Opinion
CASE NO. 03cv2092-LAB (RBB).
January 25, 2006
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [Dkt No. 33].
In his 42 U.S.C. § 1983 Complaint, plaintiff Jesse R. Loera ("Lorea") alleges various civil rights claims associated with the termination of his employment with the Imperial County Sheriff's Department in 2002. This matter is before the court on defendants' Motion For Summary Judgment. The court finds the issues appropriate for decision on the papers and without oral argument, pursuant to Civil Local Rule 7.1(d)(1). For the reasons discussed below, the Motion is GRANTED. I. BACKGROUND
See Dkt No. 55, January 4, 2006 Order adopting defendants' version of a purported Joint Statement of Undisputed Facts.
As pertinent here, Loera was employed as a deputy sheriff in Imperial County from 1980 until February 1996, when the Sheriff's Department terminated his employment on grounds he had sexually harassed three women and was dishonest in denying the allegations during the investigation of their complaints. He appealed that termination to the County Employment Appeals Board ("EAB"). The EAB conducted an administrative hearing and reinstated Loera. Following his reinstatement, Loera was reassigned from the South County substation to the North County substation. In March 1997, he sued the Sheriff's Department in state court claiming a violation of the California Fair Employment and Housing Act ("FEHA") associated with the 1996 termination, alleging racial discrimination in the termination and retaliation in the reassignment decision. At trial, a jury determined the Department neither discriminated nor retaliated against Loera. Loera appealed the result to the California Court of Appeal.
In May 2002, while that appeal was pending, the Sheriff's Department again discharged Loera after a departmental investigation and hearing pursuant to Skelly v. State Personnel Board, 15 Cal.3d 194 (1975). A female county employee asserted new sexual harassment allegations against Loera arising from an October 21, 2001 incident. Loera was represented by counsel throughout the administrative processes associated with the new allegations. He appealed his 2002 dismissal to the EAB. He contended his latest termination was the result of his supervisor's desire to "close the loop" on the termination process begun in 1996 and that there was a Department-wide bias against him. See Def.'s Lodg. Exh. 2, p. 5.
The Court of Appeal affirmed the trial court's judgment in favor of the department with respect to the 1996 termination in a December 2003 reasoned decision, finding: "[T]he Department had a genuine nondiscriminatory reason for terminating Loera's employment, and he failed to meet his burden of showing the reason was pretextual. Loera relies on speculation the Department fired him because he is Hispanic. . . . Loera submitted no evidence permitting a finding of retaliation." See Defendants' Lodg. Ex. 3, p. 8. See Pl's Amended Exhibit List Exh. 13, California Court of Appeal ruling that substantial evidence supported the jury's finding Loera's 1996 discharge was not discriminatory nor retaliatory.
See Def.'s Lodg. Exh. 13 (following deposition excerpts), letter dated May 21, 2002 headed "Notice of Final Disciplinary Action," explaining the reasons for Loera's termination and citing three County Ordinance sections (Immoral or Unprofessional Conduct; Dishonesty; Violation of or Refusal to Obey Reasonable Regulations) and four Imperial County Sheriff's Department Policy and Procedures sections (Violation of Rules; Unbecoming Conduct; Sexual Harassment; and Testimony). The May 7, 2002 Skelly hearing transcript is provided as Def.'s Lodg. Ex. 7.
The EAB decision summarizes the basis for the appeal: "Appellant specifically denies engaging in immoral or unprofessional conduct, engaging in acts or statements of dishonesty, that his conduct has established a violation of or a refusal to obey reasonable regulations prescribed by the Board of Supervisors or by the Department Head, that he engaged in any conduct that violated Department rules and that he engaged in any conduct that violated the Imperial County Sexual Harassment Policy." Def.'s Lodg. Ex. 2, p. 2.
In a unanimous seven-page decision dated October 24, 2002, reciting findings of fact after a formal hearing, the EAB denied Loera's administrative appeal. Def.'s Lodg. Exh. 2. The EAB determined the Department properly terminated Loera, and he failed to present any objective evidence that his termination occurred for any improper or illegitimate purpose. Id. p. 3. Loera received written notice attached to the EAB ruling that he had 90 days to seek judicial review of that result. Def's Lodg. Ex. 2, p. 8. He did not pursue that right. Instead, on October 21, 2003, nearly one year after the EAB decision, he filed his federal complaint alleging his 2002 termination was retaliatory and discriminatory. In his December 2, 2005 Declaration, Loera asserts, among other things:
Loera also filed a September 27, 2003 DFEH Complaint alleging his employment termination was motivated by racial discrimination, his mental and physical ( i.e., diabetes) disabilities, and as retaliation for his 1996 reinstatement, accompanied by a Right-To-Sue Sheet. Def.'s Lodg. Ex. 5. As Defendants observe in response to the court's query in its Order denying defendants' Motion To Dismiss, without challenge by Loera, and as discussed below: "The DFEH forms Loera completed on September 27, 2003 (Ex. 5), have absolutely no bearing on the issue of administrative preclusion. Administrative preclusion bars the application of FEHA; FEHA does not bar the application of administrative preclusion. Johnson, 24 Cal.4th at 76. Plaintiff's FEHA claim was barred by his failure to challenge the EAB decision within 90 days of October 25, 2002. Johnson, 24 Cal.4th at 76; Code Civ. Proc. § 1094.6(b). . . . There is no authority for the proposition that plaintiff's FEHA claim or any other claim barred by administrative preclusion might somehow be revived by the language on the DFEH forms. . . ." Mot. PA 15:15-25.
23. I believe I was fired due to retaliation for engaging in EEO activity. I was fired after 22 years of service. I was fired less than 90 days after my EEO trial. I do not believe this was coincidence. The proximity in time is astonishing. I also had an exemplary work record and I was treated disparately from other officers who were accused of sexual harassment.
24. Finally, I elected to litigate my DFEH retaliation claim in federal court rather than before the EAB because the Ruiz case allows such an election. The EAB does not allow for any deposition or discovery. I knew that without a minimum amount of depositions, I could never uncover the truth about disparate treatment. . . .
Loera alludes to his "DFEH trial ending February 7, 2002." Opp. 9-27-10:2. He was discharged the second time in May 2002.
Pl's Amended Exhibit List, Exh. 1.
Loera's federal complaint Count 1 alleges violations of California's FEHA due to alleged racial and disability discrimination. Count 2 alleges that same conduct violated 42 U.S.C. 1983 and other of federal civil rights statutes and, in addition, alleges defendants' purported failure to permit him full discovery during the departmental hearing and EAB appeal processes violated his due process rights. Count 3 alleges his 2002 discharge was retaliatory in response to his assertions of his statutory and constitutional rights associated with his successful appeal of the 1996 termination. Count 4 alleges racial discrimination. Count 5 alleges disability discrimination. In sum, he contends his termination was not due to the sexual harassment complaints against him and his refusal to take responsibility for his actions, as found by the reviewing agencies, but rather occurred because of his race, his alleged "mental" disability, and in retaliation for having successfully contested his first termination, for filing his first lawsuit against the Department, and for disability-related requests he made. Compl. pp. 5-6.
Loera summarizes the alleged improper reasons as: "1) his membership in a protected class, i.e. his national origin and/or race; 2) his mental disability; 3) his physical disability; 4) in retaliation for asserting his constitutional and statutory rights." Compl. ¶ 34. He had applied for disability retirement in an application dated April 29, 2002 on grounds of stress due to "harassment" by staff members and a hand injury purportedly incurred in early April 2002. Def's Lodg. Exhs. 15, 16.
The Complaint survived defendants' FED.R.CIV.P. ("Rule") 12(b)(6) motion. Defendants now move for summary judgment, on grounds: (1) Loera's lawsuit is barred as a matter of law by his failure to exhaust his judicial remedies with respect to the EAB's October 2002 administrative decision upholding his May 2002 termination; (2) any claim Loera may be alleging under Title VII (of the federal Civil Rights Act of 1964) ("Title VII"), the Americans With Disabilities Act, or the Age Discrimination in Employment Act is barred by his failure to file a timely administrative charge with the EEOC; (3) any theory or claim in Loera's September 30, 2003 California Department of Fair Employment and Housing ("DFEH") complaint (Def.'s Lodg. Exh. 5) that may overlap his claims in federal court is barred by his failure to exhaust his administrative remedies with respect to those theories and claims; and (4) summary judgment is proper on the merits because Loera raises no triable issue of material fact to prove his termination was discriminatory or retaliatory.
II. DISCUSSION
A. Summary Judgment Standards
Federal Rule of Civil Procedure ("Rule") 56(c) authorizes the summary entry of judgment if, under controlling authority, the non-moving party fails to identify any triable issue of material fact that could affect the outcome and the moving party is entitled to judgement as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 327 (1986). Factually unsupported claims or defenses warrant summary adjudication to "secure the just, speedy and inexpensive determination of every action."Id.
To defeat a properly supported summary judgment motion, the non-movant must go beyond the pleadings to designate specific facts showing that there are genuine and material issues that "can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 250, 256 (1986) (the non-moving party cannot oppose a properly supported summary judgment motion by "rest[ing] on mere allegations or denials in his [or her] pleadings"); S.E.C. v. Seaboard Corp., 677 F.2d 1301, 1305-1306 (9th Cir. 1982) ("A material issue of fact is one that affects the outcome of the litigation and requires a trial to resolve the parties' differing versions of the truth"). If the non-movant fails to make a sufficient showing of an element of his or her case, the movant is entitled to judgment as a matter of law. Celotex, 477 U.S. at 325.
Where the plaintiff bears the burden of proof at trial, summary judgment for the defendant is appropriate if the defendant shows that there is an absence of evidence to support the plaintiff's claims. See Celotex, 477 U.S. at 325; see also Garneau v. City of Seattle, 147 F.3d 802, 807 (9th Cir. 1998). The moving party is not required to produce evidence showing the absence of a genuine issue of material fact, nor is he or she required to offer evidence negating the non-movant's claims. Lujan v. Nat'l Wildlife Fed'n., 497 U.S. 871, 885 (1990). The moving party initially need only demonstrate that there is no issue of material fact and that summary judgment is proper. Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970); Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 919 (9th Cir. 2001). The burden then shifts to the party resisting the motion to "set forth specific facts showing that there is a genuine issue for trial." Anderson. 477 U.S. at 256; see also Reese v. Jefferson School Dist. No. 14J, 208 F.3d 736, 738 (9th Cir. 2000); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Summary judgment must be entered "if, under the governing law, there can be but one reasonable conclusion as to the verdict."Anderson, 477 U.S. at 250-251.
B. Exhaustion Of Judicial Remedies
Defendants argue the court should not reach the merits of Loera's individual claims because he failed timely to exhaust in state court his judicial remedies following the EAB's October 2002 decision affirming his May 21, 2002 dismissal. The EAB "considered [Loera's] contentions that his [2002] termination was the result of [a supervising officer's] effort to 'close the loop' on the termination process she began in 1996 and that there was a Department-wide bias against him." Def.'s Lodg. Exh 2, p. 5, EAB Findings And Decision. The EAB ruled after conducting an evidentiary hearing, where Loera was represented by counsel, witnesses testified, and documentary evidence was admitted. Id. Defendants contend Loera's failure to exhaust his right to state court review of the EAB's ruling precludes any judicial review by this court of that agency's findings and conclusion that the termination of his employment was proper.
Loera suggests — in incomplete sentences, without citation to authority, and in reliance on the conduct of the 1996 case arising out of his earlier dismissal followed by his reinstatement — that defendants somehow "waived" their defense of failure to exhaust judicial remedies in this case. Opp. pp. 15-16. The Court can discern no cognizable theory to support that contention.
The EAB's October 24, 2002 decision included a "Notice" attached as the last page of the ruling, advising Loera:
The time within which judicial review of this decision must be sought is governed by Code of Civil Procedure Section 1094.6, which has been made applicable by resolution to the County of Imperial. Any petition or other paper seeking judicial review must be filed in the appropriate court not later than the 90th day following the date on which this decision becomes final. . . .
Def's Lodg. Ex. 2, p. 8.
"Under California law, a discharged police officer is entitled to de novo judicial review of administrative agency determinations." Eilrich v. Remas, 839 F.2d 630, 632 (9th Cir. 1988). Failure to exercise that right results in the administrative decision becoming final on the merits. Id.
[Plaintiff] failed to seek judicial review by the California courts even though he was advised of its availability. "If an adequate opportunity for review is available, a losing party cannot obstruct the preclusive use of the state administrative decision simply by foregoing [the] right to appeal."Eilrich, 839 F.2d at 632 (emphasis added), quoting Plaine v. McCabe, 797 F.2d 713, 719 n. 12 (9th Cir. 1986), and citing CAL. CODE CIV. P. 1094.5, Perea v. Fales, 39 Cal.App.3d 939 (1974).
Loera elected not to pursue civil remedies in state court. Defendants contend the EAB's factual and legal findings that his termination was not retaliatory nor was it "instituted for any improper or illegitimate purpose" became final and binding, and Loera is accordingly foreclosed from asserting FEHA and civil rights claims in a subsequent federal action. Def's Lodg. Ex. 2, p. 5.
Loera's primary argument to save his federal action appears to be his contention "[i]t is undisputed that the issue of FEHA or Title VII retaliation were [ sic] never litigated before the EAB." Opp. 13:19-22. Defendants actually dispute that contention. Loera asserted retaliatory and discriminatory motive allegations in the agency proceedings. The EAB found "Appellant failed to present any objective evidence that his termination was instituted for any improper or illegitimate purposes." Reply 4:2-3 (quoting Findings and Decision of EAB, Def.'s Lodg. Exh. 2, p. 4 (emphasis added)). Defendants contend: "The established fact that plaintiff's termination was proper precludes any claim that the termination was improper; plaintiff cannot avoid the preclusive effect of the EAB decision by claiming he has additional theories and arguments to make on the same issue." Reply 4:12-17, citing Interinsurance Exchange of the Auto. Club v. Superior Court, 209 Cal.App.3d 177, 181-82 (1989) ("The fact that different forms of relief are sought in the two lawsuits is irrelevant. . . ."). Reply pp. 3-5. Loera concedes: "The agency has articulated a legitimate, non-retaliatory reason for its actions. The Agency explained that it took the [discharge action] in an effort to maintain a safe and non-threatening work environment for its employees. . . . The Agency asserts that it took adverse action of termination in response to Complainant's intervening misconduct and not in response to his DFEH trial that took place prior to the firing." Opp. 10:8-18.
The condition of Loera's Opposition Points And Authorities hinders the Court's ability to identify and evaluate his arguments.
For the reasons discussed below, the court finds Loera's FEHA violation claim and his 42 U.S.C. § 1981, 1983 et seq. are foreclosed due to his failure to exhaust judicial remedies in state court. His Title VII claim is not precluded on that basis. However, to the extent his Title VII or federal statutory disability or age discrimination claims survive the preclusion standards, the court finds defendants are entitled to summary adjudication of those claims in their favor as a matter of law.
C. Loera's FEHA Claim Is Foreclosed
The California Supreme Court has characterized FEHA as "a comprehensive scheme for combating employment discrimination." Johnson v. City of Loma Linda, 24 Cal.4th 61, 71 (2000) (citation omitted). Loera contends this lawsuit is not barred because "public employees are permitted to bypass administrative remedies and elect civil remedies in FEHA cases." Opp. 14:1-2. He insists the state law rule in Ruiz v. CDC governs his case and attempts to distinguish Johnson. Opp. 14:24-25. Loera's very articulation of the "holding" in Ruiz undermines his position: "the state law rule in Ruiz v. CDC . . . holds that a public employee is not required to litigate his FEHA claim before an administrative body and may instead elect to litigate his FEHA retaliation claim in state court as Loera has chosen to do." Opp. 14:24-27 (emphasis added). However, Loera did not elect to litigate his FEHA claim in state court, but proposes to do so in federal court after raising the same theories in a judicially unreviewed administrative process. Moreover, Ruiz did not involve an exhaustion of judicial remedies issue.
As noted by the California Court of Appeal in affirming that there was no racial discrimination or retaliation against him in connection with his 1996 discharge: "Racial discrimination is also prohibited by Title VII of the Civil Rights Act of 1964. ( 42 U.S.C. § 2000e et seq.) 'In general, "The language, purpose and intent of California and federal antidiscrimination acts are virtually identical. Thus, in interpreting FEHA, California courts have adopted the methods and principles developed by federal courts in employment discrimination claims arising under "the federal acts.' (Reno v. Baird (1998) 18 Cal.4th 640, 659)." Def.'s Lodg. Exh. 3, p. 4 n. 4.
Defendants identify in their Reply the case Loera cites by title only as Ruiz v. Department of Corrections, 77 Cal.App.4th 891 (2000), and accurately distinguishes the case from Loera's circumstances. Ruiz stands for the proposition that a state employee can elect to exhaust his administrative remedies through the DFEH, the State Personnel Board, or both. Ruiz, 77 Cal.App.4th at 900. That case did not address the issue of exhaustion of judicial remedies, so does not trump Johnson. Ruiz is procedurally distinguishable from Loera's case and has no bearing on the exhaustion of judicial remedies issue presented here. See Reply 2:16-3:14. Whereas Loera correctly states "California permits public employees to reserve their FEHA actions for civil court and not to litigate the FEHA matter before the administrative body" (Opp. 15:11-14), that is not the choice he made. His failure to timely seek state court review of the EAB decision, precluded his filing of a FEHA cause of action directly in state court.
In Johnson, a terminated city employee filed a discrimination grievance against the city and received a ruling from the city's personnel board that the city violated no discrimination laws in terminating the employee ostensibly for economic reasons. The employee appealed the result to the city council, where the result was upheld. The employee, after considerable delay, then filed an action in state court asserting his discharge was retaliatory for opposing discriminatory practices, presented as a state-law FEHA claim and as a violation of Title VII of the federal Civil Rights Act of 1964, joining a petition for writ of administrative mandate under CAL. CODE CIV. P. § 1094.5 challenging the personnel board and the city council actions.
The Johnson court applied the holding in Westlake Community Hosp. v. Superior Court, 17 Cal.3d 465, 484 (1976): "unless a party to a quasi-judicial administrative agency proceeding challenges the adverse findings made in that proceeding, by means of a mandate action in superior court, those findings are binding in later civil actions." Johnson, 24 Cal.4th at 65 (emphasis added).
This requirement of exhaustion of judicial remedies is to be distinguished from the requirement of exhaustion of administrative remedies. . . . Exhaustion of administrative remedies is "a jurisdictional prerequisite to resort to the courts.". . . . Exhaustion of judicial remedies, on the other hand, is necessary to avoid giving binding "effect to the administrative agency's decision, because that decision has achieved finality due to the aggrieved party's failure to pursue the exclusive judicial remedy for reviewing administrative action."Johnson, 24 Cal.4th at 70 (citations omitted).
"A plaintiff's civil action asserting a FEHA claim follows the DFEH's issuance of a right to sue letter, not an administrative finding. . . . [T]he rationale of the United States Supreme Court . . ., leading to its conclusion that judicially unreviewed state agency findings do not have a binding effect on Title VII claims, is inapplicable to claims brought under California's FEHA."Johnson, 24 Cal.4th at 75, citing University of Tennessee v. Elliott, 478 U.S. 788 (1986). When internal administrative review processes are in place and a plaintiff has availed himself of the process, "[r]efusing to give binding effect to the findings of administrative agencies in quasi-judicial proceedings would . . . undermine the efficacy of such proceedings, rendering them in many cases little more than rehearsals for litigation."Johnson, 24 Cal. 4th at 72. Exhaustion of judicial remedies thus applies to FEHA claims "when, as here, an administrative process provides internal remedies and the plaintiff fails to obtain the requisite judicial review of an adverse administrative finding." Id. Preclusive effect is accorded to state administrative adjudications of legal as well as factual issues.Misischia v. Pirie, 60 F.3d 626, 629, 630 (9th Cir. 1995) (failure to seek judicial review of an administrative agency's decision causes the decision to become final, "and preclude[s] reexamination in federal court for procedural errors"). Administrative preclusion applies to Loera's California FEHA claim in this litigation, and his Count 1 is barred from review by this court.
D. Loera's Title VII And Administratively Unreviewed Claims
Unlike FEHA claims, if Loera raised a Title VII Claim in the EAB proceeding, review by this court it would not be foreclosed by his failure to exhaust his state court judicial review remedies. See Johnson, 24 Cal.4th at 65 (articulating the issue: "Does [theWestlake Community Hospital v. Superior Court, 17 Cal.3d 465, 484 (1976)] holding [that "unless a party to a quasi-judicial administrative agency proceeding challenges the adverse findings made in that proceeding, by means of a mandate action in superior court, those findings are binding in later civil actions"] apply to a city employee's discrimination claims under [FEHA] and under title VII of the federal Civil Rights Act of 1964 (Title VII) . . ., when the employee fails to have the city's final adverse finding judicially reviewed and set aside?"). The Johnson court addressing preclusion based on unreviewed claims answered "'yes' as to claims under California's FEHA but 'no' as to claims under Title VII of the federal act." Id.
For the reasons discussed in Johnson, the requirement of exhaustion of judicial remedies applies to unreviewed FEHA claim adjudications decided in administrative review processes. In contrast, "Title VII claims are not precluded by administrative decision that have not been judicially reviewed on their merits. . . ." Johnson, 24 Cal.4th at 74, citing Elliott, 478 U.S. 788. FEHA lacks express language analogous to the Title VII provision that contemplates federal judicial review.
"On the basis of our [caselaw] analysis . . . of the language and legislative history of Title VII, we conclude that the Sixth Circuit Correctly held that Congress did not intend unreviewed state administrative proceedings to have preclusive effect on Title VII claims." Elliott, 478 U.S. at 796. In distinguishing the preclusive effect of administrative findings in civil rights claims under 42 U.S.C. § 1983 and the effect on Title VII claims: "The high court held that the state's administrative findings did not preclude the Title VII claim, but did preclude the civil rights claim brought under 42 U.S.C. § 1983. The court looked to the language in Title VII requiring the federal Equal Employment Opportunity Commission to give "'substantial weight to final findings and orders made by State or local authorities in proceedings commenced under State or local [employment discrimination] law.'" . . . This express language, the [Elliott] court noted, would make little sense if state agency findings precluded Title VII actions in federal court. . . . Also, the court observed that allowing state agency findings to have a binding effect would be inconsistent with the intent of Congress that federal courts apply de novo review of Title VII claims after administrative decisions. . . . [¶] There is no provision in the FEHA analogous to the Title VII language at issue in Elliott . . . Nor do we have a procedure similar to the federal courts' de novo review of Title VII administrative decisions. Although our state law may provide for a court's exercise of its independent judgment in reviewing the decision of an administrative agency adverse to an employee, such review occurs in the administrative mandate proceeding, not in the employee's civil action asserting a FEHA claim." Johnson, 24 Cal.4th at 74-75 (emphasis added).
The Supreme Court in Elliott, a case examining unreviewed state administrative factfinding in the context of allegations of discrimination in employment, examined the question "whether a rule of preclusion is appropriate, first with respect to respondent's Title VII claim, and next with respect to his claims under the Constitution and the Reconstruction civil rights statutes." Elliott, 478 U.S. at 796. First, the Elliott Court concluded, based on case law precedent and the language and legislative history of Title VII, that "Congress did not intend unreviewed state administrative proceedings to have preclusive effect on Title VII claims." Id. at 796. TheElliott Court held that the state's administrative finding that the employer was not motivated by racial prejudice in discharging the plaintiff was "entitled to preclusive effective in federal court, where [the plaintiff] raised discrimination claims under various civil rights laws including Title VII of the Civil Rights Act of 1964 . . . and 42 U.S.C. § 1983." Elliott, 478 U.S. at 790.
Defendants argue not only that Loera failed to adequately plead age discrimination or disability discrimination or a Title VII claim, but also that any Title VII racial discrimination claim, any Americans With Disabilities Act ("ADA") claim, or any Age Discrimination in Employment Act ("ADEA") claim Loera attempts to allege in this action is barred by his failure to file an administrative charge with the EEOC within the codified time limit, i.e., failure to exhaust his administrative remedies with respect to those theories and claims. They argue: "Title VII, ADA, and ADEA actions cannot proceed in federal court unless a charge of discrimination has first been filed with the EEOC." Motion PA pp. 13-14. See Delaware State College v. Ricks, 449 U.S. 250, 256 (1980) (regarding Title VII, 42 U.S.C. § 2000e-5); Santa Maria v. Pacific Bell, 202 F.3d 1170, 1176 (9th Cir. 2000) (regarding ADA, 42 U.S.C. § 12117(a)); and Funk v. Sperry Corp., 842 F.2d 1129, 1134 (9th Cir. 1988 (regarding ADEA, 29 U.S.C. § 626(d)(2).
Loera alleges he was terminated on October 25, 2002, the date the EAB affirmed his May 21, 2002 discharge. See Mot. PA p. 14, n. 3. Title VII sets a 180 day deadline from the date of the last act of alleged discrimination for the filing of a charge with the EEOC, unless the aggrieved party initially institutes proceedings with a state or local agency. If the complainant selects the latter course, as did Loera, the EEOC charge filing deadline is extended from 180 days to 300 days. EEOC v. Dinuba Med. Clinic, 222 F.3d 580, 585 (9th Cir. 2000); 42 U.S.C. § 2000e-5(e)(1); Santa Maria, 202 F.3d at 1176; Funk, 842 F.2d at 1134. Loera filed a DEFH complaint on September 30, 2003, 341 days after the October 25, 2002 date he alleges he was terminated. Def. Lodg. Ex. 5. If that filing had been timely, rather than 41 days beyond the 300-day deadline prescribed in 42 U.S.C. § 2000(e)(1), as acknowledged by defendants, it "would have been deemed constructively filed with the EEOC." Mot. PA 14:20-24. On the facts of this case, Defendants demonstrate Loera did not satisfy the EEOC review prerequisite to bringing Title VII, ADA, or ADEA causes of action before the court.
Loera offers no authority to off-set defendants' showing that "any Title VII, ADA, or ADEA claim plaintiff may have had is properly resolved by summary judgment in favor of defendants." Mot. PA 14:3-5. The court finds defendants are entitled to summary adjudication of Loera's purported Title VII claim as well as his other administratively unreviewed claims.
E. Loera's 42 U.S.C. § 1981, 1983 et seq Claims Are Foreclosed 1. Preclusion Rule Applies To 42 U.S.C. § 1983 Claims
After first concluding from the legislative provisions that Congress did not intend unreviewed state administrative proceedings to have preclusive effect on Title VII claims, theElliott Court then concluded, in contrast, that there was no reason to suppose that in enacting the Reconstruction civil rights statutes, Congress "wished to foreclose the adaptation of traditional principles of preclusion to such subsequent developments as the burgeoning use of administrative adjudication in the 20th century." Elliott, 478 U.S. at 797. The Elliott Court held that the state's administrative finding that the University of Tennessee was not motivated by racial prejudice in discharging the plaintiff was "entitled to preclusive effect in federal court, where [the plaintiff] raised discrimination claims under various civil rights laws including . . . 42 U.S.C. § 1983." Elliott, 478 U.S. at 790.
"[N]othing in the language of § 1983 remotely expresses any congressional intent to contravene the common-law rules of preclusion or to repeal the express statutory requirements of the predecessor of 28 U.S.C. § 1738. . . . [¶] Moreover, the legislative history of § 1983 does not in any clear way suggest that Congress intended to repeal or restrict the traditional doctrine of preclusion."Elliott, 478 U.S. at 797, quoting Allen v. McCurry, 449 U.S. 90, 97-98 (1980).
28 U.S.C. § 1738 "requires that state-court judgments be given both issue and claim preclusive effect in subsequent actions under 42 U.S.C. § 1983." Elliott, 478 U.S. at 797, citing Allen v. McCurry, 449 U.S. 90 (1980) (issue preclusion) and Migra v. Warren City Sch. Dist. Board of Educ., 465 U.S. 75 (1984) (claim preclusion) (while noting that those two decisions "are not controlling in [the Elliott] case, where § 1738 does not apply").
The Supreme Court had "previously recognized that it is sound policy to apply principles of issue preclusion to the factfinding of administrative bodies acting in a judicial capacity."Elliott, 478 U.S. at 797-98, citing and discussing United States v. Utah Construction Mining Co., 384 U.S. 394, 422 (1966) ("When an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose"); see also Kremer v. Chemical Construction Co., 456 U.S. 461, 484-85, n. 26 (1982).
[G]iving preclusive effect to administrative fact finding serves the value underlying general principles of collateral estoppel: enforcing repose. This value, which encompasses both the parties' interest in avoiding the cost and vexation of repetitive litigation and the public's interest in conserving judicial resources, is equally implicated whether the factfinding is done by a federal or state agency.Elliott, 478 U.S. at 798 (footnote and citation omitted).
The Elliott Court held: "when a state agency 'acting in a judicial capacity . . . resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate,' . . . federal courts must give the agency's factfinding the same preclusive effect to which it would be entitled in the State's courts," noting, however, that "Congress of course may decide, as it did in enacting Title VII, that other values outweigh the policy of according finality to state administrative factfinding." Elliott, 478 U.S. 799, 799 n. 7 (emphasis added), quoting United States v. Utah Constr. Mining Co., 384 U.S. 394, 422 (1966). The Court found no such congressional intent with respect to the civil rights statutes. Thus, the state's administrative findings do not preclude a Title VII claim, but do preclude civil rights claims brought under 42 U.S.C. § 1983.
Title VII, among other things, evinces Congressional intent "that federal courts apply de novo review of Title VII claims after administrative decisions," whereas review of discrimination claims under 42 U.S.C. § 1983 are barred by unreviewed administrative findings. Johnson, 24 Cal.4th at 74-75, discussing Elliott.
See also Johnson, 24 Cal.4th at 64: "[U]nlike title VII of the federal Civil Rights Act of 1964 ( 42 U.S.C. § 2000e et seq., there is no provision in [California's] FEHA for de novo judicial review."
In a case procedurally similar to Loera's, a discharged police officer appealed his dismissal in an administrative proceeding where the hearing officer had adjudicative power to resolve all the disputed issues. Eilrich, 839 F.2d at 631. The hearing officer determined Eilrich was properly discharged on proven grounds of insubordination and dishonesty in the making of certain statements found to be not protected by the first amendment. Id. at 631-32. Eilrich was immediately notified that he could obtain judicial review of the determination by a California superior court, pursuant to CAL. CODE CIV. P. §§ 1094.5, 1094.6. He did not appeal the administrative decision within the statutory period, and it became final as a result of his failure to appeal. Thereafter, Eilrich filed a 42 U.S.C. § 1983 action in district court, claiming he was impermissibly discharged for exercising his First Amendment rights. The district court granted the City's motion for summary judgment, "finding that collateral estoppel barred consideration of the claim because the scope of protection afforded the statements by the first amendment had been determined in the prior proceeding. Eilrich, 839 F.2d at 632.
Federal courts must give preclusive effect to state court reviewed administrative determinations under 28 U.S.C. § 1738 [citation], and to unreviewed administrative findings under federal common law rules of preclusion.Eilrich, 839 F.2d at 632 (emphasis added), citing Elliott, 478 U.S. 788.
Administrative preclusion applies to Loera's statutory civil rights claims under 42 U.S.C. §§ 1981, 1983 et seq. To the extent Loera received an administrative determination of his claims without thereafter availing himself of available judicial review as provided in CAL. CODE CIV. P. § 1094.6, the court finds the administrative decision became final and operated with preclusive effect. He is accordingly barred from pursuing those claims as a 42 U.S.C. § 1983 action.
2. Loera's Administrative Proceedings Were Fair
As long as Loera's administrative proceedings were fair, he is precluded from federal judicial review of his federal civil rights claims. In Miller v. County of Santa Cruz, 39 F.3d 1030, 1032 (9th Cir. 1994), a former employee of the county sheriff's department brought a federal civil rights action against the county and other employees arising out of his termination, after a decision by the county civil service commission upheld his dismissal following four disciplinary actions. The federal court ruled the 42 U.S.C. § 1983 suit was barred by the doctrines of res judicata and collateral estoppel where the former employee failed to seek judicial review of that adverse decision in the state courts. When "the agency adjudication meets the requirements of due process, and de novo review is available, . . . concerns of comity and finality counsel against denying preclusive effect." Miller, 39 F.3d at 1038, citing Eilrich, 839 F.2d at 622.
As noted by the Miller court, after Plaine, 797 F.2d 713 and Eilrich, 839 F.2d 630, federal courts give preclusive effect "to unreviewed state agency determinations," requiring rejection of subsequent 42 U.S.C. § 1983 claims, as long as theUtah Construction fairness criteria are satisfied. Miller, 39 F.3d at 1033.
California has made it quite clear that a discharged civil servant who elects an administrative forum for review of his or her termination must succeed in overturning that administrative decision through the judicial mandamus review procedure prior to filing a suit for damages on claims arising out of the termination. . . . So long as the minimum criteria of Utah Construction are met, we will defer to the considered judgment of the courts of California that an unreviewed agency determination, such as that involved here, is equivalent to a state court judgment entitled to res judicata and collateral estoppel effect. Any other result would render the administrative forum a place for meaningless dry runs of wrongful termination claims destined to be assailed on constitutional grounds in federal court.Miller, 39 F.3d at 1038 (emphasis added).
Loera's Complaint alleges denial of an inadequate opportunity to litigate in connection with his 42 U.S.C. § 1983 claim. Compl. ¶ 38 ("By failing to give Plaintiff full discovery during the Skelly hearing and during his appeal to the Employment board, the Defendants further violated Plaintiff's civil rights"). He contends that circumstance overcomes the preclusive effect of the judicially unreviewed EAB decision.
Defendants acknowledge proof of an inadequate opportunity to litigate his claims in the administrative proceedings would relieve Loera from the preclusive effect of that decision on his federal lawsuit. See Wehrli v. County of Orange, 175 F.3d 692, 695 (9th Cir. 1999) (availability of judicial reviews is requisite for preclusive effect); Dowden v. City of Sacramento, 40 F.Supp.2d 1146, 1149 (E.D.Cal. 1999) ("A state administrative scheme fails to provide an adequate opportunity to present federal claims 'only when procedural laws bar presentation of the claims'") (citation omitted); see also Lebbos v. Judges of the Superior Court, 883 F.2d 810, 815 (9th Cir. 1989). If Loera's administrative hearing meets the standards of California law, incorporating the collateral estoppel standard of Utah Construction, 384 U.S. at 422, his 42 U.S.C. § 1983 claims are precluded.
California ". . . employs the standard the United States Supreme Court set out in Utah Construction: collateral estoppel should be applied '[w]hen an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate.'" Eilrich, 839 F.2d at 633, quoting Utah Construction, 384 U.S. at 422. In addition, "traditional collateral estoppel criteria . . . barr relitigation of an issue if: '(1) the issue necessarily decided at the previous [proceeding] is identical to the one which is sought to be relitigated; (2) the previous [proceeding] resulted in a final judgment on the merits; and (3) the party against whom collateral estoppel is asserted was a party or in privity with a party at the prior proceeding.'" Id.
Loera asserts he "was not allowed discovery in the underlying EAB action," so that he was "denied an adequate opportunity to litigate" his pretextual discharge claim before the EAB. Opp. pp. 16-18, 18:4-10; Opp. 18:21-22 ("Jesse Loera was not allowed discovery in the underlying EAB action"). He alleges:
For example Loera was not provided the Dispatcher's Log. The EAB rules do not allow for any depositions, interrogatories, [p]roduction of records, or admissions. See Ex. 20. Loera felt that without this type of discovery he could not obtain the evidence necessary for a complex FEHA action. Due to the lack of discovery, Loera did not know that there were identical allegations against Mendoza at the time of the investigation into Loera. There was no way to put on this retaliation evidence.
Defendants observe that at Loera's deposition, he testified the only documentary evidence that was withheld was a radio history log which he contends would show times of arrival and departure inconsistent with accounts of the woman complaining of the sexual harassment that led to Loera's discharge. Mot. PA p. 18 n. 4, citing Loera Dep. Vo. 2 (Ex. 14) at 107:4-111:9. He apparently never requested the log, but the record reflects he was aware of the issue and could have addressed the alleged impropriety of the withheld radio log through a petition for writ of mandate. Id.
Opp. 17:9-18:3.
Loera's contention ignores the fact that he could have elected to proceed judicially. He admits he made a DFEH election because he recognized the limitations in the EAB process with respect to discovery, yet proceeded anyway. In addition, his arguments challenging the adequacy of the discovery procedures available to him administratively are without merit. "Even if administrative proceedings do not provide for pretrial discovery, they have sufficient procedural safeguards to be given preclusive effect if they authorize a public evidentiary hearing at which the parties may (1) be represented by counsel; (2) call witnesses; and (3) present oral and documentary evidence." Dowden, 40 F.Supp.2d at 1150, citing Miller, 39 F.3d at 1036-37, Eilrich, 839 F.2d at 634).
"Loera does not dispute that he had the right to present evidence at the EAB hearing. . . . Loera maintains that in this case that right was rendered meaningless by the inability to request discovery. . . . Similarly, Loera [does not dispute he] had a right to present witnesses, but in a complex case such as this, that right is also rendered meaningless if the administrative procedure does not provide for discovery . . . These questions cannot be asked at a hearing without knowing the answers ahead of time. It was only through deposition discovery that Plaintiff obtained admissible evidence in the second Aranda harassment. Even though it was contemporaneous, Loera had no knowledge that Aranda had brought it up to Housouer and could not have presented this evidence to the EAB if he had chosen to litigate the FEHA retaliation claim. . . . [¶] In other words, based on the facts of this case, this litigant did not receive an adequate opportunity to litigate because this is a complex case that required deposition discovery to discover facts related to Plaintiff's pretext claim. Moreover recognizing this defect this litigant elected a DFEH court forum remedy as permitted by state law in Ruiz. " Opp. 17:17-18:10 (emphasis added).
Loera was represented by counsel through the EAB proceeding. He testified on his own behalf. He called three witnesses. The Department called five witnesses, whom Loera's counsel was permitted to cross-examine. Both sides introduced documentary evidence. Both sides presented oral argument and written briefs addressing Loera's claims of discriminatory and retaliatory discharge. The hearing officer applied the appropriate legal standards to the facts surrounding Loera's employment termination. Those indicia of due process satisfy the Utah Construction criteria. In addition, knowledge of the limitations on the administrative process, of which he now complains to circumvent the estoppel arising from his failure timely to seek judicial review of the EAB decision, must be imputed to him at the time he made his election to proceed administratively, as evident from his familiarity with the Imperial County Ordinance Chapter 10.5 § 24981 he cites as support for his argument that certain kinds of discovery are not authorized for the administrative proceedings. See Opp. pp. 17-18. If a party is precluded from presenting relevant evidence, the party may introduce that evidence at the subsequent judicial mandate proceeding. See CAL CODE CIV. P. 1094.5(e).
The Ninth Circuit has substantiated that sufficient procedural safeguards accompany administrative proceedings if a public evidentiary hearing is authorized at which the parties may be represented by counsel, may call witnesses, and may present oral and documentary evidence, inter alia in Miller andEilrich. Loera was afforded all those safeguards through the administrative review process beginning with theSkelly hearing and culminating in the EAB decision, pursuant to Chapter 10.5 of the Imperial County Ordinances. See Def.'s Lodg. Ex. 6 § 24982(4). "Even if administrative proceedings do not provide for pretrial discovery," preclusive effect will be given if those other indicia of due process are observed.Dowden, 40 F.Supp.2d at 1150.
An alleged procedural defect, such as the absence of a pretrial discovery provision, does not deny an adequate opportunity to litigate or due process because any such procedural defect can be corrected by writ of mandate. Miller, 39 F.3d at 1036-37.
The court finds issues decided previously addressed Loera's allegations his 2002 employment discharge was discriminatory and retaliatory, and he received a final decision on the merits of those contentions which became binding and unreviewable when Loera failed timely to seek judicial review of the EAB decision in the California courts. The process Loera received was fair: (1) the EAB was acting in a judicial capacity when it upheld Loera's 2002 employment discharge; (2) that agency resolved disputed issues of fact properly before it; (3) the parties had an adequate opportunity to litigate their claims and defenses; and (4) state court judicial review was available to him.
F. Loera Has Not Carried His Burden To Defeat Summary Judgment
Even were the Court to reach the merits of any of Loera's claims, defendants' demonstration shifted the burden to Loera to identify a triable issue of material fact raising a genuine issue for trial in order to avoid summary judgment. Loera has not met his burden to "point to [any] facts in the record that demonstrate a genuine issue of material fact . . . [that] could convince a reasonable jury to find for the plaintiff." Reese, 208 F.3d at 738. Loera testified at his June 20, 2005 deposition in this case that he has "no evidence," only a "belief," that he was terminated in 2002 because he had filed a lawsuit against the sheriff's department following his termination in 1996. Def.'s Lodg. Exh. 13, 70:7-20. He testified that other than the alleged racial discrimination evidence rejected by the jury at the trial associated with his 1996 discharge, he has "no evidence," only a "belief," that he was terminated in 2002 because he is a Mexican-American. Def.'s Lodge. Exh. 13, 85:1-6, 77:24-78:8. He identified no evidence to support his contention the discharge was discriminatorily based on his age (55 years at the time) or based on his unelaborated disability, irrespective of what he may believe. As noted by the EAB, Loera then, as now, offers no objective evidence to support his belief that he was terminated for any improper or illegitimate purposes. Instead, he relies on speculation, unsubstantiated allegations, and conjecture as the ephemeral foundation for his claims.
III. CONCLUSION AND ORDER
For the foregoing reasons, IT IS HEREBY ORDERED defendants' Motion For Summary Judgment is GRANTED, judgment shall be entered for defendants, and the case is terminated. Accordingly, all remaining case management dates are vacated.
IT IS SO ORDERED.