ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S PARTIAL MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on the parties’ cross-motions for summary judgment: specifically, the Motion for Partial Summary Judgment of Plaintiff Equal Employment Opportunity Commission (“EEOC”) filed on August 25, 2000, and the Motion for Summary Judgment of Defendant Luce, Forward, Hamilton & Scripps, LLP (“LFHS”) filed on October 6, 2000. For the reasons stated and in the manner stated herein, Plaintiffs Motion for Partial Summary Judgment is hereby GRANTED IN PART AND DENIED IN PART, and Defendant’s Motion for Summary Judgment is hereby GRANTED IN PART AND DENIED IN PART.
I. Uncontroverted Facts
The parties agree that the relevant facts in this case are undisputed. In September 1997, Donald Lagatree applied for and was offered a full-time legal secretary position with the LFHS. Lagatree was asked to report to work on September 16, 1997. On that day, Lagatree was presented with an offer lеtter 1 which set forth the terms and conditions of his employment, “should [he] accept.” The offer letter also contained an arbitration clause. Under this provision, Lagatree would agree to submit all “claims arising from or related to [his] employment or termination of [his] employment” to binding arbitration under the Federal Arbitration Act, 9 U.S.C. § 1 et. seq.
On September 18, 1997, Lagatree informed the Defendant that he thought the arbitration clause was “unfair” and that he would not sign the offer letter. Defendant terminated Lagatree’s conditional employment. 2
*1083 On or about February 13, 1998, Laga-tree filed an action in the Los Angeles Superior Court against the Defendant (“the prior action”). Lagatree’s Complaint in the prior action allеged that he was wrongfully terminated in violation of public policy for refusing to waive his constitutional rights to a jury trial and a judicial forum. Lagatree also asserted that his discharge violated the California Unfair Competition Law, Cal.Bus. & Prof.Code §§ 17200-17209, and Cal.Civ.Code § 1668, which prohibit parties from contracting away liability for fraudulent, intentional, or negligent violations of statutory law. La-gatree sought lost wages, damages for emotional distress, and punitive damages.
The trial court in the state court action sustained the Defendant’s demurrer, agreeing that Defendant did not violate public policy by discharging employees who refused to sign pre-dispute arbitration agreements as a condition of employment. The Court of Appeals affirmed the lower court’s holding. 3 That Court reasoned that in order for Lagatree’s termination to be wrongful, the right underlying Laga-tree’s wrongful termination claim must be one that could not be bargained away or circumvented by agreement. The Court concluded, however, that an individual’s constitutional right to a jury trial and a judicial forum for the resolution of disputes are rights that are subject to waiver. The California Supreme Court denied review.
The EEOC brings the present action on behalf of Lagatree based on the facts set forth above. 4 The EEOC’s Complaint alleges that Defendant engaged in unlawful retaliatory activity when Defendant failed to hire Lagatree in violation of § 704(a) of Title VII, § 4(d) of the Age Discrimination in Employment Act, § 503(a) of the Americans with Disability Act, and § 15(a)(3) of the Equal Pay Act. The EEOC seeks lost wages, lost benefits, and damages for emotional distress on Lagatree’s behalf. The EEOC also asks this Court for punitive damages as well as a permanent injunction on behalf of the public interest precluding Defendant from conditioning employment on a prospective employee agreeing to arbitrate all and any future claims against the Defendant. 5
II. Summary Judgment Standard
Summary judgment is proper only when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there are no issues as to any material fact and that the moving party is entitled to judgment as a matter оf law.” Fed.Rule Civ.Pro. 56(c);
see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact.
Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 256,
If the moving party meets its initial burden, the “adverse party may not rest upon the mere allegations or denials of the adverse party’s pleadings, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). Mere disagreement or the bald assertion that a genuine issue of material fact exists does not preclude the use of summary judgment.
Harper v. Wallingford,
The Court construes all evidence and reasonable inferences drawn thеrefrom in the light most favorable to the non-moving party.
Anderson,
III. Res Judicata and Collateral Estoppel (Claim Preclusion and Issue Preclusion)
Defendant argues that the EEOC’s action is barred because of Lagatree’s prior state court litigation against Defendant. In that litigation, Plaintiff asserted wrongful discharge in violation of public policy based on his constitutional right to a jury trial and a judicial forum for the resolution of disputes.
A. Standards
Defendant correctly noted that federal courts must give a state court judgment the same preclusive effect as would be given that judgment under the law of the state in which the judgment was rendered.
See Migra v. Warren City School Dist. Bd. of Ed.,
Under California law,
res judicata,
or claim preclusion, bars relitigation of a claim when a prior action adjudicated 1) the same сlaim, 2) resulted in a final judgment on the merits, and 3) the party against whom the claim is asserted was a party to or was in privity with a party to the prior action.
Cal. State Auto. Ins. Ass’n v. Superior Court,
Collateral estoppel precludes a party from relitigating an issue that was litigated and decided in a prior proceeding when 1) the issue sought to be precluded is identical to that decided in the former proceeding, 2) the issue was actually litigated, 3) the issue was necessarily decided, 4) there was a final judgment on the merits, and 5) the party was the same as, or was in privity with, a party to the prior proceeding.
Gikas v. Zolin,
B. Res Judicata
1. The Parties Agree that the Prior Action Resulted in a Final Judgment on the Merits.
In its Opposition to LFHS’s Motion, the EEOC concedes that the prior action resulted in a final judgment on the merits. 6
2. The Claim Asserted In the Present Action on Behalf of Lagatree in his Individual Capacity Is Identical to the Claim Asserted in the Prior Action.
The EEOC’s claims on behalf of Lagatree in the present action are identical to the claims presented in the prior action, even though these claims are based on wholly different legal theories. California follows the “primary right” theory of what constitutes a cause of action. Under this theory, a claim, or “cause of action” is based on the harm suffered, not the particular theory asserted by the litigant.
Peis
*1085
er
v. Mettler,
California courts, in determining whether the primary right at issue is the samе in two actions, have focused on both the nature of the dispute and the nature of the damages sought.
In focusing on the nature of the dispute, a California appellate court held that the same primary rights were implicated in two separate actions where both actions were brought to resolve the disputes between the parties about the public’s right of access to a disputed tract of land.
Citizens For Open Access to Sand and Tide, Inc. v. Seadrift Ass’n,
In focusing on the nature of the harm alleged, a California appellate court held that a federal discrimination claim and a state breach of employment contract claim were based on the same primary right because the harm alleged in both instances was being rejectеd for a job.
Balasubramanian v. San Diego Community College,
Still focusing on the nature of the harm alleged, in
Agarwal v. Johnson,
Here, the claims asserted in the prior action were based on wrongful termination in violation of public policy based on Laga-tree’s constitutional right to a jury trial and a judicial forum for the resolution of disputes. Lagatree unsuccessfully sought front and back pay, damages for emotional distress and punitive damages. The primary right Lagatree sought to protect was his ability to begin his employment with LFHS without being required to agree to arbitrate any future employment disputes. The primary duty LFHS is alleged to have breached is the duty to refrain from im-permissibly rejecting applicants who refuse to enter into its mandatory arbitration agreement.
In the present action, the EEOC asserts claims on behalf of Lagatree based on unlawful retaliation. This legal theory is different from that asserted in the prior action. However, under this theory, the EEOC seeks lost wages and damages for emotional distress on behalf of Lagatree. These damages are exactly the same damages sought in the prior action. The primary right Lagatree seeks to protect in the present action is his ability to begin his employment with LFHS without being required to agree to arbitrate any and all claims arising from and related to Lagatree’s employment with LFHS. This is precisely the same primary right Lagatree sought to vindicate in the prior action. The primary duty LFHS is alleged to have breached is the duty to refrain from impermissibly refusing to hirе applicants who will not enter into its mandatory arbitration agreement. This is precisely the same primary duty LFHS is alleged to have breached in the prior action. Accordingly, the EEOC, on behalf of Lagatree, is impermissibly attempting to assert the same claims as Lagatree asserted in the prior action.
Summary judgment in favor of Defendant is hereby granted to the extent the claims asserted in the Complaint seek monetary relief.
3. The EEOC Is in Privity with Laga-tree and the Present Action is Barred to the Extent it Asserts Claims on Behalf of Lagatree in his Individual Capacity.
The present action filed by the EEOC sets forth two distinct types of claims and seeks two distinct types of remedies. On the one hand, the EEOC asserts claims for damages on behalf of the individual Lagatree, who it contends was injured by LFHS’s unlawful retaliation. On the other hand, the EEOC seeks injunctive relief, on behalf of Lagatree and the public, and requests that LFHS be enjoined from conditioning employment on a prospective employee agreeing to arbitrate future employment claims against LFHS. A brief review of the EEOC’s role in enforcing the nation’s antidiscrimination laws, as well as a review of relevant case law, leads the Court to the conclusion that the EEOC is in privity with Lagatree as to his individual claims, but not as to its claim for injunctive relief.
a) The EEOC’s Enforcement Role
The EEOC has enforcement power oyer Title VII of the Civil Rights Act of 1964, as amended (“Title VII”), Age Discrimination In Employment Act (“ADEA”), and the Americans with Disabilities Act (“the ADA”), and the Equal Pay Act (“EPA”).
Title VII itself imposes or allows very few limitations on the EEOC’s power to sue in federal court to eliminate, for the public benefit, unlawful employment discrimination. Under Title VII and the
*1087
ADA,
8
once an individual files a charge alleging unlawful employment practices, the EEOC must investigate the charge and determine whether there is “reasonable cause” to believe that it is true.
See
42 U.S.C. § 2000e-5(b). By filing a charge, an individual does not file a complaint seeking relief, but merely informs the EEOC of possible discrimination.
See EEOC v. Shell Oil Co.,
b) Case Law Regarding the EEOC’s Role in Seeking. Relief on Behalf of Individual Aggrieved Parties
1) Claims for Individual Relief
The Third Circuit has held that where individuаls sued their employer for age discrimination based on an employer’s requirement that they sign waivers as a condition of receiving more favorable retirement pensions, the EEOC was precluded from asserting claims on behalf of these individuals because the EEOC was in privity with these individuals.
EEOC v. United States Steel,
Similarly, applying
United States Steel,
the Seventh Circuit has held that the EEOC is in privity with the employee for whom it seeks individual benefits.
EEOC v. Harris Chernin, Inc.,
The Court finds that the facts of this case parallel those in United States Steel and Harris Chemin. Accordingly, the Court holds that the EEOC was in privity with Lagatree with respect to the claims for individual rеlief.
Cases cited by the EEOC in support of its contention that it was not in privity with Lagatree do not convince the Court that a contrary holding is appropriate. The EEOC relies on
Victa v. Merle Norman Cosmetics, Inc.,
In Victa, the court held that a prior suit by the EEOC asserting federal claims did not bar the plaintiffs state law claims because the parties were not in privity. Id. (noting that the EEOC did not have standing to assert the plaintiffs state law claims). The Court based its decision on the enforcement structure of the Age Discrimination in Employment Act (“ADEA”), and reasoned that it was the intent of Congress in enacting the ADEA that the EEOC not be in privity with the aggrieved individual. In the present case, Lagatree, not the EEOC sued first. Therefore, the Victa’s court concerns regarding the em *1088 ployee’s lack of control over the EEOC proceedings are not applicable here.
In Franks Nursery, the Sixth Circuit held that an employee’s arbitration agreement did not bar the EEOC from asserting Title VII claims on her behalf; however, the court found that res judicata principles were inapplicable and therefore Franks Nursery was not decided on privity grounds. Instead, the court reasoned that the individual had no authority to bind the EEOC to arbitration; therefore, the EEOC was not precluded from asserting claims on the employee’s behalf. This case does not support the EEOC’s argument that it was not in privity with Laga-tree.
In Bechtel Petroleum, the Ninth Circuit held that the Secretary of Labor, by virtue of his suit for injunctive relief, was not in privity with employees who later sought damages for violations of state wage and hour laws. The Ninth Circuit reasoned that thе interests of the Secretary did not significantly overlap with the aggrieved parties and that the Secretary is not authorized to sue for damages on behalf of individual aggrieved employees. Here, however, the interests of Lagatree are aligned with the EEOC, and the EEOC is authorized to sue for damages on behalf of individual aggrieved employees. This case does not support the EEOC’s argument that it was not in privity with Lagatree.
2) Claims for Injunctive Relief
Although the EEOC is in privity with Lagatree with respect to the claims for individual relief on behalf of Lagatree, the same is not true for the EEOC’s claims for injunctive relief pursuant to its duty to vindicate the public’s interest in preventing employment discrimination.
The EEOC’s enforcement powers are intended tо supplement, rather than to supplant, an aggrieved individual’s right to maintain a private action under Title VII.
General Telephone Co. v. EEOC,
In this case, therefore, the EEOC fulfills two separate roles: First, it seeks monetary relief on behalf of Lagatree for alleged retaliation against him in an individual capacity, and second, it seeks injunctive relief in its role to protect the public interest in preventing employment discrimination. Courts across the nation are in agreement that the EEOC may pursue an action for injunctive relief even when the employee on whose behalf the injunction is sought is precluded from seeking further relief.
The Ninth Circuit has held that the EEOC’s right of action seeking to vindicate the public’s interest is independent of an employee’s private action rights.
EEOC v. Goodyear Aerospace Corp.,
Other Circuits have joined in this holding subsequent to
Goodyear.
The Second Circuit has noted that “[C]ircuit courts have uniformly held that the EEOC may not seek monetary relief in the name of an employee who has waived, settled, or previously litigated the claim.”
EEOC v. Kidder, Peabody & Co., Inc.,
The Seventh Circuit has held that although the EEOC was precluded from asserting a claimfor individual monetary and injunctive relief by principles of
res judica-ta,
the EEOC was not precluded from seeking an injunction against further violations.
EEOC v. Harris Chernin, Inc.,
Accordingly, the Court holds that the EEOC is not barred by res judicata 10 from pursuing its claims for injunctive relief. 11
IV. Injunctive Relief Is Appropriate
The EEOC argues that LFHS should be enjoined from requiring its employees to enter into mandatory arbitration agreements because this requirement is unlawful under federal civil rights laws. The EEOC alleges that LFHS unlawfully retaliated against Lagatree for his refusal to sign the arbitration agreement. For its part, LFHS argues that requiring its employees to enter into mandatory arbitration agreements is not unlawful, that Ninth Circuit authority regarding mandatory arbitration agreements is wrongly decided, that California law specifically allows employers to require employees to agrеe to arbitrate any claims against the employers, and that, in any event, LFHS did not unlawfully retaliate against Lagatree.
A brief review of relevant case law is in order.
A. Relevant Case Law
1. The United States Supreme Court’s Decisions Regarding Mandatory Arbitration Agreements in Employment — Gilmer, Alexander, and Circuit City
In
Alexander v. Gardner-Denver,
the court held that a plaintiff was not precluded from filing a Title VII lawsuit against his employer by having earlier submitted
*1090
his claim to final arbitration under a collective bargaining agreement.
Alexander v. Gardner-Denver Co.,
Seventeen years later, the Supreme Court decided
Gilmer v. Interstate/Johnson Lane Corp.
In
Gilmer,
the court hеld that an agreement to arbitrate a statutory claim is generally enforceable.
Gilmer v. Interstate/Johnson Lane Corp.,
In
Gilmer,
the plaintiff had been required by his employer to register as a securities representative with the New York Stock Exchange. The registration application contained an agreement to arbitrate “any dispute, claim or controversy ... arising between him and his employer” that is required to be arbitrated under the rules of the NYSE.
Id.
at 23,
The Supreme Court first noted the “liberal federal policy favoring arbitration.”
Id.
at 24,
The Court distinguished
Gilmer
from
Gardner-Denver.
“[TJhere are several important distinctions between the Gardner-Denver line of cases and the case before us.”
Id.
at 35,
Although of limited relevance to the present dispute, in
Circuit City Stores, Inc. v. Adams,
2. The Ninth’s Circuit Interpreta tion — Duffield
In
Duffield,
the Ninth Circuit held that, under the Civil Rights Act of 1991, employers may not compel individuals to waive their Title VII right to a judicial forum.
Duffield v. Robertson Stephens & Co.,
The plaintiff in Duffield asserted sex discrimination and harassment claims under Title VII and the California Fair Employment and Housing Act (“FEHA”). The defendant sought to compel arbitration pursuant to an arbitration clause contained in a Form U-4. 12 The plaintiff, however, argued that the Civil Rights Act of 1991, which amended Title VII, precluded compulsory arbitration of her discrimination claims. Id. at 1186.
The Court agreed with plaintiff and concluded that the Congress intended to preclude compulsory arbitration of Title VII claims by passing the Civil Rights Act of 1991. Id. at 1185. The Court reasoned that this Congressional intent was demonstrated in the text of the Act, specifically Section 118, and its legislative history. Id. Section 118 provides that “[w]here appropriate and to the extent authorized by law, the use of alternative means of dispute resolutions, including ... arbitration is encouragеd to resolve disputes arising under the Acts or provisions of Federal law amended by this Title.” Id. at 1191.
The Duffield court reasoned that the Act’s general purpose was to enlarge the substantive and procedural rights of victims of employment discrimination. The court noted that Congress mandated that courts construe Title VII to expand and increase an employee’s rights and the possible remedies available to plaintiffs. Id. at 1190. The court further reasoned that reading Section 118 as allowing mandatory arbitration is contrary to the congressional mandate to expand and increase employees’ rights. Moreover, the court reasoned, Section 118 merely encourages an employee to voluntarily agree to arbitrate. Id. Thе court stated that the restrictive language “where appropriate and to the extent authorized by law” evinced Congress’ intent to restrict arbitration to those cases *1092 in which the employee voluntarily chooses to do so. Id. at 1193.
3. The California Supreme Court’s Answer to Duffield — Armendariz v. Foundation Health Psychcare Services, Inc.
The California Supreme Court disagreed with
Duffield
and held that Title VII and FEHA claims may be subjected to mandatory arbitration agreements in
Armendariz v. Foundation Health Psychcare Services Inc.,
The
Armendariz
court began its inquiry by analyzing
Duffield.
The court specifically rejected
Duffield
stating that it found the reasoning “unpersuasive.”
Id.
at 93,
After making this determination, the court then looked to the validity of the arbitration agreement. Under California law, “arbitration agreements are valid, enforceable, and irrevocable, save upon such grounds as exists at law or in equity for the revocation of any contract.”
Id.
at 98,
In determining that the agreement was not contrary to public policy, the court stated that mandatory arbitration agreements were indeed against public policy if through arbitration the claimant forfeits certain substantive statutory rights.
Id.
at 99-100,
In determining that the contract was unconscionable and was a contract of adhesion, the court concluded that the contract lacked mutuality and was one-sided. For example, the arbitration provision subjected only the employee’s, but not the employer’s, claims to arbitration.
Id.
at 120,
B. An Employer’s Requirement That Employees Agree to Mandatory Arbitrаtion of Employment Claims Is Unlawful Under Duffield
The Ninth Circuit’s holding in Duffield was unequivocal. Duffield held that an employer’s actions in requiring an employee to sign a pre-dispute mandatory arbitration agreement is unlawful under Title VII. It is undisputed that LFHS continues to require its employees to agree to arbitration as a condition of employment despite the holding of Duffield.
LFHS criticizes
Duffield
as being wrongfully decided and notes that
Duffield
will eventually be overturned by the Ninth Circuit sitting
en banc,
or by the United States Supreme Court. The Court acknowledges that a great weight of legal authority supports LFHS’s argument.
See, e.g., Seus v. John Nuveen & Co., Inc.,
C. Injunction
As previously discussed, the EEOC has the power to seek an injunction on behalf of the public. Under Duffield, this Court is required to issue an injunction prohibiting LFHS from requiring its employees to agree to arbitration of their Title VII claims as a condition of employment and from attempting to enforce any such previously executed agreements.
Accordingly, Defendant LFHS is hereby permanently enjoined from:
1) requiring or requesting its employees to agree to arbitration of their Title VII claims as a condition of employment; and
2) attempting to enforce any such previously executed agreements to arbitrate Title VII claims.
Failure to abide by the terms of this injunction will subject Defendant to contempt sanctions.
V. Conclusion
Defendant LFHS’s Motion for Summary Judgment is granted in part and denied in part; Defendant’s alternative Motion for Partial Summary Judgment is denied as moot. Plaintiff EEOC’s Motion for Partial Summary Judgment is granted in part and denied in part.
Summary judgment in favor of Defendant is hereby granted to the extent the claims asserted in the Complaint seek monetary relief.
Notes
. Lagatree actually worked for the Defendant two days, from September 16-18, 1997.
. Although it appears to assert that Lagatree was terminated from his employment after being hired and working for two days, the EEOC agrees that, for purposes of the present motions, LFHS did not terminate Lagatree's employment; rather, it rejected his applica *1083 tion. Both such actions are adverse employment actions under the retaliation provisions of the federal antidiscrimination statutes.
.Prior to working at LFHS, Lagatree was employed with the law firm of Kessal, Young, & Logan ("Kessel Young”) for approximately three (3) years. Lagatree had been terminated, however, when he refused to sign an arbitration agreement.
At the same time Lagatree commenced a state court action against Defendant, Lagatree also sued Kessal Young alleging the same cause of action. The case against Kessel Young was similarly dismissed on demurrer. Lagatree appealed in both cases. The Court of Appeal consolidated Lagatree's case against Kessal Young and the Defendant for the purposes of appeal.
See Lagatree v. Luce, Forward, Hamilton & Scripps,
. On March 4, 1998, Lagatree filed a charge of discrimination with the EEOC alleging that he had been terminаted in retaliation for refusing to sign the offer letter.
. LFHS intends to continue to require its employees, as a condition of employment, to execute a mandatory arbitration agreement. (Berry Depo. at 21).
. The EEOC states, however, that it contests that the final judgment entered in the prior action has any relevancy to the present action.
.
Seadrift
and
Johnson
are to be contrasted with
Rothschild v. Tyco Int’l,
. The Americans with Disabilities Act incorporates the enforcement "powers, remedies, and procedures” of Title VII. 42 U.S.C. § 12117(a) (incorporating by reference 42 U.S.C. §§ 2000e-4, 2000e-5, 2000e-6, 2000e-8, 2000e-9).
. The Ninth Circuit was not presented with an issue of res judicata in Goodyear because the employee and employer entered into a private settlement agreement instead of litigating the employee’s claims; rather, the Goodyear Court was presented with a mootness issue. Nevertheless, Goodyear is instructive as to the Ninth Circuit's view on the roles of the EEOC in vindicating private rights and the public's interest.
The Court finds another "mootness” case instructive as well. In
EEOC
v.
United Parcel Service,
. The Court agrees with Defendant that California courts have been less than clear in analyzing and distinguishing between the individual elements of res judicata and collateral estoppel; these elements overlap to a significant extent. Perhaps for that reason, neither party has provided a meaningful analysis of the "actually litigated” or "necessarily decided” elements of collateral estop-pеl. Accordingly, the Court has limited its discussion to the elements of res judicata.
. The EEOC argues that California's public policy exception to the
res judicata
bar should be applied here, citing
Consumers Lobby Against Monopolies v. Public Utilities Comm’n,
. The plaintiff was a registered securities industry employee for the New York Stock Exchange ("NYSE”). The NYSE application form, or the Form U-4, contained the arbitration clause.
. The California Supreme Court is not alone in making this determination. Several circuit courts have likewise rejected
Duffield. See Seus v. John Nuveen & Co., Inc.,