Jose Flores v. City of Westminster

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JOSE FLORES; RYAN REYES; BRIAN No. 14-56832
PEREZ,
Plaintiffs-Appellees, D.C. No.
8:11-cv-00278-
v. DOC-RNB

CITY OF WESTMINSTER; MITCHELL
WALLER; ANDREW HALL; RON OPINION
COOPMAN; KEVIN BAKER, in their
individual capacities,
Defendants-Appellants.

Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding

Argued and Submitted August 11, 2017
Pasadena, California

Filed October 11, 2017

Before: Jerome Farris, Consuelo M. Callahan,
and John B. Owens, Circuit Judges.

Opinion by Judge Farris
2 FLORES V. CITY OF WESTMINSTER

SUMMARY *

Employment Discrimination

The panel affirmed in part and vacated in part the district
court’s judgment, after a jury trial, in favor of three police
officers of Latino descent who alleged discrimination and
retaliation in violation of 42 U.S.C. § 1981 and the
California Fair Employment and Housing Act.

The panel affirmed the district court’s denial of the
defendant City of Westminster’s motions for a new trial and
judgment as a matter of law on Officer Jose Flores’s claim
of retaliation in violation of FEHA. Viewing the evidence
in the light most favorable to Officer Flores and drawing all
reasonable inferences in his favor, the panel held that Officer
Flores established that the City subjected him to one or more
adverse employment actions, that his protected conduct was
a substantial motivating factor behind the adverse
employment actions, and that the City’s proffered reasons
for its actions were pretextual. The panel also affirmed the
jury’s award of damages to Officer Flores on the FEHA
retaliation claim. The panel concluded that Officer Flores
was not awarded a double recovery because the FEHA
damages award did not necessarily overlap with the damages
awarded against the defendant police chiefs for their
individual retaliatory actions in violation of § 1981.

The panel held that the district court did not err in
denying the officers’ discrimination and retaliation claims

*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 FLORES V. CITY OF WESTMINSTER 3

against the police chiefs under § 1981, which prohibits
discrimination in the making and enforcement of contracts
by reason of race. The panel held that California law
providing that the employment relationship between the
state and its civil service employees is governed by statute
rather than contract should not be read to bar public
employees from bringing claims under § 1981. The panel
distinguished Judie v. Hamilton, 872 F.2d 919 (9th Cir.
1989), which predated the 1991 amendments to § 1981
expanding the reach of the statute’s “make and enforce
contracts” term.

The panel held that the district court did not abuse its
discretion in evidentiary rulings. The panel held that there
was no prejudicial error in allowing a jury instruction on the
Uniform Services Employment and Reemployment Rights
Act.

The panel held that the jury’s verdict against two police
chiefs for race discrimination in violation of § 1981 was not
fatally inconsistent. In addition, the verdict finding the
chiefs individually liable, and awarding punitive damages,
was not against the clear weight of the evidence. The panel
declined to reduce the punitive damages awards as
unconstitutionally excessive.

The panel vacated the judgment against Chief Mitchell
Waller, who died before trial, and remanded for the district
court to grant two officers leave to substitute Chief Waller’s
estate pursuant to Fed. R. Civ. P. 25(a)(1).
4 FLORES V. CITY OF WESTMINSTER

COUNSEL

Justin Reade Sarno (argued), Steven J. Rothans, and Jill
Williams, Carpenter Rothans & Dumont, Los Angeles,
California, for Defendants-Appellants Mitchell Waller,
Andrew Hall, Ron Coopman, and Kevin Baker.

Alison McIlvaine Turner (argued) and Timothy T. Coates,
Greines Martin Stein & Richland LLP, Los Angeles,
California; Leighton D. Henderson, Jeffery E. Stockley, and
Melanie M. Poturica, Liebert Cassidy Whitmore, Los
Angeles, California; for Defendant-Appellant City of
Westminster.

Oliver B. Dreger (argued), Michael L. Kibbe, and Joseph M.
Preis, Godes & Preis LLP, Irvine, California, for Plaintiffs-
Appellees.

OPINION

FARRIS, Senior Circuit Judge:

Jose Flores, Ryan Reyes, and Brian Perez, three police
officers of Latino descent (collectively, “Plaintiffs”), sued
their employer and, after a nine-day jury trial, they won. The
officers alleged that the City of Westminster (“the City” or
“the Department”) as well as current and former
Westminster Police Chiefs Mitchell Waller, Andrew Hall,
Ronald Coopman, and Kevin Baker (“the Chiefs”),
discriminated and retaliated against them on the basis of race
and national origin. As relevant here, the officers alleged
causes of action for violation of the California Fair
Employment and Housing Act (“FEHA”), Cal. Gov’t Code
§§ 12900–12996, and 42 U.S.C. § 1981. Specifically, they
 FLORES V. CITY OF WESTMINSTER 5

claimed they were denied special assignments that could
increase their chances of promotion. Officers Flores and
Reyes also alleged that the defendants retaliated against
them for filing administrative complaints, in violation of
FEHA and 42 U.S.C. § 1981.

After reviewing the evidence, the jury largely sided with
the officers, finding that: 1) the City had retaliated against
Officer Flores in violation of FEHA; 2) Chiefs Coopman and
Hall had racially discriminated against all three officers in
violation of 42 U.S.C. § 1981; and 3) Chiefs Coopman and
Waller had retaliated against Officers Flores and Reyes and
Chief Baker had retaliated against Officer Flores in violation
of section 1981. The jury awarded the officers a total of
$3,341,000.00 in general and punitive damages, and the
court awarded $3,285,673.00 in attorney fees, $40,028.49 in
expert fees, and $18,684.12 in costs. The City and the
Chiefs 1 appeal numerous aspects of the trial, the judgment,
and the resulting award of fees and costs. We affirm in part,
and vacate and remand in part.

I

Our review of this case is circumscribed by the evidence
presented to, and the facts as found, by the jury. The
following evidence was adduced at trial:

A. Officer Jose Flores

Officer Flores was hired by the City of Westminster in
2002, after serving for ten years as a police officer with the

1
Throughout this opinion we will refer to Appellants either as “the
City” or “the Chiefs” in order to distinguish between the various points
of appeal raised by each. We will refer to the City and the Chiefs,
collectively, as “Defendants.”
6 FLORES V. CITY OF WESTMINSTER

City of South Gate. In 2004 or 2005, he applied for, but did
not receive, a detective position with the fraud unit. He
applied for one of three “motors” special assignments in
2006, but withdrew from consideration because he felt
“demeaned” after the first two positions were awarded to
others with less experience, and after he saw a sergeant
asking another officer if she would be interested in testing
out a motorcycle. In 2008, Officer Flores applied for, but
did not receive, a domestic violence detective position, and
in 2009 did not receive the juvenile detective position for
which he applied. Again, he felt those positions were
awarded to officers with less experience. Officer Flores
received only one special assignment—a mall assignment—
in twelve years with the Department. At times, he was called
names by other officers, including “Dirty Sanchez,” “Jorge,”
and “Silver” or “Silverback,” and he was told that the gray
streak in his hair was his “INS mark.” In July 2010, Officer
Flores filed an administrative complaint with the California
Department of Fair Employment and Housing (“DFEH”) in
which he alleged discrimination on the basis of national
origin. After that, he did not apply for further special
assignments. On December 6, 2011, eighteen months after
filing his first complaint, Officer Flores filed a second
complaint with DFEH alleging retaliation.

According to Officer Flores, the following incidents
were retaliation for his discrimination complaint:

• In November 2010, five months after Officer Flores
filed his discrimination complaint, Chief Waller
removed him from the list of available Field Training
Officers (“FTO”) (officers chosen to perform the
collateral duty of mentoring and training new
recruits).
 FLORES V. CITY OF WESTMINSTER 7

• In June 2011, following an internal affairs (“IA”)
investigation, Officer Flores and Reserve Officer
Phan received a written reprimand for failing to take
reasonable action while on duty. The reprimand
stemmed from a domestic violence call in April 2011
to which the officers did not respond, instead
returning to the station to book evidence from a
different crime scene. Although Officers Flores and
Phan were the closest unit to the scene of the
domestic violence incident, the dispatcher sent three
other cars, and Officer Flores assumed those cars
were closer than he was and that he did not need to
respond. The incident resulted in serious injuries to
the victim, and the perpetrator fled.

• In July 2011, Officer Flores received a Supervisor’s
Log entry2 for a remark he made to a 14-year-old boy
during a domestic violence call. As Officer Flores
was working to deescalate the situation, he instructed
the boy to go inside, whereupon the boy asked:
“When did you become my dad?” Officer Flores
responded: “I would not want to be your dad.” The
remark was deemed “mean spirited and
discourteous,” “not necessary,” and “disrespectful.”

• In June 2012, Officer Flores received a Supervisor’s
Log entry for his accidental discharge of a Taser
during testing.

• In late 2013 or early 2014, Officer Flores was
interviewed as part of an IA investigation into the
failure to report criminal and/or policy violations,

2
A Supervisor’s Log entry documents verbal counseling given to an
officer by a supervisor.
8 FLORES V. CITY OF WESTMINSTER

and was asked whether he was surreptitiously
recording co-workers or knew of anyone doing so.

Before he filed his first DFEH complaint, Officer Flores
had never been disciplined as a police officer or the subject
of an IA investigation during his tenure with the City. 3
Officer Flores also continued to receive commendations
after filing his DFEH complaints, and was chosen by Chief
Baker in August 2012 to serve on a patrol advisory group.
He received regular pay increases throughout his
employment with the City.

B. Officer Ryan Reyes

Officer Reyes was hired by the City in 1998 after
graduating at the top of his class at the police academy, was
named “Rookie of the Year,” and performed collateral duties
as an FTO and on the Department’s SWAT team. Between
2002 and 2007, he applied for fourteen special assignments
but received only a mall assignment. A more junior, white
officer was selected over Officer Reyes as a narcotics
detective, 4 despite feedback from some supervisors that the
junior officer was not ready for the position. Another white
officer, whom Officer Reyes had trained as an FTO, was
selected over Officer Reyes for a detective position in 2009.

3
Although the parties stipulated to this fact before trial, the record
includes an Administrative Memorandum dated February 22, 2007,
describing another instance of Officer Flores accidentally discharging
his Taser during testing, for which he was verbally counseled on the
proper handling, testing, and use of the Taser. The record does not
indicate whether the memo constituted discipline, non-disciplinary
verbal counseling, or simply administrative paperwork required when a
Taser is discharged.

4
Officer Perez also applied for, but did not receive, this position.
 FLORES V. CITY OF WESTMINSTER 9

In January 2010, Officer Reyes filed a DFEH complaint
alleging discrimination on the basis of national origin.

According to Officer Reyes, he suffered retaliatory
actions after filing his discrimination complaint including
Supervisor’s Log entries, written reprimands, and a 10-hour
suspension for late submission of daily logs, traffic citations,
and an accident report. He was also placed into an IA
investigation and disciplined in December 2010 for untimely
booking of a pen into evidence, despite the fact that during
the period of the delay Officer Reyes was away from the
Department testifying in federal court in an unrelated work
matter.

C. Officer Brian Perez

Officer Perez, an officer in the U.S. Marine Corps
Reserve, was hired by the City in January 2004. He
performed collateral duties including serving as an FTO and
on SWAT, and creating, formalizing, and serving on the
Department’s Honor Guard. Between 2004 and 2014,
Officer Perez applied for, but was denied, twelve special
assignments. In particular, on four occasions special
assignments for which he applied were awarded to allegedly
less-qualified white officers, one of whom had lied
extensively on his resume. Officer Perez was also threatened
with termination when Chief Hall believed Officer Perez
was not testifying truthfully regarding a use of force incident
involving another officer. That officer was ultimately
cleared, but the charge that Officer Perez lied remained in
his record with a finding of “not sustained” rather than a full
exoneration, and he was removed from his SWAT and
Honor Guard duties by Chief Hall. Officer Perez spent
considerable time away from the Department fulfilling his
duties with the Marine Corps, and the jury heard evidence
10 FLORES V. CITY OF WESTMINSTER

that he was not informed of potential openings within the
Department while he was away on deployments.

D. Defendants

The City and the Chiefs disputed Plaintiffs’ evidence and
presented evidence that all officers, whether white, Latino,
or Asian, had to apply numerous times before being
promoted to Sergeant. The jury heard testimony that eight
sergeants applied between two and five times before
receiving their promotions. Defendants also presented
evidence that at least seven officers identified by the City as
Latino received special assignments between 2006 and 2013.

II

We first address the City’s contention that as a matter of
law Officer Flores failed to establish his claim of retaliation
in violation of FEHA. After the jury returned its verdict, the
City moved for a new trial and renewed its motion for
judgment as a matter of law on this issue. The record reflects
that the district court properly denied both motions.

The district court’s denial of a motion for a new trial is
reviewed for abuse of discretion. Martin v. Cal. Dep’t of
Veterans Affairs, 560 F.3d 1042, 1046 (9th Cir. 2009). We
will grant a new trial only if the verdict is against the clear
weight of the evidence, and not simply because the evidence
might have led us to arrive at a different verdict. Id. The
denial of a renewed motion for judgment as a matter of law
is reviewed de novo, viewing the evidence in the light most
favorable to the nonmoving party and drawing all reasonable
inferences in that party’s favor. Id. “A renewed motion for
judgment as a matter of law should be granted if the evidence
permits only one conclusion and that conclusion is contrary
to the jury’s verdict.” Id. The district court’s interpretation
 FLORES V. CITY OF WESTMINSTER 11

of state law also is reviewed de novo. See Strother v. S. Cal.
Permanente Med. Grp., 79 F.3d 859, 865 (9th Cir. 1996).

FEHA makes it unlawful to “discharge, expel, or
otherwise discriminate against any person because the
person has opposed any practices forbidden [by FEHA] or
because the person has filed a complaint, testified, or
assisted in any proceeding under this part.” Cal. Gov’t Code
§ 12940(h). To succeed on his FEHA retaliation claim,
Officer Flores was required to show that the City subjected
him to one or more adverse employment actions and that his
filing of a DFEH complaint was a substantial motivating
reason behind those actions. See Harris v. City of Santa
Monica, 56 Cal. 4th 203, 232 (2013); Alamo v. Practice
Mgmt. Info. Corp., 219 Cal. App. 4th 466, 479 (2013). The
City contends that none of its conduct with respect to Officer
Flores constituted adverse employment actions under
California law, that Officer Flores failed to prove his
protected conduct was a substantial motivating factor behind
those actions, and that Officer Flores failed to show that the
City’s proffered reasons for its actions were pretextual.

California defines adverse employment actions as those
“materially affect[ing] the terms, conditions, or privileges of
employment.” Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th
1028, 1052 (2005). FEHA does not just protect against
“adverse employment actions that impose an economic
detriment or inflict a tangible psychological injury upon an
employee.” Id. Rather, “[a] discriminatorily abusive work
environment . . . can and often will detract from employees’
job performance, discourage employees from remaining on
the job, or keep them from advancing in their careers.” Id.
at 1053 (emphasis omitted) (quoting Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 22 (1995)). “[T]he phrase ‘terms,
conditions, or privileges’ of employment must be interpreted
12 FLORES V. CITY OF WESTMINSTER

liberally and with a reasonable appreciation of the realities
of the workplace in order to afford employees the
appropriate and generous protection against employment
discrimination that the FEHA was intended to provide.” Id.
at 1054. Actions that are “reasonably likely to impair a
reasonable employee’s job performance or prospects for
advancement or promotion fall[] within the reach of
[FEHA’s retaliation provisions].” Id. at 1054–55. Further,
alleged acts of retaliation may be considered collectively to
determine whether, taken together, they constitute an
adverse employment action under the statute. See id. at
1055, 1060.

Here, the evidence at trial—viewed in the light most
favorable to Officer Flores and with all reasonable
inferences drawn in his favor—would permit a trier of fact
to conclude he was subjected to adverse employment
actions. After filing his DFEH complaint, Officer Flores
was removed from the FTO list, received negative
Supervisor’s Log entries, and received his first written
reprimand. Although the City argues that removal from the
FTO list was a “relatively trivial incident” and the Log
entries and reprimand did not impact Officer Flores’s job
duties or performance, the jury could infer otherwise from
the evidence. For example, the jury was shown written
supervisor feedback for officers seeking special assignments
wherein their performance of collateral duties as FTOs was
considered and discussed. The jury also saw supervisor
feedback recommending against awarding a detective
position to an officer because of performance issues. At the
very least, the jury could infer that Officer Flores’s removal
from the FTO list, written reprimand, and negative Log
entries would have been reviewed as part of any decision
whether or not to award him special assignments or promote
him, and would have harmed his prospects. See Yanowitz,
 FLORES V. CITY OF WESTMINSTER 13

36 Cal. 4th at 1055; see also Akers v. County of San Diego,
95 Cal. App. 4th 1441, 1456 (2002) (negative evaluation and
counseling memorandum constituted adverse employment
actions because they potentially rendered employee “no
longer ‘promotable,’” or at least reduced her opportunities
for promotion). The jury’s determination that the City
subjected Officer Flores to one or more adverse employment
actions was reasonable and not against the clear weight of
the evidence.

The jury’s finding that the filing of Officer Flores’s
discrimination complaint was a substantial motivating
reason for the adverse employment actions taken against him
likewise was reasonable and not against the clear weight of
the evidence. To establish a prima facie case of retaliation,
Officer Flores was required to show that the adverse
employment actions were linked to his protected activity.
See McRae v. Dep’t of Corr. & Rehab., 142 Cal. App. 4th
377, 388 (2006). This causal link “may be established by an
inference derived from circumstantial evidence.” Id.
Accordingly, Officer Flores could satisfy his initial burden
“by producing evidence of nothing more than the [City]’s
knowledge that [he] engaged in protected activities and the
proximity in time between the protected action and the
allegedly retaliatory employment decision.” Id. (citing
Morgan v. Regents of Univ. of Cal., 88 Cal. App. 4th 52, 69
(2000)). Here, it was undisputed that the City knew of
Officer Flores’s DFEH complaint. And the first alleged
adverse action by the City occurred in November 2010, five
months after the DFEH filing, when Officer Flores was
removed from the FTO list.

Without citation to any supporting case law, the City
asserts this time period is too attenuated to establish
14 FLORES V. CITY OF WESTMINSTER

causation. 5 However, we have held that, “[d]epending on
the circumstances, three to eight months is easily within a
time range that can support an inference of retaliation.”
Coszalter v. City of Salem, 320 F.3d 968, 977–78 (9th Cir.
2003) (declining to adopt “any bright-line rule about the
timing of retaliation”); see also Yartzoff v. Thomas, 809 F.2d
1371, 1376 (9th Cir. 1987) (plaintiff made a sufficient prima
facie showing where the adverse employment actions
“began less than three months after he filed his first
administrative complaint”); George, 179 Cal. App. 4th at
1492 (describing four months as “relatively close timing,”
from which supporting inferences could be drawn).
Accordingly, the jury could conclude this evidence
demonstrated the necessary causal link between Officer
Flores’s discrimination complaint and the subsequent
adverse employment actions he suffered.

In light of this evidence, the City was “required to offer
a legitimate, nonretaliatory reason for [its] adverse
employment action[s]” in order to shift the burden back to
Officer Flores to prove intentional retaliation. Yanowitz,
36 Cal. 4th at 1042. On this record, we are not convinced
the City successfully countered Officer Flores’s evidence, as
it failed to provide a legitimate reason for at least one of the
adverse employment actions it took against him.
Specifically, the City provided no evidence explaining why
Officer Flores was removed from the FTO list five months

5
We are unpersuaded by the City’s citation to Fisher v. San Pedro
Peninsula Hospital, 214 Cal. App. 3d 590, 615 (1989), for the
proposition that proximity in time for a prima facie case means “a
relatively short time” between protected conduct and adverse action.
Fisher does not analyze the timing issue at all, and at least one
subsequent California case has held that a period of several months
constitutes “relatively close timing.” See George v. Cal. Unemployment
Ins. Appeals Bd., 179 Cal. App. 4th 1475, 1492 (2009).
 FLORES V. CITY OF WESTMINSTER 15

after he filed his DFEH complaint. Instead, the City admits
that “it seems to have happened,” but that it was a “relatively
trivial incident.” Yet the jury could have found otherwise;
as we note above, there is evidence in the record to support
the view that removal from the FTO list affected Officer
Flores’s chances of receiving special assignments and
promotions.

Regardless, the evidence presented by Officer Flores
permits a finding of intentional retaliation by the City. For
example, the jury heard testimony that workplace policies
were inconsistently applied to Officer Flores—specifically,
that Officer Flores was disciplined for his failure to respond
to a domestic violence call while other officers who also
failed to respond escaped discipline; and that Officer Flores
received Supervisor’s Log entries for discourteous language
and for discharging a Taser, while others did not. See
Coszalter, 320 F.3d at 978 (concluding a “reasonable fact
finder could find from the inconsistent application of [an
employment] policy that the defendants’ motivation for
enforcing the policy” was retaliatory). Further, evidence of
a series of adverse employment decisions over the course of
several years may “itself [be] probative of . . . the elusive
factual question of [intent].” Yartzoff, 809 F.2d at 1377
(internal quotation marks omitted). Officer Flores presented
evidence of alleged adverse employment actions spanning
approximately three years, and the jury permissibly could
have inferred from this evidence that the actions taken
against Officer Flores constituted intentional retaliation.

Viewing the evidence in the light most favorable to
Officer Flores and drawing all reasonable inferences in his
favor, we affirm the district court with respect to Officer
Flores’s FEHA retaliation claim. To conclude otherwise
would be “to intrude on the province of the jury,” as this is
16 FLORES V. CITY OF WESTMINSTER

not a case where “a rational trier of fact could not find
evidence in the record of . . . retaliation.” Winarto v.
Toshiba Am. Elec. Components, Inc., 274 F.3d 1276, 1286–
87 (9th Cir. 2001).

III

Next, the City seeks a new trial on damages, arguing
Officer Flores was awarded a double recovery. According
to the City, the $150,000 the jury awarded to Officer Flores
for the City’s retaliation against him in violation of FEHA
necessarily overlaps with the damages awarded against
Chiefs Coopman, Waller, and Baker for their individual
retaliatory acts in violation of 42 U.S.C. § 1981. Generally,
we review a jury verdict of compensatory damages for
substantial evidence. See In re Exxon Valdez, 270 F.3d
1215, 1247 (9th Cir. 2001). We reject the City’s position
here, as the verdict is not “hopelessly ambiguous” with
respect to the damages awarded to Officer Flores, Woodcock
v. Fontana Scaffolding & Equipment Co., 69 Cal.2d 452, 457
(1968), but rather can be satisfactorily explained to avoid
double recovery, see Roby v. McKesson Corp., 47 Cal. 4th
686, 705 (2009).

As the district court noted: “The jury heard a wide range
of evidence spanning many years, including conduct by
many different employees of the Police Department. The
Court is aware of no reason that the jury could not have
identified conduct rendering the City liable [for retaliation in
violation of FEHA] but not constituting personal
participation or ratification by a Chief.” For instance, the
jury saw evidence that Officer Flores received a Supervisor’s
Log entry from Sergeant Knauerhaze for his accidental Taser
discharge. Likewise, the Supervisor’s Log entry for Officer
Flores’s discourteous remark to a teenage boy was written
by Lieutenant Panella. Sergeant Vandergrift investigated
 FLORES V. CITY OF WESTMINSTER 17

Officer Flores for his failure to respond to a domestic
violence call, and Lieutenant Panella concurred with the
resulting Administrative Report and recommended a written
reprimand. It is conceivable that the jury’s verdict awarding
$150,000 to Officer Flores from the City was for the
retaliatory conduct of supervisors other than the Chiefs, and
therefore does not overlap with the separate award of
damages against the Chiefs in their individual capacities.

The City argues that whether this is actually what the
jury intended “cannot be determined to a reasonable
certainty” from the verdict and therefore a new trial on
damages is required under Roby, 47 Cal. 4th at 705. In Roby,
however, the California Supreme Court explained that a new
trial was required because even the plaintiff’s proposed
approach to interpreting the verdict so as to avoid double
recovery created “an inconsistency” in the amounts actually
awarded, and the plaintiff admitted there was “no evidence
of an act of discrimination that [wa]s separate from her
failure-to-accommodate and wrongful-termination claims.”
Id. at 704–05. Here, by contrast, Officer Flores’s proposed
interpretation of the verdict does not create an inconsistency,
and there is evidence in the record to support a finding that
retaliatory acts were committed by other City employees in
addition to the Chiefs. Accordingly, Roby does not require
a remand in this case.

When appellate courts review a verdict, “reasonable
inferences may be drawn which will support rather than
defeat a judgment.” Weddle v. Loges, 52 Cal. App. 2d 115,
119–20 (1942). We hold Officer Flores’s $150,000 award
against the City for FEHA retaliation may stand because
substantial evidence permits “a correct interpretation” that
avoids double recovery. Roby, 47 Cal. 4th at 705 (quoting
Woodcock, 69 Cal. 2d at 457).
18 FLORES V. CITY OF WESTMINSTER

IV

Moving next to the issues specifically raised by the
Chiefs, we first address their argument that the district court
erred in refusing to dismiss Plaintiffs’ claims under
42 U.S.C. § 1981. We review questions of statutory
interpretation de novo. Ileto v. Glock. Inc., 565 F.3d 1126,
1131 (9th Cir. 2009). The district court’s interpretation of
state law likewise is reviewed de novo. See Strother, 79 F.3d
at 865.

Section 1981 prohibits discrimination in the making and
enforcement of contracts by reason of race, including color
or national origin differences. 42 U.S.C. § 1981. “[T]he
term ‘make and enforce contracts’ includes the making,
performance, modification, and termination of contracts, and
the enjoyment of all benefits, privileges, terms, and
conditions of the contractual relationship.” Id. The Chiefs
argue that because, under California law, the employment
relationship between the state and its civil service employees
is governed by statute rather than contract, Plaintiffs cannot
seek recovery under section 1981. We disagree, and we
hold—in a matter of first impression—that California law
should not be read to bar public employees from bringing
section 1981 claims in cases such as this one.

In Judie v. Hamilton, 872 F.2d 919, 922–23 (9th Cir.
1989), we outlined the proper analytical framework for
determining whether a state public employee can recover
under section 1981. In that case, a Washington state civil
service employee claimed he was not permitted to perform
all of the supervisory duties included in his job description.
We examined whether state or federal law controlled the
determination of the legal status of the plaintiff’s job
description. Id. at 922. As the language of section 1981
provides no specific guidance, we applied the Supreme
 FLORES V. CITY OF WESTMINSTER 19

Court’s three-step process, based on 42 U.S.C. § 1988, for
borrowing an appropriate rule. Id. (citing Burnett v. Grattan,
468 U.S. 42, 47 (1984)).

First, we explained, courts must look to the laws of the
United States “so far as such laws are suitable to carry [the
civil and criminal civil rights statutes] into effect.” Id.
(quoting Burnett, 468 U.S. at 48). If, as here:

no suitable federal rule exists, courts
undertake the second step by considering
application of state common law, as modified
and changed by the constitution and statutes
of the forum State. A third step asserts the
predominance of the federal interest: courts
are to apply state law only if it is not
inconsistent with the Constitution and laws of
the United States.

Id. (quoting Burnett, 468 U.S. at 48 (internal quotation
marks omitted)). Following this procedure, we determined
that under Washington law the plaintiff in Judie could not
bring a cognizable claim for violation of the right to contract
under section 1981. Id. at 923. We reach a different
conclusion here.

Like Washington law, California law provides that
“public employment is not held by contract but by statute.”
Miller v. State of Cal., 18 Cal. 3d 808, 813 (1977).
According to the Chiefs, Judie therefore dictates dismissal
of Plaintiffs’ section 1981 claims. But, as the district court
recognized, the Judie decision predates the 1991
amendments to section 1981 expanding the reach of the
statute’s “make and enforce contracts” term following the
Supreme Court’s decision in Patterson v. McLean Credit
Union, 491 U.S. 164 (1989). See 42 U.S.C. § 1981(b).
20 FLORES V. CITY OF WESTMINSTER

Moreover, in Judie we analyzed Washington rather than
California law, and did not have occasion to consider the
California Supreme Court’s decision in White v. Davis,
30 Cal. 4th 528, 564–65 (2003), declaring that “a long line
of California cases establishes that with regard to at least
certain terms or conditions of employment that are created
by statute, an employee who performs services while such a
statutory provision is in effect obtains a right, protected by
the contract clause, to require the public employer to comply
with the prescribed condition.” This language indicates a
broader view of the applicability of section 1981 to public
employees under California law than under Washington law
at the time we decided Judie. See 872 F.2d at 923.
California law weighs in favor of allowing Plaintiffs’ section
1981 claims to proceed in this case.

The third step of the test set forth in Judie—assessing the
predominance of the federal interest at stake—also leads us
to conclude Plaintiffs’ section 1981 claims are proper. The
Civil Rights Act of 1866 implemented the Thirteenth
Amendment, which was enacted with an intent to remedy
“the most self-evident deprivation of slavery, the right to
contract freely for one’s labor.” 2 Joseph G. Cook & John
L. Sobieski, Jr., Civil Rights Actions ¶ 5.13 (Lexis-Nexis
1983 & Supps.). See also Gen. Bldg. Contractors Ass’n v.
Pennsylvania, 458 U.S. 375, 383–88 (1982) (summarizing
legislative history of section 1981). Reading California law
to bar all public employees from bringing section 1981
claims hinders a preeminent federal interest: preventing
discrimination on the basis of race in the “enjoyment of all
benefits, privileges, terms, and conditions of the contractual
relationship.” 42 U.S.C. § 1981(b). Such an interpretation
of California law would be inconsistent with the Constitution
and laws of the United States—specifically, with the 1991
amendment expansively defining the meaning of the term
 FLORES V. CITY OF WESTMINSTER 21

“make and enforce contracts” in section 1981. In light of
these considerations, we hold Plaintiffs’ discrimination and
retaliation claims were properly brought under section
1981. 6

V

The Chiefs next argue the district court erred by denying
several of Defendants’ motions in limine and by allowing
submission of an instruction to the jury on the Uniform
Services Employment and Reemployment Rights Act
(“USERRA”). We review evidentiary decisions for an abuse
of discretion. Hill v. Rolleri, 615 F.2d 886, 891 (9th Cir.
1980). Evidentiary errors will not lead to reversal absent
some resulting prejudice. Haddad v. Lockheed Cal. Corp.,
720 F.2d 1454, 1459 (9th Cir. 1983). We review a district
court’s formulation of civil jury instructions for abuse of
discretion in light of the instructions as a whole, Altera Corp.
v. Clear Logic, Inc., 424 F.3d 1079, 1087 (9th Cir. 2005),
and must determine whether any error was “more probably
than not harmless,” Swinton v. Potomac Corp., 270 F.3d
794, 805 (9th Cir. 2001).

6
We reject the Chiefs’ alternative argument that because Plaintiffs
were employed by the City rather than by the Chiefs, and because the
jury did not find section 1981 liability against the City, the judgment
against the Chiefs cannot stand. Numerous cases, including our own,
have allowed individual liability under section 1981. Cf. Jett v. Dallas
Indep. Sch. Dist., 491 U.S. 701, 711 (1989) (noting jury verdict finding
individual supervisor violated plaintiff’s rights under section 1981); Bell
v. Clackamas County, 341 F.3d 858, 867 (9th Cir. 2003) (upholding jury
verdict imposing individual liability against defendants under section
1981). See also, e.g., Whidbee v. Garzarelli Food Specialties, Inc.,
223 F.3d 62, 75 (2d Cir. 2000) (collecting cases and holding that
individual liability under section 1981 is permitted).
22 FLORES V. CITY OF WESTMINSTER

The Chiefs claim they were prejudiced by the district
court’s denials of motions in limine to exclude: 1) evidence
of events that occurred outside of the statute of limitations
period; 2) evidence of racial slurs used within the
Department; 3) evidence of Sergeant Mize’s alleged
unprofessional emails to women and involvement with a co-
worker and a bar employee; 4) evidence of Officer Turner’s
involvement with a bar employee; and (5) evidence of a prior
discrimination claim from 1997 involving a “Whites Only”
sign posted in the police station. The district court did not
abuse its discretion in denying these motions.

Allowing the jury to hear evidence of Defendants’ acts
outside the statute of limitations was not reversible error.
This evidence was relevant to Plaintiffs’ claims that they
were discriminated against under a custom or policy of the
Department. See Nat’l R.R. Passenger Corp. v. Morgan,
536 U.S. 101, 113 (2002) (explaining a statute of limitations
does not “bar an employee from using the prior acts as
background evidence in support of a timely claim”); Raad v.
Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1192
(9th Cir. 2003) (same). 7 Similarly, evidence regarding the
alleged inappropriate conduct and resulting disciplinary
histories of Sergeant Mize and Officer Turner was properly
admissible because both men served as appropriate
comparators to Plaintiffs for the jury. Each received special
assignments and promotions despite serious violations of the
Department’s policies, and the district court did not abuse its
discretion in finding their similarities with Plaintiffs

7
Cherosky v. Henderson, 330 F.3d 1243, 1246 (9th Cir. 2003), cited
by the Chiefs, addresses the “continuing violations doctrine” where the
plaintiffs had not brought a pattern or practice claim, and does not stand
for the proposition that evidence outside the statute of limitations cannot
be admitted to support such a claim.
 FLORES V. CITY OF WESTMINSTER 23

sufficient for the evidence to survive the balancing test under
Federal Rule of Evidence 403. Cf. Vasquez v. County of Los
Angeles, 349 F.3d 634, 641 (9th Cir. 2003) (explaining that
“individuals are similarly situated when they have similar
jobs and display similar conduct”).

The district court denied the motions to exclude the
evidence of racial slurs and the lawsuit stemming from the
“Whites Only” sign without prejudice. The Chiefs did not
renew their objections to the introduction of evidence on
these subjects at trial, therefore their objections are waived.
See Palmerin v. Riverside, 794 F.2d 1409, 1413 (9th Cir.
1986) (holding that unless a trial court’s ruling concerning
introduction of evidence is “explicit and definitive,” an
unsuccessful motion in limine must be renewed at trial to be
preserved for appeal). Regardless, allowing the jury to hear
this evidence was not an abuse of discretion, as in both
instances the evidence was relevant to discriminatory intent,
and to the City’s knowledge, customs, and policies.

Finally, delivering a USERRA instruction to the jury was
not prejudicial error. The instruction to which the Chiefs
objected states:

Military Leave

The Uniformed Services Employment
and Reemployment Rights Act (USERRA) is
a federal law that prohibits discrimination
against service members and protects their
job rights while in military service.

Under USERRA, a service member has
the right to reemployment in the job position
that the service member would have obtained
with reasonable certainty if not for absence
24 FLORES V. CITY OF WESTMINSTER

due to uniformed service. USERRA also
requires that a service member be treated the
same way that the employer treats other
employees on leave or furlough. The rights
protected by USERRA can include the right
to be notified of an open job opportunity.

There is no USERRA claim before you,
and you are not deciding any questions
associated with USERRA. You should
consider any evidence about whether
Westminster notified Plaintiff Perez of open
job opportunities only in terms of the stated
race discrimination claims.

The Chiefs argue this instruction left the jury “with the
conflicted, uninformed impression that [Defendants] must
have violated Perez’s USERRA rights,” and explains why
the jury awarded Officer Perez more punitive damages than
Officer Reyes even though Officer Reyes prevailed on more
claims.

We conclude the USERRA instruction was more
probably than not harmless. The instruction informed the
jury it was not to consider Officer Perez’s military service
except to the extent the evidence demonstrated the City
failed to notify Officer Perez of open job opportunities
because of race discrimination. 8 Furthermore, the jury heard
sufficient evidence from which it could have concluded that
Chiefs Coopman and Hall discriminated against Officer

8
Given Officer Perez’s extensive testimony about his military
deployments, the limiting instruction may actually have lessened the
harm Defendants otherwise might have suffered from this potentially
prejudicial line of testimony.
 FLORES V. CITY OF WESTMINSTER 25

Perez absent any reference to his military service, including
that he was denied twelve special assignments for which he
applied between 2004 and 2014 and that Chief Hall removed
Officer Perez from his SWAT and Honor Guard duties
because he continued to believe Officer Perez was lying
about a use of force incident. As for the difference in
punitive damages awarded, the jury may have determined
Officer Perez was entitled to greater damages because the
Chiefs’ actions against him were more egregious than those
against Officer Reyes—for instance, the jury may have
concluded that some of the actions taken against Officer
Reyes were justified because of his prior poor record of
turning in paperwork on time, or his relationship with a
female officer that culminated in unproven rape charges and
a reprimand for engaging in sexually explicit conversations
at work. We affirm the district court’s denials of the motions
in limine and delivery of the USERRA instruction.

VI

The Chiefs also seek a new trial because of what they
claim are irreconcilable special verdict findings returned by
the jury. They contend the jury’s verdict against Chiefs
Coopman and Hall for race discrimination in violation of
section 1981 is fatally inconsistent because, while it includes
findings that Chiefs Coopman and Hall personally
participated in decisions to select non-Latino applicants with
qualifications comparable to or worse than Plaintiffs’, it does
not include a finding of intentional discrimination. We
review the district court’s denial of a motion for a new trial
for abuse of discretion, Jorgensen v. Cassiday, 320 F.3d 906,
918 (9th Cir. 2003), and its reconciliation of the special
verdict form de novo, California v. Altus Fin. S.A., 540 F.3d
992, 1004 (9th Cir. 2008). We conclude the district court
properly denied the Chiefs’ motion.
26 FLORES V. CITY OF WESTMINSTER

At the outset, we note the complexity of the verdict form
presented to the jury in this case. The Federal Rules of Civil
Procedure provide for special verdicts (where the jury
returns written findings on each issue of fact and the court
then draws legal conclusions) or general verdicts with
interrogatories (where the jury makes factual findings but
also applies the law to those findings). See Fed. R. Civ. P.
49(a), (b). As the district court correctly noted, the jury form
in this case falls somewhere between the two. Like a special
verdict form, it included a series of questions that referred
the jury to answer further questions, or not, based upon their
responses. Nowhere did the form ask the jury to find “for”
or “against” Plaintiffs or Defendants. On the other hand, like
with a general verdict with interrogatories, the jury was
given lengthy instructions on the applicable law, setting out
the elements and directing the jury how to apply those
elements. This suggests the jury was asked to apply law to
its factual determinations, not just find facts. See Floyd v.
Laws, 929 F.2d 1390, 1395 (9th Cir. 1991); cf. R. H. Baker
& Co. v. Smith-Blair, Inc., 331 F.2d 506, 511 (9th Cir. 1964)
(“Use of the special verdict eliminates the necessity for and
use of complicated instructions on the law[.]”) (internal
citations and quotation marks omitted). Whether interpreted
as a special verdict or as a general verdict with
interrogatories, however, the answers returned by the jury
here do not require a new trial.

Significantly, the form posed questions to the jury in a
cascading sequence, where some elements were presented
with respect to one claim early in the form and then
incorporated in later claims without repeating them. Thus,
the question of intent was presented to the jury in the portion
of the form addressing the City’s potential liability under
section 1981, and the jury was instructed to answer that
question only if it first found that Plaintiffs were
 FLORES V. CITY OF WESTMINSTER 27

discriminated against due to a policy or custom of the City.
The form next addressed the section 1981 claims against the
individual chiefs, but did not repeat the question regarding
intent. The jury ultimately found Chiefs Coopman and Hall
had discriminated against Plaintiffs in violation of section
1981 without an explicit finding of intent, but this resulted
from the parties’ imperfect drafting of the jury form.

If we interpret the jury form in this case as a special
verdict, the district court properly reconciled this alleged
inconsistency in the jury’s findings. Courts have a duty
under the Seventh Amendment to harmonize a jury’s special
verdict answers, “if such be possible under a fair reading of
them. A court is also obligated to try to reconcile the jury’s
findings by exegesis, if necessary.” Floyd, 929 F.2d at 1396
(citing Gallick v. Baltimore & O.R.R. Co., 372 U.S. 108, 120
(1963)). A new trial should be granted only “in the case of
fatal inconsistency,” id., and in attempting to reconcile the
verdict, the court must “view[] the case in any reasonable
way that makes the verdicts consistent.” 9 Anheuser-Busch,
Inc. v. John Labatt Ltd., 89 F.3d 1339, 1347 (8th Cir. 1996).
Moreover, Rule 49(a)(3) of the Federal Rules of Civil
Procedure provides that a party waives the right to a jury trial
on any issue of fact raised by the pleadings or evidence but
not submitted to the jury if submission is not requested
before the jury retires to deliberate. “If the party does not
demand submission, the court may make a finding on the
issue. If the court makes no finding, it is considered to have

9
We hesitate even to characterize the issue here as one of
inconsistency. As the district court put it, “This is not a problem of
inconsistency, per se; it is a problem of the parties developing a jury
verdict form that did not present an element to the jury in both of the
claims for which the Defendants wanted it presented.”
28 FLORES V. CITY OF WESTMINSTER

made a finding consistent with its judgment on the special
verdict.” Fed. R. Civ. P. 49(a)(3).

Here, neither party requested a specific finding of
intentional discrimination by the Chiefs in their individual
capacities. Accordingly, it was not error for the district court
to conclude that, “considered in light of [its] instructions to
the jury,” Altus Fin., 540 F.3d at 1004 (citation omitted),
including the instructions setting forth the elements of
section 1981 discrimination claims, 10 the jury’s failure to
answer the question on intent in the portion of the jury form
dealing with the City’s liability merely indicated it intended
to find the individual Chiefs liable, but did not find
municipal liability under a custom or policy.

Alternatively, if we interpret the jury form as a general
verdict with interrogatories, the Chiefs still are not entitled
to a new trial. As the district court correctly concluded, the
Chiefs waived any objection to the jury’s allegedly
inconsistent answers when they failed to object before the
jury was discharged. 11 See, e.g., Home Indem. Co. v. Lane
Powell Moss & Miller, 43 F.3d 1322, 1331 (9th Cir. 1995);
Kode v. Carlson, 596 F.3d 608, 611 (9th Cir. 2010). We
affirm the district court’s denial of the Chiefs’ motion for a
new trial for alleged inconsistencies in the verdict.

The jury instructions clearly stated that Plaintiffs were required to
10

prove that Defendants intentionally discriminated, and included as an
element that any purported legitimate business reason given by
Defendants for their actions must be false.

11
The parties were twice asked if they saw any reason the jury could
not be discharged and did not object. See L.A. Nut House v. Holiday
Hardware Corp., 825 F.2d 1351, 1354–55 & n.3 (9th Cir. 1987)
(discussing cases appropriately applying waiver).
 FLORES V. CITY OF WESTMINSTER 29

VII

The Chiefs also moved for a new trial on the grounds that
the jury verdict finding them individually liable was against
the clear weight of the evidence and that Plaintiffs failed to
present evidence of malicious conduct sufficient to support
punitive damages. The district court declined to order a new
trial on these grounds; we review its decision for abuse of
discretion. See Kode, 596 F.3d at 611; Gilbrook v. City of
Westminster, 177 F.3d 839, 856 (9th Cir. 1999). “An
appellate court generally will not reverse the denial of a new
trial motion if there was some reasonable basis for the jury’s
verdict.” Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th
Cir. 2007) (internal quotation marks omitted).

The Chiefs properly can be held liable in their individual
capacities: 1) if they participated in the deprivation of
Plaintiffs’ constitutional rights; 2) for their own culpable
action or inaction in the training, supervision, or control of
their subordinates; 3) for their acquiescence in the
constitutional deprivations; or 4) for conduct that showed a
reckless or callous indifference to the rights of others. See
Watkins v. City of Oakland, Cal., 145 F.3d 1087, 1093
(1998) (explaining instances in which a supervisor can be
held individually liable). The jury heard evidence from
which it could reasonably conclude that all four Chiefs either
discriminated against or retaliated against Plaintiffs with
malice, and we therefore uphold the jury’s verdict.

The jury reviewed the following evidence that
reasonably supports a finding that Chief Coopman retaliated
against Officers Flores and Reyes in violation of section
1981:

• Chief Coopman oversaw multiple potentially
retaliatory IA investigations against Officer
30 FLORES V. CITY OF WESTMINSTER

Reyes, and imposed a ten-hour unpaid
suspension against him for submitting late
reports, even though another officer testified that
he frequently did not turn in daily logs on the day
he worked without suffering any consequences,
and that officers can hold collision reports
without permission and submit them as they are
completed. Chief Coopman also participated in
the review hearing Chief Waller held for Officer
Reyes.

• Chief Coopman opened an IA investigation
against Officer Flores for failing to respond to a
domestic violence incident and issued a written
reprimand but did not investigate the dispatcher
or other units who did not respond to the call.

Even though the evidence demonstrates Chief Coopman
signed a commendation for Officer Flores, and testified that
his wife is Hispanic and he does not discriminate against
Latinos, the jury was free to accord this evidence whatever
weight it saw fit, and the Court “cannot substitute its
evaluations for those of the jurors.” Tortu v. Las Vegas
Metro. Police Dep’t, 556 F.3d 1075, 1084 (9th Cir. 2009)
(internal quotation marks omitted).

The jury reviewed the following evidence supporting a
finding that Chief Hall discriminated against all three
Plaintiffs in violation of section 1981:

• Chief Hall, the “ultimate authority” regarding which
officers received special assignments, repeatedly
promoted white officers with serious disciplinary
histories, as well as less qualified white officers, over
Plaintiffs.
 FLORES V. CITY OF WESTMINSTER 31

• Chief Hall issued a notice of intent to terminate
Officer Perez based on his testimony regarding a use
of force incident he witnessed and, although the
charge was dropped, removed him from SWAT and
Honor Guard, stopped assigning him FTO trainees,
and would not give him a position on the Patrol Rifle
Officer team.

• Chief Hall recommended that Officer Reyes receive
a written reprimand for an unproven rape allegation,
and authorized a written reprimand for entering into
an ongoing inappropriate conversation between two
white officers, but did not reprimand the white
officers.

As for the finding that Chief Baker retaliated against
Officer Flores in violation of section 1981, the jury was
presented with evidence that:

• Chief Baker felt “sandbagged” by Officer Flores’s
DFEH Complaint, and thereafter refused to overturn
the written reprimand Officer Flores received for his
discourteous remark to a teenager.

• Chief Baker was in charge during the IA investigation
into whether Officer Flores failed to report criminal
and/or policy violations. 12

12
The evidence against Chief Baker admittedly is weaker than
against some of the other defendants, but that is reflected in the jury’s
verdict finding him liable only for retaliation under section 1981 and
awarding lesser damages against him. Again, we will not substitute our
evaluation of the evidence for that of the jury. See Tortu, 556 F.3d at
1084.
32 FLORES V. CITY OF WESTMINSTER

The jury also was presented with evidence supporting its
finding that Chief Waller retaliated against Officer Flores in
violation of FEHA, and Officers Flores and Reyes in
violation of section 1981, including that:

• Chief Waller removed Officer Flores from the FTO
list five months after Officer Flores filed his DFEH
complaint.

• Chief Waller was in charge during the period leading
into the IA investigations of Officer Flores for failure
to respond to a domestic violence call and for the
discourteous remark he made to a teenager.

• Chief Waller was in charge when Officer Reyes filed
his DFEH complaint in January 2010, and Officer
Reyes was thereafter placed into multiple IA
investigations and received discipline for infractions
not enforced against other officers.

We conclude all of this evidence provided a reasonable
basis for the jury’s verdict against the Chiefs. Likewise, the
jury’s determination that clear and convincing evidence
demonstrated the Chiefs’ actions were malicious,
oppressive, or in reckless disregard of Plaintiffs’ rights was
not against the great weight of the evidence. Accordingly,
the district court did not abuse its discretion in allowing the
jury’s award of punitive damages to stand. 13

13
Additionally, the Chiefs argue the jury’s failure to explicitly find
intentional discrimination forecloses punitive damages, but we reject this
argument for the reasons explained in Part VI, supra.
 FLORES V. CITY OF WESTMINSTER 33

VIII

Alternatively, the Chiefs seek a reversal or remittitur of
the punitive damages awards against them as
unconstitutionally excessive. We review whether punitive
damages are excessive de novo. Bains LLC v. Arco Prods
Co., Div. of Atl. Richfield Co., 405 F.3d 764, 775 (9th Cir.
2005). We conclude the amount of punitive damages
awarded in this case is not “grossly excessive” to the point
of arbitrariness in violation of the Due Process Clause of the
Fourteenth Amendment. TXO Prod. Corp. v. All. Res.
Corp., 509 U.S. 443, 454 (1993).

Whether an award of punitive damages exceeds the
bounds of due process is determined on a case-by-case basis
by examining: (1) the reprehensibility of the conduct being
punished; (2) the ratio of the punitive damages award to the
compensatory damages award; and (3) the difference
between the punitive damages award and the civil penalties
authorized or imposed in comparable cases. See BMW of N.
Am., Inc. v. Gore, 517 U.S. 559, 568, 575, 580–83 (1996).
The degree of reprehensibility of the conduct at issue is
“[p]erhaps the most important indicium of the
reasonableness of a punitive damages award.” Id. at 575.
The Chiefs argue that several of the punitive damages
awards in this case exceed a 4:1 ratio, which “might be close
to the line of constitutional impropriety.” State Farm Mut.
Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425 (2003). 14 The
punitive damages awarded here do not cross that line.

First, the Supreme Court has “consistently rejected the
notion that the constitutional line is marked by a simple

14
A chart setting forth the damages awarded to each plaintiff is
included in an appendix to this opinion.
34 FLORES V. CITY OF WESTMINSTER

mathematical formula,” BMW, 517 U.S. at 582, and the
single-digit ratios here are in line with our precedent. See,
e.g., Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020, 1044
(9th Cir. 2003) (upholding a 7:1 ratio and noting “[w]e are
aware of no Supreme Court or Ninth Circuit case
disapproving of a single-digit ratio between punitive and
compensatory damages”); Swinton, 270 F.3d at 818–19
(upholding a ratio of 28:1 and noting that “where the injury
is primarily personal, a greater ratio may be appropriate”
(citation omitted)).

Second, we have recognized that intentional
discrimination on the basis of race or ethnicity is especially
reprehensible and “a different kind of harm, a serious affront
to personal liberty.” Zhang, 339 F.3d at 1043 (“There can
be no question of the importance of our society’s interest in
combating discrimination; this nation fought the bloodiest
war in its history in part to advance the goal of racial
equality, adding several amendments to the Constitution to
cement the battlefield victory.”); see also Swinton, 270 F.3d
at 817–18. Accordingly, a more substantial punitive
damages award may be justified in intentional
discrimination cases than in cases involving “purely
economic” harms. Cf. BMW, 517 U.S. at 576.

As to the third factor, we observed in Swinton that
“[t]here are no ‘civil penalties’ for the type of conduct for
which [Defendants were] held liable in this case.” Id. at 820.
While Title VII’s damages cap of $300,000 may sometimes
serve as a guidepost, “Congress has not seen fit to impose
any recovery caps under § 1981 . . . , although it has had
ample opportunity to do so since the 1991 amendments to
Title VII.” Id. And in any event, only a few of the punitive
awards here are in excess of $300,000, and only the awards
against Chiefs Coopman and Hall significantly so. On
 FLORES V. CITY OF WESTMINSTER 35

balance, the differential between the compensatory and
punitive damages is not so large as to be constitutionally
excessive on the facts of this case. We decline to reduce the
jury’s punitive damages awards.

IX

The final issue we must decide is whether the verdict
against Chief Waller is valid notwithstanding the fact that he
died before trial. Waller was the City’s Chief of Police from
January 2010 to March 2011. On June 28, 2013, he was
struck and killed by a motorist while riding his bicycle. It is
undisputed that the parties knew of Chief Waller’s passing;
the proposed Final Pre-Trial Conference Order filed in
November 2013 indicated in a footnote that, “Defendant
Mitchell Waller is recently deceased.” Likewise, it is
undisputed that no statement of death was served on any
party or Chief Waller’s estate, and that neither party filed a
motion to substitute the estate as the defendant under Rule
25(a) of the Federal Rules of Civil Procedure. 15 The jury
assessed a total of $466,500 against Chief Waller for
retaliating against Officers Flores and Reyes in violation of
section 1981—$395,000 was compensatory and $71,500
punitive.

15
Federal Rule of Civil Procedure 25(d), providing for automatic
substitution of a decedent’s successor when a decedent is sued in his
official capacity, does not apply here. An individual official’s actions in
violation of federal law cannot establish liability in an official capacity
action; instead, a governmental policy or custom must be the “moving
force” behind the official’s unlawful actions. See Monell v. Dep’t of Soc.
Serv. of City of New York, 436 U.S. 658, 694 (1978). But the jury found
in this case that the discrimination suffered by Plaintiffs was not due to
a custom or policy of the City. Accordingly, Chief Waller was found
liable only in his individual capacity.
36 FLORES V. CITY OF WESTMINSTER

Rule 25(a)(1) allows any party to move for substitution
in the case of a party’s death, within ninety days of filing a
statement of death on the record, provided the underlying
“claim is not extinguished.” Section 1988 directs courts to
apply state survival laws in civil rights actions when not
inconsistent with the Constitution and federal law. See
Robertson v. Wegmann, 436 U.S. 584, 588–90 (1978)
(holding the survivability of section 1983 claims is governed
by state law). State law therefore governs the survivability
of section 1981 claims. In California, no cause of action is
lost “by reason of” a defendant’s death, as long as the statute
of limitations for the claim has not expired and the claim is
filed against the decedent within a year of death. Cal. Civ.
Proc. Code §§ 377.20, 366.2. Thus, the section 1981 claim
against Chief Waller survives because it was timely filed
before his death.

Complicating matters, however, is the fact that Rule
25(a)(1)’s ninety-day period to move for substitution of the
estate was never triggered in this case because no party filed
and served a formal statement noting Chief Waller’s death.
See Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994); see
also Fed. R. Civ. P. 25(a)(3). 16 And the Chiefs contend that
because more than a year has passed since Chief Waller’s
death, it is now too late to substitute his estate under

16
The incidental reference to Chief Waller’s death in the parties’
pre-trial conference order was insufficient to constitute a formal
statement of death. See, e.g., Acri v. Int’l Ass’n of Machinists &
Aerospace Workers, 595 F. Supp. 326, 330 (N.D. Cal. 1983) aff’d on
other grounds, 781 F.2d 1393 (9th Cir. 1986) (incidental mentions of
death in the interrogatories were insufficient to establish a formal
statement of death on the record); see also Blair v. Beech Aircraft Corp.,
39 Fed. R. Serv. 2d 1410 (W.D. Pa. 1984) aff’d without opinion,
787 F.2d 580 (3d Cir. 1986) (a passing reference to death in the pleadings
was insufficient).
 FLORES V. CITY OF WESTMINSTER 37

California Code of Civil Procedure section 366.2. We note,
however, that California courts may grant leave to amend a
complaint to name a decedent’s estate, even where that
amendment occurs after the expiration of the one-year period
in section 366.2. See Burgos v. Tamulonis, 28 Cal. App. 4th
757, 761–63 (1994). Accordingly, we reject the Chiefs’
argument that a remand to the district court for substitution
of Chief Waller’s estate under Rule 25(a) would be futile.

The Chiefs also argue, however, that Officers Flores and
Reyes are time-barred from seeking recovery from Chief
Waller’s estate under the requirements of the California
Probate Code. Enforcement of federal judgments, they
correctly point out, is subject to procedures in the forum
state. See Fed. R. Civ. P. 69(a); Duchek v. Jacobi, 646 F.2d
415, 416 (9th Cir. 1981). In California, surviving causes of
action may be continued against a decedent’s personal
representative, subject to the requirements of section 9000 et
seq. of the California Probate Code. See Cal. Civ. Proc.
Code §§ 377.40–41. Probate Code section 9370(a) in turn
states that actions or proceedings pending against a decedent
“may not be continued against the decedent’s personal
representatives” unless: “(1) A [probate] claim is first filed
as provided in this part”; “(2) The claim is rejected in whole
or in part;” and “(3) Within three months after the notice of
rejection is given, the plaintiff applies to the court in which
the action or proceeding is pending for an order to substitute
the personal representative in the action or proceeding.”

On this record, we cannot determine whether the
provisions of the Probate Code bar recovery of Plaintiffs’
claims against Chief Waller’s estate. The parties have
provided no evidence indicating whether administration of
the estate was ever initiated or whether Officers Flores and
Reyes filed a claim. Accordingly, we vacate the judgment
38 FLORES V. CITY OF WESTMINSTER

against Chief Waller and remand to the district court to grant
Officers Flores and Reyes leave to substitute the estate,
provided they properly follow the procedures set forth in
Rule 25(a). The district court may then—after reviewing
additional evidence submitted by the parties as necessary—
determine whether Officers Flores and Reyes can recover
damages from Chief Waller’s estate.

On remand, the district court also should determine in
the first instance whether Plaintiffs may recover from the
estate the punitive damages awarded against Chief Waller,
or whether the parties waived any argument regarding those
damages by not raising the issue before trial. The general
rule in California is that punitive damages are not
recoverable against a decedent’s personal representative.
See Cal. Civ. Proc. Code § 377.42 (“In an action or
proceeding against a decedent’s personal representative . . .
on a cause of action against the decedent, all damages are
recoverable that might have been recovered against the
decedent had the decedent lived except . . . punitive or
exemplary damages.”). 17 Here, however, the parties put the
question of whether to award punitive damages against Chief
Waller to the jury, all the while knowing full well that Chief
Waller had died almost seven months before the trial began.
The district court may review any additional evidence
submitted by the parties on this issue and decide, on the

17
Plaintiffs argue California courts have at times permitted
exceptions to this rule, however in those cases, the decedent died after
the case had reached final judgment. See Whelan v. Rallo, 52 Cal. App.
4th 989, 991–95 (1997) (citing California cases and statutes supporting
the proposition that punitive damages awards are only enforceable if the
defendant dies after final judgment). In this case, Chief Waller died over
a year before the district court entered judgment.
 FLORES V. CITY OF WESTMINSTER 39

unique facts of this case, whether or not it will allow the
punitive damages award against Chief Waller to stand.

X

For the reasons set forth above, we AFFIRM IN PART,
AND VACATE AND REMAND IN PART.

Each party shall bear its own costs.
40 FLORES V. CITY OF WESTMINSTER

APPENDIX

Defendant Plaintiff Punitive Compensatory Ratio
Coopman Flores $396,000 $218,000 2:1

Coopman Reyes $176,000 $40,000 4:1

Coopman Perez $308,000 $50,000 6:1

Hall Flores $459,000 $65,000 8:1

Hall Reyes $220,000 $45,000 5:1

Hall Perez $385,000 $100,000 4:1

Baker Flores $49,500 $42,000 1:1

Waller Flores $49,500 $210,000 1:4

Waller Reyes $22,000 $185,000 1:8