                                                                           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                           NOT FOR PUBLICATION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.




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