LAPD Officer Wins FLSA Retaliation Lawsuit

Leonard Avila was a police officer for the City of Los Angeles. In January 2008, Avila testified under subpoena in a Fair Labor Standards Act (FLSA) suit against the City of Los Angeles in the Central District of California brought by a fellow officer who sought overtime for working through his lunch hour. 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 complaint against him and another officer who testified at the trial, Richard Romney, alleging that they had been insubordinate by not submitting requests for overtime.

The officers were ordered to appear before the LAPD Board of Rights, a disciplinary review body. Avila was sworn in, entered a plea of not guilty, heard opening statements, but resigned during the hearing’s lunch break to accept a job with another law enforcement agency. The Board nonetheless proceeded against Avila in absentia, found him guilty of insubordination and recommended termination. The Chief eventually fired both Avil and Romney.

Avila then sued the City, claiming the City illegally retaliated against him because of his testimony in the FLSA case. A jury found in favor of Avila on his FLSA claim and awarded damages of $50,000. The trial court entered a judgment on the jury verdict, and later amended it to award Avila $50,000 in liquidated damages and $579,400 in attorney’s fees.

The federal Ninth Circuit Court of Appeals rejected the City’s appeal of the jury’s verdict. Primarily, the City argued that the Board’s recommendation that Avila’s employment be terminated precluded his FLSA retaliation claim.

While the Appeals Court found that under some circumstances, the findings of an administrative board might be binding, the Court noted that the matter was not so simple in Avila’s case: “The dispositive question is whether the Board actually decided whether Avila was fired in retaliation for testifying in the FLSA action. Here, neither the Board decision nor the termination order addressed the issue of retaliation. The administrative proceedings simply found Avila guilty of the insubordination count in the complaint. The trial court thus properly concluded that the agency had not determined the motive for the disciplinary action, and there is no issue preclusion.”

The City also argued that the trial court should have given the jury some supplemental instructions that would have immunized the City from liability if the jury found that the City would have terminated Avila even without regard to his testimony in the FLSA case. The Court disagreed, holding that “to the extent that the City is urging that it would have reached the same decision on terminating Avila in the absence of his testimony, as we have noted above, the district court was well within its discretion in refusing to give the supplemental instructions. There was no evidence to support the same decision defense; the City’s own witness made plain that only those who testified in the FLSA suit were disciplined for failing to take overtime. It simply cannot be argued on this record that Avila would have been fired had he not testified.

“The City’s argument that the firing was not in contravention of the FLSA anti-retaliation clause because it was based on the content of Avila’s testimony, not on the mere fact that he had ‘testified,’ fails for the same reason. The only evidence against Avila was his testimony in the FLSA action, and it was conceded that only those who testified in the FLSA action were disciplined for not seeking overtime. We leave for another day whether use of an employee’s trial testimony is entirely forbidden in an adverse action when there is also other evidence of the alleged infraction before the decision maker; no such evidence was proffered by the City here.”

Avila v. LAPD, 758 F.3d 1096 (9th Cir. 2014).