Luis Hernandez v. the City of San Jose

FILED
NOT FOR PUBLICATION
DEC 16 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUIS HERNANDEZ and CINDY No. 13-16878
CALDERON,
D.C. No. 5:12-cv-02952-HRL
Plaintiffs - Appellants,
v. MEMORANDUM*
CITY OF SAN JOSE; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Howard R. Lloyd, Magistrate Judge, Presiding
Argued and Submitted November 19, 2015
San Francisco, California
Before: NOONAN, WARDLAW, and PAEZ, Circuit Judges.
Luis Hernandez and Cindy Calderon appeal the district court’s grant of
summary judgment in favor of the defendants on their First Amendment retaliation
and parallel state law claims. The district court held that Hernandez and Calderon
failed to raise a genuine dispute of material fact as to whether Hernandez’s speech
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
was a substantial or motivating factor in the alleged adverse employment actions
that followed. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse.
As defendants now concede, Hernandez engaged in protected speech when
he spoke publicly about time-sheet fraud in the San Jose Police Department. See
Hagen v. City of Eugene, 736 F.3d 1251, 1258 (9th Cir. 2013). According to
Hernandez, within weeks of this speech, his supervisor downgraded his
performance review from “above standard” to “meets standards”; Department
officials eliminated his administrative position; and he was reassigned to work
patrol, a position he considered less desirable. The pattern of unfavorable
treatment continued into the limitations period.1 In particular, both Hernandez and
Calderon, who was Hernandez’s partner and friend, were denied admission to the
Gang Investigations Unit and the Family Violence Unit.
Motive “is purely a question of fact,” Eng v. Cooley, 552 F.3d 1062, 1071
(9th Cir. 2009), and “very little evidence is necessary to raise a genuine issue of
fact regarding an employer’s motive; any indication of discriminatory motive may
suffice to raise a question that can only be resolved by a fact-finder,” Nicholson v.
Hyannis Air Serv., Inc., 580 F.3d 1116, 1127 (9th Cir. 2009) (quoting McGinest v.
1
Because the district court did not reach this issue, we assume without
deciding that Hernandez and Calderon adduced sufficient evidence of cognizable
adverse employment actions to survive summary judgment.
2
GTE Serv. Corp., 360 F.3d 1103, 1124 (9th Cir. 2004)). Hernandez attested that
Captain Ernesto Alcantar and Lieutenant James Werkema, both individual
defendants, each warned him against speaking about the time-sheet fraud,2
providing evidence of a causal connection between his speech and the adverse
actions. See Anthoine v. N. Cent. Ctys. Consortium, 605 F.3d 740, 750 (9th Cir.
2010). Although Alcantar and Werkema were not directly involved in the
specialized unit admissions decisions, a jury could reasonably infer that they
influenced the process: Hernandez and Calderon attested to a workplace hierarchy
driven by personal relationships and favoritism. They also provided evidence that
the proffered reasons for their specialized unit rejections were pretextual, including
that they were among the most senior officers who applied to the units; the head of
the Gang Investigations Unit denied Hernandez a routine scheduling
accommodation; and the head of the Family Violence Unit refused to talk to
Calderon about her examination results. See id. at 750–52. Based on this and
2
The district court improperly struck some of this evidence as inadmissible
hearsay. These were statements of opposing parties, which are not hearsay. See
Fed. R. Evid. 801(d)(2). Although Hernandez and Calderon failed to appeal the
district court’s evidentiary rulings, we “retain[] the independent power to identify
and apply the proper construction of governing law,” especially when it is
important for proper consideration of the case on remand. Thompson v. Runnels,
705 F.3d 1089, 1098 (9th Cir. 2013) (quoting Kamen v. Kemper Fin. Servs., Inc.,
500 U.S. 90, 99 (1991)).
3
other record evidence, a jury could find a causal nexus under a “cat’s paw” theory.
See Staub v. Protor Hospital, 562 U.S. 411, 419 (2011); Poland v. Chertoff, 494
F.3d 1174, 1182 (9th Cir. 2007).
REVERSED AND REMANDED.
4