Ninth Circuit Upholds Judgment in Favor of a Police Officer Who Claimed Retaliation for Testifying in a Fair Labor Standards Act Lawsuit

July 28, 2014
By Malani L. Kotchka, Lionel Sawyer & Collins

Police officer Leonard Avila periodically worked through his lunch break but did not claim overtime. The LAPD deemed Avila insubordinate for not claiming overtime and fired him. He was terminated only after Avila had testified in a Fair Labor Standards Act lawsuit brought by a fellow officer Edward Maciel who sought overtime pay for working through his lunch hour.

Avila then brought his lawsuit claiming that he was fired in retaliation for testifying in violation of the FLSA anti-retaliation provision, 29 U.S.C. § 215(a)(3). Avila testified under subpoena in Maciel’s lawsuit 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 alleging that they had been insubordinate by not submitting requests for overtime. Both Avila and the other officer were fired. The jury found in favor of Avila on his FLSA claim and awarded him 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.

The Ninth Circuit Court of Appeals affirmed the jury verdict in Avila v. LAPD and held that the uncontested evidence in the case was that Avila would not have been fired had he not testified. The only officers disciplined for the overtime violations were those who had testified in the Maciel action. Furthermore, the only evidence introduced at the disciplinary hearing was Avila’s testimony in the Maciel matter. Employers should be very careful and should consider this decision when contemplating discipline of employees for misconduct which comes to light through testimony in an FLSA lawsuit.

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