Avila v. LAPD: Ninth Circuit Affirms FLSA Retaliation Award for LAPD Officer

In Avila v. Los Angeles Police Department, ___ F.3d ___ (9th Cir. 7/10/14), plaintiff Leonard Avila, a police officer, sued the Los Angeles Police Department and the City of Los Angeles (collectively, City) for retaliation under the Fair Labor Standards Act (FLSA), alleging the following facts: Avila periodically worked through his meal period but did not request overtime; Avila testified for another police officer, Maciel, in support of Maciel's claim that LAPD failed to compensate him for overtime hours worked; and LAPD terminated Avila after he testified, alleging that Avila was insubordinate for not claiming his own overtime. 

A jury found in favor of Avila on his FLSA anti-retaliation claim, and the City appealed. The Ninth Circuit affirmed, finding as follows:

The determination by the LAPD Board of Rights (BOR) that Avila was guilty of insubordination and should be fired was not entitled to preclusive effect. Slip op. at 7-8. The BOR did not decide whether Avila was terminated in in retaliation for testifying in the Maciel action, and Avila was entitled to have the issue determined in court. 

The district court properly instructed the jury on Avila's retaliation claim. Slip op. at 8-17. 

The district court properly refused to instruct the jury on the same decision defense because the uncontested evidence was that the City would not have fired Avila had he not testified. Slip op. at 10-11. Given this uncotested evidence, the court had no evidentiary foundation for giving a same decision instruction.

The district court did not err in refusing to instruct the jury that an employee who engages in protected activity is not immune from adverse employment action for violating workplace rules and is not immune from termination if the employee's conduct warrants termination. Slip op. at 11-17. These instructions would have supported the City's argument that it did not fire Avila because he testified, but rather because he failed to request overtime. As stated earlier, the City was not entitled to a same decision instruction, nor was it entitled to an instruction that it could fire Avila for not claiming overtime. 

[T]he only issue for the jury in this case was whether the City was telling the truth in claiming that it fired a model employee (who was hired by another police force even as the termination action was pending), for not seeking all the pay that he might have. The district court did not abuse its discretion in declining to give the requested supplemental instructions. 

Slip op. at 17. 

Finally, the district court did not abuse its discretion in awarding Avila his attorney fees and liquidated damages under the FLSA. Slip op. at 18-19. 

The opinion is available here.