Atkerson v. Imperial Irrigation Dist.
Filed 5/16/06 Atkerson v. Imperial Irrigation Dist. CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
FRANKLIN ATKERSON, Plaintiff and Appellant, v. IMPERIAL IRRIGATION DISTRICT, Defendant and Respondent. | D047032 (Super. Ct. No. ECU01623) |
APPEAL from a judgment of the Superior Court of Imperial County, Jeffrey B. Jones, Judge. Affirmed.
In this employment discrimination case under the California Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.), plaintiff Franklin Atkerson appeals a summary judgment for defendant Imperial Irrigation District (IID). Atkerson contends the court erred by finding the decision of IID's Board of Directors (the Board) that his employment was terminated for a valid reason has collateral estoppel effect because he failed to challenge the decision in a petition for a writ of administrative mandamus (Code Civ. Proc.[1], § 1094.5). Atkerson asserts the criteria for applying collateral estoppel are unmet, as the Board's procedure denied him a fair hearing and it did not adjudicate the
FEHA discrimination claims and related breach of contract claim he alleges in this suit. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
IID employed Atkerson for approximately 21 years and it considered him a permanent employee. At the relevant time his job duties as a communications technician required him to drive approximately 1,200 miles per month.
In December 2002 Tony Allegranza, Atkerson's supervisor, noticed his speech was rambling and slurred and he appeared groggy. IID knew Atkerson had been involved in a car accident in Texas, and as a result he suffers panic attacks and is under the care of a psychiatrist who has prescribed medication. The psychiatrist advised IID that Atkerson should not work at night, and IID unsuccessfully asked the psychiatrist to verify that Atkerson's medication would not impair his driving. IID then directed Atkerson to see another psychiatrist for a fitness for duty examination, and pending the examination Atkerson was on paid leave. IID terminated Atkerson's employment on February 18, 2003, after he refused to see the psychiatrist.
Atkerson filed a grievance with IID and three levels of staff reviewed his termination. He was then entitled to a hearing before the Board, and it had the discretion to uphold, overturn or mitigate the discipline management imposed. The Board conducted an evidentiary hearing on June 30, 2003, and further considered the matter on August 19, 2003. Atkerson was represented by counsel and he was entitled to submit evidence. No witnesses were sworn in, however, and Atkerson was not advised of any right of discovery from IID.
The Board issued its written decision on September 2, 2003, upholding his firing as properly based on his refusal to attend the psychiatrist appointment. The Board rejected Atkerson's argument IID violated the Americans with Disabilities Act (ADA) by singling him out for a referral to a psychiatrist. The Board explained: " Given Allegranza's observations, the Board finds that in the absence of clarification from [Atkerson's] treating psychiatrist, it was not unreasonable to attempt to obtain the information from another source."
Atkerson did not challenge the Board's decision by petitioning for a writ of administrative mandate (§ 1094.5) in the superior court. Rather, he filed a discrimination claim against IID with the California Department of Fair Employment and Housing (DFEH). The DFEH eventually notified Atkerson it had closed his case and issued a " right to sue" letter.
Atkerson then filed a complaint against IID that contained two causes of action for violation of FEHA and a related cause of action for breach of contract. As to the discrimination claims, the first amended complaint alleged IID " has embarked on a conscious policy" to discharge disabled, aged and long-term employees " to lower its employee expenses such as medical and worker's compensation insurance." The breach of contract claim alleged that under a partly oral and partly written contract Atkerson " was entitled to a work environment free of 'unlawful discrimination[,]' " and his employment would not be terminated without good cause. Atkerson sought " back pay, front pay, retirement, insurance and medical benefits and other monetary relief according to proof."
IID moved for summary judgment, arguing Atkerson's suit is barred by his failure to exhaust judicial remedies through an administrative writ proceeding under section 1094.5. The court granted the motion on March 21, 2005. Atkerson then moved for a new trial. The court denied his motion, but vacated its order granting summary judgment and ordered the parties to submit additional briefing. After they complied, the court again granted IID's summary judgment motion. The court found the Board's hearing was quasi-judicial in nature, and because Atkerson did not exhaust his judicial remedies by challenging the finding in a petition for an administrative writ of mandate, the Board's decision is binding under collateral estoppel principles. Judgment was entered for IID on August 15, 2005.
DISCUSSION
I
Standard of Review
A " party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he [or she] is entitled to judgment as a matter of law." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant satisfies this burden by showing " 'one or more elements of' the 'cause of action' in question 'cannot be established,' or that 'there is a complete defense' " to that cause of action. (Ibid.) If the defendant meets his or her initial burden, " the opposing party is then subjected to a burden of production of his [or her] own to make a prima facie showing of the existence of a triable issue of material fact." (Ibid.) " De novo review is used to determine whether, as a matter of law, summary judgment was appropriately granted." (Camarillo v. Vaage (2003) 105 Cal.App.4th 552, 560.)
II
Exhaustion of Judicial Remedies/Collateral Estoppel
A
" The courts have repeatedly held that administrative writ of mandate provided for in section 1094.5[[2]] is the appropriate remedy for the purpose of inquiring into the validity of any final administrative agency decision made as the result of a proceeding which by law requires a hearing, evidence to be considered, and a discretionary determination of fact vested in an inferior tribunal." (Logan v. Southern Cal. Rapid Transit Dist. (1982) 136 Cal.App.3d 116, 123.) " Mandamus is available if a hearing is required by . . . an organization's internal rules and regulations." (Pomona College v. Superior Court (1996) 45 Cal.App.4th 1716, 1727, fn. 10.) It is undisputed that the Board's hearing was required by law and the hearing was quasi-judicial.
In granting IID summary judgment, the trial court relied on Johnson v. City of Loma Linda (2000) 24 Cal.4th 61 (Johnson). In Johnson, the City of Loma Linda (the City) eliminated the plaintiff's position as assistant manager, and the personnel board rejected his grievance, finding the City did not violate any discrimination laws and acted for financial reasons. The plaintiff did not petition for a writ of mandate, and instead brought a tort action against the City for FEHA violations.
The California Supreme Court held the action was barred because " [p]laintiff's FEHA claim that his discharge was for discriminatory reasons is at odds with the preceding determination by the City that the termination was for economic reasons, a finding that . . . is now binding." (Johnson, supra, 24 Cal.4th at p. 71.) The court explained that exhaustion of judicialremedies " is necessary to avoid giving binding 'effect to the 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.' " (Id. at p. 70, citing Briggs v. City of Rolling Hills Estates (1995) 40 Cal.App.4th 637, 646.) Further, 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." (Johnson, supra, at p. 72.)[3]
In Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074 (Schifando), the court held employees are not required to exhaust employers' internal grievance procedures before filing FEHA actions. It concluded the " benefits of judicial economy, agency expertise, and potential for swift 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." (Id. at p. 1089.)
The court explained in Schifando that its holding in Johnson " does not militate against this conclusion" (Schifando, supra, 31 Cal.4th at pp. 1089-1090), as Johnson " serve[s] 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. . . . 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. . . . [T]o 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,at pp. 1090-1091.)
Atkerson contends summary judgment was improper because IID's separate statement did not show the criteria for applying collateral estoppel were met, particularly that the Board acted in a judicial capacity. In Johnson, the court approvingly cited People v. Sims (1982) 32 Cal.3d 468, and United States v. Utah Constr. Co. (1966) 384 U.S. 394, 422 (Utah). (Johnson, supra, 24 Cal.4th at p. 71, fn. 3.) In Sims, the court explained " '[c]ollateral 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 . . . .' " (Sims, at p. 479, citing Utah, supra, 384 U.S. at p. 422.) Sims explained that " [t]o ascertain whether an agency acted 'in a judicial capacity,' the federal courts have looked for factors indicating that the administrative proceedings and determination possessed a 'judicial character.' " (Sims, at p. 479.) Those factors include a judicial-like adversary proceeding; the submission of testimony under oath; the opportunity to call, examine and cross-examine witnesses and introduce documentary evidence; a verbatim reporting of the proceedings and a written decision. (Id. at pp. 479-480.) In sum, the parties must be allowed a fair adversary proceeding. (Id. at p. 481; see also Imen v. Glassford (1988) 201 Cal.App.3d 898, 906-907.) Atkerson asserts Johnson is inapplicable, as there the plaintiff did not challenge the fairness of the administrative hearing. (Johnson, supra, 24 Cal.4th at p. 71, fn. 3.)
IID presented no evidence the Board's hearing was satisfactory, and indeed, it conceded that witnesses were not given an oath of truthfulness and Atkerson was not given the right of discovery. Atkerson asserts " the burden of sworn testimony is so slight as to be considered a minimum requirement." It was not IID's burden on summary judgment, however, to produce evidence the Board's procedure met all " judicial capacity" requirements.
In Holder v. California Paralyzed Veterans Association (1980) 114 Cal.App.3d 155 (Holder), the plaintiff alleged the administrative hearing was so defective as to deny him fundamental due process. The plaintiff was not allowed to confer with his attorney, who was required to wait in the hall; the witnesses were not sworn in; the hearing was not transcribed by a certified reporter and he was not given the chance to review documentary evidence. (Id. at p. 158.) The court held that under Westlake, supra, 17 Cal.3d 465, the plaintiff's lawsuit was barred because he did not seek review under section 1094.5. It explained that " such a procedural defect is a common ground for issuance of a writ of mandate invalidating a quasi-judicial decision. The opinion in Westlake contemplates such a basis for a favorable termination of a mandate proceeding, by saying [citation]: '[O]nce a court determines in a mandamus proceeding that an association's quasi-judicial decision cannot stand, either because of a substantive or procedural defect, the prevailing party is entitled to initiate a tort action. . . .' " (Holder,at p. 164.) " The existence of such an issue makes even more appropriate the 'uniform practice of judicial, rather than jury, review of quasi-judicial administrative decisions' [citation], the preservation of which appears to be a major basis for the Westlake doctrine." (Ibid.) IID cites the Holder opinion, but Atkerson ignores it.
IID's initial burden on summary judgment was to show Atkerson invoked his right to an administrative hearing, the Board issued a decision finding his employment was terminated for a valid reason and he failed to seek appropriate review of that decision. IID met its burden, and Atkerson then did not raise any triable issue of material fact.[4] Indeed, it appears he could not do so given his failure to seek writ relief. Had Atkerson petitioned for a writ of administrative mandate, the trial court could have ordered the Board to conduct a proper administrative hearing (see Hackethal v. Loma Linda Community Hosp. Corp. (1979) 91 Cal.App.3d 59, 62, 67), or it could have determined the Board proceeding had no preclusive effect because its procedure was inadequate.
C
Atkerson further contends collateral estoppel is inapplicable because IID did not show in its separate statement that the Board adjudicated his FEHA claims and related breach of contract claim.
As the court explained in Lucido v. Superior Court (1990) 51 Cal.3d 335, " [c]ollateral estoppel precludes relitigation of issues argued and decided in prior proceedings. [Citation.] Traditionally, we have applied the doctrine only if several threshold requirements are fulfilled. First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits." (Id. at p. 341, fn. omitted.) " Not only does the issue previously litigated have to be identical, no aspect of what was decided in the previous proceeding can be left to conjecture." (Bronco Wine Co. v. Frank A. Logoluso Farms (1989) 214 Cal.App.3d 699, 709.)
Atkerson essentially submits that the relevant " issue" for purposes of collateral estoppel is the disability and age discrimination he alleges in his first amended complaint. He argues Johnson is inapplicable because there,the City's personnel board specifically found the City did not violate any discrimination laws by eliminating the plaintiff's assistant manager position. (Johnson, supra, 24 Cal.4th at p. 76.) Here, in contrast, there is no evidence the Board adjudicated any FEHA or related contract claims. IID asserts the relevant " issue" is the propriety of Atkerson's termination, and the Board's unchallenged decision the termination was for a proper reason is fatal to this action. We agree with IID.
The " doctrine of collateral estoppel depends on what issues are adjudicated, not the nature of the proceeding or the relief requested. [Citation.] If the rule were otherwise, 'litigation finally would end only when a party ran out of counsel whose knowledge and imagination could conceive of different theories of relief based on the same factual background.' " (Lumpkin v. Jordan (1996) 48 Cal.App.4th 1223, 1231.) " To determine the scope of causes of action, California courts employ the 'primary rights' theory. Under this theory, the underlying right sought to be enforced determines the cause of action. (Takahashi v. Board of Education (1988) 202 Cal.App.3d 1464, 1474 (Takahashi).) In determining the primary right, the significant factor is the harm suffered as opposed to the plaintiff's theory of recovery. (Ibid.; Neil Norman, Ltd. v. William Kasper & Co. (1983) 149 Cal.App.3d 942, 947.)
" [I]t is settled that even though the causes of action be different, the prior determination of an issue is conclusive in a subsequent suit between the same parties as to that issue and every matter which might have been urged to sustain or defeat its determination." (Pacific Mut. Life Ins. Co. v. McConnell (1955) 44 Cal.2d 715, 724-725.) " 'If the matter was within the scope of the action, related to the subject-matter and relevant to the issues, so that it could have been raised, the judgment is conclusive on it despite the fact that it was not in fact expressly pleaded or otherwise urged.' " (Warga v. Cooper (1996) 44 Cal.App.4th 371, 377-378, italics omitted.) " '[A]n issue may not be . . . split into pieces.' " (Id. at p. 378.)
When a terminated employee seeks redress, the primary right, or " issue" for collateral estoppel purposes, is the right of employment. (Takahashi, supra, 202 Cal.App.3d at pp. 1474-1476.) In Takahashi, a tenured teacher unsuccessfully challenged her termination in an administrative proceeding under one theory, which was upheld by the courts, and later attempted to challenge the termination in a superior court action under FEHA discrimination theories. The plaintiff appealed a summary judgment for the defendants, contending collateral estoppel was inapplicable because she did not assert violation of the same rights in the two actions. The Court of Appeal rejected the contention, noting " plaintiff specifically alleges that each act complained of caused the dismissal . . . or was a consequence of the termination . . . , part and parcel of the violation of the single primary right, the single harm suffered." (Id. at p. 1476.)[5]
Here, Atkerson's discrimination claims are not based on the infringement of a separate primary right. In both the administrative proceeding and this action, Atkerson alleged IID wrongfully terminated his employment. The first amended complaint alleged he was harmed by the loss of salary and other benefits he would have received had he not been wrongfully terminated, and he sought reinstatement in addition to damages. As the plaintiff in Takahashi, absent the termination of employment, Atkerson suffered no harm. (Takahashi, supra, 202 Cal.App.3d at p. 1476.) For reasons of judicial economy and respect for the administrative process, he could not split his wrongful termination cause of action and pursue it in different forums under different theories.
Atkerson submitted his declaration, which stated, " At the time of my discharge, I was unaware of . . . IID's practice of singling out employees over 40 years of age for discharge." The declaration does not pertain to his knowledge after the discharge, but to any extent it suggests the lack of discovery from IID prevented Atkerson from bringing FEHA claims before the Board[6], it does not raise a triable issue of material fact. Again, it was incumbent on Atkerson to raise procedural issues, including the lack of discovery rights, in a petition for writ of administrative mandamus. He could not ignore inadequate procedures and later opt for a jury trial on damages. (Logan v. Southern Cal. Rapid Transit Dist., supra, 136 Cal.App.3d at pp. 123-124.)
DISPOSITION
The judgment is affirmed. IID is entitled to costs on appeal from Atkerson.
McCONNELL, P. J.
WE CONCUR:
HUFFMAN, J.
McDONALD, J.
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[1] Statutory references are to the Code of Civil Procedure unless otherwise specified.
[2] Section 1094.5 (a) provides in part: " (a) Where the writ is issued for the purpose of inquiring into the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer, the case shall be heard by the court sitting without a jury. All or part of the record of the proceedings before the inferior tribunal, corporation, board, or officer may be filed with the petition, may be filed with the respondent's points and authorities, or may be ordered to be filed by the court. . . . [¶] (b) The inquiry in such a case shall extend to the questions whether the respondent has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence."
[3] In Johnson's precursor, Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465 (Westlake), the California Supreme Court held " that whenever a hospital, pursuant to a quasi-judicial proceeding, reaches a decision to deny staff privileges, an aggrieved doctor must first succeed in setting aside the quasi-judicial decision in a mandamus action before he [or she] may institute a tort action for damages." (Westlake, supra, at pp. 469, 484.) " [O]nce the hospital's quasi-judicial decision has been found improper in a mandate action, an excluded doctor may proceed in tort against the hospital, its board or committee members or any others legally responsible for the denial of staff privileges." (Id. at p. 469.) The court explained the " requirement accords a proper respect to an association's quasi-judicial procedure, precluding an aggrieved party from circumventing the established avenue of mandamus review. In addition, this result will simplify court procedures by providing a uniform practice of judicial, rather than jury, review of quasi-judicial administrative decisions." (Id. at p. 484.)
[4] Atkerson asserts IID was not entitled to summary judgment because its separate statement " contains no finding that [he] was properly discharged for a willful refusal to attend an ordered medical examination." The separate statement provides that the Board found the " discipline imposed on [Atkerson] . . . arose from his refusal to attend the doctor's appointment." IID submitted a copy of the Board's decision, which provides the " instant discipline arises from [his] refusal to attend the doctor's appointment." Atkerson submits that " the finding merely addresses the origin of the discharge, rather than the reason for the discharge." (Original emphasis.) The only reasonable conclusion that may be drawn from the Board's decision, however, is that it found Atkerson was properly fired for refusing to attend the appointment.
[5] Neither party cites Takahashi.
[6] Atkerson asserts " the right to subpoena witnesses would be important if an employee argued she was unable to present her case because of the absence of an essential witness."
