               FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


LEONARD AVILA,                          No. 12-55931
                  Plaintiff-Appellee,
                                           D.C. No.
                 v.                     2:11-cv-01326-
                                          SJO-FMO
LOS ANGELES POLICE DEPARTMENT,
                      Defendant,

               and

CITY OF LOS ANGELES; COMMANDER
STUART MAISLIN,
            Defendants-Appellants.



LEONARD AVILA,                          No. 12-56554
                  Plaintiff-Appellee,
                                           D.C. No.
                 v.                     2:11-cv-01326-
                                          SJO-FMO
LOS ANGELES POLICE DEPARTMENT,
                      Defendant,
                                          OPINION
               and

CITY OF LOS ANGELES,
              Defendant-Appellant.
2                          AVILA V. LAPD

            Appeal from the United States District Court
                for the Central District of California
             S. James Otero, District Judge, Presiding

                      Argued and Submitted
              February 6, 2014—Pasadena, California

                         Filed July 10, 2014

        Before: Barry G. Silverman and Andrew D. Hurwitz,
        Circuit Judges, and C. Roger Vinson, Senior District
                               Judge.*

                    Opinion by Judge Hurwitz;
                     Dissent by Judge Vinson


                            SUMMARY**


                              Labor Law

    The panel affirmed the district court’s judgment, after a
jury trial, in favor of a police officer who claimed that the Los
Angeles Police Department fired him in retaliation for
testifying in a Fair Labor Standards Act lawsuit brought by a
fellow officer.



    *
   The Honorable C. Roger Vinson, Senior District Judge for the U.S.
District Court for the Northern District of Florida, sitting by designation.
  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                       AVILA V. LAPD                           3

    The panel held that the officer’s FLSA retaliation claim
was not precluded by the LAPD Board of Rights’
recommendation that he be terminated for insubordination in
not claiming overtime.

    The officer alleged that the real reason he was fired was
not because he worked through lunch without requesting
overtime, but rather because he testified in the prior lawsuit.
The panel held that the district court did not err in declining
to give two special jury instructions, and special verdict
questions tied to those instructions, stating that an employee
who engages in protected activity is not insulated from
adverse action for violating workplace rules. The panel held
that to the extent that the City of Los Angeles was urging that
it would have reached the same decision on terminating the
officer in the absence of his testimony in the prior lawsuit, the
district court was well within its discretion in refusing to give
the instructions because the evidence did not support the
same decision defense, nor did it support the City’s argument
that the firing was based on the content of the officer’s
testimony, and not on the mere fact that he had testified.
Because the City did not raise the issues in its briefs, the
panel declined to address whether the district court erred in
refusing to give a “same decision” instruction and an
instruction that the officer was required to prove that his
testimony was a “motivating factor” in his termination.

    The panel held that the district court did not abuse its
discretion in awarding attorney’s fees and liquidated
damages.

    Dissenting, Judge Vinson wrote that the officer not only
testified in the prior case, but also admitted to insubordination
when he testified. Judge Vinson wrote that the district court
4                      AVILA V. LAPD

plainly erred in failing to give the “same decision”
instruction. He wrote that this issue was not waived because
it was inextricably interrelated with the issue whether the
district court erred in failing to give the special instructions.
He also wrote that there was ample evidence to support the
same decision defense. Judge Vinson wrote that reversible
error occurred, and the case should be remanded for a new
trial.


                         COUNSEL

Gregory A. Wedner (argued), Mark K. Kitabayashi, and
Sloan R. Simmons, Lozano Smith, Los Angeles, for
Defendants-Appellants.

Matthew S. McNicholas and Douglas D. Winter, McNicholas
& McNicholas, LLP, Los Angeles, California; Stuart B. Esner
(argued) and Andrew N. Chang, Esner, Chang & Boyer,
Pasadena, California, for Plaintiff-Appellee.


                          OPINION

HURWITZ, Circuit Judge:

    Leonard Avila, a police officer, periodically worked
through his lunch break but did not claim overtime.
According to his commanding officer, Avila was a model
officer. The Los Angeles Police Department (LAPD),
however, deemed Avila insubordinate for not claiming
overtime and fired him.
                      AVILA V. LAPD                        5

     Not coincidentally, that termination occurred only after
Avila had testified in a Fair Labor Standards Act (FLSA)
lawsuit brought by fellow officer, Edward Maciel, who
sought overtime pay for working through his lunch hours.
Avila then brought this action, claiming that he was fired in
retaliation for testifying, in violation of the FLSA anti-
retaliation provision, 29 U.S.C. § 215(a)(3). The evidence at
trial was that the only officers disciplined for not claiming
overtime were those who testified against the LAPD in the
Maciel suit, notwithstanding uncontested evidence that the
practice was widespread in the LAPD.

    A jury returned a verdict in favor of Avila on his FLSA
anti-retaliation claim. On appeal, the City of Los Angeles
and the LAPD contend that the jury was not correctly
instructed. We find no reversible error and affirm.

                              I

    In January 2008, Leonard Avila testified under subpoena
in a FLSA suit against the City of Los Angeles in the Central
District of California brought by Maciel, who sought
overtime pay under 29 U.S.C. § 207(a)(1) 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 Maciel 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 (BOR), a disciplinary review body. Avila
6                         AVILA V. LAPD

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 BOR
nonetheless proceeded against Avila in absentia. The board
found Avila guilty of insubordination and recommended
termination, and the Chief of Police then so ordered. Romney
was also fired.1

    Avila then sued the LAPD and the City of Los Angeles
(collectively, the “City”) in the Central District of California,
asserting claims under the anti-retaliation provision of FLSA
(29 U.S.C. § 215(a)(3)), 42 U.S.C. § 1983, and California
law.2 The City moved for summary judgment, arguing that
because Avila never sought judicial review of the BOR
decision, his federal claims were precluded. The district
court denied the motion, but precluded Avila from
challenging any factual findings made by the BOR.

    After Avila rested at trial, the court granted the City’s
motion for judgment as a matter of law on the state law
claims. The jury found in favor of Avila on his FLSA claim,
but against him on the § 1983 claim, and awarded damages of
$50,000. The district 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. We have


    1
   Officer Teresa Anderson provided similar testimony in a deposition in
the Maciel case; she was fired. A California state court found her
termination retaliatory and she was reinstated. A disciplinary complaint
also was initiated against Avila’s supervisor, who testified that he
“probably” violated the overtime rules, but the supervisor was not
disciplined.
 2
   Commander Stuart Maislin was also named as a defendant. Avila has
not appealed the judgment that was entered below in Maislin’s favor.
                       AVILA V. LAPD                         7

jurisdiction over the City’s appeal under 28 U.S.C. § 1291
and affirm.

                              II

    The City first contends that the BOR recommendation
that Avila’s employment be terminated precludes his FLSA
retaliation claim. We review the district court’s rejection of
that argument de novo. Frank v. United Airlines, Inc.,
216 F.3d 845, 849–50 (9th Cir. 2000).

    A state agency determination is entitled to preclusive
effect if three requirements are satisfied: “(1) that the
administrative agency act in a judicial capacity, (2) that the
agency resolve disputed issues of fact properly before it, and
(3) that the parties have an adequate opportunity to litigate.”
Miller v. Cnty. of Santa Cruz, 39 F.3d 1030, 1033 (9th Cir.
1994) (citing United States v. Utah Constr. & Mining Co.,
384 U.S. 394, 422 (1966)). We give state administrative
agency judgments the same preclusive effect they receive in
state court. Univ. of Tenn. v. Elliot, 478 U.S. 788, 799
(1986).

    The dispositive question is whether the BOR actually
decided whether Avila was fired in retaliation for testifying
in the Maciel action. The City relies heavily on White v. City
of Pasadena, 671 F.3d 918 (9th Cir. 2012), in urging issue
preclusion. The plaintiff in White was a police officer who
challenged her termination in a grievance proceeding. Id. at
922. At an administrative hearing before an arbiter, White
presented “evidence that the City’s investigation and her
termination were in retaliation” for a lawsuit she had filed
against the City. Id. at 924. The arbiter found that the City
had not demonstrated just cause for termination, but also
8                      AVILA V. LAPD

found that White had not shown that she was a victim of
retaliation. Id. After an independent review of the record, the
City Manager upheld the termination, specifically rejecting
White’s retaliation claims. Id. White’s subsequent civil
rights action against the City again raised the retaliation
claim. Id. at 925. The district court dismissed the claim, and
we affirmed, finding the administrative determination issue
preclusive. Id. at 930–31.

    This case is quite different. Here, neither the BOR
decision nor the termination order addressed the issue of
retaliation. The administrative proceedings simply found
Avila guilty of the one count in the complaint: “Prior to 2008,
you, while on duty, were insubordinate to the department
when you failed to submit requests for compensation for
overtime that you had worked, as directed through
department publications.” The district court thus properly
concluded that the agency had not determined the motive for
the disciplinary action. See L.A. Police Protective League v.
Gates, 995 F.2d 1469, 1474–75 (9th Cir. 1993) (holding that
a BOR determination “could not have preclusive effect on the
different issue the jury faced”). There is no issue preclusion.

                             III

      Avila claimed that the real reason he was fired was not
because he worked through lunch without requesting
overtime, but rather because he testified in the Maciel
lawsuit. The City does not dispute that if Avila’s claim is
true, the termination violated FLSA, which makes it
“unlawful for any person . . . to discharge or in any other
manner discriminate against any employee because such
employee . . . has testified . . . in any [FLSA] proceeding
. . . .” 29 U.S.C. § 215(a)(3). Nor does the City contend that
                           AVILA V. LAPD                                 9

the evidence below was insufficient to support the jury
verdict. Rather, the City’s only argument on appeal is that
the jury was not properly instructed.

                                    A.

    It is important to note at the outset precisely what issues
are and are not before this court with respect to the jury
instructions. The City requested an instruction that Avila was
required to prove that his testifying at the Maciel trial was a
“motivating factor” in his termination. In contrast, Avila had
requested an instruction that he was required to prove that his
testifying was the “but-for cause” of the termination. The
district court gave the City’s requested instruction, which was
consistent with Ninth Circuit law. See Knickerbocker v. City
of Stockton, 81 F.3d 907, 911 (9th Cir. 1996) (requiring that
retaliation be a “substantial factor” in adverse action). The
City does not argue on appeal that the district court erred in
giving the “motivating factor” instruction. See United States
v. Guthrie, 931 F.2d 564, 567 (9th Cir. 1991) (discussing
invited error).3

    The City did request an instruction that there was no
liability under the FLSA anti-retaliation provision if the
“same decision” would have been made had Avila not


  3
    While this appeal was pending, the Supreme Court held that a “but-for”
instruction is required when the plaintiff makes “a retaliation claim under
§ 2000e–3(a),” the Title VII anti-retaliation provision. Univ. of Tex. S.W.
Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2534 (2013). Given the City’s
failure to raise the issue, we do not today address whether a “but-for”
instruction is now also required in FLSA retaliation cases. But see
Lambert v. Ackerley, 180 F.3d 997, 1005 (9th Cir. 1999) (en banc)
(rejecting the argument “that the breadth of Title VII’s anti-retaliation
provision dictates the construction we should give the FLSA provision”).
10                     AVILA V. LAPD

testified. Originally, developed in Title VII cases, the same
decision affirmative defense shields an employer from
liability when an adverse action is based both on protected
and unprotected activities; the employer has the burden of
“proving that it would have made the same decision in the
absence of” the protected activity. Price Waterhouse v.
Hopkins, 490 U.S. 228, 254 (1989); see also Knickerbocker,
81 F.3d at 911.

    But, the City’s briefs on appeal do not assign as error the
district court’s refusal to give the “same decision” instruction.
Arguments “not raised clearly and distinctly in the opening
brief” are waived. McKay v. Ingleson, 558 F.3d 888, 891 n.5
(9th Cir. 2009).

    Indeed, even if, like our dissenting colleague, we were to
take up the issue sua sponte, the result would be the same.
“There must be a sufficient evidentiary foundation to support
giving the instruction.” Gantt v. City of L.A., 717 F.3d 702,
706–07 (9th Cir. 2013). The uncontested evidence in this
case is that Avila would not have been fired had he not
testified. Indeed, an LAPD official confirmed at trial that the
only officers disciplined for the overtime violations were
those who testified in the Maciel action, and that Avila would
never have been disciplined had he not testified. The City’s
counsel also candidly conceded this at oral argument. And,
the only evidence introduced at the disciplinary hearing was
Avila’s testimony in the Maciel matter. There thus was
simply no evidentiary foundation for a same decision
instruction. See Lambert v. Ackerley, 180 F.3d 997, 1009
(9th Cir. 1999) (en banc) (holding a district court’s failure to
give a same decision instruction harmless because “the
evidence before the jury strongly support[ed] the conclusion
that the plaintiffs were discharged in retaliation for their
                           AVILA V. LAPD                              11

overtime complaints and that they would not have been
discharged had they not engaged in this protected conduct”).

                                   B.

    The only issue on the merits actually raised by the City is
whether the district court committed reversible error in
declining to give the jury two requested special instructions
and to submit several proposed special verdict questions tied
to those instructions.

    The proposed instructions were:

         1. An employee who engages in protected
         activity is not insulated from adverse action
         for violating workplace rules, and an
         employer’s belief that the employee
         committed misconduct is a legitimate, non-
         discriminatory reason for adverse action.

         2. An employer is forbidden to discriminate
         or retaliate against an employee who
         participates in an activity deemed to be
         protected under federal or state law. But
         participation doesn’t insulate an employee
         from being discharged for conduct that, if it
         occurred outside the protected activity, would
         warrant termination.4

    The proposed special verdict questions were, as relevant
to this appeal:

 4
   The City requested a third special instruction, but does not contend on
appeal that the district court erred by failing to give it.
12                    AVILA V. LAPD

       2. Was the City of Los Angeles’s decision to
       discharge Leonard Avila based upon his
       engaging in a protected activity under the
       FLSA, or admitting misconduct, or both?

                             ...

       If your answer to question 2 is engaging in
       protected activity, then answer question 3. . . .
       If your answer is both engaging in protected
       activity and admitting misconduct, go to
       question 4.

       3. Was the Defendants’ conduct a substantial
       factor in causing harm to Leonard Avila?

                             ...

       4. Has the Defendant proved, by a
       preponderance of the evidence that the
       Defendant would have made the same
       decision to discharge Plaintiff even if
       Plaintiff’s protected activity had played no
       role in the Defendant’s decision to?

   After declining the proposed instructions, the district
court read the following stipulation to the jury:

       On January 16th, 2008, Plaintiff Avila
       appeared in federal court pursuant to a
       subpoena and gave sworn testimony at the
       jury trial in the Maciel case. The giving of
       this testimony is protected activity under the
       Fair Labor Standards Act.
                       AVILA V. LAPD                       13

The district court then instructed the jury as follows:

       The plaintiff seeks damages against defendant
       L.A.P.D. for retaliation under the FLSA. The
       plaintiff has the burden of proving each of the
       following elements by a preponderance of the
       evidence:

       1. Plaintiff engaged in or was engaging in an
       activity protected under federal law, that is he
       testified in a FLSA action.

       2. The employer subjected plaintiff to an
       adverse employment action.

       3. The protected activity was a motivating
       reason for the adverse employment action.

       If the plaintiff has proven all three of these
       elements, the plaintiff is entitled to your
       verdict. However, if the defendant has proven
       by a preponderance of the evidence that the
       plaintiff’s participation in a protected activity
       played no role in any of the adverse
       employment decisions, the defendant is
       entitled to your verdict.

The City did not object to these instructions.

    After the jury asked a question about protected activity,
the City renewed its requests for the supplemental
instructions and the special verdicts. The district court told
the jury to rely on its original instructions. The verdict in
favor of Avila on the FLSA claim followed.
14                     AVILA V. LAPD

                               C.

     The City requested the special instructions in support of
its argument that it had not fired Avila because he testified,
but rather because he failed to request overtime. The City
also argues that FLSA only prohibits adverse action based on
the fact that Avila testified at the Maciel trial, not the use of
his testimony.

    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 Maciel 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                                15

     Nor did the district court abuse its discretion in telling the
jury, after it posed a question on protected activity, to rely on
the original instructions. See United States v. Romero–Avila,
210 F.3d 1017, 1024 (9th Cir. 2000); see also United States
v. Alvarez–Valenzuela, 231 F.3d 1198, 1202 (9th Cir. 2000)
(noting that this practice avoids “possible error sometimes
found in trying to elaborate on a given instruction”). The
supplemental instructions would have done more to confuse
than to clarify. See Dang v. Cross, 422 F.3d 800, 804 (9th
Cir. 2005) (noting that jury instructions “must not be
misleading”) (quotation marks and citation omitted). Avila
never argued to the jury that his testimony insulated him from
adverse action or that it could not be used in a disciplinary
proceeding. Nor did he claim that he could not be fired for
failing to request overtime.5 Rather, Avila’s claim was that
the true reason he was fired was because he testified against
his employer in a FLSA action, not because he violated the
overtime rules.

    Indeed, the LAPD’s representative at the BOR hearing
conceded that Avila had been investigated only because he
testified at the Maciel trial, testifying that the

         investigation was conducted as a result of
         sworn testimony given by [Avila and
         Romney] during a civil trial surrounding
         allegations of a violation of [FLSA] . . . .
         Commander [Maslin] was provided transcripts
         of the testimony given by seven officers
         during that court case . . . . After having


 5
   Because of the district court’s decision that the BOR determination had
limited preclusive effect, Avila could not contest that not seeking overtime
was a firing offense.
16                        AVILA V. LAPD

         reviewed the transcripts and after due
         consideration, Commander Maslin elected to
         initiate a personnel complaint against Officer
         Avila and Officer Romney.

More tellingly, Commander Maslin admitted that despite
uncontested evidence that thousands of officers, including
Avila’s superiors, routinely did not claim overtime for lunch,
the only officers singled out for discipline were those who
testified at the Maciel action.6 Nor was there any claim that
Avila was disciplined for anything else. When Avila
resigned, his commanding officer wrote that “Officer Avila
was a stellar employee and an individual of personal integrity
and honor. He performed his duties well, got along well with
his co-workers, and was respected by his peers. This
Department is losing a valuably trained asset.”

    In short, as this case was tried, the issue for jury
resolution was not whether the LAPD could fire Avila for not
claiming overtime or whether his trial testimony could be
used in the administrative hearing. Rather, the only issue was
whether the reason given by the LAPD for the termination
was a pretext. That is precisely what the FLSA anti-
retaliation provision forbids. See 29 U.S.C. § 215(a)(3)
(making it unlawful to discharge an employee “because such
employee . . . has testified” in a FLSA action); see also
Kasten v. Saint-Gobain Performance Plastics Corp., 131 S.
Ct. 1325, 1333 (2011) (holding that the anti-retaliation
provision makes FLSA’s “enforcement scheme effective by


  6
    In addition to the Maciel action, there were at least four other FLSA
actions filed against the LAPD alleging similar overtime violations. One
of the cases was brought as a collection action, in which 2,300 to 2,500
officers, sergeants, detectives, and lieutenants joined.
                          AVILA V. LAPD                               17

preventing ‘fear of economic retaliation’ from inducing
workers ‘quietly to accept substandard conditions’”) (quoting
Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 292
(1960)). “[T]he First Amendment similarly protects a public
employee who provided truthful sworn testimony, compelled
by subpoena, outside the course of his ordinary job
responsibilities.” Lane v. Franks, No. 13-483, —S. Ct.—,
2014 WL 2765285 (U.S. June 19, 2014).

    Put differently, the 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),7 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. See Yan Fang Du v. Allstate Ins.
Co., 697 F.3d 753, 757 (9th Cir. 2012) (“Whether there is
sufficient evidence to support an instruction is reviewed for
abuse of discretion.”); Hunter v. Cnty. of Sacramento,
652 F.3d 1225, 1232 (9th Cir. 2011) (noting that we review
formulation of instructions for abuse of discretion).




 7
   Avila’s resignation did not moot his retaliation claim because the BOR
proceeded against Avila in absentia.
18                          AVILA V. LAPD

                                     IV

    The City also contends that the district court abused its
discretion in awarding attorney’s fees and liquated damages.8
We disagree.

                                     A.

    FLSA authorizes an award of reasonable attorney’s fees
to a prevailing plaintiff in anti-retaliation suits. 29 U.S.C.
§ 216(b). We review fee awards for abuse of discretion.
Mendez v. Cnty. of San Bernardino, 540 F.3d 1109, 1124 (9th
Cir. 2008). The City does not contest that Avila was the
successful party, rather it contends that the award was too
large.

    Avila originally requested $748,522.50 in fees. The
district court, in a thorough order, instead awarded $579,400.
The court reduced the lead counsel’s requested rate,
eliminated administrative, clerical, and unproductive hours,
and deducted 30% of the time with vague billing descriptions.
The district court also granted the City a 10% reduction in the
overall amount of the fees requested to account for time
“expended on the failed claims,” notwithstanding that these
claims were “based upon the same core set of facts and
generally related legal theories” as the successful claim.
Given the district court’s careful explanations of its reasons
for the award, we find no abuse of discretion.



 8
   After the City filed its notice of appeal, the district court awarded trial
preparation costs to Avila. Because the City never filed an amended or
separate notice of appeal, we lack jurisdiction to review that award.
Whitaker v. Garcetti, 486 F.3d 572, 585 (9th Cir. 2007).
                      AVILA V. LAPD                        19

                             B.

    FLSA also allows a successful plaintiff in an anti-
retaliation suit to recover liquidated damages. 29 U.S.C.
§ 216(b). We review such awards for abuse of discretion.
EEOC v. First Citizens Bank of Billings, 758 F.2d 397, 402
(9th Cir. 1985).

    The district court awarded liquidated damages because
they “would work to compensate [Avila] for a delay in
payment of wages owed and also provide an incentive for
future employees to report wage and hour violations by their
employers.” The City contends that the latter part of the
court’s statement shows that the liquidated damages award
was improperly punitive. The trial judge, however, plainly
indicated a compensatory purpose, and liquidated damages
are not rendered punitive merely because they also have an
incidental deterrent effect. See Brooklyn Sav. Bank v. O’Neil,
324 U.S. 697, 709–10 (1945) (noting that Congress “plainly
intended” section 16(b) to have a “deterrent effect”).

                              V

   For the reasons stated above, we AFFIRM the district
court’s judgment.
20                     AVILA V. LAPD

VINSON, District Judge, dissenting:

    This is a very troubling case that raises a number of
significant legal issues. I will limit the focus of my dissent,
however, to what I believe is the most serious and manifest
error: the jury instructions.

    This is also a very important case, for retaliation claims
based on federal statutes are increasingly a major part of
employment litigation in federal courts. Recent cases from
the Supreme Court of the United States, see note 3 infra, have
highlighted new interpretations of the causation standard in
some of these cases. All parties who deal with those laws,
including employers and employees, their attorneys, district
judges, and trial juries, need more clarification and certainty
in this area. Unfortunately, the majority’s opinion does not
provide that.

                                I

     Before turning to the jury instructions, it might be helpful
to briefly discuss the nature of the testimony at issue in this
case. The majority repeatedly states that Avila and two fellow
officers, Romney and Anderson, were disciplined only after
they testified in the Maciel litigation. See, e.g., Maj. Op. at 5
(“[The] termination occurred only after Avila had testified in
[the Maciel suit.]”); accord id. at 5 (“The evidence at trial
was that the only officers disciplined . . . were those who
testified against the LAPD in the Maciel suit[.]”). Although
technically true, the substance of their Maciel testimony is
critical, as Avila, Romney, and Anderson were also the only
officers who had openly admitted to insubordination while
they testified. Specifically, they admitted that for several
years they failed to report overtime — and failed to report
                           AVILA V. LAPD                                21

supervisors who allegedly told them to do so — even though
they knew it was “serious misconduct” for which they could
be fired. Accordingly, when the majority says “the only
officers singled out for discipline were those who testified at
the Maciel action”, id. at 16, it is more complete and factually
accurate to say that “the only officers singled out for
discipline were those who testified at the Maciel action and
who admitted under oath that for years they knowingly and
repeatedly violated policies that they were specifically told
would subject them to termination.” It is important to keep in
mind that Avila, Romney, and Anderson did more than
“testify” in the Maciel case.1

    To the extent that the majority appears to believe that
someone who testifies in an otherwise protected hearing is,
ipso facto, immunized from the consequences of any self-
incriminating admissions made during his testimony, I
disagree. There 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. See Merritt v. Dillard
Paper Co., 120 F.3d 1181, 1188–91 (11th Cir. 1997)
(concluding that an employee who testified in a protected
Title VII case and admitted sexual harassment could be fired
and that in “virtually every” such case the employer would be
entitled to summary judgment, absent direct evidence of
retaliation or pretext); cf. Lane v. Franks, — S. Ct. —, 2014

  1
     To be clear, I am not suggesting that a jury necessarily must have
believed that Avila was disciplined for his admitted insubordination. He
could argue based on the evidence (and he did argue) that the LAPD
internal investigation and BOR proceedings were deficient, biased,
targeted, and used to retaliate against him — and a properly instructed jury
might have agreed. The problem in this case, as will be seen shortly, is
that the jury here was not properly instructed.
22                         AVILA V. LAPD

WL 2765285, at *10 n.5 (U.S. June 19, 2014) (noting in a
First Amendment retaliation case: “Of course . . . wrongdoing
that an employee admits to while testifying may be a valid
basis for termination or other discipline.”). Although the act
of testifying is protected, the testimony itself is not
privileged. This distinction is rooted in both reason and
common sense.2

      Now to the jury instruction problem.

                                     II

    The FLSA makes it unlawful to take adverse action
against an employee “because such employee has . . .
testified” in a FLSA proceeding. 29 U.S.C. § 215(a)(3). As
this court previously explained in the Title VII context, to
prove a violation of such a statute, an employee may have
evidence from which “the only reasonable conclusion a jury
could reach is that discriminatory animus is the sole cause for


  2
     Perhaps this is apparent, but in reading the majority’s opinion, one
could interpret it otherwise, when it states, inter alia: “The only evidence
against Avila was his testimony in the FLSA action . . . . 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[.]” Maj. Op. at 14. The clear implication is that use of
an employee’s testimonial admission is “entirely forbidden” (he is
immune from discipline) unless there is “other evidence of the alleged
infraction” (and even then it may still be forbidden). That implication is
not the law, as even Avila’s counsel recognized at oral argument, when he
agreed that an officer could be disciplined if, while testifying during a
protected hearing, he admitted to “widespread beating of civilians.”
Further, as noted infra, this issue was discussed at trial during argument
on the jurors’ questions and everyone — Avila, the City, and the trial
judge — agreed that there is a difference between the protected act of
testifying and admitting to misconduct while testifying.
                       AVILA V. LAPD                          23

the challenged employment action or that discrimination
played no role at all in the employer’s decisionmaking[.]” See
Costa v. Desert Palace, Inc., 299 F.3d 838, 856 (9th Cir.
2002) (emphasis in original), aff’d 539 U.S. 90, 123 S. Ct.
2148 (2003). In such “sole cause” (or “pretext”) cases, the
jury must be instructed “to determine whether the challenged
action was taken ‘because of’ the prohibited reason,” and, if
the jury finds that it was, the employee prevails. Id. If, on the
other hand, the jury determines that it “played no role at all”,
the employer prevails. Id.

    However, where there is evidence of more than one
potential cause for the adverse action (so-called “mixed
motive” cases), a different instruction should be used. Thus,
if the evidence at trial “could support a finding that
discrimination is one of two or more reasons for the
challenged decision, at least one of which may be legitimate,
the jury should be instructed to determine first whether the
discriminatory reason was ‘a motivating factor’ in the
challenged action.” Id. at 856–57. If the jury answers that
question in the affirmative, the employee prevails unless the
employer can then prove that it would have made the “same
decision” even if the impermissible factor (protected activity)
had not been considered. See id. at 857; accord
Knickerbocker v. City of Stockton, 81 F.3d 907, 911 & n.2
(9th Cir. 1996) (holding same in the FLSA retaliation
context). In other words, if there is enough evidence to
support it, the “mixed motive” jury instruction is called for,
where the appropriate causation standard is only “a
motivating factor” but which must be coupled with a “same
decision” affirmative defense instruction.

   Before trial, Avila proposed a “sole cause” instruction
under Ninth Circuit Model Instruction No. 10:3, which
24                         AVILA V. LAPD

provided that he would prevail on his claim if he showed:
(1) that he engaged in protected conduct; (2) that he was
subjected to an adverse job action; and (3) that he was
subjected to that action “because of” the protected conduct.
The City objected to the instruction as it did not account for
its defense that there were valid, independent, and non-
retaliatory grounds for Avila’s termination — namely, his
admitted insubordination — and that the LAPD “would have
acted as it did regardless of any protected activity by
plaintiff.” The City thus requested a “mixed motive” jury
instruction with the “motivating factor” causation standard,
along with the following “same decision” affirmative
defense:

         If the plaintiff has proved all three of these
         elements, the plaintiff is entitled to your
         verdict, unless the defendant has proved by a
         preponderance of the evidence that it would
         have made the same decision even if the
         plaintiff’s participation in a protected activity
         had played no role in the employment
         decision. In that event, the defendant is
         entitled to your verdict, even if the plaintiff
         has met his burden of proof on all three of the
         above elements.

(Emphasis added). This “same decision” defense instruction
was taken verbatim from the “mixed motive” alternative
instruction in the then-current Ninth Circuit Model
Instruction No. 10:3.3


  3
    This pattern instruction, which by its very title applied to Title VII
cases, was amended last year to omit the “mixed motive” alternative on
the basis of the Supreme Court’s decision in University of Texas S.W.
                            AVILA V. LAPD                                 25

    The City also proposed the two special instructions that
the majority has quoted in full. See Maj. Op. at 11. The
underlying purpose of these instructions was to tell the jury
of the distinction between the act of testifying, which cannot
serve as a basis for adverse action, and admitting to
misconduct while testifying, which can.

    The trial judge rejected both special instructions, but he
appeared to agree that the evidence supported a “mixed
motive” instruction. Yet, he ended up giving a combination
of a portion of the “mixed motive” and a portion of the “sole
cause” instructions.4 First, he instructed the jury that Avila
would prevail if he proved that his testimony in Maciel was


Med. Center v. Nassar, — U.S. —, 133 S. Ct. 2517 (2013), which had
analyzed the statutory “because [of]” language and rejected a motivating
factor test in the Title VII retaliation context. In reaching this conclusion,
the Supreme Court relied on its decision in Gross v. FBL Financial Servs.,
557 U.S. 167, 129 S. Ct. 2343 (2009), which interpreted similar “because
of” statutory language and held that a mixed motive instruction was
improper under the Age Discrimination in Employment Act. Whether and
to what extent Nassar and Gross may have a bearing on retaliation claims
under the FLSA is at this point unclear, although the FLSA uses similar
statutory “because [of]” language. Nevertheless, there is, to date, Ninth
Circuit authority providing that the mixed motive/motivating factor
analysis is available to retaliation claims under that statute. See
Knickerbocker, 81 F.3d at 911 & n.2. Thus, I accept that is still the law in
this circuit (as it was at the time of trial in this case), regardless of what
the Supreme Court may decide in FLSA retaliation cases in the future.
  4
    The parties do not dispute on appeal that this was a “mixed motive”
case. The majority states that the trial judge “gave the City’s requested
[mixed motive] instruction,” Maj. Op. at 9, but that is not accurate. The
City requested the mixed motive instruction which included the
incorporated “same decision” affirmative defense, as set out in the pattern
instruction. The judge significantly changed that instruction, as will be
seen.
26                         AVILA V. LAPD

“a motivating factor” for the challenged action, which the
court defined as “a reason that contributed to the decision to
take certain action even though other reasons also may have
contributed to the decision.” So far, so good. However, the
judge went astray by omitting the “same decision”
affirmative defense language from this circuit’s model
instruction and, instead, instructing the jury as follows on the
City’s defense:

         [I]f the defendant has proved by a
         preponderance of the evidence that the
         plaintiff’s participation in a protected activity
         played no role in any of the adverse
         employment decisions, the defendant is
         entitled to your verdict.

This instruction has nothing to do with the “same decision”
defense, and it mixes apples with oranges. It told the jury that
Avila would prevail if he proved that his participation in the
protected activity was “a motivating factor” (i.e., a
contributing reason among others) for the adverse action,
which could then be overcome only if the City could turn
around and prove that the protected activity “played no role”
at all. This illogical and internally inconsistent instruction
was not the same decision affirmative defense set out in the
Ninth Circuit pattern jury instructions, which the City had
requested.5

     5
     It appears that the “no role” portion of the instruction was, in
substance, derived from Avila’s previously (and properly) rejected “sole
cause” instruction. See Costa, 299 F.3d at 856 (describing “sole cause”
cases as those in which “the only reasonable conclusion a jury could reach
is that discriminatory animus is the sole cause for the challenged
employment action or that discrimination played no role at all in the
employer’s decisionmaking”) (emphasis added). In mixed motive cases
                            AVILA V. LAPD                                27

    On this issue, Knickerbocker is instructive. That was a
mixed motive FLSA retaliation case in which the employee
argued that the adverse employment action “should be
deemed retaliatory if the protected conduct was ‘in any way’
a part of the employer’s decision”, 81 F.3d at 911 n.2, which
is merely the inverse way of arguing that the employer, to
prevail, must demonstrate that the protected conduct “played
no role” in the decision. This circuit rejected that argument,
stating that it was “wiser” to conclude in FLSA mixed motive
cases that the employer need only prove that, although the
protected conduct “played a role,” it would have done the
same thing even if “the proper reason alone had existed.” See
id. at 911 & n.2.6

   Notably, the majority opinion does not dispute that the
“no role” instruction was erroneous. Instead, it appears to


such as this, the employer has no burden to prove that the protected
activity “played no role.” See Knickerbocker, 81 F.3d at 911 & n.2. That
language is not even compatible, since in mixed motive cases it is
presumed that the activity may have “played a role,” but the employer has
the opportunity to try and prove that it would have taken the same action
anyway. See Ostad v. Oregon Health Sciences Univ., 327 F.3d 876,
884–85 (9th Cir. 2003) (citing Knickerbocker and noting that in a “mixed
motive” case the employee must prove that the protected activity was a
“substantial or motivating” factor, after which — despite that it was a
factor — the employer will prevail if it proves that “the adverse action
would have occurred anyway”). If employers in mixed motive cases were
required to show, as here, that the protected conduct “played no role” in
the action, then no employer could ever prevail on its affirmative defense.
 6
   Avila maintains in his brief that the instruction the trial judge gave was
“in substance” the same as the one that the City had requested, but the two
are actually contradictory. Requiring the City to prove for its affirmative
defense that it would have made the same decision even if the protected
activity was a motivating factor is manifestly not the same as requiring the
City to prove that the protected activity “played no role.”
28                         AVILA V. LAPD

suggest three reasons why that error does not warrant
reversal: waiver, insufficient evidence, and harmless error.

                                    A.

    For its first rationale, the majority contends that the error
has been waived because the City did not clearly and
distinctly raise the issue in its opening brief. See Maj. Op.
at 9. Although the City had requested the Ninth Circuit’s
pattern “mixed motive” instruction — which included the
incorporated “same decision” affirmative defense — it did
not expressly object to the “no role” instruction that was
given.7 Rather than assign error to that instruction, the City
has instead argued that the court erred in not giving the two
special instructions that sought to explain the pivotal
distinction between taking an action because an employee
testified, and taking an action because he admitted to
misconduct while testifying. There are two reasons why
waiver does not apply here.

    First, even though the City did not specifically object to
the instructions as they were originally given, we can review
jury instructions for plain error in civil cases. See Fed. R. Civ.
P. 51(d)(2). Plain error is: “(1) error, (2) that is plain, and
(3) that affects substantial rights . . . . If all three conditions
are met, an appellate court may then exercise its discretion to
notice a forfeited error, but only if (4) the error seriously
affects the fairness, integrity, or public reputation of judicial


 7
   The closest the City comes to making this argument is in its reply brief,
where it points out — quite rightly — that it could not have possibly
shown that the Maciel testimony played no role in the adverse action when
the City’s entire defense was that the action was appropriate based on
Avila’s admission “during that testimony!” (Emphasis in original).
                       AVILA V. LAPD                         29

proceedings.” United States v. Cotton, 535 U.S. 625, 631, 122
S. Ct. 1781, 1785 (2002) (quotation marks, citations, and
brackets omitted) (emphasis added). It is apparent to me that
the failure to give the “same decision” instruction that the
City had requested was plain error on the facts of this case, as
it deprived the City of its entire defense and thus seriously
affected the fairness and integrity of the trial.

    To prevail on his retaliation claim, the jury was instructed
that Avila had to prove: (1) that he was engaged in protected
activity when he testified in the Maciel case; (2) that he was
then subjected to an adverse employment action; and (3) that
his Maciel testimony was a “motivating factor” in the
decision to take that adverse action. This is a somewhat
unique case in that all three elements — from the jury’s
perspective — were essentially indisputable. As for the first
two, Avila obviously engaged in protected activity by
testifying in the Maciel action, after which he was obviously
subjected to adverse action. As for the third element, because
the City’s entire defense was that it took the adverse action
based upon the misconduct that Avila admitted during his
testimony, the protected activity obviously “contributed to”
the decision to take that action. The trial judge specifically
instructed the jury that: “If the plaintiff has proved all three
of these elements, the plaintiff is entitled to your verdict.”
These are the first three elements of this circuit’s pattern
“mixed motive” instruction — but the judge left out the same
decision affirmative defense, which is what the “mixed
motive” instruction is all about. Consequently, the jury was
told that the only way for the City to avoid liability, per the
judge’s deviation from the pattern instruction, was if it could
somehow prove that the trial testimony in Maciel “played no
role” in the action — which, of course, it could not possibly
do. In other words, there was no way for the City to prevail
30                          AVILA V. LAPD

under the instructions as given to the jury, and the outcome
of the case was predetermined. I believe this instructional
error was plain.8

    Furthermore, even if the trial judge’s failure to give the
“same decision” instruction was not plain error, this issue was
not waived because that omission plus the inconsistent “no
role” instruction that was given led directly to — and
aggravated — the jury’s obvious confusion, and it cannot be
separated from the equally meritorious special instructions
argument that the City has advanced on appeal. As will be
seen, the two arguments are inextricably interrelated.

    During their first full day of deliberations, the jurors (who
had deliberated only part of the day before) sent out a note
asking the following three questions:


 8
    The majority says “the only issue [for the jury to resolve] was whether
the reason given by the LAPD for the termination was a pretext.” See Maj.
Op. at 16 (emphasis added). But, this action was tried as a mixed motive
case, not as a sole cause case, so pretext was not an issue at trial. In
Stegall v. Citadel Broadcasting Co., 350 F.3d 1061 (9th Cir. 2003), this
court discussed the differences between the two types of cases and noted
“it does not make sense to ask if the employer’s stated reason for
terminating an employee is a pretext for retaliation” in a mixed motive
case; rather, in such cases the first issue is whether the protected activity
was a motivating factor in the adverse action, and the second issue is
whether the employer would have made the same decision anyway. See
id. at 1067–68. As for the first issue, as noted, Avila’s trial testimony in
Maciel clearly “contributed to” the adverse job action, and, therefore, it
was a “motivating factor” in the decision to take the action. As for the
second issue, the majority opinion makes no attempt to explain how the
jury could have possibly resolved that question in favor of the City in light
of the instruction that it was given. It couldn’t. The law that the jury was
told to follow was wrong — pure and simple — and as a result the City
was denied its entire defense, which was plain error.
                       AVILA V. LAPD                          31

        Is testimony given at an FLSA action
        protected? Then, can that testimony be used as
        evidence in a trial? Is the physical act of
        testifying the protected activity under FLSA,
        or is the testimony protected or both?

Both counsel and the trial judge agreed that the answer to the
first two questions was “yes,” but there was disagreement as
to the third. Avila’s lawyer suggested at the time that the act
of testifying and the testimony itself were both protected, but
the City’s lawyer believed that was legally incorrect because,
“obviously, there’s examples, if you admitted committing a
homicide in an FLSA proceeding, I don’t think anybody
would argue that would be protected activity.” Although the
judge could have easily answered the third question, he
ultimately decided (with both counsel agreeing) to respond by
simply re-reading a previous stipulation reflecting that Avila
had testified in the Maciel action and that “[t]he giving of this
testimony is protected activity under the [FLSA].”

    The jury continued to deliberate the rest of that day. Still
confused on the third day, however, it sent out a second series
of questions:

        If testimony given in an FLSA proceeding is
        protected, is it legal to use that testimony
        against the person testifying? If it is legal to
        use that testimony against the person
        testifying, then, how is that testimony
        protected?

The trial judge’s following summary of these questions as he
began his discussion with counsel accurately describes the
jury’s dilemma:
32                     AVILA V. LAPD

       My sense is that the jury is caught in a
       circular reasoning process. It would appear
       that the jury should be told that a person can
       testify in an FLSA proceeding, that the
       testimony is protected, that in this case the
       LAPD could not terminate the plaintiff . . . for
       testimony — the fact that he testified in the
       FLSA proceeding.

       The follow-up is that they could terminate
       him if the department concluded that he made
       an admission in that testimony that provided
       separate but good cause to terminate him.

       So, they can’t terminate him for testifying, but
       they can terminate him if he made an
       admission that provided separate grounds for
       termination that arose to good cause.

Avila’s counsel replied that he “generally agree[d] with what
the court is trying to communicate.” However, he maintained
that it was “more precisely stated” in the (erroneous)
“motivating factor/no role” instruction that had already been
given to the jury. After quoting from that instruction, Avila’s
attorney stated as follows:

       So, in order for the jury to say in this case
       under the law that there is not a motivating
       reason, they must be able to affirmatively say
       the defendant has proved by a preponderance
       of the evidence that plaintiff’s testimony in
       Maciel played no role in any of the adverse
       employment decisions.
                           AVILA V. LAPD                               33

         Because what is incumbent upon the defense
         to show is it’s not a motivating reason. And
         the flip side of a motivating reason — or
         should I say the inverse of a motivating reason
         is that the protected activity played no role,
         which is covered in the jury instruction that
         the court has given.

(Emphasis added).9 Defense counsel responded by agreeing
with what the trial judge had said at the beginning of the
discussion, i.e., that there is “a distinction between the act of
testifying . . . versus the content of the testimony[.]” He then
reminded the court: “We proposed two special instructions
that directly address this pivotal issue. Those instructions
were rejected by the court. Let me reoffer them for the court
to consider because it does seem since the jury has the
[“motivating factor/no role” instruction] they’re struggling
with it.” The judge once again rejected the two special
instructions and (over the City’s objection) decided to re-read
the erroneous instruction to the jury because, he said, “this is
getting way too complicated.” After the judge announced
what he planned to do, the City made one last attempt and
requested, in the alternative, that the judge at least give the
jury “the explanation that you provided to counsel when you
came on to the bench, the distinction between the giving of
testimony and the use and contents of the testimony.” The
court replied “that will not be done at this time.”



   9
      Once again, this is incorrect. The “flip side” or “inverse” of a
motivating factor is not that the protected conduct “played no role” in the
adverse job action. Instead, in mixed motive cases, the employer need
only show it would have made the “same decision” regardless of the role
that the protected activity did play. See supra note 5.
34                     AVILA V. LAPD

    The trial judge thus not only failed to correct the
erroneous instruction — by giving “special instructions” that
could have freed the clearly struggling jury from the “circular
reasoning process” that he himself believed it was “caught in”
— but he actually repeated and compounded the original
error by just re-reading the same erroneous instruction. This
sequence shows the inseparable overlap between the original
instructional error regarding the lack of a proper “same
decision” defense (which has not been directly raised on
appeal) and the court’s response to the jury questions and
refusal to give the special clarifying instructions (which has
been).

    In sum, Avila obviously engaged in protected activity
when he testified in Maciel, but it is also obvious that he
admitted to “serious misconduct” during his testimony, which
provided a legitimate basis for discipline. Prior to trial, the
City requested special instructions to address that issue, but
they were rejected. After the jury was inexplicably told that
the City could prevail only if it proved that the Maciel trial
testimony “played no role,” the jury was clearly (and
understandably) confused about whether it could separate
Avila’s admitted misconduct as ground for discipline from
the protected act of testifying. To try and remedy the
problem, the City once again proposed — but the trial judge
once again rejected — special instructions that could have
cleared up the jury’s confusion on this point.

    The majority says that the two special instructions “would
have done more to confuse than to clarify”, Maj. Op. at 15,
but it is hard to see how the jury could have possibly been
more confused than they already were with the instructions as
given. To the extent the special instructions were themselves
confusingly-written, the judge could have done what the City
                            AVILA V. LAPD                               35

had requested as an alternative to giving those instructions:
just tell the jurors as he succinctly told the lawyers:“they
can’t terminate him for testifying, but they can terminate him
if he made an admission that provided separate grounds for
termination that arose to good cause.” That simple and
uncomplicated clarifying statement would not have confused
the jury and would have provided the answer to the problem
that had been created by the erroneous instruction.

     As it was, however, the trial judge twice instructed the
jury that the City, to prove its defense, must show that Avila’s
testimony in Maciel “played no role” in the challenged action,
which was legally incorrect. Thus, once Avila quite easily
met his threshold case, the City did not have the opportunity
for the jury to even consider its defense: that it took the action
because of the admitted misconduct, and not for the mere act
of testifying. I believe this was not only plain error, but it was
so closely related to the persuasive special instructions
argument that the City has raised that the issue has clearly not
been waived.

                                     B.

     The majority next maintains that, even if the error had not
been waived, the result would not change as there was
literally “no evidence” to warrant the “same decision” jury
instruction. See Maj. Op. at 14, 10 (emphasis in original).
With this assertion (and other similar representations), the
majority appears to suggest that the evidence at trial was so
indicative of retaliation that the City basically had no
defense.10 A close and careful review of the full trial record


 10
      The majority states, for example, that “[t]he uncontested evidence in
36                         AVILA V. LAPD

reveals that there was ample evidence to support the same
decision defense, as the case was much closer than the
majority’s opinion suggests. The following evidence was
presented to the jury:

     The LAPD is a very large municipal employer with
approximately 10,000 sworn members. At the time relevant
here, it was LAPD “official” policy that any officers who
worked through their 45-minute lunch break — generally
known as a “Code 7” — should fill out an overtime slip,
report it on their Daily Field Activity Report (“DFAR”), and
be paid accordingly. DFARs were completed at the end of
each shift, and if there were problems with the report as
submitted, a “Kick-back Sergeant” would return it the
following day to be corrected. Although this was the LAPD’s
“official” policy, there were allegations that some supervisors
adhered to an “unwritten policy” of coercing and
discouraging the officers from reporting any overtime for less
than one hour. There were multiple FLSA overtime cases
filed against the City involving this allegation, including
some large class actions that had thousands of class members.
The cases posed “big problems” for the LAPD and exposed
it to “huge liability.”

    So, in March 2003, and again in June 2005, the LAPD
issued two policy memos expressly stating that there was no
“unwritten policy” of not being paid overtime and that all
overtime hours must be properly reported or the employee
would be subject to termination. The officers were further
told that if anyone felt pressure or coercion to not report all of


this case is that Avila would not have been fired had he not testified.” See
Maj. Op. at 10 (emphasis added). As will be seen, that is contradicted by
the record, including the trial testimony of Avila himself.
                          AVILA V. LAPD                               37

their overtime, they had the “affirmative obligation” to report
the source of that pressure or coercion, and they could do so
anonymously and outside the regular chain of command. The
failure to report all overtime and the failure to report
supervisors who encouraged such conduct was
insubordination, which was considered to be “serious
misconduct.”

    At some point during this time, the Chief of Police and
“top management” made the determination and decision that
the LAPD would investigate claims of FLSA violations only
where the alleged violators were specifically identified. It was
thus incumbent on the individual making the charge(s) to
provide adequate information — like names, dates, and times
— to facilitate an investigation as the LAPD had limited
resources and could not do “fishing expedition”
investigations of hundreds (potentially thousands) of
unnamed officers and still function as a law enforcement
agency. The evidence presented to the jury was that whenever
alleged violators were specifically identified, they were
investigated by Internal Affairs.

    Avila joined the LAPD in 1997, and he was assigned to
patrol in the Central Division. He had the “distinct
recollection” of having received and reviewed both the March
2003 and June 2005 policy memos. On or about February 23,
2007, he joined one of the ongoing lawsuits against the City
and alleged that the LAPD had denied him overtime pay
under the FLSA. Roberto Alaniz v. City of Los Angeles, 2:04-
CV-8592-GAF (doc. 637).11


 11
    The majority twice refers to Avila as a “model” officer. See Maj. Op.
at 4, 17. Putting aside the evidence that he had five sustained personnel
complaints and was suspended four times (for a total of 18 days) for
38                        AVILA V. LAPD

    In January 2008, almost a year after he joined in the
Alaniz lawsuit, Avila testified in the Maciel litigation. Yvette
Bass, a detective with Risk Management for the LAPD, was
in the courtroom to observe the trial. While testifying, Avila
admitted under oath that for several years he and myriad
unnamed “other officers” knowingly and repeatedly violated
the FLSA and LAPD “official” policy by not reporting
overtime when they worked through their Code 7s. He
testified that he did this, even though he knew it constituted
“serious misconduct,” because he felt “intimidated” by
supervisors who “discouraged” him from requesting overtime
in that situation. He never reported any of the supervisors,
however, which he knew was separate misconduct. He further
testified that he would sometimes put missed Code 7s on his
DFARs, but the Kick-back Sergeants would give them back
to him the following day and order him to falsify the records.
He did not ever report any of the Kick-back Sergeants who
allegedly told him to do this, and he testified that he falsified




various misconduct, whether he was a good employee is irrelevant as there
has been no claim that he was fired for being a bad employee. Rather, he
was terminated only after — and allegedly because — he admitted under
oath that he committed “serious misconduct.” And, there is evidence from
which a jury could have found that is what happened here. For example,
nine months after he joined in the Alaniz lawsuit, Avila received a
performance review that said he “possesses a good work ethic” and is
“courteous and professional,” “dedicated,” “exemplary” and “consistently
outstanding.” The timing of this very (and exclusively) favorable review
would appear to undermine the suggestion that it was his mere
participation in a FLSA case against the LAPD, as opposed to his
admissions of “serious misconduct” during such case, that led to his
termination.
                           AVILA V. LAPD                              39

DFARs “over and over again”, even though he knew it was
even still more misconduct.12

    With his trial testimony in Maciel, Avila implicated
potentially hundreds of unnamed supervisors and possibly
hundreds of unnamed officers, but he provided almost
nothing to support his claims. He readily admits that he never
provided any specific dates or times, and he admits that he
provided almost no names.13 In fact, even though he claimed
that it had been going on for years, he only identified two
supervisors who allegedly pressured him to not report
overtime: Sergeant Walker and Sergeant Miyazaki. Sergeant
Walker died years before, but Sergeant Miyazaki was still
with the LAPD, and, in fact, had also testified in the Maciel
case. During his testimony in that litigation, Miyazaki stated
that he had “probably” violated the overtime rules.

     Detective Bass reported what she observed at the Maciel
trial, after which an internal complaint was brought against
both Avila and Sergeant Miyazaki. The complaint was
brought against Sergeant Miyazaki for two reasons: because
Avila specifically identified and accused him of misconduct,
and (like Avila) “because he might have implicated himself
in his own testimony.” During the investigation, Internal


  12
     Since Avila had admitted to knowingly and repeatedly violating policy
in three separate ways over many years, there was much more “serious
misconduct” at issue in this case than just an officer “periodically
work[ing] through his lunch break” and “not seeking all the pay that he
might have.” See Maj. Op. at 4, 17.
  13
     Avila was not able to name a single Kick-back Sergeant, but he was
able to provide an estimate of when they allegedly ordered him to falsify
his DFARs: sometime between 2004–2006. This did not help narrow the
field, however, as the Kick-back Sergeants change almost every day.
40                          AVILA V. LAPD

Affairs asked Avila multiple times to confirm if his Maciel
testimony had been accurate, and he agreed that it was.
Subsequently, the charge against him was sustained, as the
complaint adjudicator determined (based on his sworn
testimony) that he “was clearly aware of the FLSA policies
but violated them anyway.” The complaint against Sergeant
Miyazaki, meanwhile, was deemed to be unfounded.14 The
adjudicator found as follows with respect to Miyazaki:

         Avila’s claim was self-serving. And he made
         it in court as a plaintiff in a lawsuit [Alaniz]
         against the City for uncompensated overtime.

         Avila admitted to being trained on FLSA-
         related policy and his right to compensation.

         Avila’s statement was unsupported by any
         specific facts, such as, dates, notes, or
         notifications to other supervisors for what
         would have been a clear violation of policy.




  14
     There were some notable distinctions between Miyazaki and Avila.
Avila was unequivocal that he had knowingly committed misconduct over
several years. Miyazaki testified that he “probably” violated the overtime
policy in some manner, but it was unclear how he might have done so.
Review of his testimony in Maciel reveals that, to the extent he admitted
to violating the official policies, it was very different than what Avila had
confessed to. As supervisor, Sergeant Miyazaki had the “affirmative duty”
to make reasonable efforts to be sure that his officers were taking (or
being paid for working through) their Code 7s. He testified that, due to the
demands of being watch commander and confusion as to what his
affirmative duty required, he might have violated the policies. But, he
strongly denied that he ever discouraged officers from seeking overtime,
which the adjudicator accepted, as quoted in the text.
                      AVILA V. LAPD                       41

       While not part of the investigation, the
       adjudicator was personally aware of overtime
       granted to employees for no Code 7 on a
       regular basis by supervisors including
       Miyazaki.

       No Code 7 overtime makes up about 3 percent
       of Central Area’s overtime expenditures. This
       fact is inconsistent with Avila’s claim that
       such overtime was routinely denied.

After the investigation, the Chief ordered Avila to a hearing
before the BOR. In response, Avila filed a complaint in state
court to stop the hearing from moving forward and, in
connection with that proceeding, he filed a sworn declaration
in which he again: (1) admitted that for years he knowingly
failed to report overtime when he worked through his Code
7s, and (2) confirmed that his Maciel testimony was accurate.
Ultimately, he lost his bid to stop the BOR from holding its
hearing.

    Avila appeared at the BOR with counsel to contest the
charge. He decided to resign from the LAPD on the first day
of the hearing and did not return after the lunch break.
Pursuant to BOR procedure and written direction from the
Chief, the hearing continued without him for the next three
days, during which his attorney fully participated, examined
witnesses, lodged objections, put on evidence, and presented
his defense. After hearing the evidence, the BOR panel
assigned to the case (which was comprised of two LAPD
Captains and one civilian) found Avila guilty of “serious
misconduct” and recommended termination. He was
42                        AVILA V. LAPD

thereafter “terminated”, even though he had already resigned
and his resignation accepted.15

    Avila did not appeal the BOR’s determination.
Importantly, this means, as the district court had earlier held,
that he is “bound by the factual findings of the BOR — that
he violated departmental policy and that such insubordination
was grounds for termination — and [he] cannot challenge
those findings[.]”

    With the foregoing in mind, I do not agree that the City
had “no evidence” to support the “same decision” affirmative
defense. This court has said that, for the proof required to
assert this defense, an employer need only have “some
objective evidence” that it would have taken the same action
notwithstanding the protected activity. See Metoyer v.
Chassman, 504 F.3d 919, 939–40 (9th Cir. 2007) (citation
omitted). Because the inquiry is “an intensely factual one”,
mixed motive defenses “are generally for the jury to decide.”
Id. at 940 (citation omitted).




  15
      The majority notes that Officers Romney and Anderson testified
adverse to the LAPD in Maciel and they, too, were sent to the BOR and
fired. See Maj. Op. at 5–6 & n.1. As stated before, both officers — like
Avila — admitted to “serious misconduct” under oath. Specifically,
Romney admitted that he knowingly failed to report overtime for almost
two decades (even after the 2003 and 2005 memos), while Officer
Anderson not only admitted to misconduct in her Maciel testimony, but
she actually pled guilty to one of the charges against her at the BOR.
Romney and Anderson identified supervisors who allegedly violated the
overtime policies as well. None of these supervisors admitted to the
misconduct (but, rather, denied wrongdoing), and they were exonerated
following internal investigations.
                      AVILA V. LAPD                       43

    I have included these evidentiary details from the record
because the majority states “[i]t simply cannot be argued on
this record that Avila would have been fired had he not
testified.” See Maj. Op. at 14. In my opinion, the majority
fails to draw the critical distinction between the act of
testifying and admitting to insubordination while testifying.
There is no legal basis for treating the testimony as
privileged. An employee is not entitled to full use immunity
when he testifies during an otherwise protected proceeding.
He can testify without fear of reprisal unless he implicates
himself in some manner. Thus, as in this case, where there is
evidence before the jury that an employee admitted under
penalty of perjury that he was knowingly and repeatedly
insubordinate for many years, that testimony is automatically
“some objective evidence” for the “same decision” defense.
This is because, in such a case, the jury could easily
determine that the employer would have done the same thing
independent of the fact that the employee had testified (for
example, if the misconduct had been discovered in some
other way). The jury would, of course, not be required to
make such a finding — it might find that the adverse action
was retaliatory — but it could, depending on all of the
evidence in the case. Accordingly, the “same decision”
defense instruction is warranted if an employee admits to
misconduct while testifying.

    Consider the facts of this case. Avila was a very good
(albeit not a “model”) police officer who received favorable
performance reviews — even after he sued the LAPD for
allegedly violating his FLSA rights. See supra note 11. There
does not appear to have been any reason for adverse action
against him before he took the stand in Maciel and testified
as he did. If the knowing and repeated “serious misconduct”
that he admitted to during his testimony is not sufficient
44                     AVILA V. LAPD

evidence to support the same decision defense in and of itself,
the logic of that position would necessarily mean that he
could have admitted to just about anything — including
“widespread beating of civilians” — and still not have been
fired as his record was mostly unblemished and did not
otherwise warrant discipline. To the extent that the majority
suggests there must be “other evidence of the alleged
infraction” separate from the admissions on the stand, see
Maj. Op. at 14, that is simply not the law, as even Avila’s
counsel conceded in the district court and on this appeal. See
supra note 2.

    Moreover, even if Avila’s admissions on the stand could
not be used as the basis for the “same decision” instruction,
there was separate “other evidence” that would qualify. For
example, Avila testified in this case that he saw Detective
Bass in the courtroom before he testified in Maciel, and she
introduced herself and told him that she was there to watch
the trial for Risk Management. Very significantly, Avila has
conceded that if he had told her exactly what he was about to
testify to, she would have been “required” to report him, and
he would have “expect[ed]” to be disciplined. While that pre-
testimony conversation with Detective Bass never took place,
Avila confirmed the accuracy of his Maciel testimony to
investigators after he testified (and before he was fired). If a
pre-testimony admission could — according to Avila himself
— justify discipline and thus provide a foundation for a
“same decision” defense, then his post-testimony
confirmation of those admissions should as well.

    Further, the majority’s statement that “[t]he uncontested
evidence in this case is that Avila would not have been fired
had he not testified”, see Maj. Op. at 10, is difficult to
reconcile with Avila’s own testimony. As just noted, he
                       AVILA V. LAPD                          45

expressly conceded that if he had said exactly what he
testified to in the Maciel case in any other setting then he
would have “expect[ed]” the LAPD to discipline him. That
concession by itself is sufficient evidence to support the
“same decision” defense instruction. Cf. Gilbrook v. City of
Westminster, 177 F.3d 839, 855 (9th Cir. 1999) (stating “an
employee cannot use protected conduct as a shield against a
dismissal that would have occurred even in the absence of the
protected conduct”).

    In addition, the sworn declaration that Avila filed to try
and stop the BOR hearing further affirmed that he knowingly
violated the LAPD’s official policy by not reporting overtime
and not reporting supervisors who allegedly told him to do so.
This evidence — separate and apart from his testimony in
Maciel — provided other grounds for the “same decision”
instruction.

    Finally, Avila did not appeal or challenge the BOR’s
ruling. Consequently, as the district court held earlier in this
case, and as Avila does not dispute on this appeal, he is bound
by the BOR’s factual findings, including “that he violated
departmental policy and that such insubordination was
grounds for termination[.]” This is separate and independent
“other evidence” to support the “same decision” affirmative
defense.

    Thus, even if Avila’s admitted misconduct while
testifying was not “some objective evidence” to support the
“same decision” instruction all by itself (and I believe it was),
there was considerable other evidence at trial: his post-
testimony confirmation of the insubordination, his sworn
declaration, the legally binding administrative factual
findings, and his testimony before the jury in this case that he
46                     AVILA V. LAPD

would have been disciplined if he had said the exact same
thing while not testifying. Far from there being “no evidence”
to support the City’s affirmative defense, there was, in fact,
ample evidence from which a reasonable jury could have
found that the City would have made the “same decision” in
this case.

                              C.

    As to whether the error here was harmless, both the
majority’s opinion and Avila’s brief rely on Lambert v.
Ackerley, 180 F.3d 997 (9th Cir. 1999) (en banc), which held
that the district court’s failure to give a same decision
instruction was harmless. Harmless error analysis, of course,
“rests on the particular facts” of each individual case. See
United States v. Frazin, 780 F.2d 1461, 1471 (9th Cir. 1986).
What is harmless error in one case “could well, under a
different set of facts,” not be considered harmless in another
case. See id. It is thus important to compare the facts of
Lambert to the facts presented here, and note the three
significant ways in which the cases are very different.

    First, as the court recognized, the evidence in Lambert
was overwhelming, as it was a “rare” mixed motive case that
had direct evidence of retaliation (to wit, a statement from a
supervisor that plaintiff would “definitely not have a job” and
would “be fired” if she filed a FLSA claim). 180 F.3d at
1008–09. The panel said that the direct evidence “strongly
support[ed]” its harmless error finding. See id.; accord
Merritt, 120 F.3d at 1188–91 (concluding that an employee
who admits to misconduct while testifying in a protected
proceeding may be terminated and the employer will be
granted summary judgment, unless there is “direct evidence
of retaliatory motive”). There was no direct evidence here,
                            AVILA V. LAPD                                47

and there was sufficient circumstantial evidence to support a
verdict for the City.

    Second, the Lambert court found it very important — and
spent two pages discussing the fact — that the jury awarded
the employee $12 million in punitive damages. See id. at
1009–10 (citing cases where it was held that “an instructional
error regarding liability [is] harmless in light of a punitive
damages award”). Not only were punitive damages not
awarded in this case, but the jury awarded Availa about 1%
of the compensatory damages that he sought.16

    Third, the jurors in Lambert did not ask two sets of
multiple questions while deliberating into the third day (after
hearing only three days of evidence), strongly suggesting that
they were confused by the instructions and having a difficult
time reconciling them with the evidence. Cf. Rose v. Lane,
910 F.2d 400, 403 (7th Cir. 1990) (stating in a habeas case
that involved an erroneous instruction which led to follow-up
jury question: “While this question could have a variety of
implications, it indicates possible jury confusion over the
manslaughter instructions and therefore contributes to our
finding that the instructions were not harmless.”).17


 16
    During closing argument, Avila’s attorney had requested $230,000.00
in economic damages and 4.5 million in non-economic damages. The jury
gave him $50,000.00.
  17
     Although it is always difficult to try and infer what a jury is thinking
with its questions, on the facts of this case, the questions are telling. The
jurors astutely asked five related questions that centered on the exact
problem that was created by the erroneous instruction. The last two
questions asked whether the LAPD could “legal[ly]” use Avila’s
testimonial admission against him, and the jurors were not given the
answer. If the evidence of retaliation in this case was so overwhelming
48                          AVILA V. LAPD

    In this case, the absence of the “same decision” defense
instruction and the inclusion of the “no role” instruction had
the practical effect of depriving the City of its entire defense.
This circuit and several others have held, albeit mostly (but
not exclusively) in the criminal context, that an error cannot
be found harmless if it “precludes or impairs the presentation
of [a defendant’s] sole means of defense.” United States v.
Carter, 491 F.2d 625, 630 (5th Cir. 1974); see also United
States v. Peak, 856 F.2d 825, 834–35 (7th Cir. 1988); United
States v. Harris, 733 F.2d 994, 1005 (2d Cir. 1984); accord
United States v. Evans, 728 F.3d 953, 967 (9th Cir. 2013)
(concluding that trial judge’s erroneous exclusion of the
“central piece of evidence” for defendant’s “main defense”
and which went to the “very heart” of the dispute could not be
harmless, notwithstanding the “overwhelming volume and


that the error could be harmless, it is unlikely that the jury would have
asked that question on the third day of deliberations. See Thomas v.
Chappell, 678 F.3d 1086, 1103–04 (9th Cir. 2012) (referencing two
“objective clues” that “strongly suggest that the case was close”, namely,
the fact that the jurors deliberated into the fifth day and sent two requests
that “related specifically” to the issue on appeal, which suggests “the jury
actually struggled with that question”; collecting multiple cases involving
juror requests and “lengthy deliberations” between two to five days that
showed the evidence was close as “‘one would expect that if the evidence
. . . was overwhelming the jury would have succumbed much sooner’”);
see also Aguilar v. Woodford, 725 F.3d 970, 984 (9th Cir. 2013)
(questions and notes over four days of deliberations showed the case was
close) (citing Rhoden v. Rowland, 172 F.3d 633, 637 (9th Cir. 1999)
(deliberations of nine hours over the course of three days indicated that the
jury “did not find the case to be clear cut”); Gibson v. Clanon, 633 F.2d
851, 855 n.8 (9th Cir. 1980) (“it does not seem possible that the jury
would have deliberated nine hours over [the course of two] days if the
jurors did not have serious questions”)); United States v. Ottersburg,
76 F.3d 137, 140 (7th Cir. 1996) (nine hours of deliberations “makes clear
that this case was not an easy one for those called to serve as finders of
fact”).
                       AVILA V. LAPD                          49

substance of the government’s evidence”); Ashcraft & Gerel
v. Coady, 244 F.3d 948, 949, 954 (D.C. Cir. 2001) (holding
that trial error in a civil case which went “to the very heart of
[the defendant’s] defense” and was “central to [his] defense”
could not be deemed harmless “in the absence of any steps by
the district court to mitigate the effects of the error”).

    The error was not only not harmless, but, it seems to me,
objectively plain.

                               III

    The FLSA’s anti-retaliation provision serves a noble
purpose. However, it does not extend so far as to immunize
an employee who takes the stand and admits to serious
misconduct. While the public interest may favor a liberal
application of retaliation statutes in some cases, it is highly
questionable whether that interest is being served here. The
inherent unfairness is that the public (i.e., taxpayers of Los
Angeles) will be required to pay about $700,000.00 in a case
where, because of an erroneous instruction that was twice
given (and special instructions that were twice denied), their
city was deprived of the chance to defend itself. That error,
based on the jury questions, appears to have been outcome-
determinative. While reasonable jurors (and judges) may
disagree on the merits of this case, what should be beyond
disagreement is that the City and its citizens were denied the
fundamental right of defense to which they were entitled
under the law. Reversible error occurred, and this case should
be remanded for a new trial.

    I respectfully dissent.
