                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 11 2014

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


MARCO RAMIREZ,                                   No. 11-17846

              Plaintiff - Appellant,             D.C. No. 3:10-cv-02889-WHA

  v.
                                                 MEMORANDUM*
COUNTY OF MARIN; WILLIAM
BURKE; MICHAEL DALY; DOES, 1
through 50,

              Defendants - Appellees.


                    Appeal from the United States District Court
                      for the Northern District of California
                     William Alsup, District Judge, Presiding

                      Argued and Submitted October 18, 2013
                            San Francisco, California

Before: THOMAS and McKEOWN, Circuit Judges, and KENDALL, District
Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Virginia M. Kendall, District Judge for the U.S.
District Court for the Northern District of Illinois, sitting by designation.
      Marco Ramirez appeals the district court’s grant of summary judgment to

the County of Marin on Ramirez’s retaliation claims under the California Labor

Code and the Fair Labor Standards Act (“FLSA”). Ramirez also appeals the

district court’s grant of summary judgment to county employees William Burke

and Michael Daly on Ramirez’s claims under 42 U.S.C. § 1983. Because the

parties are familiar with the history of this case, we will not recount it here. We

have jurisdiction under 28 U.S.C. § 1291, and we affirm in part, reverse in part,

and remand.

                                           I

      “We review a grant of summary judgment de novo. Summary judgment is

appropriate when, ‘with the evidence viewed in the light most favorable to the

non-moving party, there are no genuine issues of material fact, so that the moving

party is entitled to judgment as a matter of law.’” Grenning v. Miller-Stout, 739

F.3d 1235, 1238 (9th Cir. 2014) (quoting San Diego Police Officers’ Ass’n v. San

Diego City Emps.’ Ret. Sys., 568 F.3d 725, 733 (9th Cir. 2009)).

                                          II

      The district court granted summary judgment on Ramirez’s retaliation claim

under California Labor Code § 6310 because Ramirez had not exhausted his

administrative remedies prior to filing his complaint. At the time, the California


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Labor Code was silent as to whether a plaintiff must exhaust administrative

remedies prior to filing a complaint. That changed on January 1, 2014, when the

State of California amended its Labor Code by adding §§ 98.7(g) and 244(a), both

of which provide that one generally does not have to exhaust administrative

remedies prior to filing a civil action for a violation of the California Labor Code.

Because the district court did not have the benefit of these changes to the

California Labor Code when it granted summary judgment, we reverse and remand

so that the district court may consider Ramirez’s California Labor Code retaliation

claim in light of these changes. See Bullfrog Films, Inc. v. Wick, 959 F.2d 778,

781-82 (9th Cir. 1992) (remanding in light of new statute).

                                          III

      The district court erred in granting summary judgment on Ramirez’s

termination-based retaliation claim under the FLSA, 29 U.S.C. § 215(a)(3). The

district court determined that Ramirez did not present any admissible evidence to

support a causal link between Ramirez’s participation in an overtime compensation

action against the County and Ramirez’s suspension and termination. The district

court based this determination on evidence cited by the County that Ramirez’s

suspension and termination were the result of misconduct. But Ramirez submitted

a sworn declaration that challenges much of the alleged misconduct that led to his


                                           3
termination. Drawing all reasonable inferences in Ramirez’s favor, this sworn

declaration creates genuine issues of material fact concerning the reasons for his

termination. See Rodriguez v. Airborne Express, 265 F.3d 890, 902 (9th Cir. 2001)

(“This circuit has held that self-serving affidavits are cognizable to establish a

genuine issue of material fact so long as they state facts based on personal

knowledge and are not too conclusory.”). Therefore, we reverse the district court’s

grant of summary judgment on Ramirez’s termination-based FLSA retaliation

claim and remand for further proceedings.

      The same is not true for Ramirez’s suspension. It is undisputed that the

director of Ramirez’s division imposed a dress code that Ramirez did not follow.

It is also undisputed that sheriff’s deputies placed Ramirez in custody after a

confrontation concerning Ramirez’s refusal to comply with the dress code. This

led to Ramirez’s suspension and, as a legitimate reason for his suspension,

precludes Ramirez’s suspension-based FLSA retaliation claim. Therefore, we

affirm the district court’s grant of summary judgment on Ramirez’s

suspension-based FLSA retaliation claim.




                                           4
                                         IV

      The district court did not err in granting summary judgment on Ramirez’s

claims against Burke and Daly under 42 U.S.C. § 1983. The district court granted

summary judgment on Ramirez’s First Amendment claim because Ramirez did not

identify any statements to a grand jury that Ramirez made as a private citizen. We

consider five factors to determine whether a public employer has violated its

employee’s First Amendment rights by restricting the employee’s ability to

comment on matters of public interest. Dahlia v. Rodriguez, 735 F.3d 1060, 1067

(9th Cir. 2013) (en banc), cert. denied, 134 S. Ct. 1283 (2014) (citing Eng v.

Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009)). One factor particularly relevant

here is whether Ramirez spoke as a private citizen or as a public employee.

Ramirez testified before the grand jury because his employer told him to; the grand

jury asked to speak with a probation officer and Ramirez’s employer sent him.

Consequently, the district court properly determined that Ramirez testified before

the grand jury as a public employee.

      The district court also properly determined that Ramirez failed to identify

any aspect of his suspension or termination proceedings that violated his right to

due process. Ramirez not only received hearings prior to his suspension and

termination, but also had the opportunity to appeal his termination to the County’s


                                          5
Personnel Commission, which could have cured any defects in the process he

received. See Walker v. City of Berkeley, 951 F.2d 182, 184 (9th Cir. 1991)

(explaining that due process received in a post-termination hearing could cure

defective process in pre-termination hearing). Ramirez did not pursue an appeal

with the Marin County Personnel Commission. Ramirez is not in a position to

complain about any defect in his pre-termination hearing when he did not take

advantage of the post-termination process available to him. Therefore, the district

court’s grant of summary judgment on Ramirez’s due process claim was proper.

      The district court also correctly granted summary judgment on Ramirez’s

equal protection claim. As the district court explained, there was no evidence that

anyone acted with discriminatory intent with respect to the dress code that required

men but not women to wear collared shirts. “An appearance standard that imposes

different but essentially equal burdens on men and women is not disparate

treatment.” Frank v. United Airlines, Inc., 216 F.3d 845, 854 (9th Cir. 2000); see

also Jespersen v. Harrah’s Operating Co., Inc., 444 F.3d 1104, 1109 (9th Cir.

2006) (explaining that appearance standards may differ by gender provided they

are not more onerous for one gender than the other); see also Fountain v. Safeway

Stores, Inc., 555 F.2d 753, 755 (9th Cir. 1977) (determining that a policy that




                                          6
requires men but not women to wear ties and have haircuts above the collar is not

discriminatory).

      Because we affirm the district court's grant of summary judgment as to

Burke and Daly on each of Ramirez’s claims under 42 U.S.C. § 1983, we do not

reach whether qualified immunity shields Burke and Daly from liability.

      Each party shall bear its own costs on appeal.

           AFFIRMED in part; REVERSED in part; REMANDED.




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