                                                                           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                            NOT FOR PUBLICATION                            AUG 06 2013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.




                                      Page 2 of 5
      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


                                     Page 3 of 5
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.”).


                                    Page 4 of 5
AFFIRMED.




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