Beware of Issue Preclusion!

In a procedurally messy FEHA case, the Ninth Circuit Court of Appeals held that issue preclusion applied to bar plaintiff’s lawsuit charging discrimination and harassment based on perceived disability.

Plaintiff was a police officer for the Pasadena Police Department. Plaintiff was afflicted with multiple sclerosis. Plaintiff was initially fired for carrying-on with a known drug dealer, who just happened to be her child’s father.

White I

Plaintiff filed a grievance. After a grievance hearing, plaintiff was reinstated.

Not satisfied with being reinstated, she sued the Pasadena PD for, among other things, disability discrimination and harassment under FEHA.

The case went to trial, the jury returned a verdict finding partially for plaintiff and partially for defendant. The jury found that the Pasadena PD did not engage in disability discrimination. Plainitff appealed, and lost.

White II

Plaintiff shot herself in the face. The Pasadena PD and the Los Angeles County Sheriff’s Department investigated the shooting and concluded that plaintiff had attempted suicide. Plaintiff contended that she was shot when she was struggling with another person who was trying to kill himself.

Pasadena PD, figuring that plaintiff gave false statements in the investigation, fired her again.

The case went to arbitration, which allowed both parties to make opening statements, call witnesses, offer evidence and file briefs. The arbiter concluded that plaintiff should be reinstated. The city manager disagreed and upheld plaintiff’s termination.

Plaintiff filed a writ of mandamus with the California Superior Court. That did her no good because the Court agreed with the Pasadena PD.

Plaintiff appealed that to the Court of Appeals, and lost again.

White III

Sue-happy plaintiff sued Pasadena PD again. This time, she sued for disability discrimination based on defendant’s perception that plaintiff had a disability. She also threw in some other causes of action, including a 42 USC § 1983 claim, which got her case promptly removed to federal court.

When plaintiff filed White III, White I and White II were still pending.

The district court, seeing the pending Whites I & II, dismissed White III figuring that Whites I & II would probably have a preclusive effect on White III.

Lost yet? Keep reading.

Plaintiff appealed White III.

The Court held that White I precludes plaintiff’s action for disability discrimination and harassment based on perceived disabilities. Remember, the White I jury found that the Pasadena PD did not engage in disability discrimination and in White III, plaintiff simply realleged the same allegations.

The Court held that White II precludes plaintiff’s action that the Pasadena PD did not have adequate justification for terminating plaintiff or that the PD’s reason for termination was simply pretext for a “retaliatory intent.” The court concluded that the hearing met the criteria set forth in Lucido v. Superior Court, 51 Cal.3d 335 (1990) to establish issue preclusion:

  • the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding
  • the issue to be precluded must have been actually litigated in the former proceeding
  • the issue to be precluded must have been necessarily decided in the former proceeding
  • the decision in the former proceeding must be final and on the merits
  • the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding
  • application of issue preclusion must be consistent with the public policies of preservation of the integrity of the judicial system, promotion of judicial economy, and protection of litigants from harassment by vexatious litigation.

The arbitration conducted in White II had sufficient “judicial character” to pass muster under Lucido and therefore the issues litigated at the arbitration could not be re-litigated in federal court.

Case dismissed! Finally.

Counsel should always be aware of issue preclusion. Counsel should also choose his or her battles carefully.

White v. City of Pasadena, 671 F.3d 918 (2012).

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