Jeffrey Church v. City of Reno , 610 F. App'x 636 ( 2015 )

FILED
JUL 24 2015
MOLLY C. DWYER, CLERK
NOT FOR PUBLICATION U.S. COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEFFREY D. CHURCH, No. 13-16062
Plaintiff - Appellant, D.C. No. 3:12-cv-00601-RCJ-VPC
v.
MEMORANDUM*
CITY OF RENO; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Argued and Submitted July 8, 2015
San Francisco, California
Before: GRABER and WATFORD, Circuit Judges, and FRIEDMAN,** District
Judge.
The district court correctly dismissed Jeffrey Church’s First Amended
Complaint, which alleged a hostile work environment claim under the Uniformed
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Paul L. Friedman, District Judge for the U.S. District
Court for the District of Columbia, sitting by designation.
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Services Employment and Reemployment Rights Act of 1994 (USERRA), 38
U.S.C. § 4311(a). Church’s action is barred by the doctrine of claim preclusion.
In 2003, Church filed suit against the City of Reno, alleging that the City
tolerated a hostile work environment that resulted in Church’s constructive
discharge under Nevada law. The district court granted summary judgment in
favor of the City, and we affirmed. Church v. Berry, 275 F. App’x 678 (9th Cir.
2008) (unpublished). At the time, no precedent precluded Church from asserting a
hostile work environment claim under USERRA. In fact, in an earlier appeal
involving Church, we expressly declined to resolve whether such a claim could be
asserted under USERRA. Church v. City of Reno, 168 F.3d 498, 1999 WL 65205,
at *1 (9th Cir. 1999) (unpublished). And other circuits had recognized the
possibility that hostile work environment claims could be brought under USERRA.
See Miller v. City of Indianapolis, 281 F.3d 648, 652-53 (7th Cir. 2002); Yates v.
Merit Sys. Prot. Bd., 145 F.3d 1480, 1484 (Fed. Cir. 1998).
Church’s USERRA claim in this action is barred by the doctrine of claim
preclusion because: (1) it arises out of the “same transactional nucleus of facts” as
his 2003 action; (2) it concerns the infringement of the same right asserted in his
2003 action; (3) it relies upon the same evidence presented in his 2003 action; and
(4) the City’s rights established in the 2003 action would be “destroyed or impaired
Page 3 of 3
by the prosecution of [this action].” Littlejohn v. United States, 321 F.3d 915, 920
(9th Cir. 2003) (internal quotation marks omitted). Claim preclusion forecloses a
plaintiff from pursuing grounds for recovery that “could have been asserted in a
previous action between the same parties on the same cause of action, even if such
contentions were not raised.” Id. Because Church failed to allege a hostile work
environment claim under USERRA in his 2003 action, he is precluded from
asserting the claim now.
AFFIRMED.