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

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KARIN WHITE, an individual, 
Plaintiff-Appellant,
v. No. 08-57012
D.C. No.
CITY OF PASADENA, a governmental
entity; CITY OF PASADENA POLICE  2:08-cv-03390-R-
DEPARTMENT, a governmental JWJ
entity; BERNARD K. MELEKIAN, an OPINION
individual,
Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued March 2, 2010
Submitted January 5, 2012
Pasadena, California
Filed January 17, 2012
Before: William C. Canby, Jr., Ronald M. Gould, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Ikuta
325
328 WHITE v. CITY OF PASADENA
COUNSEL
Richard A. Love, Esq., Kathleen M. Erskine, Esq., Law
Offices of Richard A. Love, Los Angeles, California, for
plaintiff-appellant Karen White.
Richard R. Terzian, Esq., Robert J. Tyson, Esq., Burke, Wil-
liams & Sorensen, LLP, Los Angeles, California, for
defendants-appellees City of Pasadena, et al.
OPINION
IKUTA, Circuit Judge:
After her first termination from the City of Pasadena Police
Department and subsequent reinstatement, Karin White
brought a lawsuit in state court claiming that she had been
discriminated against and harassed by the City due to its per-
WHITE v. CITY OF PASADENA 329
ception that she had a disability. After her second termination,
she reiterated her discrimination and harassment claims in an
administrative proceeding, where she also argued that the ter-
mination was retaliatory. Both of White’s actions resulted in
a decision in favor of the City. White now brings claims in
federal court based on the same theories litigated in state pro-
ceedings. We conclude that California principles of issue pre-
clusion prevent us from reaching these issues here.
I.
The lengthy course of litigation at issue in this case began
with the City’s attempted termination of White in 2004. The
City had hired White as a police officer in 1996. Two years
later, White was diagnosed with relapsing/remitting multiple
sclerosis, which her doctor said would not limit her perfor-
mance of her official duties. In November 2004, the City ter-
minated White for allegedly associating with a known drug
dealer (who was also the father of her son) and for lying to
the department about her relationship with him. The City
based this decision on telephone recordings between the drug
dealer and White, which had been obtained through a wiretap
of the drug dealer’s phone. White challenged the termination
by pursuing a grievance proceeding, as allowed under the
Memorandum of Understanding (MOU) between the City of
Pasadena and the Pasadena Police Officer’s Association. The
arbiter issued an advisory opinion concluding that the City
had violated state and federal wiretap laws in recording her
conversations, and the City’s disciplinary action was barred
by the applicable one-year limitations period. See Cal. Gov.
Code § 3304(d). After receiving this ruling, the City rein-
stated White on the statute of limitations ground. White
returned to work as a police officer on July 15, 2005.
A
White filed the first action at issue in this case in December
2005 (“White I”). White’s complaint, filed in the state supe-
rior court, alleged that:
330 WHITE v. CITY OF PASADENA
defendants entered into a pattern or plan of discrimi-
nation and harassment against plaintiff by attempting
to force plaintiff to resign, or to terminate plaintiff,
from employment due to the incorrect assumption or
perception, and prejudice, by defendants that plain-
tiff suffered from or had or suffered from a disability
due to the November, 1998 Multiple Sclerosis flare
up and diagnosis.
She also alleged that the department had illegally used tape-
recorded conversations in the internal affairs investigation
that led to her November, 2004 termination. Finally, she
alleged that the City’s discrimination and harassment based
on her perceived disabilities had continued after her return to
work and constituted a continuing violation. Among other
things, she claimed that she had been removed from the “cov-
eted position” of Community Outreach, was not reinstated,
and was subjected “to further discrimination and harassment
by her superiors in their criticism, critique, and evaluation of
her job performance, and unfounded disciplinary actions.”
According to White, all of these actions amounted to “dis-
crimination based upon a perceived physical disability,” and
unlawful harassment based on an actual or perceived disabil-
ity, both of which violated the California Fair Employment
and Housing Act (FEHA). See Cal. Gov. Code §§ 12926(l)
(defining “physical disability”), 12940(a) (generally making it
an “unlawful employment practice” to discriminate on the
basis of physical disability); Cal. Gov. Code §§ 129240(j)(1)
(making it unlawful to harass an employee because of a dis-
ability). In addition to these two FEHA causes of action, she
alleged that the City’s use and disclosure of wiretaps record-
ing her conversations with the drug dealer violated her right
to privacy under California law. See Cal. Penal Code §§ 631,
637.2.
On April 2, 2007, after a lengthy trial, the jury returned a
special verdict finding that the City did not “take an adverse
WHITE v. CITY OF PASADENA 331
employment action against [White] based on its knowledge or
belief that she had a disability,” and that White was not “sub-
jected to unwanted harassing conduct by a supervisor . . .
because she was believed to have a disability.” The jury also
found that the City had illegally used “conversations, which
had been tape recorded without [White’s] consent, to initiate
an internal investigation into the conduct of [White],” that the
use of these conversations was a “substantial factor in causing
harm” to White, and that White had suffered $1,000,000 in
damages as a result. The trial court denied White’s discrimi-
nation and harassment claim under FEHA, but trebled the
damages award for her right to privacy claim under the appli-
cable statute, and entered judgment for White in the amount
of $3,000,000.
Both the City and White appealed. The California Court of
Appeal rejected White’s appeal from the jury verdict against
her on the disability discrimination cause of action. White v.
City of Pasadena, No. B200594, 2009 WL 1234094, at *1
(Cal. Ct. App. May 7, 2009). The court also reversed the ver-
dict as to White’s privacy claims, holding that the City was
immune from civil liability for invasion of privacy. Id. at *6;
see Cal. Gov. Code § 821.6. The California Supreme Court
denied White’s petition for review on August 12, 2009.
B
On June 25, 2006, before trial began in White I, White was
shot in the face in her home. As subsequently explained by
the California Court of Appeal, “[t]he only other person pres-
ent was her 18-year old son, Kamron Williams.” White v. City
of Pasadena, No. B221687, 2011 WL 3130626, at *1 (Cal.
Ct. App. July 26, 2011). The son “told the 911 operator, as
well as deputies who arrived on the scene, that his mother had
shot herself.” Id. at *1. White “denied having attempted sui-
cide, and told a sheriff’s investigator that she had been acci-
dentally shot while struggling with Williams in an attempt to
prevent him from shooting himself.” Id. Both the Los Angeles
332 WHITE v. CITY OF PASADENA
Sheriff’s Department and the Pasadena police department
conducted investigations of the incident; both concluded that
White had attempted suicide. The City adopted this conclu-
sion and thereupon ruled that White had made false state-
ments about the shooting incident to the Sheriff’s Department
and the police department. The City terminated White on
August 30, 2007 on this basis.
White again pursued an administrative appeal of her termi-
nation. These administrative proceedings, and their subse-
quent review on a writ of mandamus, constitute the second
action at issue in this case (“White II”). Under the terms of the
MOU, if an employee cannot resolve a grievance with the
employee’s immediate supervisor or department head, the
employee is entitled to advisory arbitration. The employee
(and employer) may submit issues to an arbiter, who holds a
hearing where parties can introduce witnesses and documents.
Following the hearing, the arbiter prepares a written advisory
opinion “which shall not be binding on either party, and shall
be limited to the issue, or issues, presented to the arbiter.”
That advisory opinion is sent to the City Manager, who makes
the final decision as to what action, if any, the City will take.
The employee is entitled to representation throughout the
grievance process.
In White’s administrative appeal of the second termination,
the parties submitted briefs in October 2008, and the adminis-
trative hearing commenced in November. The arbiter defined
the issues before him as:
1. Was there just cause to terminate Karin White’s
employment with the City?
2. Was the [Police] Department’s action timely
under Government Code § 3304(d)?
3. If the answer to either question is no, what is the
appropriate remedy?
WHITE v. CITY OF PASADENA 333
Both White and the City made opening statements, called wit-
nesses, admitted exhibits, and filed closing briefs. During the
hearing, White introduced evidence that the City’s investiga-
tion and her termination were in retaliation for the White I
lawsuit.
In his written advisory opinion, the arbiter stated that the
key question with respect to the “just cause” issue was
whether the City carried its burden of proving that White
attempted to commit suicide. The arbiter ultimately concluded
that the City did not carry its burden of proof on this issue,
and that White had been “the victim of a sloppy and biased
investigation and report.” In light of this determination, the
arbiter stated that he could not “reach a conclusion that White
was the victim of retaliation” by the Chief of Police. The arbi-
ter also found that the City’s termination of White was
untimely under state law. See Cal. Gov. Code § 3304(d). The
arbiter therefore recommended that White be reinstated with
full back pay and benefits.
As required in the MOU, the arbiter’s advisory opinion,
along with a transcript of the proceedings, was sent to the City
Manager. In a separate written opinion, the City Manager
stated that he had made an independent review of the “entire
record in this matter, including the advisory opinion, tran-
script, admitted exhibits and closing briefs of both sides.” On
the basis of this review, the City Manager upheld the decision
to terminate White. The opinion set forth the City Manager’s
analysis of the evidence adduced at trial, and provided the
City Manager’s reasons for concluding that the City had car-
ried its burden of proving that White attempted to kill herself.
With respect to White’s claims that the City’s disciplinary
action was retaliatory, the opinion stated that these claims
were “not persuasive.” Among other things, the opinion
explained, “[t]he independent Sheriff’s Department and their
investigators would need to be part of the retaliation for Ms.
White’s theory to be true,” and there was no support in the
record for such a claim. The City Manager also concluded
334 WHITE v. CITY OF PASADENA
that the discipline was timely, and not barred by the statute of
limitations.
White sought review of the administrative decision by fil-
ing a writ of mandamus with the California Superior Court
pursuant to section 1094.5 of the California Civil Procedure
Code. The California Superior Court reviewed the evidence,
exercising its independent judgment, and concluded that the
City had just cause to terminate White. Specifically, the court
found that the evidence that White shot herself was stronger
than the evidence supporting White’s version of events.
Accordingly, the court denied the petition for mandate.
White appealed the state trial court’s decision to the Cali-
fornia Court of Appeal, which upheld the City Manager’s
decision after reviewing the history of White’s dispute with
the City. White II, 2011 WL 3130626. First, the appellate
court determined that the discipline imposed on White had not
been barred by the statute of limitations. Id. at *9-14. Second,
the appellate court determined that substantial evidence sup-
ported the trial court’s finding that the evidence more strongly
supported the City’s version of events, and therefore affirmed
the Superior Court’s decision. Id. at *15-17
White did not seek review of the decision by the California
Supreme Court, and the decision therefore became final on
August 25, 2011.
C
On May 2, 2008, while White I was on appeal, and the
administrative proceedings in White II challenging White’s
second termination were still pending, White filed a second
complaint against the City in California Superior Court
(“White III”). The complaint alleged that defendants “entered
into a pattern or plan of discrimination and harassment against
plaintiff by attempting to force plaintiff to resign, or to termi-
nate plaintiff from employment with defendants” due to a per-
WHITE v. CITY OF PASADENA 335
ception that plaintiff had a disability.1 According to the
complaint, the City’s plan included illegally wiretapping her
conversations in order to have a basis for its first termination.
These factual allegations were largely identical to those in
White I.
The complaint also alleged that the City’s plan included the
August 30, 2007 termination of her employment based on its
false allegations that she attempted to commit suicide and lied
to the law enforcement agencies investigating the incident.
Further, the complaint alleged that the City’s conduct, includ-
ing the August 30, 2007 termination, was motivated by retali-
ation for White’s legal actions against the City in White I,
including her disclosure of the City’s violation of wiretap
laws. White alleged that the City’s plan to remove her from
her position is a continuing violation.
Based on these factual allegations, the complaint asserted
five causes of action. First, it asserted a cause of action for
employment discrimination on the basis of White’s perceived
disabilities in violation of FEHA, and a separate cause of
action for harassment on the same basis. Second, the com-
plaint asserted three causes of action based on the allegation
that the City’s improper conduct was retaliatory. The com-
plaint asserted causes of action for a violation of FEHA based
on the City’s alleged retaliation against White for her suit
against the City, a violation of section 1102.5 of the Califor-
nia Labor Code based on the City’s alleged retaliation against
White for disclosing the City’s violation of wiretap laws, and
a claim under 42 U.S.C. § 1983 for putative violations of
White’s First and Fourteenth Amendment rights, based on the
City’s alleged retaliation in response to White’s civil actions.
1
Unlike White I, this complaint alleged that the City’s perception of dis-
ability was based not only on her 1998 multiple sclerosis diagnosis, but
also on certain orthopedic injuries that occurred in 1998 and 2002. White
does not argue on appeal that the complaint’s allegation that the City had
another reason for erroneously perceiving her to be disabled affects our
analysis, and therefore we do not consider it here.
336 WHITE v. CITY OF PASADENA
In light of White’s § 1983 claim, the City removed White
III to federal court on May 22, 2008. The City then moved to
dismiss or stay the action pending the outcome of her appeal
in White I and the administrative proceedings relating to her
second termination. In November 2008, the district court dis-
missed White III without prejudice, noting that the pending
state proceedings would likely have a preclusive effect on the
White III litigation.
White filed her notice of appeal on December 13, 2008. On
appeal, the City argued that White’s claims arising from her
first termination could not be relitigated, because they had
already been decided in White I. Further, the City asserted that
any claims arising from White’s second termination were pre-
mature, because White had not yet exhausted her state law
remedies in litigating White II.
On March 2, 2010, we stayed the appeal in White III pend-
ing the final outcome of White II. After the state appellate
court ruled in favor of the City in White II, the parties pro-
vided supplemental briefing on that decision’s preclusive
effect. White asserts that we need not consider the effect of
claim preclusion on her appeal of White III because White II
does not have preclusive effect, and the claims in White III are
not the same as the claims in White II. Further, White asserts
that issue preclusion is not applicable because the issues in
White III are not identical to the issues in White II, and the
claims in the two actions involve different legal standards. In
contrast, the City argues that White I and White II preclude all
the claims and issues in White III, which must therefore be
dismissed. In light of this additional briefing, we now con-
sider the preclusive effect of White I and II on the current fed-
eral proceedings.
II.
We begin by considering the framework for analyzing
when a state court decision has a preclusive effect on a federal
proceeding.
WHITE v. CITY OF PASADENA 337
A
[1] The Constitution provides that “Full Faith and Credit
shall be given in each State to the public Acts, Records, and
judicial Proceedings of every other State.” U.S. Const. art. IV,
§ 1. The First Congress enacted the predecessor of 28 U.S.C.
§ 1738 to implement this Constitutional provision and extend
its effect to the federal courts. Section 1738 provides that the
“Acts, records, and judicial proceedings” of “any State . . .of
the United States . . . shall have the same full faith and credit
in every court within the United States . . . as they have by
law or usage in the courts of such State . . . from which they
are taken.” Under this statute, a federal court “must give to a
state-court judgment the same preclusive effect as would be
given that judgment under the law of the State in which the
judgment was rendered.” Migra v. Warren City Sch. Dist. Bd.
of Ed., 465 U.S. 75, 81 (1984). The same rule applies to
administrative proceedings that have been upheld by state
courts. Clements v. Airport Auth. of Washoe County, 69 F.3d
321, 326-27 (9th Cir. 1995). As Clements explained,
“[a]lthough different preclusion rules apply in some circum-
stances to unreviewed findings of administrative proceedings,
section 1738 by its own terms applies when administrative
findings have been reviewed by state courts of general juris-
diction.” Id. (internal quotation marks, citations, and emphasis
omitted). This rule applies when state courts review adminis-
trative decisions under section 1094.5, California’s adminis-
trative mandamus statute. See Eilrich v. Remas, 839 F.2d 630,
632 (9th Cir. 1988). The only exception “is that we do not
give preclusive effect to judgments rendered in proceedings
that fail to comply with the minimum standards of due pro-
cess.” Clements, 69 F.3d at 328.
[2] In determining the preclusive effect of a state adminis-
trative decision or a state court judgment, we follow the
state’s rules of preclusion. Kremer v. Chem. Const. Corp., 456
U.S. 461, 482 (1982). For purposes of clarity, however, we
will use the Supreme Court’s current terminology to describe
338 WHITE v. CITY OF PASADENA
these doctrines. According to the Court, “[t]he preclusive
effect of a judgment is defined by claim preclusion and issue
preclusion, which are collectively referred to as ‘res judi-
cata.’ ” Taylor v. Sturgell, 553 U.S. 880, 892 (2008). “[C]laim
preclusion” is the doctrine providing that “a final judgment
forecloses successive litigation of the very same claim,
whether or not relitigation of the claim raises the same issues
as the earlier suit.” Id. (quoting New Hampshire v. Maine, 532
U.S. 742, 748 (2001)) (internal quotation marks omitted).
“Issue preclusion, in contrast, bars successive litigation of an
issue of fact or law actually litigated and resolved in a valid
court determination essential to the prior judgment, even if the
issue recurs in the context of a different claim.” Id. (internal
quotations marks omitted) (quoting New Hampshire, 532 U.S.
at 748-49). Accordingly, in considering the preclusive effect
of a state ruling, we will refer to the doctrines of “claim pre-
clusion” and “issue preclusion” as defined in Sturgell, subject
to any differences as a matter of California law.
[3] The rules of claim and issue preclusion apply equally
to § 1983 actions in federal courts. Allen v. McCurry, 449
U.S. 90, 98 (1980). Nothing in § 1983 “expresses any con-
gressional intent to contravene the common-law rules of pre-
clusion or to repeal the express statutory requirements of the
predecessor of 28 U.S.C. § 1738.” Id. at 97-98. State court
decisions and reviewed administrative decisions are thus enti-
tled to the same preclusive effect in a § 1983 action as in any
other action, namely the preclusive effect they would be given
in the courts of the state that issued the judgment. Migra, 465
U.S. at 83.
B
We next review California’s preclusion principles, as appli-
cable here.
The California Supreme Court established its general rules
for issue preclusion in the seminal case of Lucido v. Superior
WHITE v. CITY OF PASADENA 339
Court, 795 P.2d 1223 (Cal. 1990). According to Lucido, the
doctrine of issue preclusion “precludes relitigation of issues
argued and decided in prior proceedings,” when six criteria
are met. Id. at 1225. These criteria are: (1) “the issue sought
to be precluded from relitigation must be identical to that
decided in a former proceeding”; (2) the issue to be precluded
“must have been actually litigated in the former proceeding”;
(3) the issue to be precluded “must have been necessarily
decided in the former proceeding”; (4) “the decision in the
former proceeding must be final and on the merits”; (5) “the
party against whom preclusion is sought must be the same as,
or in privity with, the party to the former proceeding”; and (6)
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 liti-
gants from harassment by vexatious litigation.” Id. at
1225-27.
[4] California’s claim preclusion doctrine provides that a
“valid final judgment on the merits in favor of a defendant
serves as a complete bar to further litigation on the same
cause of action.” Slater v. Blackwood, 543 P.2d 593, 594 (Cal.
1975). In determining what constitutes the “same cause of
action,” California applies “the ‘primary rights’ theory, under
which the invasion of one primary right gives rise to a single
cause of action.” Id.[5] Under California law, a prior administrative proceed-
ing, if upheld on review (or not reviewed at all), will be bind-
ing in later civil actions to the same extent as a state court
decision if “the administrative proceeding possessed the req-
uisite judicial character.” Runyon v. Bd. of Tr., 229 P.3d 985,
994 (Cal. 2010) (internal quotation marks and citations omit-
ted). In order to possess the requisite judicial character, the
administrative agency must “act[ ] in a judicial capacity and
resolve[ ] disputed issues of fact properly before it which the
parties have had an adequate opportunity to litigate.” People
v. Sims, 651 P.2d 321, 327-38 (Cal. 1982) (emphases omit-
340 WHITE v. CITY OF PASADENA
ted), superseded by statute on another ground as stated in
Gikas v. Zolin, 863 P.2d 745, 751-52 (Cal. 1993). To deter-
mine whether the agency is acting in a judicial capacity, the
state court considers a number of factors, including whether:
(1) the administrative hearing was conducted in a
judicial-like adversary proceeding; (2) the proceed-
ing required witnesses to testify under oath; (3) the
agency determination involved the adjudicatory
application of rules to a single set of facts; (4) the
proceedings were conducted before an impartial
hearing officer; (5) the parties had the right to sub-
poena witnesses and present documentary evidence;
and (6) the administrative agency maintained a ver-
batim record of the proceedings.
Imen v. Glassford, 247 Cal. Rptr. 514, 518 (Cal. Ct. App.
1988). In addition, a court may consider “whether the hearing
officer’s decision was adjudicatory and in writing with a
statement of reasons,” and whether the hearing officer’s deci-
sion was adopted by the director of the agency “with the
potential for later judicial review.”2 Id. Applying this test,
Imen determined that the administrative proceeding at issue in
that case met the “judicial character” requirements. Id. That
proceeding (like the proceeding required under the MOU)
involved an adjudicatory hearing, which included witnesses
testifying under oath, the right to cross-examine and confront
adversary witnesses, the right to be represented by counsel,
and the right to a formal decision. Id. at 519. In the Imen pro-
ceeding, the administrative law judge made recommendations
to a decision-maker (who, like the City Manager in this case,
was free to accept or reject them), and a party dissatisfied
2
California’s “judicial character” test is substantially the same as the
Supreme Court’s test for determining whether a federal court should give
an unreviewed state administrative proceeding preclusive effect under the
federal common law. See United States v. Utah Const. & Mining Co., 384
U.S. 394, 422 (1966).
WHITE v. CITY OF PASADENA 341
with the administrative decision could compel judicial review.
Id.III.
We now apply these principles to this case to determine
whether and to what extent White I and White II may bar reli-
tigation of claims or issues in White III. We conclude, under
California’s doctrine of issue preclusion, that White I pre-
cludes White from arguing that the City’s actions constituted
discrimination or harassment based on perceived disabilities,
and that White II precludes White from arguing that the City
did not have an adequate justification for her termination, or
that the proffered explanation for her termination was a pre-
text for a retaliatory intent.
A
[6] We first consider the preclusive effect of White I.
White argues that under California case law, neither the
claims nor the issues decided in that state court decision meet
the criteria to bar relitigation of any claims or issues raised in
White III. Specifically, White asserts that she could not have
litigated the claims arising from her August 2007 termination
in White I, because the termination had not yet occurred. We
agree that White I does not preclude White from asserting
claims related to her second termination. Nevertheless, issues
decided in White I do preclude relitigation of issues underly-
ing the FEHA claims in White III, because the allegations
supporting the claims of discrimination and harassment in
White III were all alleged in White I. In White I, the jury ver-
dict (upheld on appeal) resolved two key issues by rejecting
White’s allegations that the City was engaged in discriminat-
ing against her and harassing her on the basis of a perceived
disability. White makes the same allegations of discrimination
and harassment on the basis of perceived disability in her
complaint in White III. Because all the Lucido factors for
issue preclusion are met, the jury’s rejection of these allega-
342 WHITE v. CITY OF PASADENA
tions is binding on us. The issues to be decided are identical:
both cases base FEHA claims on allegations that the City
engaged in a continuing program of discrimination and
harassment on the basis of White’s perceived disabilities.
Because the jury in White I concluded that the City did not
have such a program, the fact that the complaint in White III
makes the bare allegation that the program continued during
the period after White I is insufficient to raise a new issue.
Continuing with the Lucido factors, the factual allegations
were necessarily decided pursuant to the special verdict form,
the decision in White I was on the merits, the parties were
identical, and applying issue preclusion to these issues is con-
sistent with the public policies identified by the California
courts, as it prevents relitigation of issues decided by a jury
after a full trial and upheld on appeal. Therefore, White is pre-
cluded from arguing that the City’s actions constituted dis-
crimination or harassment on the basis of a perceived
disability.
B
We next consider the preclusive effect of White II.
[7] Because White II was an administrative proceeding
upheld on review by the state trial and appellate courts, White
II is binding in this case to the same extent as a state court
decision if it has “the requisite judicial character,” Runyon,
229 P.3d at 994 (quoting State Bd. of Chiropractic Exam’rs
v. Superior Court, 201 P.3d 457, 463 (Cal. 2009)), as defined
in Imen, 247 Cal. Rptr. at 518. Reviewing the Imen factors,
we conclude that the City’s administrative proceeding did
have such judicial character. White’s grievance proceeding
was conducted in a judicial-like adversarial hearing in front of
an impartial arbiter. Both White and the City were able to call
and subpoena witnesses and elicit their testimony under oath,
and to present oral and written argument. A verbatim tran-
script of the proceedings was produced. The City Manager
was bound to apply the provisions of the MOU to the facts
WHITE v. CITY OF PASADENA 343
developed at the proceeding, and the City Manager issued a
written decision with factual findings and reasoned explana-
tions for his decision. Judicial review was available under sec-
tion 1094.5, and was pursued by White. Thus, the
administrative proceeding possessed the majority of the indi-
cia of “judicial character” identified in Imen. 247 Cal. Rptr.
at 518 (internal quotation marks omitted).
White argues that the administrative proceeding in White II
was not judicial in character because the proceeding was pre-
sided over by an arbiter whose decision was advisory only,
while the City Manager had “unabridged discretion” to make
the final decision.3 But the adversary proceedings in this case
are indistinguishable from the proceedings in Imen: both
involved an adversary hearing that resulted in an advisory
opinion and a decision-maker who was empowered to accept,
reject, or modify that advisory opinion, see id. at 519; see also
Cal. Gov. Code § 11517. Nor did the City Manager have
unbridled discretion in making his decision; the decision was
based upon the record created in the arbitration proceedings,
and was constrained by the terms of the MOU and applicable
state law. Therefore, we reject White’s argument that the
administrative proceedings lacked the required “judicial char-
acter.”
White also argues that White II cannot have an issue preclu-
sive effect because in the mandamus proceeding, she had the
burden of establishing that the City’s determination was con-
trary to the weight of the evidence, Fukuda v. City of Angels,
977 P.2d 693, 696 (Cal. 1999), while in a regular civil law-
suit, she would merely have to prove her case by a preponder-
3
In making this argument, White urges us to follow an unpublished dis-
trict court decision, Eaton v. Siemens, No. CIV. S-07-315 FCD KJM, 2007
WL 1500724, at *5 (E.D. Cal. May 23, 2007), which held that a similar
process failed to meet the Utah Construction factors. We find this unpub-
lished opinion unpersuasive, and in any event, it does not consider Califor-
nia law on this point.
344 WHITE v. CITY OF PASADENA
ance of the evidence. Because under California law, a prior
judicial decision cannot have issue preclusive effect if the
plaintiff had a higher burden of proof in the earlier proceeding
than in the later proceeding, see Simpson v. Brown, 79 Cal.
Rptr. 2d 389, 401 (Cal. Ct. App. 1998), White claims that the
White II decision cannot be preclusive here.
We reject this argument, however, because the prior opin-
ion at issue here is not the state mandamus proceeding but the
administrative agency decision, which was reviewed by the
state mandamus court and therefore has preclusive effect
under California law. Clements, 69 F.3d at 326-27. In those
administrative proceedings, the City had the burden of prov-
ing the charges against White by a preponderance of the evi-
dence, as the City Manager recognized in his opinion. See
Parker v. City of Fountain Valley, 179 Cal. Rptr. 351, 359
(Cal. Ct. App. 1981) (“It is axiomatic, in disciplinary adminis-
trative proceedings, that the burden of proving the charges
rests upon the party making the charges.”). Accordingly,
White did not have a higher burden of proof in the earlier
administrative proceeding than in federal court; rather, she
was relieved of any burden of proof in the administrative pro-
ceeding. This argument against the preclusive effect of White
II also fails.
Because White II has the same preclusive effect as a state
court decision, White may not relitigate issues argued and
decided in White II, if the Lucido criteria are met. The com-
plaint in White III alleges three claims based on the theory
that White’s second termination was based on the City’s
intent to retaliate against her, namely, the claims that the
City’s discriminatory and harassing conduct was motivated by
retaliation for White’s suit against the City in White I, that the
City discharged her in retaliation for disclosing the City’s vio-
lation of wiretap laws, and the claim that her First and Four-
teenth Amendment rights were violated by the City’s actions
against her in retaliation for her civil actions against the City.
Because White II already determined that White’s termination
WHITE v. CITY OF PASADENA 345
was not retaliatory, and that the City had just cause to termi-
nate White, the retaliation-based claims in White III cannot go
forward if White II’s determinations are binding.
[8] We hold that the state administrative decisions on these
issues are binding in federal court, because the issues decided
in White II meet the Lucido factors. Both cases raise the same
issue: whether White’s second termination was in retaliation
for White I. We reject White’s argument that the issue
whether her termination by the City was retaliatory was not
actually litigated and decided in White II. White argued in the
administrative proceeding in White II that the City had acted
with retaliatory intent; both her opening statement and her
closing brief included such arguments. Indeed, the theory of
her case in front of the arbiter was that the City had decided
to terminate her to “get even” and “make an example of her”
because she had the “temerity” to sue the department. The
City Manager expressly rejected these assertions of retalia-
tion, finding that they were “not persuasive.” The determina-
tion that White’s termination was not retaliatory was
necessary to the City Manager’s decision. See Castillo v. City
of Los Angeles, 111 Cal. Rptr. 2d 870, 876 (Cal. Ct. App.
2001) (“Further, if the hearing examiner were to have found
that the reasons for discharge were merely a pretext for dis-
crimination, she would not have found the discharge was
appropriate.”). Continuing with the Lucido factors, White II
and White III involved the same parties. Finally, allowing
White to relitigate this issue now would be contrary to the
public policy concerns underlying the issue preclusion doc-
trine, given that the issue has been fully litigated and decided
against White on the merits, and that decision has been upheld
by both the state trial and appellate courts. Because we are
bound by the administrative decision that the City had just
cause to terminate White, and the City’s termination was not
retaliatory, there is nothing left of White’s three claims of
retaliatory termination.
346 WHITE v. CITY OF PASADENA
IV.
In sum, applying California principles of issue preclusion,
White I precludes White from arguing that the City discrimi-
nated against or harassed her based on her perceived disabili-
ties. White II precludes White from arguing that the City did
not have an adequate justification for her termination, or that
the proffered explanation for her termination was a pretext for
a retaliatory intent. Because § 1738 requires us to apply Cali-
fornia’s issue preclusion principles in federal court, there is
nothing left of White III, and we therefore affirm the district
court’s order dismissing her complaint.4
AFFIRMED.
4
Because we decide the case on issue preclusion grounds, we do not
reach the claim preclusion arguments of the parties.