Luis Hernandez v. the City of San Jose , 623 F. App'x 512 ( 2015 )


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  •                                                                            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    NOT FOR PUBLICATION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