Elliott v. Regents of the University of California

Filed 4/3/09 Elliott v. Regents of the University of California CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

In this case we consider whether Margaret Elliotts lawsuit against her employer for discrimination, retaliation and related tort claims is barred by the doctrine of res judicata due to her failure to exhaust her judicial remedies. We hold that Elliotts failure to judicially challenge an adverse ruling in an administrative grievance proceeding precludes her from suing her employer to recover for her alleged employment-related harm. Accordingly, we affirm summary judgment in favor of the Regents of the University of California (the Regents) and individual defendant Dan Judd.

I. BACKGROUND

A. Relevant Employment Events

At all relevant times the Regents managed Lawrence Livermore National Laboratory (the Laboratory) for the United States Department of Energy. Elliott was employed as a central alarm station (CAS) operator in the Laboratorys Protective Forces Division, which is responsible for the security operations of the entire Laboratory. All positions within the Protective Forces Division are security and safety-sensitive. All employees working in the CAS are required to undergo an annual medical and psychological evaluation and to self-report their use of narcotics, even when the narcotics are prescribed by a physician.

In 2003 Elliott suffered knee and back injuries that rendered her unable to climb stairs and perform other duties required for her job. Over the next two years she underwent a series of knee surgeries. The Laboratory accommodated her disability by transferring her to a temporary administrative position while she continued to be classified and paid as a CAS operator.

Elliott reported to the Laboratory for work after her various medical absences on February 15, 2006. She was directed to undergo a health examination designed to assess whether the work restrictions imposed to accommodate her disability should be continued or modified. Elliott gave Laboratory physician Dr. Ronit Katz a note from her physician, Dr. Min Zheng, that said her medical condition had become permanent and so had her work restrictions. Dr. Katz reached the same conclusion. Katz explained to Elliott the permanency of her medical condition meant she could no longer work as a CAS operator and would have to find a new permanent position at the Laboratory consistent with her physical limitations.

When Elliott reported for work that morning following her examination she was temporarily assigned to inventory computer printers and supplies, which required her to visit a number of offices. One of those offices was that of Captain Dan Judd. After Elliott left Judds office, her supervisor came up to her and said she was taking Elliott back to the Laboratorys Health Services Department because someone reported that she was unsteady on her feet. Laboratory policy requires that an employee undergo drug testing when [b]ehavior is observed that may pose an immediate threat to the health and safety of the employee or other employees and there is cause to believe that substance abuse is a factor.[1] Elliott was examined and the decision was made to require her to submit to a drug test for cause under this policy.

Elliott was suspended from her employment with pay while her possible drug use was under investigation. The drug test results revealed the presence of four narcotics in Elliotts system, including methadone. All of them were prescribed by a doctor. Although the test results were reported as negative under federal reporting requirements because the narcotics were prescribed, the results were considered positive under the Laboratorys drug-free workplace policy.

The Laboratory also learned that in the 12 months before her return to work, Elliott had filled 51 prescriptions for a variety of narcotics written by many different physicians. Pursuant to Laboratory policy, Elliott was directed to undergo a mandatory medical and/or psychological evaluation to assess her fitness for duty, potential need for rehabilitation, and ability to safely perform her essential job functions.

On March 13, 2006, the day of the scheduled fitness for duty evaluation, Elliott left a telephone message stating that she was ill and could not attend the evaluation. The Laboratory rescheduled her appointment for March 20 and warned Elliott that the evaluation was a prerequisite to her reinstatement and that her refusal to participate would be considered grounds for dismissal.

Elliott reported to the Laboratorys Health Services Department on March 20, 2006, but refused to sign and/or complete required intake and disclosure forms for the Laboratorys Employment Assistance Program, or EAP. Elliotts paid leave was extended and the appointment was rescheduled for March 22, 2006, and then March 30, 2006. On March 24, 2006, Elliott was advised that she would be placed on leave without pay effective March 27, 2006, until April 28, 2006, or until she completed her fitness for duty evaluation and was cleared to return to work. Elliott did not attend the March 30 appointment, and the Laboratory subsequently rescheduled her for April 6 and then April 14, 2006. Despite repeated warnings that the completed EAP forms were a necessary prerequisite to the fitness for duty evaluation and that she could not return to work without the evaluation, Elliott refused to comply.

B. Elliotts Internal Grievance

Elliott filed an employee grievance under the Laboratorys internal complaint procedure in May 2006. She sought reinstatement to her CAS position and alleged that her supervisor, Captain Dan Judd, sexually harassed her on February 15, 2006, the day she returned from her medical leave. According to Elliott, Judd asked her intrusive personal questions about her sex life, asked who she was dating, blocked her way, put his hands on her shoulder and breasts, and embraced her. Elliott also alleged that the Laboratory improperly placed her on leave without pay; that she submitted to a fitness for duty examination pursuant to Laboratory directives on March 20, 2006; and that she refused to sign the EAP form only because it included unfounded admissions that she violated Laboratory policies. Elliott says that because the intake form included the question: Have you ever sought help for the current problem before, any answer she gave would have falsely indicated that she abused drugs. She refused to sign the disclosure form because it says that referral to EAP does not waive the Laboratorys rights to take disciplinary measures, and Elliott says this reference to reservation of rights by the Laboratory is also an incriminating or inappropriate admission.

The grievance hearing was conducted pursuant to the University of Californias personnel policies and procedures, which are published in the Laboratorys Personnel Policies and Procedures Manual (PPPM). In accordance with those procedures, the parties selected a hearing officer who was not affiliated with the University from the American Arbitration Associations list of neutrals. Both parties were represented by counsel at the hearing, which was held on April 12, June 11 and July 19, 2007. Attorneys for both parties gave opening statements, waived closing arguments and submitted posthearing briefs. Elliott called and examined eight witnesses under oath. The Laboratory cross-examined Elliotts witnesses, but did not call any witnesses of its own. Elliott introduced 53 exhibits into evidence; the Laboratory introduced 49.

C. The Opinion and Award

The hearing officer in a 35-page Opinion and Award rejected Elliotts claims in their entirety. Credibility issues were all resolved in favor of Judd and against Elliott. The hearing officer found Elliott failed to prove either that she was sexually harassed or that the Laboratory wrongly subjected her to substance testing and placed her on leave without pay.

As to Elliotts claim of sexual harassment, the hearing officer found that [o]n this record, on balance, Grievants allegation simply does not comport with common sense and experience. She had never had a problem with [Judd]. She had been off work for some time and only sporadically back before February 15. His door was open that morning and the most egregious allegationthe physical contactallegedly occurred outside his door in the open hallway where the alleged act would be easier for others to see. Redundantly, it would just be too far a stretch from the evidence presented to find that it is more likely than not that Grievant was the victim of such physical sexual harassment based on Judds February 15 conduct.

On what he described as the more nettlesome issue, the hearing officer found the Laboratory had the right to order a drug test for cause on February 15. The PPPM authorizes drug testing when an employee exhibits behavior that may pose an immediate threat to the health and safety of the employee or other employees and there is cause to believe that substance abuse is a factor. Elliott occupied a safety-sensitive position and was observed to be unsteady on her feet at work. Judd reported that he saw her grab onto a door frame and questioned whether she should be at work. Another employee told Elliotts supervisor that he saw her weaving in the hall and suggested she be taken back to health services. The hearing officer found no persuasive evidence that Laboratory personnel fabricated their reports of Elliotts difficulty on her feet.

The hearing officer concluded it was appropriate for the Laboratory to require Elliott to undergo the EAP fitness for duty evaluation. The PPPM prohibits the use of controlled substances, even if they are prescribed, when they are used in a manner that impairs performance of assigned tasks. Employees who test positive (and are not terminated) must undergo evaluation and, where appropriate, rehabilitation. Accordingly, the hearing officer reasoned that the Laboratory had a legitimate concern that Elliotts use of these drugs could create safety issues at work even though the narcotics in Elliotts system were prescribed. Only after Elliott refused to sign the EAP forms that would permit required evaluation to be completed was she put on administrative leave without pay. Under these circumstances, the hearing officer concluded the Laboratorys actions were not improper.

The Laboratory director accepted the hearing officers findings in a final decision rendered in December 2007.

D. Elliotts Lawsuit

In December 2006, some seven months after Elliott filed her grievance and less than four months before the grievance hearing began, Elliott sued the Regents and Judd. Hercomplaint alleged race, gender and disability discrimination, failure to accommodate and sexual harassment, all in violation of the Fair Employment and Housing Act (FEHA); assault, battery, fraud, negligent misrepresentation, intentional and negligent infliction of emotional distress, breach of contract, breach of the covenant of good faith and fair dealing, wrongful termination, and retaliation. Elliotts lawsuit was based on essentially the same events as her employee grievance.

All but the FEHA and intentional infliction of emotional distress claims were stricken on demurrer. In March 2008, once the hearing officers Opinion and Award was final, the Regents and Judd moved separately for summary judgment on the remaining causes of action. The trial court granted both motions on the grounds that Elliotts claims are barred by res judicata, collateral estoppel and judicial exhaustion. The written order explained: The Hearing Officer found that plaintiff was not sexually harassed by defendant Judd, and that [the Laboratory] acted properly in placing plaintiff on leave without pay for her failure to complete two Employee Assistance Program forms. Plaintiff did not challenge the hearing officers decision or findings by a petition for administrative mandamus seeking judicial review of that decision. Because she failed to exhaust her judicial remedies, the administrative decision in the internal [Laboratory] proceeding has issue and claim preclusion effect. Plaintiffs claims against the Regents in this action are based on the same conduct alleged in her internal complaint, and the Hearing Officers Opinion and Award bars all of plaintiffs claims against the Regents in this action.

Elliott filed a timely notice of appeal from the ensuing judgment.

Discussion

I. Summary Judgment Standards

 To secure summary judgment, a moving defendant may prove an affirmative defense, disprove at least one essential element of the plaintiffs cause of action [citations] or show that an element of the cause of action cannot be established [citations]. [Citation.] The defendant must show that under no possible hypothesis within the reasonable purview of the allegations of the complaint is there a material question of fact which requires examination by trial. [Citation.] [] The moving defendant bears the burden of proving the absence of any triable issue of material fact, even though the burden of proof as to a particular issue may be on the plaintiff at trial. [Citation.] . . . Once the moving party has met its burden, the opposing party bears the burden of presenting evidence that there is any triable issue of fact as to any essential element of a cause of action.  (Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1485.)

In reviewing the propriety of a summary judgment, the appellate court must resolve all doubts in favor of the party opposing the judgment. [Citation.] The reviewing court conducts a de novo examination to see whether there are any genuine issues of material fact or whether the moving party is entitled to summary judgment as a matter of law. (M.B. v. City of San Diego (1991) 233 Cal.App.3d 699, 703-704.) We accept as true the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences that can be drawn from them. [Citation.] However, to defeat the motion for summary judgment, the plaintiff must show  specific facts,  and cannot rely upon the allegations of the pleadings. (Hornv.Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 805.) While [s]ummary judgment is a drastic procedure, should be used with caution [citation] and should be granted only if there is no issue of triable fact [citation], it is also true [j]ustice requires that a defendant be as much entitled to be rid of an unmeritorious lawsuit as a plaintiff is entitled to maintain a good one. [Citation.] A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiffs asserted causes of action can prevail.  (M.B. v. City of San Diego, supra, at p. 704.)

II. Legal Principles and Analysis

A. The Regents Quasi-Adjudicatory Power

The California Constitution provides that the Regents are a public trust . . . with full powers of organization and government. (Cal. Const., art IX,  9, subd. (a).)  Article IX, section 9, grants the [R]egents broad powers to organize and govern the university and limits the Legislatures power to regulate either the university or the [R]egents. This contrasts with the comprehensive power of regulation the Legislature possesses over other state agencies. [Citation.] This grant of constitutional power to the University includes the grant of quasi-judicial powers, a view that is generally accepted in our jurisprudence. (Campbell v. Regents of University of California (2005) 35 Cal.4th 311, 320.)

The Regents quasi-adjudicatory powers extend to personnel matters involving university employees, a group that includes employees of the Laboratory.[2] (Edgren v. Regents of University of California (1984) 158 Cal.App.3d 515, 522, fn. 1; see Miklosy v. Regents of University of California (2008) 44 Cal.4th 876 [addressing claims by Laboratory employees].) Pursuant to those powers the Regents formulated and implemented the Laboratorys PPPM, which includes a comprehensive grievance procedure to resolve claims including discrimination claims and those challenging implementation of Laboratory policy.

B. The Binding Effect of Unchallenged Quasi-Judicial Findings

 In its narrowest form, res judicata  precludes parties or their privies from relitigating a cause of action [finally resolved in a prior proceeding].  [Citation.] But res judicata also includes a broader principle, commonly termed collateral estoppel, under which an issue  necessarily decided in [prior] litigation [may be] conclusively determined as [against] the parties [thereto] or their privies . . . in a subsequent lawsuit on a different cause of action.  [Citation.] [] Thus, res judicata does not merely bar relitigation of identical claims or causes of action. Instead, in its collateral estoppel aspect, the doctrine may also preclude a party to prior litigation from redisputing issues therein decided against him, even when those issues bear on different claims raised in a later case. Moreover, because the estoppel need not be mutual, it is not necessary that the earlier and later proceedings involve the identical parties or their privies. Only the party against whom the doctrine is invoked must be bound by the prior proceeding. [Citations.] [Citation.] Like res judicata, collateral estoppel has the dual purpose of protecting litigants from the burden of relitigating an identical issue with the same party or his privy and of promoting judicial economy by preventing needless litigation.  (Smith v. ExxonMobil Oil Corp. (2007) 153 Cal.App.4th 1407, 1413-1414; Rymer v. Hagler (1989) 211 Cal.App.3d 1171, 1178.)[3]

The res judicata effect of quasi-judicial administrative decisions has been the subject of much judicial ink. The Third District recently observed, Would-be plaintiffs ignore adverse administrative findings at their peril. An ever-burgeoning number of appellate cases reject civil actions predicated on conduct previously litigated in administrative proceedings. (California Public Employees Retirement System v. Superior Court (2008) 160 Cal.App.4th 174, 180 (CalPERS), disapproved on other grounds in State Bd. of Chiropractic Examiners v. Superior Court (2009) 45 Cal.4th 963, 978, fn. 5.) The CalPERS court explained that: The concept of exhaustion of judicial remedies is rooted in the principles embodied in collateral estoppel. The two are integrally intertwined. The question arises as to what effect administrative findings have in subsequent proceedings, including criminal and civil actions. In People v. Sims (1982) 32 Cal.3d 468 . . . the Supreme Court held that if an administrative agency, acting in a judicial capacity, resolved disputed factual issues in a proceeding in which the parties had an adequate opportunity to litigate the factual issues, the administrative findings had a collateral estoppel effect in subsequent litigation. [Citation.] Exhaustion of judicial remedies became a shorthand means of expressing the collateral estoppel effect and the policy of preserving the efficacy of administrative resolution of grievances. (Id.at pp. 180-181, fn. omitted.)

So while an aggrieved employee may file a civil action despite adverse administrative findings on an employee grievance, he or she must abide by the collateral estoppel effect of the unchallenged administrative findings. (CalPERS, supra, 160 Cal.App.4th at p. 181.) Only by asuccessful challenge to the adverse administrative findings through a petition for a writ of administrative mandamus may the employee escape their binding effect in a lawsuit for damages. (Id. at p. 182; Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1089-1090; Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 69-70, 76; Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465, 482-485; Ortega v. Contra Costa Community College Dist. (2007) 156 Cal.App.4th 1073, 1083; Williams v. Housing Authority of Los Angeles (2004) 121 Cal.App.4th 708, 724-725.)

To be sure, not all administrative findings have preclusive effect. Collateral estoppel may be applied to decisions made by administrative agencies [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.  (People v. Sims, supra, 32 Cal.3d at p. 479, quoting United States v. Utah Constr. Co. (1966) 384 U.S. 394, 422, italics omitted.) Courts that consider whether to give administrative findings preclusive effect therefore look to the presence of factors that indicate the administrative proceeding was judicial in character. These factors include a hearing before an impartial decision maker; testimony given under oath or affirmation; a partys ability to subpoena, call, examine, and cross-examine witnesses, to introduce documentary evidence, and to make oral and written argument; the taking of a record of the proceeding; and a written statement of reasons for the decision. (Pacific Lumber Co. v. State Water Resources Control Bd. (2006) 37 Cal.4th 921, 944; People v. Sims, supra, at pp. 479-480.)

C. This Was a Quasi-Judicial Hearing and Decision

When we consider the factors that indicate an administrative proceeding is judicial, we conclude that Elliotts grievance proceeding was sufficiently judicial in nature to give it preclusive effect. The parties jointly selected a neutral arbitrator to serve as hearing officer. The hearing officer conducted a full evidentiary hearing where both parties were represented by counsel. Elliott called and examined eight witnesses, each of whom testified under oath. Both parties introduced numerous documentary exhibits into evidence. Counsel for both parties made opening statements, waived closing arguments, and submitted posthearing briefs. The hearing was reported and transcribed. Finally, the hearing officer articulated the reasons for his decision in a 36-page opinion and award. In light of these factors, Elliotts attempts to challenge the quasi-judicial character of the grievance proceeding are unpersuasive. (See, e.g., CalPERS, supra, 160 Cal.App.4th at pp. 177-178, 183 [administrative proceeding conducted entirely on documentary evidence and argument quasi-judicial].)

1.Absence of Subpoena Power

Elliotts primary challenge to the nature of the grievance proceeding focuses on the absence of a provision for the subpoena of witnesses to testify at the hearing. While she correctly acknowledges that the inability to compel attendance of witnesses is not alone determinative of res judicata effect, she argues her inability to subpoena Drs. Zheng and Katz precluded her from fully and fairly litigating her claim. We disagree. In the words of Justice Kline of this courts Division Two: It is easy to say that the full and fair opportunity necessary to collateral estoppel is not that which is perfect, but not so easy to distinguish imperfect proceedings which are nonetheless acceptable from those which are not. (Smith v. ExxonMobile Oil Corp., supra, 153 Cal.App.4th at p. 1416.) Smith addressed the ramifications of an absent witness rather than an inability to compel a witness to attend, but it is nonetheless instructive. Justice Kline noted a lack of precedent on whether the inability of a defendant at a prior trial to obtain the testimony of an assertedly crucial witness so unfairly denied him a full opportunity to litigate his claim that he should not be collaterally estopped from relitigating the matter (ibid.), and our own research does not yield additional precedent. But Smith is instructive and held that the prior judgment lacked collateral estoppel effect because, under the unusual and compelling circumstances presented, the unavoidable absence of a critical witness in the earlier proceeding deprived the defendant of a full and fair opportunity to present a defense.

Elliotts inability to compel the attendance of Drs. Zheng and Katz caused no such deprivation here. Elliott argues that there were two doctors who could have testified that the amount of drugs in [her] body was entirely appropriate for her pain regimen and consistent with the prescriptions she had been given and Livermore Labs management was aware of, and could not have affected her fitness for work in any way. This would have made the for cause drug test entirely inappropriate and the decision of the arbitrator would have been entirely different. We disagree. Elliott was drug tested for cause pursuant to Laboratory policy because she held a security/safety-sensitive position and was observed by other employees to be unsteady on her feet while she was at work. Elliott later refused to sign the EAPforms that were necessary for the Laboratory to commence a fitness for duty evaluation required by the PPPM when employees test positive for drugs. The proposed testimony was irrelevant to those critical facts and was immaterial to the appropriateness of the Laboratorys decision to subject Elliott to the drug test and require her to undergo the EAP evaluation.

The hearing officer credited evidence introduced by Elliott that her physician advised the Laboratory that the levels of narcotics shown in her drug test were within the respected range of the prescription dosages. But the PPPM requires that even those employees taking prescribed substances must not be impaired while at work. The observations of Elliotts possible impairment by her coworkers furnished cause for the drug test, and the results showing narcotics present in Elliotts system warranted her referral for the fitness for duty evaluation. The doctors anticipated testimony would have had no bearing upon the significance of the observations of Elliotts coworkers or the positive test.

Elliott also relies upon Ortega v. Contra Costa Community College Dist., supra, 156 Cal.App.4th 1073, to argue that the grievance process did not afford her a full and fair hearing. But Ortega is inapposite. There, the court refused to give preclusive effect to a grievance procedure provided by a collective bargaining agreement and over which the employee union exercised significant control. (Id. at pp. 1085-1086.) Here, the Regents grievance procedures emanate from their constitutional authority to govern the affairs of the university and its employees. Those procedures also provide the employee the opportunity to vigorously participate in the claim presentation and fact-finding process. The rule and considerations that warrant it in Ortega do not apply in this case.

2. Identity of Remedies and Parties

Elliott argues the administrative decision should not be given res judicata effect because the remedies available in the administrative proceeding do not include the emotional suffering and attorney fees potentially available to her in a FEHA suit. She is mistaken. We agree with the CalPERS court that the potential to obtain more or different relief in court does not obviate the requirement to challenge administrative findings through exhaustion of judicial remedies prior to bringing a civil action. (CalPERS, supra, 160 Cal.App.4th at p. 183, citing to Campbell v. Regents of University of California, supra, 35 Cal.4th at p. 323.) In any event, the cases Elliott cites for this argument do not support it. Consumers Lobby Against Monopolies v. Public Utilities Com. (1979) 25 Cal.3d 891 holds that administrative determination of a legal, rather than factual, issue will not be given preclusive effect if injustice would result or if the public interest requires that relitigation not be foreclosed. (Id.at p. 902.) The issues collaterally estopped here were factual, not legal, and Elliott has not shown any public policy interest that requires relitigation of the grievance proceeding. People v. Damon, supra, 51 Cal.App.4th 958 is equally inapposite because it addressed a statutory scheme that the Legislature prescribed as a cumulative remedy, and it was held the administrative proceeding thus would not displace any other remedy that might exist. (Id.at pp. 970-971.) There is no such expression of legislative intent in either FEHA or the rules governing the Regents administrative procedures.

Elliotts identity of parties argument fails for a different reason. She argues that her sexual harassment claim against Judd is not precluded because he was not a party to the grievance proceeding. But all issues related to her alleged sexual harassment claim were litigated and decided against Elliott in the administrative hearing. Althoughidentity or privity of parties is generally required for claim preclusion to apply, issue preclusion will apply, assuming its other requirements are satisfied, if the party against whom it is asserted was a party to the prior proceeding. (Zevnik v. Superior Court  (2008) 159 Cal.App.4th 76, 81-82.) Elliott was indisputably such a party.

3. ElliottsOther Challenges

Elliott next asserts the administrative decision lacks binding effect because she was not informed it would be final and binding until the hearing was over and the decision rendered. But Elliott was represented by an attorney. Her counsels failure to understand and advise her of the preclusive effect of an unchallenged, adverse administrative decision does not immunize her from the operation of the well-established legal doctrines of res judicata and judicial exhaustion. Had Elliott wished to challenge the opinion and award, she was required to petition the superior court for a writ of administrative mandamus. (See, e.g., Schifando v. City of Los Angeles, supra, 31 Cal.4th at pp. 1089-1090, and citations ante, at Discussion section II.B.)[4]

Elliott relies upon another case involving the effect of an agreement between an employer and an employee organization to argue the Regents grievance process could have no binding effect. Marcario v. County of Orange (2007) 155 Cal.App.4th 397 holds that the result of a binding arbitration conducted under a memorandum of understanding (MOU) between an employees union and her employer has no preclusive effect on a claim for a statutory violation raised in a subsequent lawsuit unless the MOU expressly so provides. But Marcario expressly distinguishes the ramifications of an arbitrated decision pursuant to an MOU from the res judicata effect of administrative determinations reached by governmental agencies acting in quasi-judicial proceedings. (Id.at p. 406.) It is therefore entirely consistent with the operation of judicial exhaustion in this case. Ahmadi-Kashani v. Regents of the University of California(2008) 159 Cal.App.4th 449 is equally inapposite because it holds that a plaintiff was not bound by an adverse determination of a grievance where the grievance proceeding was not quasi-judicial in nature. (Id.at pp. 458-459.)

Elliotts remaining challenges to the res judicata effect of the opinion and award merit only brief discussion. Contrary to her contention, it is immaterial that her civil complaint was filed before, rather than after, the hearing officer issued his decision. Where two actions involving the same issue are pending at the same time, it is not the final judgment in the first suit, but the first final judgment, although it may be rendered in the second suit, that renders the issue res judicata in the other court. (Domestic & Foreign Petroleum Co. v. Long  (1935) 4 Cal.2d 547, 562; Palm Springs Paint Co. v. Arenas (1966) 242 Cal.App.2d 682, 688 [same].) None of the cases Elliott cites hold otherwise. (See Ahmadi-Kashani v. Regents of the University of California, supra, 159 Cal.App.4th 449; Schifando v. City of Los Angeles, supra, 31 Cal.4th 1074.)

Elliott argues that the enforcement of statutory employment rights such as those established by FEHA may not be abridged by the application of res judicata. But our Supreme Court rejected that position in Johnson v. City of Loma Linda, supra, 24 Cal.4th at page 76. [W]hen . . . 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. (Ibid., italics added.) Johnson also defeats Elliotts reliance on Alexander v. Gardner-DenverCo. (1974) 415 U.S. 36 and its California progeny for this point. As Johnson explains, those cases arose in and apply to the context of mandatory arbitration of contract-based claims under a collective bargaining agreement. They have no bearing on the situation presented in this case. (Johnson, supra, at pp. 75-76.)

Elliotts remaining arguments are not properly before this court because they were not preserved for appeal. She argues the Regents violated her constitutional rights to privacy and against self-incrimination when it subjected her to the drug test and required her to sign the EAP forms. She maintains the Laboratory made a series of misrepresentations that leave [the Regents] with unclean hands, which she claims would be revealed by a substantial evidence review of the administrative record. These attacks go to the merits of the administrative decision and, as such, Elliott was required to raise them in a petition for writ of administrative mandate. Because Elliott chose not to do so, the trial court correctly found her bound by the outcome of her grievance. (People v.Sims, supra, 32 Cal.3d at p. 479-482; Schifando v. City of Los Angeles, supra, 31 Cal.4th at pp. 1089-1090.) And, while the point is unnecessary to our decision, Elliotts failure to raise the unclean hands issue in opposition to summary judgment also bars its consideration in this appeal. (Saville v. Sierra College (2005) 133 Cal.App.4th 857, 872-873; North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 28-29.)

D. Summary

In summary, the administrative grievance proceeding afforded Elliott by the Regents was quasi-judicial in nature. Accordingly, Elliotts failure to exhaust her judicial remedies by attacking the outcome of the grievance proceeding through a petition for writ of mandate bars her from raising the same claims and issues in her lawsuit for discrimination, retaliation and related tort claims. The trial court correctly granted summary judgment.

Disposition

The judgment is affirmed. Respondents are entitled to recover their costs on appeal.

_________________________

Siggins, J.

We concur:

_________________________

Pollak, Acting P.J.

_________________________

Jenkins, J.

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[1] Substance testing is also required when (1) a supervisor sees an employee with illegal drugs or alcohol at work; or (2) the employee is involved in a work-related accident where there is cause to believe that controlled substances or alcohol may have been a contributing factor.

[2] Without citation to the record, Elliott asserts the Laboratorys internal grievance procedure is not quasi-judicial because the Laboratory is currently managed by Lawrence Livermore National Security, LLC, rather than the Regents. The claim is baseless. At all times relevant to these events the Regents managed the Laboratory.

[3] Court decisions and legal commentators often refer generally to res judicata, without distinguishing between these two aspects. (People v. Damon (1996) 51 Cal.App.4th 958, 968.) Unless the differences between the two are relevant to our analysis, we will follow that practice.

[4] Elliotts related assertion that the Regents affirmatively misrepresented that the grievance procedure would be no more than a blip in the progress of the case, that discovery would resume, and that the main attribute of the grievance procedure was to induce settlement is unsupported by the record.