Karin White v. City of PasadenaKarin White v. City of Pasadena
Case Information
*1 FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT (cid:252)
K ARIN W , an individual, Plaintiff-Appellant, No. 08-57012 v. D.C. No. (cid:253) C ITY OF P ASADENA , a governmental 2:08-cv-03390-R- entity; C ASADENA P OLICE JWJ D EPARTMENT , a governmental entity; B ERNARD K. M ELEKIAN , an OPINION individual, (cid:254) Defendants-Appellees.
Appeal from the United States District Court for the Central District of California Manuel L. Real, District Judge, Presiding Argued March 2, 2010 Submitted January 5, 2012 Pasadena, California Filed January 17, 2012 Before: William C. Canby, Jr., Ronald M. Gould, and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Ikuta COUNSEL Richard A. Love, Esq., Kathleen M. Erskine, Esq., Law Offices of Richard A. Love, Los Angeles, California, for plaintiff-appellant Karen White.
Richard R. Terzian, Esq., Robert J. Tyson, Esq., Burke, Wil- liams & Sorensen, LLP, Los Angeles, California, for defendants-appellees City of Pasadena, et al.
OPINION
IKUTA, Circuit Judge:
After her first termination from the City of Pasadena Police Department and subsequent reinstatement, Karin White brought a lawsuit in state court claiming that she had been discriminated against and harassed by the City due to its per- ception that she had a disability. After her second termination, she reiterated her discrimination and harassment claims in an administrative proceeding, where she also argued that the ter- mination was retaliatory. Both of White’s actions resulted in a decision in favor of the City. White now brings claims in federal court based on the same theories litigated in state pro- ceedings. We conclude that California principles of issue pre- clusion prevent us from reaching these issues here.
I.
The lengthy course of litigation at issue in this case began
with the City’s attempted termination of White in 2004. The
City had hired White as a police officer in 1996. Two years
later, White was diagnosed with relapsing/remitting multiple
sclerosis, which her doctor said would not limit her perfor-
mance of her official duties. In November 2004, the City ter-
minated White for allegedly associating with a known drug
dealer (who was also the father of her son) and for lying to
the department about her relationship with him. The City
based this decision on telephone recordings between the drug
dealer and White, which had been obtained through a wiretap
of the drug dealer’s phone. White challenged the termination
by pursuing a grievance proceeding, as allowed under the
Memorandum of Understanding (MOU) between the City of
Pasadena and the Pasadena Police Officer’s Association. The
arbiter issued an advisory opinion concluding that the City
had violated state and federal wiretap laws in recording her
conversations, and the City’s disciplinary action was barred
by the applicable one-year limitations period.
See
A
White filed the first action at issue in this case in December 2005 (“ White I ”). White’s complaint, filed in the state supe- rior court, alleged that:
defendants entered into a pattern or plan of discrimi- nation and harassment against plaintiff by attempting to force plaintiff to resign, or to terminate plaintiff, from employment due to the incorrect assumption or perception, and prejudice, by defendants that plain- tiff suffered from or had or suffered from a disability due to the November, 1998 Multiple Sclerosis flare up and diagnosis.
She also alleged that the department had illegally used tape- recorded conversations in the internal affairs investigation that led to her November, 2004 termination. Finally, she alleged that the City’s discrimination and harassment based on her perceived disabilities had continued after her return to work and constituted a continuing violation. Among other things, she claimed that she had been removed from the “cov- eted position” of Community Outreach, was not reinstated, and was subjected “to further discrimination and harassment by her superiors in their criticism, critique, and evaluation of her job performance, and unfounded disciplinary actions.”
According to White, all of these actions amounted to “dis-
crimination based upon a perceived physical disability,” and
unlawful harassment based on an actual or perceived disabil-
ity, both of which violated the California Fair Employment
and Housing Act (FEHA).
See
On April 2, 2007, after a lengthy trial, the jury returned a special verdict finding that the City did not “take an adverse employment action against [White] based on its knowledge or belief that she had a disability,” and that White was not “sub- jected to unwanted harassing conduct by a supervisor . . . because she was believed to have a disability.” The jury also found that the City had illegally used “conversations, which had been tape recorded without [White’s] consent, to initiate an internal investigation into the conduct of [White],” that the use of these conversations was a “substantial factor in causing harm” to White, and that White had suffered $1,000,000 in damages as a result. The trial court denied White’s discrimi- nation and harassment claim under FEHA, but trebled the damages award for her right to privacy claim under the appli- cable statute, and entered judgment for White in the amount of $3,000,000.
Both the City and White appealed. The California Court of
Appeal rejected White’s appeal from the jury verdict against
her on the disability discrimination cause of action.
White v.
City of Pasadena
, No. B200594, 2009 WL 1234094, at *1
(Cal. Ct. App. May 7, 2009). The court also reversed the ver-
dict as to White’s privacy claims, holding that the City was
immune from civil liability for invasion of privacy.
Id.
at *6;
see
B
On June 25, 2006, before trial began in White I , White was shot in the face in her home. As subsequently explained by the California Court of Appeal, “[t]he only other person pres- ent was her 18-year old son, Kamron Williams.” White v. City of Pasadena , No. B221687, 2011 WL 3130626, at *1 (Cal. Ct. App. July 26, 2011). The son “told the 911 operator, as well as deputies who arrived on the scene, that his mother had shot herself.” Id. at *1. White “denied having attempted sui- cide, and told a sheriff’s investigator that she had been acci- dentally shot while struggling with Williams in an attempt to prevent him from shooting himself.” Id. Both the Los Angeles Sheriff’s Department and the Pasadena police department conducted investigations of the incident; both concluded that White had attempted suicide. The City adopted this conclu- sion and thereupon ruled that White had made false state- ments about the shooting incident to the Sheriff’s Department and the police department. The City terminated White on August 30, 2007 on this basis.
White again pursued an administrative appeal of her termi- nation. These administrative proceedings, and their subse- quent review on a writ of mandamus, constitute the second action at issue in this case (“ White II ”). Under the terms of the MOU, if an employee cannot resolve a grievance with the employee’s immediate supervisor or department head, the employee is entitled to advisory arbitration. The employee (and employer) may submit issues to an arbiter, who holds a hearing where parties can introduce witnesses and documents. Following the hearing, the arbiter prepares a written advisory opinion “which shall not be binding on either party, and shall be limited to the issue, or issues, presented to the arbiter.” That advisory opinion is sent to the City Manager, who makes the final decision as to what action, if any, the City will take. The employee is entitled to representation throughout the grievance process.
In White’s administrative appeal of the second termination, the parties submitted briefs in October 2008, and the adminis- trative hearing commenced in November. The arbiter defined the issues before him as:
1. Was there just cause to terminate Karin White’s employment with the City?
2. Was the [Police] Department’s action timely under Government Code§ 3304(d) ?
3. If the answer to either question is no, what is the appropriate remedy?
Both White and the City made opening statements, called wit- nesses, admitted exhibits, and filed closing briefs. During the hearing, White introduced evidence that the City’s investiga- tion and her termination were in retaliation for the White I lawsuit.
In his written advisory opinion, the arbiter stated that the
key question with respect to the “just cause” issue was
whether the City carried its burden of proving that White
attempted to commit suicide. The arbiter ultimately concluded
that the City did not carry its burden of proof on this issue,
and that White had been “the victim of a sloppy and biased
investigation and report.” In light of this determination, the
arbiter stated that he could not “reach a conclusion that White
was the victim of retaliation” by the Chief of Police. The arbi-
ter also found that the City’s termination of White was
untimely under state law.
See
As required in the MOU, the arbiter’s advisory opinion, along with a transcript of the proceedings, was sent to the City Manager. In a separate written opinion, the City Manager stated that he had made an independent review of the “entire record in this matter, including the advisory opinion, tran- script, admitted exhibits and closing briefs of both sides.” On the basis of this review, the City Manager upheld the decision to terminate White. The opinion set forth the City Manager’s analysis of the evidence adduced at trial, and provided the City Manager’s reasons for concluding that the City had car- ried its burden of proving that White attempted to kill herself. With respect to White’s claims that the City’s disciplinary action was retaliatory, the opinion stated that these claims were “not persuasive.” Among other things, the opinion explained, “[t]he independent Sheriff’s Department and their investigators would need to be part of the retaliation for Ms. White’s theory to be true,” and there was no support in the record for such a claim. The City Manager also concluded that the discipline was timely, and not barred by the statute of limitations.
White sought review of the administrative decision by fil- ing a writ of mandamus with the California Superior Court pursuant to section 1094.5 of the California Civil Procedure Code. The California Superior Court reviewed the evidence, exercising its independent judgment, and concluded that the City had just cause to terminate White. Specifically, the court found that the evidence that White shot herself was stronger than the evidence supporting White’s version of events. Accordingly, the court denied the petition for mandate.
White appealed the state trial court’s decision to the Cali- fornia Court of Appeal, which upheld the City Manager’s decision after reviewing the history of White’s dispute with the City. White II , 2011 WL 3130626. First, the appellate court determined that the discipline imposed on White had not been barred by the statute of limitations. Id. at *9-14. Second, the appellate court determined that substantial evidence sup- ported the trial court’s finding that the evidence more strongly supported the City’s version of events, and therefore affirmed the Superior Court’s decision. Id. at *15-17
White did not seek review of the decision by the California Supreme Court, and the decision therefore became final on August 25, 2011.
C
On May 2, 2008, while White I was on appeal, and the administrative proceedings in White II challenging White’s second termination were still pending, White filed a second complaint against the City in California Superior Court (“ White III ”). The complaint alleged that defendants “entered into a pattern or plan of discrimination and harassment against plaintiff by attempting to force plaintiff to resign, or to termi- nate plaintiff from employment with defendants” due to a per- ception that plaintiff had a disability. [1] According to the complaint, the City’s plan included illegally wiretapping her conversations in order to have a basis for its first termination. These factual allegations were largely identical to those in White I .
The complaint also alleged that the City’s plan included the August 30, 2007 termination of her employment based on its false allegations that she attempted to commit suicide and lied to the law enforcement agencies investigating the incident. Further, the complaint alleged that the City’s conduct, includ- ing the August 30, 2007 termination, was motivated by retali- ation for White’s legal actions against the City in White I , including her disclosure of the City’s violation of wiretap laws. White alleged that the City’s plan to remove her from her position is a continuing violation.
Based on these factual allegations, the complaint asserted
five causes of action. First, it asserted a cause of action for
employment discrimination on the basis of White’s perceived
disabilities in violation of FEHA, and a separate cause of
action for harassment on the same basis. Second, the com-
plaint asserted three causes of action based on the allegation
that the City’s improper conduct was retaliatory. The com-
plaint asserted causes of action for a violation of FEHA based
on the City’s alleged retaliation against White for her suit
against the City, a violation of section 1102.5 of the Califor-
nia Labor Code based on the City’s alleged retaliation against
White for disclosing the City’s violation of wiretap laws, and
a claim under
In light of White’s
White filed her notice of appeal on December 13, 2008. On appeal, the City argued that White’s claims arising from her first termination could not be relitigated, because they had already been decided in White I. Further, the City asserted that any claims arising from White’s second termination were pre- mature, because White had not yet exhausted her state law remedies in litigating White II .
On March 2, 2010, we stayed the appeal in White III pend- ing the final outcome of White II . After the state appellate court ruled in favor of the City in White II , the parties pro- vided supplemental briefing on that decision’s preclusive effect. White asserts that we need not consider the effect of claim preclusion on her appeal of White III because White II does not have preclusive effect, and the claims in White III are not the same as the claims in White II . Further, White asserts that issue preclusion is not applicable because the issues in White III are not identical to the issues in White II , and the claims in the two actions involve different legal standards. In contrast, the City argues that White I and White II preclude all the claims and issues in White III , which must therefore be dismissed. In light of this additional briefing, we now con- sider the preclusive effect of White I and II on the current fed- eral proceedings.
II.
We begin by considering the framework for analyzing when a state court decision has a preclusive effect on a federal proceeding.
A
[1]
The Constitution provides that “Full Faith and Credit
shall be given in each State to the public Acts, Records, and
judicial Proceedings of every other State.”
[2]
In determining the preclusive effect of a state adminis-
trative decision or a state court judgment, we follow the
state’s rules of preclusion.
Kremer v. Chem. Const. Corp.
, 456
U.S. 461, 482 (1982). For purposes of clarity, however, we
will use the Supreme Court’s current terminology to describe
these doctrines. According to the Court, “[t]he preclusive
effect of a judgment is defined by claim preclusion and issue
preclusion, which are collectively referred to as ‘res judi-
cata.’ ”
Taylor v. Sturgell
,
[3]
The rules of claim and issue preclusion apply equally
to
B
We next review California’s preclusion principles, as appli- cable here.
The California Supreme Court established its general rules for issue preclusion in the seminal case of Lucido v. Superior Court , 795 P.2d 1223 (Cal. 1990). According to Lucido , the doctrine of issue preclusion “precludes relitigation of issues argued and decided in prior proceedings,” when six criteria are met. Id. at 1225. These criteria are: (1) “the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding”; (2) the issue to be precluded “must have been actually litigated in the former proceeding”; (3) the issue to be precluded “must have been necessarily decided in the former proceeding”; (4) “the decision in the former proceeding must be final and on the merits”; (5) “the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding”; and (6) application of issue preclusion must be consistent with the public policies of “preservation of the integrity of the judicial system, promotion of judicial economy, and protection of liti- gants from harassment by vexatious litigation.” Id. at 1225-27.
[4]
California’s claim preclusion doctrine provides that a
“valid final judgment on the merits in favor of a defendant
serves as a complete bar to further litigation on the same
cause of action.”
Slater v. Blackwood
,
[5]
Under California law, a prior administrative proceed-
ing, if upheld on review (or not reviewed at all), will be bind-
ing in later civil actions to the same extent as a state court
decision if “the administrative proceeding possessed the req-
uisite judicial character.”
Runyon v. Bd. of Tr.
,
(1) the administrative hearing was conducted in a judicial-like adversary proceeding; (2) the proceed- ing required witnesses to testify under oath; (3) the agency determination involved the adjudicatory application of rules to a single set of facts; (4) the proceedings were conducted before an impartial hearing officer; (5) the parties had the right to sub- poena witnesses and present documentary evidence; and (6) the administrative agency maintained a ver- batim record of the proceedings.
Imen v. Glassford , 247 Cal. Rptr. 514, 518 (Cal. Ct. App. 1988). In addition, a court may consider “whether the hearing officer’s decision was adjudicatory and in writing with a statement of reasons,” and whether the hearing officer’s deci- sion was adopted by the director of the agency “with the potential for later judicial review.” [2] Id. Applying this test, Imen determined that the administrative proceeding at issue in that case met the “judicial character” requirements. Id. That proceeding (like the proceeding required under the MOU) involved an adjudicatory hearing, which included witnesses testifying under oath, the right to cross-examine and confront adversary witnesses, the right to be represented by counsel, and the right to a formal decision. Id. at 519. In the Imen pro- ceeding, the administrative law judge made recommendations to a decision-maker (who, like the City Manager in this case, was free to accept or reject them), and a party dissatisfied [2] California’s “judicial character” test is substantially the same as the Supreme Court’s test for determining whether a federal court should give an unreviewed state administrative proceeding preclusive effect under the federal common law. See United States v. Utah Const. & Mining Co. , 384 U.S. 394, 422 (1966).
with the administrative decision could compel judicial review. Id.
III.
We now apply these principles to this case to determine whether and to what extent White I and White II may bar reli- tigation of claims or issues in White III. We conclude, under California’s doctrine of issue preclusion, that White I pre- cludes White from arguing that the City’s actions constituted discrimination or harassment based on perceived disabilities, and that White II precludes White from arguing that the City did not have an adequate justification for her termination, or that the proffered explanation for her termination was a pre- text for a retaliatory intent.
A
[6] We first consider the preclusive effect of White I . White argues that under California case law, neither the claims nor the issues decided in that state court decision meet the criteria to bar relitigation of any claims or issues raised in White III . Specifically, White asserts that she could not have litigated the claims arising from her August 2007 termination in White I , because the termination had not yet occurred. We agree that White I does not preclude White from asserting claims related to her second termination. Nevertheless, issues decided in White I do preclude relitigation of issues underly- ing the FEHA claims in White III , because the allegations supporting the claims of discrimination and harassment in White III were all alleged in White I . In White I , the jury ver- dict (upheld on appeal) resolved two key issues by rejecting White’s allegations that the City was engaged in discriminat- ing against her and harassing her on the basis of a perceived disability. White makes the same allegations of discrimination and harassment on the basis of perceived disability in her complaint in White III . Because all the Lucido factors for issue preclusion are met, the jury’s rejection of these allega- tions is binding on us. The issues to be decided are identical: both cases base FEHA claims on allegations that the City engaged in a continuing program of discrimination and harassment on the basis of White’s perceived disabilities. Because the jury in White I concluded that the City did not have such a program, the fact that the complaint in White III makes the bare allegation that the program continued during the period after White I is insufficient to raise a new issue. Continuing with the Lucido factors, the factual allegations were necessarily decided pursuant to the special verdict form, the decision in White I was on the merits, the parties were identical, and applying issue preclusion to these issues is con- sistent with the public policies identified by the California courts, as it prevents relitigation of issues decided by a jury after a full trial and upheld on appeal. Therefore, White is pre- cluded from arguing that the City’s actions constituted dis- crimination or harassment on the basis of a perceived disability.
B
We next consider the preclusive effect of
White II.
[7]
Because
White II
was an administrative proceeding
upheld on review by the state trial and appellate courts,
White
II
is binding in this case to the same extent as a state court
decision if it has “the requisite judicial character,”
Runyon
,
229 P.3d at 994 (quoting
State Bd. of Chiropractic Exam’rs
v. Superior Court
,
White argues that the administrative proceeding in
White II
was not judicial in character because the proceeding was pre-
sided over by an arbiter whose decision was advisory only,
while the City Manager had “unabridged discretion” to make
the final decision.
[3]
But the adversary proceedings in this case
are indistinguishable from the proceedings in
Imen
: both
involved an adversary hearing that resulted in an advisory
opinion and a decision-maker who was empowered to accept,
reject, or modify that advisory opinion,
see id.
at 519;
see also
White also argues that White II cannot have an issue preclu- sive effect because in the mandamus proceeding, she had the burden of establishing that the City’s determination was con- trary to the weight of the evidence, Fukuda v. City of Angels , 977 P.2d 693, 696 (Cal. 1999), while in a regular civil law- suit, she would merely have to prove her case by a preponder- [3] In making this argument, White urges us to follow an unpublished dis- trict court decision, Eaton v. Siemens , No. CIV. S-07-315 FCD KJM, 2007 WL 1500724, at *5 (E.D. Cal. May 23, 2007), which held that a similar process failed to meet the Utah Construction factors. We find this unpub- lished opinion unpersuasive, and in any event, it does not consider Califor- nia law on this point.
ance of the evidence. Because under California law, a prior judicial decision cannot have issue preclusive effect if the plaintiff had a higher burden of proof in the earlier proceeding than in the later proceeding, see Simpson v. Brown , 79 Cal. Rptr. 2d 389, 401 (Cal. Ct. App. 1998), White claims that the White II decision cannot be preclusive here.
We reject this argument, however, because the prior opin- ion at issue here is not the state mandamus proceeding but the administrative agency decision, which was reviewed by the state mandamus court and therefore has preclusive effect under California law. Clements , 69 F.3d at 326-27. In those administrative proceedings, the City had the burden of prov- ing the charges against White by a preponderance of the evi- dence, as the City Manager recognized in his opinion. See Parker v. City of Fountain Valley , 179 Cal. Rptr. 351, 359 (Cal. Ct. App. 1981) (“It is axiomatic, in disciplinary adminis- trative proceedings, that the burden of proving the charges rests upon the party making the charges.”). Accordingly, White did not have a higher burden of proof in the earlier administrative proceeding than in federal court; rather, she was relieved of any burden of proof in the administrative pro- ceeding. This argument against the preclusive effect of White II also fails.
Because White II has the same preclusive effect as a state court decision, White may not relitigate issues argued and decided in White II , if the Lucido criteria are met. The com- plaint in White III alleges three claims based on the theory that White’s second termination was based on the City’s intent to retaliate against her, namely, the claims that the City’s discriminatory and harassing conduct was motivated by retaliation for White’s suit against the City in White I , that the City discharged her in retaliation for disclosing the City’s vio- lation of wiretap laws, and the claim that her First and Four- teenth Amendment rights were violated by the City’s actions against her in retaliation for her civil actions against the City. Because White II already determined that White’s termination was not retaliatory, and that the City had just cause to termi- nate White, the retaliation-based claims in White III cannot go forward if White II’s determinations are binding.
[8] We hold that the state administrative decisions on these issues are binding in federal court, because the issues decided in White II meet the Lucido factors. Both cases raise the same issue: whether White’s second termination was in retaliation for White I . We reject White’s argument that the issue whether her termination by the City was retaliatory was not actually litigated and decided in White II . White argued in the administrative proceeding in White II that the City had acted with retaliatory intent; both her opening statement and her closing brief included such arguments. Indeed, the theory of her case in front of the arbiter was that the City had decided to terminate her to “get even” and “make an example of her” because she had the “temerity” to sue the department. The City Manager expressly rejected these assertions of retalia- tion, finding that they were “not persuasive.” The determina- tion that White’s termination was not retaliatory was necessary to the City Manager’s decision. See Castillo v. City of Los Angeles , 111 Cal. Rptr. 2d 870, 876 (Cal. Ct. App. 2001) (“Further, if the hearing examiner were to have found that the reasons for discharge were merely a pretext for dis- crimination, she would not have found the discharge was appropriate.”). Continuing with the Lucido factors, White II and White III involved the same parties. Finally, allowing White to relitigate this issue now would be contrary to the public policy concerns underlying the issue preclusion doc- trine, given that the issue has been fully litigated and decided against White on the merits, and that decision has been upheld by both the state trial and appellate courts. Because we are bound by the administrative decision that the City had just cause to terminate White, and the City’s termination was not retaliatory, there is nothing left of White’s three claims of retaliatory termination.
IV.
In sum, applying California principles of issue preclusion,
White I
precludes White from arguing that the City discrimi-
nated against or harassed her based on her perceived disabili-
ties.
White II
precludes White from arguing that the City did
not have an adequate justification for her termination, or that
the proffered explanation for her termination was a pretext for
a retaliatory intent. Because
AFFIRMED. [4] Because we decide the case on issue preclusion grounds, we do not reach the claim preclusion arguments of the parties.