived this argument because it was not addressed in the City’s briefs.  Notably, however, the Court of Appeals held that even if the City had raised the argument, the evidence did not support the instruction.  Instead, the Court of Appeals found that the uncontested evidence demonstrated that Avila would not have been fired had he not testified against the City in the FLSA lawsuit.  

Lastly, the City argued that the District Court erred in not giving special instructions to the jury that an employee who engages in protected activity is not immune from an adverse employment action for violating workplace rules.  The City argued that the special instructions were appropriate as the reason it terminated Avila was not because he testified in the FLSA lawsuit, but rather because he failed to report overtime, which was an act of insubordination.  In upholding the District Court’s decision not to provide the special instructions, the Court of Appeals rejected the City’s argument, noting that the only evidence used against Avila in the Board proceedings was his testimony in the FLSA action and only those who testified in the FLSA action were disciplined.  Ultimately, the Court concluded that the only issue for the jury was whether the City was truthful in its defense that it fired Avlia for failing to report overtime and that the City’s requested jury instructions pertaining to immunity would only have confused the matter.  

This decision is important as the Court of Appeals’ analysis suggests that an employer is restricted from exclusively using information obtained from an employee’s protected activity for purposes of initiating an adverse action.  Instead, the Court of Appeals focused on the fact that the City did not have other independent evidence of alleged wrongdoing beyond Avila’s protected activity when terminating his employment to avoid liability under the FLSA’s anti-retaliation provision.  Ultimately, the Court of Appeals left open the question as to whether an employer is strictly forbidden from using any information of employee wrongdoing that is obtained during testimony in another lawsuit.

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