Jose Nazario, Jr. v. City of Riverside , 537 F. App'x 676 ( 2013 )

FILED
NOT FOR PUBLICATION AUG 06 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE LUIS NAZARIO, Jr., an individual, No. 11-55651
Plaintiff - Appellant, D.C. No. 2:10-cv-01731-VAP-
DTB
v.
CITY OF RIVERSIDE, MEMORANDUM*
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding
Argued and Submitted March 6, 2013
Pasadena, California
Before: PAEZ and WATFORD, Circuit Judges, and CONLON, Senior District
Judge.**
Appellant Jose Luis Nazario appeals the district court’s decision granting the
Defendant, City of Riverside, summary judgment in this action under the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Suzanne B. Conlon, United States District Judge for
the Northern District of Illinois, sitting by designation.
Uniformed Services Employment and Reemployment Rights Act (USERRA), 38
U.S.C. § 4301 et seq. In 2007, Nazario, a veteran, was employed by the Riverside
Police Department (RPD) as a probationary police officer. When RPD was
notified by the U.S. Attorney’s office that they intended to arrest, charge, and
prosecute Nazario on felony charges related to alleged misconduct during his
military service, RPD discharged him. After Nazario was acquitted of all charges,
Nazario reapplied to RPD, but his application was denied.
Nazario argues that RPD’s decisions to terminate, and subsequently refuse to
rehire, him were improperly motivated by alleged misconduct during his military
service, which he claims is included within the “performance of service” protected
by USERRA. See 38 U.S.C. § 4311(a) (“A person who . . . has performed . . . in a
uniformed service shall not be denied initial employment [or] reemployment . . . by
an employer on the basis of that . . . performance of service . . . .”). The district
court held that his alleged misconduct did not qualify as “performance of service”
under the statute and therefore granted the Defendant’s motion for summary
judgment. However, we need not, and do not, reach the question of whether
alleged misconduct during uniformed service is protected “performance of service”
under 38 U.S.C. § 4311.
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An employer violates USERRA when “performance of service” is a
motivating factor in an adverse action unless an employer can prove that the
adverse action in question would have been taken regardless of the protected status
or conduct. 38 U.S.C. § 4311(c)(1).
With respect to the initial termination decision, RPD’s deputy chief affirmed
that “Nazario was separated from his probationary employment with the City of
Riverside Police Department because of his arrest on federal criminal charges and
his impending Federal criminal trial” and that he was treated no differently than
any probationary police officer would have been under those circumstances.
RPD’s chief also affirmed that “[t]he sole basis for this decision was the U.S.
Attorney’s representation of the impending arrest.” The deputy chief also declared
that in every case where an RPD officer has been arrested for a felony offense, “the
officer’s employment was terminated, either through involuntary termination or
resignation/retirement in lieu of termination.” Thus, RPD’s evidence establishes
that Nazario’s employment was terminated, as any officer’s employment would
have been, because he was arrested and charged with a felony, regardless of the
alleged conduct underlying those charges. Nazario did not present any evidence to
cast doubt on RPD’s assertion that it would terminate any probationary police
officer arrested on a felony charge, regardless of the validity or content of that
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charge. Therefore, RPD has demonstrated that Nazario would have been
terminated regardless of the asserted protected conduct. 38 U.S.C. § 4311(c)(1).
With respect to RPD’s decision not to rehire Nazario, RPD provided ample
evidence that it would not have rehired Nazario regardless of the alleged
misconduct and subsequent arrest. Several RPD witnesses consistently stated that
the decision not to rehire Nazario was based exclusively on two factors: (1) an
intervening restraining order issued against Nazario after alleged domestic violence
against his wife and (2) the department’s discovery of numerous improper
statements made by Nazario on federal wiretaps. Nazario has not rebutted these
statements. Therefore, RPD has established that Nazario would not have been
rehired regardless of the asserted protected conduct. 38 U.S.C. § 4311(c)(1).
For the foregoing reasons, we conclude that RPD has demonstrated that
there are no genuine issues of fact regarding whether RPD would have taken these
adverse actions against Nazario regardless of his alleged misconduct in the service
and therefore is entitled to judgment as a matter of law. We affirm the district
court’s order granting summary judgment to the Defendant, City of Riverside, on
that separate ground. See Crowley v. Nevada ex rel. Nevada Sec'y of State, 678 F.3d
730, 734 (9th Cir. 2012) (“Summary judgment may be affirmed on any ground
supported by the record.”).
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AFFIRMED.
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