ERIC BAHRA, Plaintiff-Appellant, v. COUNTY OF SAN BERNARDINO; SAN BERNARDINO COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES; KRISTINE BURGAMY, In Her Individual and Official Capacity; NICKOLA HACKETT, In Her Individual and Official Capacity, Defendants-Appellees.
No. 18-55789
United States Court of Appeals, Ninth Circuit
December 30, 2019
D.C. No. 5:16-cv-01756-JGB-SP; Appeal from the United States District Court for the Central District of California; Jesus G. Bernal, District Judge, Presiding; Argued and Submitted November 13, 2019, Pasadena, California
Opinion by Judge Graber
SUMMARY*
Civil Rights
The panel affirmed in part and reversed in part the district court‘s summary judgment in favor of San Bernardino County Department of Children and Family Services defendants in an action brought pursuant to
Plaintiff challenged his termination, unsuccessfully, through an appeal to the County‘s Civil Service Commission and subsequently filed the present action. The district court granted summary judgment for defendants, holding in part, that plaintiff‘s claims for retaliation under
The panel first held that the Commission‘s order sustaining plaintiff‘s dismissal did not preclude plaintiff‘s
The panel‘s conclusion regarding legislative intent did not extend to plaintiff‘s claim under
COUNSEL
Valerie Ross (argued), Law Offices of Valerie Ross, Victorville, California; A. Cabral Bonner (argued) and Charles A. Bonner, Law Offices of Bonner & Bonner, Sausalito, California; for Plaintiff-Appellant.
OPINION
GRABER, Circuit Judge:
Plaintiff Eric Bahra was fired from his post as a social services practitioner in Defendant San Bernardino County‘s Department of Children and Family Services (“CFS“). Plaintiff challenged his termination, unsuccessfully, through an appeal to the Civil Service Commission of the County of San Bernardino (“Commission“). He then filed this action, in which he alleges that CFS and two of its employees fired him in retaliation for his whistleblowing activities, in violation of
BACKGROUND1
CFS investigates referrals regarding child abuse and provides services to children and families. In June 2013, Plaintiff was assigned as the lead investigator to look into allegations of abuse brought by a group of children against their former foster parent. As part of his investigation, Plaintiff used the CFS database, which generally keeps track
Plaintiff informed his manager, Defendant Kristine Burgamy, on the same day that he discovered the database errors. The next day, Plaintiff found Burgamy and Defendant Nicola Hackett, Deputy Director of the Victorville CFS office, “rifling through” files on his desk.
In July 2013, the County conducted an “administrative interview” with Plaintiff to determine whether he had violated any policies, rules, or practices. Plaintiff then left for a short vacation and, upon his return, the County placed him on desk duty. Shortly thereafter, the County placed him on administrative leave pending the outcome of the disciplinary process. The County then conducted a second “administrative interview.” At that interview, Plaintiff was represented by counsel, and Burgamy and Hackett attended for the County.
In September 2013, Plaintiff was issued a Notice of Proposed Dismissal, which contained several grounds for termination. The notice also explained that it was a “proposed action only” and that Plaintiff could respond to his appointing authority, which he did.
Thereafter, a hearing officer conducted an administrative hearing. Plaintiff was represented by counsel at the hearing, and he submitted another written response to the notice. The hearing officer “gave more credence to the County‘s position” and issued Plaintiff an Order of Dismissal in
A few days later, Plaintiff appealed and requested an evidentiary hearing pursuant to San Bernardino Personnel Rule X, Section 9. That hearing took place over 14 days during 2014. In total, the hearing included 27 witnesses, 2,045 pages of testimony, 154 pages of post-hearing briefs, and 89 exhibits.
Throughout the hearing, Plaintiff alleged that his termination was retaliatory and that Defendants had engaged in a “witch hunt” against him. Plaintiff primarily argued at the hearing that he was terminated in retaliation for his union organizing activity. In October 2012, Bahra circulated a petition protesting his supervisors’ management style and the “hostile working environment” in the Victorville CFS Office. At least nine CFS employees signed the petition, which was addressed to Human Resources. Several witnesses at the hearing, including Bahra, testified about this petition.
In July 2015, the hearing officer issued a decision. The hearing officer concluded that Plaintiff had not produced evidence of retaliation and that five allegations against Plaintiff were substantiated. Consequently, the hearing officer recommended that the Commission uphold Plaintiff‘s termination and deny his appeal.
The Commission adopted the hearing officer‘s report and sustained CFS‘s order of dismissal. The Commission also advised Plaintiff of his right to seek judicial review through a writ of mandamus under
STANDARD OF REVIEW
We review de novo a district court‘s grant of summary judgment. King v. County of Los Angeles, 885 F.3d 548, 556 (9th Cir. 2018). Likewise, we review de novo whether preclusion applies. See Media Rights Tech., Inc. v. Microsoft Corp., 922 F.3d 1014, 1020 (9th Cir. 2019) (claim preclusion); Wabakken v. Cal. Dep‘t of Corr. & Rehab., 801 F.3d 1143, 1148 (9th Cir. 2015) (issue preclusion).
DISCUSSION
We grant the same preclusive effect to state court judgments as those judgments would receive in the state in which they were rendered.
A. Plaintiff‘s Claim Under California Labor Code Section 1102.5.
In California, decisions by administrative agencies typically have preclusive effect, provided that they have a sufficiently “judicial character” and that the elements of
The California Court of Appeal recently applied the legislative-intent exception and held that administrative findings by a state agency do not preclude claims for retaliation brought under
The California Supreme Court‘s decision in Murray does not convince us to deviate from Taswell. In Murray, the California Supreme Court considered the preclusive effect of a federal agency‘s investigative findings when the plaintiff had elected not to pursue a formal adjudicatory hearing or subsequent judicial review. 237 P.3d at 566. The court held that the plaintiff‘s retaliation claim was precluded. Id. at 568. But Murray does not require us to give preclusive effect here
First, the California Supreme Court expressly limited the scope of its holding in Murray. The court held that preclusion applied there in light of “the particular factual and procedural circumstances of this case, and the particular provision of the . . . statutory scheme here at issue.” Id. Murray does not stand for the proposition that all administrative agency findings preclude claimants from asserting
Most significantly, Murray applied a different test than the test applied in Taswell. Murray considered whether the federal administrative proceeding possessed a “sufficiently judicial character.” Id. at 568. Taswell considered the legislative intent of
Moreover, Defendants have not persuaded us that the Taswell court misapplied California law such that the California Supreme Court would disagree with its reasoning or its conclusion. Taswell applied principles derived from California Supreme Court precedents to resolve the question whether preclusion applied to the plaintiff‘s
B. Plaintiff‘s Claim Under § 1983.
Our conclusion regarding legislative intent does not, however, extend to Plaintiff‘s claim under
Plaintiff‘s amended complaint alleged
To have a “sufficiently judicial character,” a proceeding must, among other things, provide a claimant with an “adequate opportunity to litigate.” Murray, 237 P.3d at 569–70 (quoting United States v. Utah Constr. & Mining Co., 384 U.S. 394, 422 (1966)). Plaintiff argues that he did not have an adequate opportunity to litigate because the County‘s asserted reasons for termination were pretextual. But Plaintiff misses the mark. Whether a litigant had a sufficient opportunity to litigate depends on whether “both parties had a full and fair opportunity to argue their version of the facts and an opportunity to seek court review of any adverse findings.” Utah Constr. & Mining Co., 384 U.S. at 422; see also Samara v. Matar, 419 P.3d 924, 930 (Cal. 2018) (“The ‘chance’ to litigate . . . is the opportunity to submit a dispute over legal rights to a tribunal legally empowered to decide it according to definite procedural rules.” (quoting Restatement (Second) of Judgments, intro. pp. 6–7 (1982)). Plaintiff had a full opportunity to litigate the propriety of his termination before the administrative agency, as evidenced by the comprehensive evidentiary record and the availability of judicial review. See Samara, 419 P.3d at 930 (explaining that the “less robust the process involved in resolving litigation the first time, the stronger the argument for permitting litigation once more“). Several witnesses testified about Plaintiff‘s petition regarding a hostile work environment, and Plaintiff argued that he was targeted and fired in retaliation for that advocacy. The hearing officer considered and rejected his arguments. We therefore conclude that Plaintiff‘s
AFFIRMED in part, REVERSED in part, and REMANDED. The parties shall bear their own costs on appeal.