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 ...