United States District Court, N.D. California
December 6, 2005.
JERRY GAYLE, Plaintiff,
COUNTY OF MARIN; BOARD OF SUPERVISORS OF THE COUNTY OF MARIN; OFFICE OF THE ASSESSOR/RECORDER; JOAN C. THAYER, ASSESSOR/RECORDER; DON HUNTER; GILBERT GUADINA; KAREN SMALL and DOES 1 TO 10, Defendants.
The opinion of the court was delivered by: CLAUDIA WILKEN, District Judge
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Defendants County of Marin, Joan C. Thayer, Don Hunter, Gilbert
Guadina and Karen Small (collectively, Defendants) move for
summary judgment on grounds of res judicata and claim
preclusion.*fn1 Plaintiff Jerry Gayle opposes the motion.
The matter was heard on November 18, 2005.
Having considered all of the papers filed by the parties,
including supplemental briefing by both parties, the Court GRANTS
Defendants' motion for summary judgment. BACKGROUND
The following facts are drawn from Plaintiff's November 22,
2004, First Amended Complaint (FAC) or are undisputed, unless
otherwise noted. Plaintiff alleges that Defendants deprived him
of rights under the Fourteenth Amendment's equal protection
guarantee, in violation of 42 U.S.C. § 1983. Plaintiff is a
former employee of the Marin County Office of the Assessor
Recorder. Plaintiff alleges that he suffered "illegal employment
practices, discrimination [on the basis of race] and harassment
in a hostile environment for employment . . . including
retaliatory and wrongful discipline." FAC ¶ 15. Plaintiff claims
that this "discrimination has led to his termination," noting in
the FAC that the termination was "subject to an appeal before the
Personnel Commission which has traditionally upheld
terminations." Id. ¶ 49.
Prior to his termination, on December 22, 2000, Plaintiff filed
a grievance alleging that he was subjected to a hostile work
environment and asked that a negative evaluation be expunged from
his record. The grievance was heard by the Marin County Personnel
Commission (hereinafter the Commission) on July 24 and 27, 2001.
Plaintiff was represented by attorney Carl Shapiro, who
represents him in this lawsuit as well, and allowed to submit
evidence and testify. On August 13, 2001, the Commission denied
Plaintiff's request for expungement.
Plaintiff's employment was terminated after an incident
involving a co-worker that occurred on February 25, 2003.
Plaintiff filed an appeal of his termination, and the Commission conducted a preliminary conference on September 1, held an
evidentiary hearing on October 1 and 5, and then convened and
issued an oral decision on November 24, 2004. Defendants have
submitted the official reporter's transcript for all four days of
the proceedings.*fn2 Pattison Decl., Ex. 7, Transcripts. At
the hearing, Plaintiff was represented by an attorney, Bruce
Harland, who was allowed to subpoena witnesses, examine and
cross-examine witnesses under oath, and produce documentary
evidence. Pattison Decl. ¶ 11. Both Plaintiff and Defendant
County of Marin submitted preliminary submissions as well as
At the preliminary conference, counsel for County of Marin
sought to introduce a witness to rebut Plaintiff's claim of
discrimination, explaining "throughout at least the last several
years of Mr. Gayle's employment, and throughout the proceedings
involving his discipline, he's made allegations of racial
discrimination." Prelim. Hr'g Tr. 15:6-8. In response to the
Commission's inquiry as to whether there were "any pending
discrimination allegations," Marin County counsel replied that he
believed that Plaintiff would assert racial discrimination as a
defense. Id. 16:3-17. The chairman of the Commission continued,
I just want to make sure we don't waste your time and
ours by hearing a case and find out there is
something pending somewhere in the mill which would
preclude us from hearing the case.
Id. 16:10-13. Mr. Harland confirmed, "There is no grievance
pending." Id. at 16:14. After the evidentiary hearing, briefing and public
deliberation, the Commission denied Plaintiff's appeal and upheld
his termination. It specifically found that Plaintiff violated
Marin County Personnel Rules and Regulations "when he
intentionally bumped [co-worker] Michael Infante twice without
provocation and that such bumps served to intimidate Michael
Infante." Pattison Decl., Ex. 11, Commission's Findings and
Decision ¶ 7. It further specifically found "that the County did
not abuse its discretion in determining that termination is the
appropriate penalty." Id. ¶ 8. The Commission's findings note a
"seriously troubled relationship" between management and
Plaintiff, past disciplinary actions and poor performance
evaluations, Plaintiff's refusal to admit culpability, and the
failure of attempts at rehabilitation. Id. The Commission's
findings do not address Plaintiff's allegations of
On February 4, 2005, Plaintiff, through his union, appealed the
Personnel Commission's order. Sauer Decl., Ex. 1, February 4,
2005 Letter from Kris Organ to Diane Sauer. The Marin County
Board of Supervisors heard the appeal at its March 22, 2005 board
meeting, where a union representative, Sean Webb, spoke on
Plaintiff's behalf. Sauer Decl. ¶ 4. An outside attorney
represented the Board of Supervisors at the hearing. Id. The
Board of Supervisors denied Plaintiff's appeal and affirmed the
Personnel Commission's findings and decision. Sauer Decl., Ex. 3,
March 24, 2005 Order of the Marin County Board of Supervisors
Affirming the Decision of the Marin County Personnel Commission.
In its order, the Board of Supervisors advised Plaintiff that, should he choose to seek judicial review, "the provisions
of the California Code of Civil Procedure Section 1094.6 govern
the time within which such judicial review must be sought." Id.
Section 1094.6 requires that a petition for a writ of mandate
seeking judicial review of a decision of a local agency be filed
no later than ninety days after the decision become final.
Plaintiff did not file a petition for writ of mandate challenging
Summary judgment is properly granted when no genuine and
disputed issues of material fact remain, and when, viewing the
evidence most favorably to the non-moving party, the movant is
clearly entitled to prevail as a matter of law. Fed.R.Civ.P.
56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);
Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th
The moving party bears the burden of showing that there is no
material factual dispute. Therefore, the court must regard as
true the opposing party's evidence, if supported by affidavits or
other evidentiary material. Celotex, 477 U.S. at 324;
Eisenberg, 815 F.2d at 1289. The court must draw all reasonable
inferences in favor of the party against whom summary judgment is
sought. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986); Intel Corp. v. Hartford Accident & Indem.
Co., 952 F.2d 1551, 1558 (9th Cir. 1991).
Material facts which would preclude entry of summary judgment
are those which, under applicable substantive law, may affect the outcome of the case. The substantive law will identify which
facts are material. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).
Where the moving party bears the burden of proof on an issue at
trial, it must, in order to discharge its burden of showing that
no genuine issue of material fact remains, make a prima facie
showing in support of its position on that issue. See UA Local
343 v. Nor-Cal Plumbing, Inc., 48 F.3d 1465, 1471 (9th Cir.
1994). That is, the moving party must present evidence that, if
uncontroverted at trial, would entitle it to prevail on that
issue. See id.; see also Int'l Shortstop, Inc. v. Rally's,
Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991). Once it has done
so, the non-moving party must set forth specific facts
controverting the moving party's prima facie case. See UA
Local 343, 48 F.3d at 1471. The non-moving party's "burden of
contradicting [the moving party's] evidence is not negligible."
Id. This standard does not change merely because resolution of
the relevant issue is "highly fact specific." See id.
Defendants argue that the Board of Supervisor's adverse
decision bars Plaintiff's § 1983 suit, under the doctrines of res
judicata and collateral estoppel, because he failed to seek
review of it. Conceding that no petition for writ of mandate was
filed, Plaintiff notes that exhaustion of State remedies is not
required in order to bring an action under § 1983. This point,
however, is inapposite. The doctrine of res judicata is separate
from the issue of exhaustion of remedies, and Defendants' motion
rests only on the former. See Embury v. King, 191 F. Supp. 2d 1071, 1083
(N.D. Cal. 2001) (explaining that doctrine of claim preclusion,
but not that of judicial exhaustion, applies to § 1983 actions).
Res judicata, or claim preclusion, prohibits the re-litigation
of any claims that were raised or could have been raised in a
prior action. Western Radio Servs. Co., Inc. v. Glickman,
123 F.3d 1189, 1192 (9th Cir. 1997) (citing Federated Dep't Stores,
Inc. v. Moitie, 452 U.S. 394, 398 (1981)). The purpose of the
doctrine is to "relieve parties of the cost and vexation of
multiple lawsuits, conserve judicial resources, and, by
preventing inconsistent decisions, encourage reliance on
adjudication." Marin v. HEW, Health Care Financing Agency,
769 F.2d 590, 594 (9th Cir. 1985) (quoting Allen v. McCurry,
449 U.S. 90, 94 (1980)). Res judicata operates only where there is
"1) an identity of claims, 2) a final judgment on the merits, and
3) identity or privity between parties." Western Radio,
123 F.3d at 1192 (citing Blonder-Tongue Lab. v. University of Ill.
Found., 402 U.S. 313, 323-324 (1971)).
Title 28 U.S.C. § 1738 requires that federal courts give State
court judgments the same preclusive effect as federal judgments.
As a matter of federal common law, the fact-finding of a State
agency, acting in a judicial capacity in a proceeding where "the
parties have had an adequate opportunity to litigate," is also
given preclusive effect. Univ. of Tenn. v. Elliott,
478 U.S. 788, 799 (1986) (quoting United States v. Utah Construction & Mining Co., 384 U.S. 394, 422 (1966)).*fn3
The Ninth Circuit has extended Elliot to give preclusive
effect to "state administrative adjudications of legal as well as
factual issues, as long as the state proceeding satisfies the
requirements of fairness outlined in [Utah Construction]."
Miller v. County of Santa Cruz, 39 F.3d 1030, 1032-33 (9th Cir.
1994) (quoting Guild Wineries and Distilleries v. Whitehall
Co., 853 F.2d 755, 758 (9th Cir. 1988)). Those fairness
requirements are "(1) that the administrative agency act in a
judicial capacity, (2) that the agency resolve disputed issues of
fact properly before it, and (3) that the parties have an
adequate opportunity to litigate." Id. (citing Utah
Construction, 384 U.S. at 422); see also Mack v. South Bay
Beer Distributors, Inc., 798 F.2d 1279, 1283-84 (9th Cir. 1986)
(no preclusive effect afforded to informal unemployment benefits
hearing because the plaintiff did not have an adequate
opportunity to litigate factual issues related to
The Ninth Circuit found that California has adopted the Utah
Construction standard, and therefore that federal courts need
only look at "whether the administrative hearing met the requirements
of California law such that a California court would have
accorded the determination preclusive effect." Id. at 1033
(citing Eilrich v. Remas, 839 F.2d 630, 633 (9th Cir. 1988)).
In Miller, the court held that California law would have
accorded preclusive effect to a county civil service commission's
decision sustaining dismissal of a public employee after "a
public evidentiary hearing at which Miller was represented by
counsel and was permitted to present oral and documentary
evidence and to call witnesses." 39 F.3d at 1032. Because Miller
had not sought judicial review as provided in California Code of
Civil Procedure § 1094.5, the Ninth Circuit found that the
unreviewed administrative determination of the civil service
commission precluded his federal § 1983 claim. 39 F.3d at 1034
(relying on Swartzendruber v. City of San Diego,
3 Cal. App. 4th 896 (1992)).
Defendants have provided evidence that Plaintiff, like Miller,
was given a public evidentiary hearing, where he was represented
by counsel, and permitted to present oral and documentary
evidence and to call witnesses. Plaintiff fails to raise any
dispute of material fact regarding the sufficiency of the
Plaintiff dismisses as "far-fetched" the prospect that the
findings of the lay members of the Commission could be accorded
preclusive effect in this Court. However, the Ninth Circuit in
Miller considered this question and came to the opposite
conclusion, finding that there was no sound basis for a
distinction between lay and attorney decision-makers, and that such a rule would cause confusion. 39 F.3d at 1037. Had Plaintiff
taken advantage of the State court review available under §
1094.5, it would be that court's ruling that would be preclusive
in this Court.
Plaintiff also maintains that because he did not raise
discrimination as a defense before the Commission, and the
Commission did not make any findings regarding discrimination,
its decision has no relevant preclusive effect on the current
action. As Defendants correctly note, however, the standard is
not whether issues involving discrimination were litigated in the
administrative proceeding, but whether there was an "adequate
opportunity to litigate" in the administrative proceeding.
Miller, 39 F.3d at 1033 (citing Utah Construction factors).
The transcript makes clear that Plaintiff's attorney could have
raised discrimination as a defense had he chosen to do so. As the
Ninth Circuit noted in Miller at 1034, quoting
Swartzendruber, 3 Cal. App. 4th at 909,
There can be no justification for plaintiff's
position that she should be permitted to fail to
assert at the administrative hearing constitutional
and civil rights violations as reasons that made her
termination wrongful, fail to prevail on the writ
without attempting to urge or to bring before the
court those reasons, and then be allowed to recover
damages in this consolidated action that resulted
from termination of her employment alleged to be
wrongful based on those same reasons.
Therefore, the Commission's decision does have a preclusive
effect on Plaintiff's § 1983 claim in this Court.
Defendants have made a successful prima facie showing in
support of their position that the Commission's findings and
decision are entitled to preclusive effect. Plaintiff has set forth no specific facts controverting this. Therefore, the Court
finds that the findings and decision are entitled to preclusive
effect in Plaintiff's § 1983 action.
The Commission found that Plaintiff violated Marin County rules
and regulations by bumping another colleague intentionally and in
an intimidating manner. The Commission also found, in light of
the history between Plaintiff and management, that the County of
Marin did not abuse its discretion in determining that
termination was the appropriate penalty. Plaintiff's complaint
clearly arises from the termination that was litigated in the
administrative proceeding, as well as from the prior hostile work
environment grievance which was also litigated in the same
administrative forum. Therefore, the Court concludes that
Plaintiff is precluded by the doctrines of res judicata and
collateral estoppel from bringing a § 1983 claim for
discrimination based on his employment with Marin County, and its
termination. Plaintiff's claims against the individual Defendants
are summarily adjudicated for the same reason. See Miller,
39 F.3d at 1038 (applying preclusion to § 1983 claims against
individual named defendants acting within the course and scope of
For the foregoing reasons, the Court GRANTS Defendants' motion
for summary judgment (Docket No. 81). Plaintiff's requests for judicial notice are GRANTED (Docket Nos. 86 and 87). Judgment
shall enter accordingly; each party shall bear its own costs.
IT IS SO ORDERED.
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