Asha Perez v. Alameda County Sheriffs' Offic , 550 F. App'x 410 ( 2013 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT DEC 19 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
ASHA PEREZ, an individual, No. 12-15427
Plaintiff - Appellant, D.C. No. 3:10-cv-04181-JSW
v.
MEMORANDUM*
ALAMEDA COUNTY SHERIFFS’
OFFICE; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding
Argued and Submitted November 8, 2013
San Francisco, California
Before: NOONAN and WATFORD, Circuit Judges, and LYNN, District Judge.**
Asha Bowling (née Perez), a deputy in the Alameda County Sheriffs’ Office
(“ACSO”), appeals the district court’s grant of summary judgment dismissing her
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Barbara M. G. Lynn, District Judge for the U.S.
District Court for the Northern District of Texas, sitting by designation.
lawsuit against her employer for violations of California’s Fair Employment and
Housing Act (“FEHA”), Cal. Gov’t Code § 12900 et seq. In particular, Perez
alleged that the ACSO and her supervisors had engaged in sex discrimination,
sexual harassment, and unlawful retaliation. The district court also granted
summary judgment in favor of the ACSO on Perez’s various state law tort claims
and federal civil rights claims. In reaching its decision, the district court held that
the proceedings before the Alameda County Civil Service Commission
(“Commission”) were entitled to preclusive effect and that California’s law of
issue preclusion barred all of Perez’s claims.
Whether the Commission’s decision warrants preclusive effect is reviewed
de novo, while the district court’s determination that the requirements for issue
preclusion have been satisfied is reviewed for abuse of discretion. Miller v. Cnty.
of Santa Cruz, 39 F.3d 1030, 1032 (9th Cir. 1994). California law controls both
inquiries. White v. City of Pasadena, 671 F.3d 918, 926 (9th Cir. 2012). We
affirm in part, reverse in part, and remand.
1. The district court properly ruled that the Commission’s decision
upholding Perez’s disciplinary action is entitled to preclusive effect. For an
unreviewed administrative proceeding to have preclusive effect under California
law, it must possess requisite judicial character and resolve disputed issues of fact
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properly before it that the parties have had an adequate opportunity to litigate. Id.at 927 (citing People v. Sims, 651 P.2d 321, 327-28 (Cal. 1982)).
The Commission proceedings below satisfy this requirement. Indeed, Perez
does not dispute the hearing’s judicial character. Nor can she dispute that the
Commission had the authority to adjudicate her discrimination claims, see
Schifando v. City of L.A., 79 P.3d 569, 573-76 (Cal. 2003), which she had an
adequate opportunity to litigate through her statement of defenses, opening
statement, introduction of evidence, examination of witnesses, personal testimony,
and closing brief, see Murray v. Alaska Airlines, Inc., 237 P.3d 565, 570-76 (Cal.
2010).
2. The district court did not abuse its discretion in ruling that the
administrative law judge’s (“ALJ”) factual findings, which the Commission
adopted, precluded Perez’s claims of sexual harassment, failure to prevent
harassment, and retaliation. See Lucido v. Superior Court, 795 P.2d 1223, 1225-26
(Cal. 1990). The ALJ specifically found that there was no evidence of a
conspiracy to make Perez’s work environment difficult, and that the discipline
meted out was appropriate because Perez had neglected her duties as a patrol
officer. These findings also bar Perez’s state law tort claims and federal civil
rights claims, which depend on her proving harassment and retaliation.
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Contrary to the district court’s decision, however, the ALJ made no factual
finding that precludes Perez’s sex discrimination claim under California’s FEHA.
In her complaint, Perez alleges that female deputies at the ACSO are held to a
much higher standard than their male counterparts. Male deputies, she contends,
receive more time to submit missing reports and are typically not subjected to
internal affairs investigations—as she was—for untimely paperwork. So even if,
as the ALJ found, Perez had failed to properly perform her duties, she may still
have a viable sex discrimination claim if in fact her male colleagues produce
similarly unsatisfactory paperwork and yet routinely escape punishment. See
Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220, 1222 (9th Cir. 1998). That
Perez elicited brief testimony before the ALJ concerning the disparate treatment of
male and female deputies does not alter this conclusion because the record shows
that her sex discrimination claim was neither “submitted for determination” nor
“determined” by the ALJ. Murray, 237 P.3d at 571 (emphasis omitted) (quoting
Sims, 651 P.2d at 331). Accordingly, we reverse and remand as to Perez’s sex
discrimination claim only.
AFFIRMED in part; REVERSED in part; REMANDED.
Each party shall bear its own costs.
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