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December 6, 2005.

JERRY GAYLE, Plaintiff,

The opinion of the court was delivered by: CLAUDIA WILKEN, District Judge


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 post-hearing briefs.

  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 discrimination.

  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 the decision.


  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 Cir. 1987).

  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 ...

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