Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Appeal from Superior Court County of VenturaSuper. Ct. No. CIV242415, Ken W. Riley, Judge.
David A. Cordier, for Appellant.
Jeffrey Held; Law Offices of Alan E. Wisotsky, for Respondents.
YEGAN, Acting P.J.
Donald E. Cordier appeals from a judgment entered in favor of respondents, County of Ventura, Ventura County Department of Airports, Scott Smith and Todd McNamee (County), after the trial court sustained, without leave to amend, a demurrer to Cordier's complaint for damages under the Fair Employment and Housing Act. (FEHA; Gov. Code, § 12900 et seq.) The trial court ruled that the action was barred by an adverse civil service commission decision. We affirm. (Castillo v. City of Los Angeles (2001) 92 Cal.App.4th 477, 486-487.)
Facts and Procedural History
County hired appellant as an Airport Operation Officer in 2002. Appellant suffered a nonindustrial foot injury on April 7, 2004, and was placed on medical leave. Because of medical complications, he remained on medical leave for more than a year.
Appellant's treating physician conditionally released appellant to return to work on April 7, 2005 but County rejected the proposed conditions. On April 12, 2005, County instructed appellant to return to work "so we can discuss with you any restrictions or limitations that you have and whether we can provide reasonable accommodation for those restrictions or limitations." Appellant did not respond or report to work.
The April 12, 2005 County letter stated: "We are in receipt of your April 4 and April 7 letters to the department. Unfortunately, the accommodations you have proposed, additional leave and/or the 2 hours-on, 2-hours-off schedule, are not reasonable due to the hardship and additional expense they would cause, nor would they allow you to perform the essential functions of the job. [¶] As we told you previously, we have determined that based on the needs of the department and the burdens imposed, we cannot extend your leave of absence. Accordingly, the department has not approved leave of absence for you beyond April 7, 2005. We now instruct you to return to work at the Camarillo Airport at 8:00 a.m. on Monday, April 18, 2005. At that time, we can discuss with you any restrictions or limitations that you have and whether we can provide reasonable accommodation for those restrictions or limitations."
On April 21, 2005, County sent a "Notice of Intent to Accept Voluntary Resignation" which terminated appellant for not reporting to work for three consecutive work days. (County of Ventura Personnel Rules and Regulations, § 2203.)
"Section 2203 of the County of Ventura Personnel Rules and Regulations provides: "ABSENCE FROM WORK FOR THREE CONSECUTIVE DAYS WITHOUT AUTHORIZATION: An employee who is absent from work without authorized leave for three days . . . may be deemed by the appointing authority to have voluntarily terminated. The appointing authority shall make an immediate report in writing . . . stating the reasons for such resignation and shall forward it to the Director-Human Resources."
Appellant sued for damages a year later, alleging that County failed to engage in an interactive process to discuss reasonable work accommodations. The complaint alleged discrimination, harassment, and retaliation based on appellant's medical condition and disability.
County demurred on the ground that appellant's claim had been adversely decided by the Ventura County Civil Service Commission on December 15, 2005. The trial court took judicial notice of the administrative decision and sustained the demurrer without leave to amend.
Collateral Estoppel
On review, we treat the demurrer as admitting all material facts properly pleaded and consider those matters judicially noticed by the trial court. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126; Fowler v. Howell (1996) 42 Cal.App.4th 1746, 1749-1750.) The doctrine of collateral estoppel bars the relitigation of issues which were previously resolved in an administrative hearing by an agency acting in a judicial capacity. (Risam v. County of Los Angeles (2002) 99 Cal.App.4th 412, 419-420.) "Issue preclusion is not limited to barring relitigation of court findings. It also 'bars the relitigation of issues which were previously resolved in an administrative hearing by an agency acting in a judicial capacity.' [Citation.]" (Castillo v. City of Los Angeles, supra, 92 Cal.App.4th at p. 481.)
In Castillo, a City employee sued for discrimination and wrongful discharge under the FEHA. Summary judgment was granted on the ground that the action was barred by a prior civil service commission decision sustaining the discharge. The Court of Appeal affirmed, holding that the employee was collaterally stopped by the adverse administrative decision. (Id., at pp. 482-483.) The court rejected the argument that the FEHA action "involves a different primary right than the administrative proceeding. . . ." (Id., at p. 486.)
Like Castillo, appellant is precluded from splitting his causes of action where the claim arises from the same primary right. In the administrative action, appellant sought reinstatement with back pay and benefits. The FEHA complaint prays for similar relief: reinstatement with back pay, loss of income and benefits, emotional distress damages, and out of pocket expenses. It states that appellant did not report to work on April 18, 2006 or "report to work on any of the three days immediately following April 18, 2006.
The Ventura County Civil Service Commission found no harassment, discrimination, or failure to discuss reasonable accommodations. The administrative decision states that County "bent over backwards in its efforts to meet [with] Mr. Cordier to discuss what reasonable accommodations could be made to have him return to normal or other work duties at the end of his extended leave of absence, which leave of absence [County] was under no duty to extend further. It was Mr. Cordier who failed and refused to report to work either before or after April 18, 2005, in order to meet and discuss accommodations with [County]. . . . Cordier willfully failed and refused (repeatedly) to do so, culminating with his failure to report to work on or after April 18, 2005. Mr. Cordier was told to report to work, failed to so, and failed to even have the courtesy to call and tell his employer that he was not going to report." The civil service commission concluded that there was no "coercion or other inappropriate conduct by [County]" and appellant "never explained why he should not have to report back to work at the end of his one-year leave of absence in order to discuss whatever reasonable accommodations might have been fashioned for his return on a full or a part time basis to his previous duties (or other duties)."
Appellant did not seek review of administrative decision which became final after 90 days. (Code Civ. Proc., § 1094.6, subd. (b).) The trial court ruled that appellant's was collaterally barred by the administrative decision. We concur.
Appellant has failed to show that the pleading defect can be cured by amending the complaint. (Hendy v. Losse (1991) 54 Cal.3d 723, 742.) Appellant's assertion that the FEHA requires County to reassign him to another position is without merit. "The obligation to reassign a disabled employee who cannot otherwise be accommodated does 'not require creating a new job, moving another employee, promoting the disabled employee, or violating another employee's rights under a collective bargaining agreement.' [Citation.]" (Hastings v. Department of Corrections (2003) 110 Cal.App.4th 963, 972; Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1223.)
The judgment (order sustaining demurrer) is affirmed. Respondents are awarded costs on appeal.
We concur: COFFEE, J., PERREN, J.