Dowling v. County of Tulare

Filed 10/12/06 Dowling v. County of Tulare CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Tulare County. Patrick J. O’Hara, Judge.

W. J. Smith & Associates, William J. Smith and Shelley G. Bryant for Plaintiff and Appellant.

Kathleen Bales-Lange, County Counsel, and Teresa M. Saucedo, Deputy County Counsel, for Defendant and Respondent.

-ooOoo-

Plaintiff Mary Kathleen Dowling (Dowling) appeals a summary judgment granted in favor of defendant County of Tulare (County) on her employment discrimination lawsuit which alleged violations of the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) and wrongful termination in violation of public policy. We conclude the trial court properly granted summary judgment because Dowling’s action is precluded by the adverse findings made in a concurrent administrative proceeding she pursued to challenge her termination. We will affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In 1989, Dowling began working for the County as a social worker in the Tulare County Health and Human Services Agency, Child Welfare Services Division (the Agency). During her employment, Dowling received performance appraisals, rating her performance on a scale of one to ten, with one to four meaning “not reasonable and consistent with normal expectations of proficiency,” five to six meaning “reasonable and consistent with normal expectations of proficiency,” seven to eight meaning “exceeds normal expectations of proficiency“ and nine to ten meaning “clearly exceeds normal expectations of proficiency.” During the period from January 1996 to January 2002, Dowling received five performance appraisals - the three she received from January 1996 to January 2001 rated her overall performance as a four, while the two she received from January 2001 to January 2002 rated her overall performance as a three. According to Dowling, her reviews did not accurately reflect her performance during the relevant periods.

In January 2002, Dowling went out on a leave of absence. On February 20, 2002 and again on June 19, 2002, the County sent her treating physician, Dr. Wu, a physician evaluation form and a copy of Dowling’s job description for his determination as to whether Dowling’s medical condition would preclude her from performing the essential functions of her job. Dr. Wu responded to both requests, stating there were no accommodations available and Dowling was not fit for duty.

On July 30, 2002, Dowling filed a complaint with the California Department of Fair Employment and Housing (DFEH), in which she alleged she was subjected to disability discrimination and retaliation from 1999 to July 17, 2002. Dowling claimed she had been retaliated against for filing a DFEH complaint in 1996, which was closed in 1999, when she was denied an accommodation for her disability, back problems, migraines and fibromyalgia. In July 2003, Dowling received a right-to-sue letter from the DFEH on this complaint.

Dowling’s Termination and the Administrative Proceeding

On June 23, 2003, Dowling was sent a written notice proposing she be dismissed from her position. Dowling requested a review by the County Administrative Officer, who sustained the Agency’s determination to dismiss Dowling after conducting an informal review. On September 3, 2003, Dowling was sent notice that her dismissal would be effective on September 8. Dowling appealed from the dismissal. As of September 2003, Dowling had been on a leave of absence for 20 months, and during the last ten years of her employment, had been on medical leave of absence 54 months.

In October 2003 Dowling, through her union representative, requested the matter be heard by an administrative law judge (ALJ). The appeal was set for hearing before an ALJ on January 6, 2004, but the hearing was continued to March 9, 2004. The hearing was continued to June 17, 2004, after Dowling’s union representative advised the County in January 2004 the union was withdrawing as Dowling’s representative because Dowling failed to cooperate. Dowling asserts, however, she cooperated fully with the union by timely responding to and complying with every communication and request made by her union representatives, and the administrative hearing was continued to June 17 so she could appeal the union’s withdrawal, which was subsequently denied.

On March 3, 2004, Dowling filed a second complaint with the DFEH which expressly referred to the wrongful and retaliatory nature of her termination. The DFEH did not resolve the complaint within a year of its filing.

The administrative hearing, at which Dowling represented herself, began on June 17, 2004. Dowling presented an opening statement. The hearing continued on June 18, when Dowling cross-examined the County’s first witness, but was not completed on that date. The hearing was scheduled to recommence on November 16, 2004, but was later continued to February 8, 2005. At the hearing on February 8, Dowling refused to cross-examine witnesses or answer questions when she was called to the stand. As of March 15, 2005, the County had not received the ALJ’s decision.

The Complaint

On July 27, 2004, after the administrative hearing had begun, Dowling filed the complaint in this action. Dowling alleges when she returned to work after having surgery for back problems in 1996, her physician required her caseload be restricted to 27 to 28 children due to her medical condition, but by October 2000, the County had assigned her 78 children. Dowling further alleges the County refused to accommodate her need for a reduced caseload, causing her medical condition to worsen, forced her to take a leave of absence in January 2002 because of her physical disabilities, and terminated her employment on September 8, 2003 while she was on medical leave. Dowling also alleges she was duly qualified and satisfactorily performed her job duties. Dowling asserts three causes of action: (1) disability discrimination in violation of Government Code section 12940, subdivision (a); (2) wrongful termination in violation of public policy; and (3) failure to accommodate her disability in violation of Government Code section 12940, subdivision (m).

The Summary Judgment Motion

On March 16, 2005, the County filed a motion for summary judgment or, in the alternative, summary adjudication on the following grounds: (1) Dowling’s wrongful termination claim fails because she did not exhaust administrative and judicial remedies before filing the complaint, as she failed to complete the administrative hearing process, failed to obtain a right to sue letter from the DFEH regarding her termination, and failed to present a timely tort claim as required by the California Tort Claims Act; (2) Dowling’s retaliation claim fails because she did not exhaust administrative remedies as she had not received a right to sue letter from the DFEH before filing the complaint; (3) Dowling’s failure to accommodate claim fails because at the time of her termination, there were no accommodations which she could be provided as she was unfit for duty and her prolonged absence rendered her unqualified for the position; and (4) the County is immune from liability. As evidence in support of the motion, the County submitted numerous documents regarding Dowling’s employment, as well as the declarations of two County employees, Crystal Sullivan and Michelle Baldwin, but did not file a declaration that authenticated most of the documents.

On May 20, 2005, Dowling filed an opposition to the motion. In her response to the County’s separate statement, Dowling disputed most of the facts on the ground the cited evidence constituted inadmissible hearsay and referenced her “objections to evidence[,]” which were not filed with the opposition. The only evidence Dowling submitted with her opposition was her declaration.

In its reply brief, which was filed and served on May 27, 2005, the County asserted the documents were admissible under the exception to the hearsay rule for business or official records, and submitted a declaration from Christine Gillham, the interim human resources director who serves as custodian of official county employee personnel files retained by the County’s human resources department. Gillham stated the documents were either: (1) made in the regular course of County business, kept in the official county personnel files and made at or near the time of the employment action referenced in each document; or (2) made within the scope of duty of a public employee at or near the time of the employment action referenced in each document. While in the first paragraph of the declaration Gillham states these statements were “based on information and belief[,]” at the end of the declaration, Gillham “declared that the foregoing is true and correct, that I have personal knowledge thereof, and that I am competent to testify thereto.” The declaration, however, was not signed under penalty of perjury.

On June 1, 2005, Dowling’s written objections to the County’s evidence, which she served on the County by overnight mail on May 27, 2005, was filed in the trial court. Dowling objected to most of the documents the County submitted on the grounds they were not authenticated and constituted inadmissible hearsay, and to Sullivan’s and Baldwin’s declarations on the ground they were not executed under penalty of perjury. Also on June 1, 2005, the County submitted the corrected declarations of Sullivan, Gillham and Baldwin, inserting the words “under penalty of perjury” to the closing statement on each declaration, which the County claimed was omitted inadvertently from the declarations, so the statements now read: “I declare under penalty of perjury that the foregoing is true and correct, that I have personal knowledge thereof, and that I am competent to testify thereto.” No other changes were made to the declarations.

On June 3, 2005, Dowling filed supplemental objections to these declarations. Dowling objected to all the declarations on the grounds she had not been given adequate notice or opportunity to respond “to this new evidence;” therefore, consideration of the evidence violated her due process rights, and the declarations were not timely filed or served since they were filed only two days before the hearing date. Dowling also objected to Gillham’s declarations on the ground her statements were incompetent as proof on the motion because she stated in the first paragraph of the declarations that it was based on information and belief.

The Hearing on the Motion

Oral argument on the motion was held on June 3, 2005. The court raised the issue of the statement in Gillham’s declaration that it was made on information and belief. County counsel explained the inclusion of the “information and belief” language and the omission of the “under penalty of perjury” language were inadvertent, but there was no question the records were business records. County counsel suggested the error could be cured by having Gillham sign a new declaration. Dowling’s attorney objected on the ground that all the declarations were untimely, as they were filed after Dowling wrote her opposition to the motion, and to consider the documents without giving Dowling an opportunity to respond would deny her due process. The court stated it did not see any prejudice to Dowling in allowing the corrections. Dowling’s attorney responded the prejudice was in the fact the documents were not authenticated when the County filed its motion and the County did not attempt to authenticate them until after Dowling filed her opposition. County counsel argued there was no prejudice, as all of the facts of the declaration were submitted with the motion, thereby giving Dowling the opportunity to respond to them. The court suggested the hearing be continued to allow the County time to submit a corrected declaration.

When Dowling’s attorney began arguing the merits of the motion, the court asked him if he waived his objections to Gillham’s declaration and was willing to admit she is the custodian of records. Dowling’s attorney responded that he didn’t see “why we need to have those business records before the Court because that’s not the evidence that I intend to rely on in my argument here. I don’t need those business records to show that Ms. Dowling, the plaintiff, started down the [FEHA] path before she started - or before the union started her down the administrative remedy path.” County counsel again asked the court for the opportunity to submit a second corrected declaration and that argument be postponed. Dowling’s attorney stated that his argument hinged on the complaint and Dowling’s declaration and no other documents. The court decided to give the County six days to file a second amended declaration, with Dowling preserving her untimeliness objection and “if there’s any additional objections, then, counsel, I - you could request some sort of argument when you receive it.” The hearing then proceeded with the argument on the merits. At the conclusion of the hearing, the court again stated the County could file an amended declaration in compliance with Evidence Code sections 1270 and 1271 by June 8, and it would take the matter under submission and rule in writing.

The Amended Declaration and Supplemental Objections

On June 6, 2005, the County filed Gillham’s second corrected declaration, which replaced the words “The following statements are based on information and belief” with the words “The following statements are based on my own personal knowledge.” No other changes were made to the declaration.

On June 10, 2005, Dowling filed supplemental objections to the County’s evidence. Dowling asserted the County’s statement in its separate statement of material facts that the ALJ’s decision was still pending was incorrect, as the ALJ issued a proposed decision on March 10, 2005, which the Tulare County Board of Supervisors adopted on May 3, 2005. Dowling argued the decision did not address any part of her claims for discrimination and failure to accommodate her disability, and requested the court take judicial notice of the proposed decision and the supervisors’ resolution.

The Court’s Order and Judgment

On June 3, 2005, the court filed a written order granting summary judgment, which was not served on the parties until June 14, 2005. The court ruled Dowling’s failure to exhaust her administrative remedies deprived the court of jurisdiction. The court accepted the late filing of Gillham’s amended declaration and took judicial notice that the complaint was filed on July 27, 2004, after Dowling began the administrative process. Judgment was entered on July 22, 2005.

DISCUSSION

Standard of Review

We review an order granting summary judgment de novo. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860.) We independently review the record and apply the same rules and standards as the trial court. (Zavala v. Arce (1997) 58 Cal.App.4th 915, 925.) The trial court must grant the motion if “all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.)

Evidentiary Issues

As a threshold matter, we address Dowling’s contention the trial court committed reversible error when it allowed the County to file the corrected declarations of the County employees after Dowling filed her opposition to the motion. Dowling asserts the trial court should not have accepted the corrected declarations because they were untimely, as they were filed after the reply papers were due. Dowling further asserts the corrected declarations constituted new evidence because they “now raised the specter of admissibility” of the evidence the County submitted in support of the motion, to which she was not given adequate notice or an opportunity to respond.

With respect to timeliness of the filings, we defer to the trial court’s exercise of its discretion to review late submitted papers. (See Hobson v. Raychem Corp. (1999) 73 Cal.App.4th 614, 625, disapproved on another point in Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1031 & fn. 6; Code Civ. Proc., § 437c, subdivision (a)(4) [“Any reply to the opposition shall be served and filed by the moving party not less than five days preceding the notice of continued date of hearing, unless the court for good cause orders otherwise.”])

As Dowling points out, however, in exercising its discretion to receive late-filed evidence, the trial court must also consider the opposing party’s due process rights. (See San Diego Watercrafts, Inc., v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 316 (San Diego Watercrafts) [consideration of evidence submitted with reply to motion for summary judgment violated opposing party’s due process rights because opposing party not given notice or opportunity to respond]; Alvak Enterprises v. Phillips (1959) 167 Cal.App.2d 69, 74-75 [affidavits filed after submission upon consent obtained at the hearing of the motion properly may be considered by the court because opposing party had notice of the new evidence and opportunity to respond].) The trial court did so here. The corrected declarations did not constitute new evidence - all of the documents authenticated in Gillham’s declaration, as well as the declarations of Sullivan and Baldwin, were served on Dowling with the County’s moving papers and the facts from the documents and declarations the County was relying on in support of the motion were referenced in its separate statement of undisputed material facts. As the evidence supporting the motion was both identified and available to Dowling when she prepared her opposition, she certainly had an opportunity to respond to the evidence.

Dowling nevertheless contends she was deprived of such an opportunity because she chose not to respond to the County’s evidence and instead relied on her position that the motion was without evidentiary support because the documents were inadmissible as they were not authenticated and the declarations could not be considered as they did not state they were signed under penalty of perjury. That Dowling chose not to provide additional evidence or argument in opposition to the motion and instead put all of her proverbial eggs in the evidentiary objections basket, however, does not mean she did not have an opportunity to respond to the evidence submitted with the motion. Even if, as Dowling asserts, she had no obligation or incentive to respond to the County’s evidence since the motion was without evidentiary support absent the corrected declarations, the trial court still retained discretion to allow the late filing of the corrected declarations and certainly could have granted a continuance to allow the County to do so, which it offered to do. Dowling, however, rejected that offer. Moreover, Dowling never requested a continuance to provide a further response to the evidence and never informed the trial court how her opposition would have differed had the documents and declarations been properly authenticated and signed when the motion was filed. Instead, Dowling agreed to argue the merits of the motion based solely on the evidence she provided - the complaint and her declaration. While the court allowed the County to file a corrected declaration after the hearing on the motion, the court also told Dowling’s counsel that Dowling could request argument if she had further objections to the corrected declaration. Dowling, however, made no such request.

This is not a situation like that in San Diego Watercrafts, where by the court’s reliance on evidence submitted with the moving party’s reply, the party opposing the summary judgment motion was not informed of the issues it was required to meet in order to oppose the motion. (San Diego Watercrafts, supra, 102 Cal.App.4th at p. 316.) As the facts were contained within the County’s separate statement, Dowling was aware of the issues she needed to address. Having received due notice and an opportunity to be heard on the corrected declarations, there was no violation of her right to due process. (See Weiss v. Chevron, U.S.A., Inc. (1988) 204 Cal.App.3d 1094, 1098-1099.)

Exhaustion of Judicial Remedies

Our Supreme Court has held that a public employee who believes he or she has suffered employment discrimination is not required to exhaust both the employer’s internal grievance procedures and the administrative remedy provided by the FEHA before filing a discrimination claim in superior court. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1092; see also Williams v. Housing Authority of Los Angeles (2004) 121 Cal.App.4th 708, 728-729; Ruiz v. Department of Corrections (2000) 77 Cal.App.4th 891, 900 (Ruiz).) Instead, such an employee may elect to pursue either the remedies provided by the FEHA or the employer’s internal grievance procedures, since “[t]he benefits of judicial economy, agency expertise, and potential for swift resolution of grievances are better served by a rule that allows aggrieved public employees to seek redress in the forum that is most appropriate to their situation.” (Schifando, supra, 31 Cal.4th at pp. 1088-1089.)

In the instant action, Dowling first filed a complaint with the DFEH alleging the County failed to accommodate her disability.^[1] After she had received a right-to-sue letter, the County notified Dowling she was being terminated from her position. Dowling appealed the dismissal and requested a hearing before an ALJ. After the hearing had begun, but before it concluded, Dowling filed this action in superior court. During the pendency of this action, the administrative hearing concluded and the ALJ issued a decision, which the County adopted, finding Dowling was terminated solely due to her failure to satisfactorily perform her job duties. Thus, Dowling has pursued both avenues of relief available to a public employee - she has pursued her employer’s internal grievance procedures through to a decision and filed a complaint with the DFEH, followed by this superior court action.

The Supreme Court recognized in Schifando that a situation such as the one here might arise, where an employee chooses to pursue both the employers’ internal grievance procedures and the administrative remedy provided by the FEHA, but did not provide any guidance regarding that issue because it was not before it. (Schifando, supra, 31 Cal.4th at p. 1092.)^[2] The court noted, however, that a public employee could “tread onto a ‘procedural minefield’ if a claim was filed with the [DFEH] at the same time remedies were pursued” under the employer’s internal procedure. (Id. at p. 1088.)

In the present action, Dowling has tread into such a minefield by pursuing both remedies and obtaining an adverse decision from the ALJ during the pendency of this proceeding. As Dowling points out, the resolution of this case turns on what effect the ALJ’s decision has on this action. The California Supreme Court has held that when “a public employee pursues administrative civil service remedies, receives an adverse finding, and fails to have the finding set aside through judicial review procedures, the adverse finding is binding on discrimination claims under the FEHA.” (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 76 (Johnson).) As the Court has explained: “This requirement of exhaustion of judicial remedies is to be distinguished from the requirement of exhaustion of administrative remedies. [Citation.] Exhaustion of administrative remedies is ‘a jurisdictional prerequisite to resort to the courts.’ [Citation.] 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.’ [Citation.]” (Id. at p. 70, italics in original.) The Court reasoned that “[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.” (Id. at p. 72.)

Our Supreme Court affirmed the application of this principle in Schifando, noting that its conclusion that a public employee need not exhaust the employer’s internal grievance procedure before filing a complaint with the DFEH did not disturb the holding in Johnson. (Schifando, supra, 31 Cal.4th at p. 1090.) As the Court explained: “We serve judicial economy by giving collateral estoppel effect to appropriate administrative findings. Johnson‘s requirement that employees exhaust judicial remedies ensures proper respect for administrative proceedings. It requires employees challenging administrative findings to do so in the appropriate forum, by filing a writ of administrative mandamus petition in superior court. Johnson also ensures that employees who choose to utilize internal procedures are not given a second ‘bite of the procedural apple.’ However, we do not serve judicial economy if we require employees who have allegedly suffered discrimination at the hands of public employers to pursue redress in two separate forums. As noted above, to do so would frustrate legislative intent and create a procedural labyrinth that aggrieved employees, often not represented by counsel at the early stages of litigation, would likely be incapable of navigating.” (Schifando, supra, 31 Cal.4th at pp. 1090-1091.)

Based on these decisions, while Dowling may have had the right to pursue two separate avenues of relief simultaneously, once she obtained an adverse decision in the administrative proceeding, that decision became binding on this action unless she filed a writ of administrative mandamus to challenge it.^[3] Dowling claims that we should not give the decision any effect in this proceeding for two reasons: (1) she abandoned the administrative process; and (2) “in providing Ms. Dowling with multiple, cumulative administrative remedies, the law must also give Ms. Dowling the choice of how she seeks judicial review of the County’s discriminatory employment actions after one of those remedies is exhausted.”

With respect to her first contention, Dowling asserts she abandoned the administrative appeal process when she refused to participate in the administrative hearing and filed the instant action. We disagree. The record shows Dowling presented an opening statement and cross-examined the County’s first witness when the administrative hearing began on June 17 and 18, 2004, but refused to participate in the February 8, 2005 hearing by declining to cross-examine witnesses or testify herself because her attorney was not present. Despite this, the ALJ issued a decision upholding her termination, in which no mention was made of Dowling’s refusal to participate or that she requested the appeal be abandoned. If Dowling did not intend for this decision to become binding on her, it was incumbent on her to file a writ of administrative mandate under Code of Civil Procedure section 1094.5, in which she could raise the issue of whether the ALJ proceeded without jurisdiction by deciding the matter after she had abandoned it, or whether she was deprived of a fair trial when the judge continued the hearing in the absence of her attorney. (Code Civ. Proc., § 1094.5, subds. (a), (b); see, e.g. Holder v. California Paralyzed Veterans Association (1980) 114 Cal.App.3d 155, 163-164 [administrative decision given preclusive effect despite claim administrative process was procedurally defective where mandamus action not brought to challenge procedural defects.])^[4] Having failed to do so, the decision is binding.

Dowling alternatively contends that since she can choose to bring multiple, cumulative administrative remedies, she should be able to choose which remedy she pursues in court. Dowling reasons that an employee need only exhaust one administrative remedy in order to be able to bring a lawsuit challenging the validity of an employer’s actions, explaining: “When [a public employee] brings her claims to court after exhaustion of one administrative remedy, the other pending administrative remedy may (and probably should) continue because it could result in a determination favorable to the employee, thereby inducing the employee to dismiss her court action with the resulting beneficial conservation of judicial resources and decrease in the parties’ litigation expenses. If the eventual result in the other pending administrative action is adverse to the employee, then she may choose to have the ultimate judicial review of the validity of her employer’s actions take place in either the already pending civil action contesting the employer’s actions directly, or in a new mandamus action contesting the result of the administrative appeal.”

The only authority Dowling cites for this proposition is California Correctional Peace Officers Assn. v. State Personnel Board (1995) 10 Cal.4th 1133 (Peace Officers Assn.). In that case, our Supreme Court interpreted Government Code section 18671.1, which specifies the time within which the California State Personnel Board (Personnel Board) must render a decision following a hearing on a state employee’s appeal from a departmental disciplinary action, but provides no sanction or remedy should the Personnel Board fail to comply with that deadline other than deeming that the employee has exhausted all available administrative remedies. (Peace Officers Assn., supra, 10 Cal.4th at pp. 1137-1138.) The court held the time limit to render a decision is directory, not mandatory, and therefore the Personnel Board retains jurisdiction over the employee’s appeal even if it fails to render a timely decision. (Id. at p. 1138.) An employee who has not waived the time limit then has two options: (1) the employee may seek a writ of mandate against the Personnel Board to compel it to decide the appeal by a date certain; or (2) the employee may seek a writ of mandate against the appointing authority to set aside the adverse action and if the Personnel Board issues a decision while the writ is pending, the employee may, but is not required to, dismiss the mandate proceeding and seek review of the Personnel Board’s decision by a petition for writ of mandamus pursuant to Code of Civil Procedure section 1094.5. (Peace Officers Assn., supra, 10 Cal.4th at pp. 1138-1139, 1156.)

Dowling argues she should have the same options as the state employees in Peace Officers Assn., namely that if she institutes a FEHA action in state court while simultaneously pursuing an administrative appeal with the County and the administrative decision is issued before the FEHA action is completed, she can decide to either (1) accept the administrative decision and dismiss the FEHA action, or (2) reject the administrative decision and continue the FEHA action without having to file a petition for writ of mandamus to set aside the administrative decision, even if the decision was adverse to her. In Peace Officers Assn., however, the court determined the employee had several options to challenge the adverse employment action if the Personnel Board did not render a timely decision on the employee’s appeal because it concluded the Legislature, in enacting Government Code section 18671.1, had granted the right to seek judicial review of an administrative action without resort to administrative remedies. (Peace Officers Assn., supra, 10 Cal.4th at pp. 1151-1152.)

No such statute exists in this case. Instead, our Supreme Court has affirmed that collateral estoppel effect should be given to appropriate administrative findings when a public employee has opted to pursue a public employer’s procedures for challenging an employment action and the employee has not exhausted judicial remedies when those procedures result in an adverse decision. (Schifando, supra, 31 Cal.4th at p. 1090.) To allow a public employee to disregard the administrative body’s decision would be contrary to the Supreme Court’s concern that administrative proceedings be given proper respect and would give those employees who choose to utilize internal procedures “a second ‘bite of the procedural apple.’” (Id. at pp. 1090-1091.)

In sum, Dowling is bound by the ALJ’s decision that her termination for poor performance was appropriate. The next issue we must resolve is which of Dowling’s claims are impacted by the decision. Dowling’s complaint alleges that after returning to work from back surgery in 1996, her physician required her workload be restricted to 27 to 28 children; that by October 2000, the County had increased her workload to 78 children and refused to accommodate her need for a reduced workload; that because of the increased workload, her medical condition became worse and she was forced to take a leave of absence; and while on medical leave, the County terminated her employment because of her disability and in retaliation for her having filed a DFEH complaint. Based on these allegations, Dowling asserts in her first cause of action that she was discriminated against because of her disability, in her second cause of action that she was terminated in violation of FEHA’s prohibitions against discrimination and retaliation, and in her third cause of action that the County “failed to make reasonable accommodation for her disability.”

Dowling’s claims that she was terminated for retaliatory and discriminatory reasons is in direct conflict with the ALJ’s determination that Dowling “was terminated solely due to her failure to satisfactorily perform her job duties.” Because the ALJ’s determination is binding on Dowling’s termination claims, those claims fail. (Johnson, supra, 24 Cal.4th at pp. 66-67, 71 [summary judgment on employee’s FEHA claim was appropriate because the administrative decision that he was terminated for economic reasons was binding].) That Dowling was terminated for poor performance means she was not terminated for retaliatory or discriminatory reasons.

This leaves Dowling’s claim that the County failed to accommodate her disability when it allegedly increased her workload to 78 children by October 2000. Dowling asserts “[t]here is no evidence in the record showing that this administrative appeal had anything whatsoever to do with Ms. Dowling’s claims of discrimination and retaliation which pre-dated her termination and with respect to which Ms. Dowling had also already exhausted her DFEH remedy prior to her termination.” We disagree. In both the notice of proposed disciplinary action sent to Dowling in June 2003 and the amended final notice of disciplinary action sent to her in September 2003, Dowling was informed that her performance had been unsatisfactory since 1996. In appealing the dismissal, Dowling understood that her appeal would involve a review of her performance going back to 1996.

In the ALJ’s decision, the ALJ reviewed Dowling’s performance appraisals from 1996 to 2001 and made the following findings: “[Dowling]’s performance has been unsatisfactory and deteriorating since 1996. She has failed to provide reasonable service to her clients. Her failure has caused the Court to complain about the problems she has caused in various cases and has caused a monetary loss to the County. The Agency tried to help [Dowling] improve her job performance. The Agency reduced the size of [Dowling]’s caseload to well below that carried by other social workers and gave [Dowling] help in dealing with referrals and closing cases, but even with the reduced caseload, [Dowling] still did not properly deal with her cases. In order to try to help [Dowling] meet her job requirements, the Agency provided her with job training, counseling and coaching, and allowed her to work outside of her scheduled work hours. But the quality and quantity of [Dowling]’s work product declined rather than improved. In spite of the various warnings, counseling and unsatisfactory ratings on the P[erformance] A[ppraisal] F[orm]s, the imposition of progressive discipline including: formal reprimands, a Memorandum of Counseling and a three day suspension without pay, [Dowling] has continued to exhibit a pattern of unsatisfactory job performance since 1996. Based on all of the above, there is no reason to expect that [Dowling] would improve her job performance to a satisfactory level if given another opportunity.”

These findings preclude Dowling’s failure to accommodate claim because they show she could not perform the essential functions of her position even with the reasonable accommodation she claims she was entitled to - a reduced workload. Under Government Code section 12940, it is an unlawful employment practice “to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee” unless the employer demonstrates doing so would impose an undue hardship. (Govt. Code, § 12940, subd. (m).)^[5] To prevail, the plaintiff must establish that he or she suffers from a disability covered by the FEHA and the defendant failed to reasonably accommodate the plaintiff’s disability. (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 256.) An additional element of the claim is that the plaintiff can perform the essential duties of the position with reasonable accommodation - the appellate courts, however, are split on whether this element is part of the plaintiff’s prima facie case or the employer’s burden of proof as an affirmative defense. (See Bagatti v. Department of Rehabilitation (2002) 97 Cal.App.4th 344 [FEHA does not require plaintiff to show as part of failure to accommodate claim that he or she could perform the essential functions of reassignment]; Jensen v. Wells Fargo Bank, supra, 85 Cal.App.4th at p. 256 [plaintiff must establish as part of failure to accommodate claim he or she can perform essential functions of the position to which reassignment is sought, rather than essential functions of existing position].)^[6]

Regardless of which party bears the burden of proof on the issue of whether the plaintiff can perform the essential functions of the position, however, Dowling’s failure to accommodate claim must fail based on the ALJ’s finding that Dowling could not perform her job even with a reduced caseload. Collateral estoppel, also known as issue preclusion, prevents “relitigation of issues argued and decided in prior proceedings.” (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341.) The threshold requirements for issue preclusion are: (1) the issue sought to be precluded from relitigation is identical to that decided in a former proceeding; (2) the issue was actually litigated in the former proceeding; (3) the issue was necessarily decided in the former proceeding; (4) the decision in the former proceeding is final and on the merits; and (5) the party against whom preclusion is sought is the same, or in privity with, the party to the former proceedings. (Ibid.) Issue preclusion does not only bar relitigation of court findings, it also “bars the relitigating of issues which were previously resolved in an administrative hearing by an agency acting in a judicial capacity.” (Knickerbocker v. City of Stockton (1988) 199 Cal.App.3d 235, 242.)

Here, while Dowling’s administrative appeal addressed the issue of whether her termination was justified based on her poor performance, it necessarily encompassed a review of Dowling’s job performance from 1996 until her termination. In conducting that review, the ALJ expressly found the County tried to help Dowling improve her job performance by reducing her caseload, but her performance did not improve. This finding flies directly in the face of Dowling’s allegations that she performed her job duties in a satisfactory manner and the County failed to reasonably accommodate her disability by refusing to reduce her caseload. Thus, the issues of whether the County reduced Dowling’s caseload before her termination and whether Dowling could perform the functions of her position with this accommodation were identical in the administrative hearing and in this suit. This is true even though the ultimate issues in the two proceedings are not identical, i.e., whether Dowling’s termination was justified in the administrative hearing and whether the County is liable for failing to accommodate Dowling’s disability under the FEHA. As our Supreme Court has explained: “The ‘identical issue’ requirement for collateral estoppel addresses whether ‘identical factual allegations’ are at stake in the two proceedings, not whether the ultimate issues or dispositions are the same. [Citation.]” (Lucido v. Superior Court, supra, 51 Cal.3d at p. 342.)

The other elements of issue preclusion are also present here - the issues of Dowling’s job performance and the County’s attempts to help Dowling improve were submitted for determination, were actually determined by the ALJ and were necessarily decided in that proceeding. (See People v. Sims (1982) 32 Cal.3d 468, 484 [“An issue is actually litigated ‘[w]hen [it] is properly raised, by the pleadings or otherwise, and is submitted for determination, and is determined.’”]; Lucido v. Superior Court, supra, 51 Cal.3d at p. 342 [To satisfy “necessarily decided” requirement, the issue need not have been necessary to the ultimate decision in the initial proceeding, but it must “not have been ‘entirely unnecessary’ to the judgment in the initial proceeding.”].) The decision was a final decision, and if Dowling chose to challenge the decision, she should have done so through a writ of administrative mandamus, as she was advised when the County adopted the ALJ’s decision. Finally, the parties in both proceedings are identical.

In sum, that Dowling received a reduced caseload in order to allow her to improve her job performance and that her performance did not improve despite the reduced caseload means Dowling’s claim in this proceeding that the County failed to accommodate her disability is necessarily precluded by the ALJ’s decision. Since all of Dowling’s claims in this action are precluded by the ALJ’s decision, the trial court did not err in granting summary judgment to the County on all of the causes of action contained in the complaint.

DISPOSITION

The judgment is affirmed.

_____________________

Gomes, J.

WE CONCUR:

_____________________

Levy, Acting P.J.

_____________________

Kane, J.

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^[1] An aggrieved employee has one year to file an administrative complaint with the DFEH, which investigates the matter and will issue either an accusation for hearing before the Commission or a “right to sue” letter. (Page v. Los Angeles County Probation Dept. (2005) 123 Cal.App.4th 1135, 1140 fn. 4.) The employee has one year from when the right to sue letter is issued to file a FEHA lawsuit. (Ibid.; Govt. Code, § 12965, subd. (b).)

^[2] This court also noted in Ruiz that “state employees may pursue their claims of employment discrimination with either the Board or the DFEH or both.” (Ruiz, supra, 77 Cal.App.4th at p. 900.) We did not address in that case, however, the effect of an employee’s decision to pursue both remedies.

^[3] Dowling does not contend the ALJ’s decision was not properly before the trial court, or could not be considered by it, when deciding the summary judgment motion. As the administrative decision had been issued and was adverse to her, we need not decide whether the mere pendency of the administrative proceeding precluded her from simultaneously filing a superior court action alleging FEHA violations or what effect a favorable decision would have on that action. We note that in Page on which the trial court relied in granting summary judgment, the appellate court held that when a public employee pursues the administrative process through evidentiary hearings to a proposed decision, the employee has the burden to exhaust administrative and judicial remedies before pursuing those claims in superior court. (Page, supra, 123 Cal.App.4th at p. 1144.) As a final decision was reached in the instant action, we need not decide whether we agree with the analysis in Page.

^[4] None of the cases Dowling cites, Alta Bates Hospital v. Mertle (1973) 31 Cal.App.3d 349, Avnet v. Bank of America (1965) 232 Cal.App.2d 191, and Larsson v. Cedars of Lebanon Hospital (1950) 97 Cal.App.2d 704, discuss the issue of abandonment of administrative proceedings, and therefore do not have any bearing on this issue.

^[5] Former subdivision (k) of Government Code section 12940 was redesignated as subdivision (m) without substantive change in 2000.

^[6] The issue is currently pending before the California Supreme Court in Green v. State of California (2005) 132 Cal.App.4th 97, review granted Nov. 16, 2005, S137770.