Wade v. Ports America Management Corp. , 218 Cal. App. 4th 648 ( 2013 )

Filed 8/2/13
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
CALVIN WADE, B238224
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC444418)
v.
PORTS AMERICA MANAGEMENT
CORP., et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los Angeles County,
David L. Minning, Judge. Affirmed.
Mancini & Associates, Marcus A. Mancini, Timothy J. Gonzales, Michael
R. Fostakowsky; Benedon & Serlin, Gerald M. Serlin, and Kelly R. Horwitz for
Plaintiff and Appellant.
Gibson, Dunn & Crutcher, Michele L. Maryott, and Joseph A. Gorman for
Defendants and Respondents.
__________________________________
INTRODUCTION
Camargo v. California Portland Cement Co. (2001) 86 Cal. App. 4th 995
(Camargo), held that a labor arbitration pursuant to a collective bargaining
agreement (CBA) has no preclusive effect on a claim pursuant to the Fair
Employment and Housing Act (FEHA), Government Code section 12940 et seq.,
unless the parties expressly agreed to arbitrate FEHA claims. (Camargo, at
p. 1008.) On appeal, Calvin Wade contends this holding should be extended to
common law claims related to the FEHA, such as a claim for wrongful termination
in violation of public policy. We disagree, as there is no comprehensive statutory
scheme applicable to FEHA-related common law claims comparable to the FEHA.
In the alternative, appellant contends the arbitration had no preclusive effect, as it
did not address his racial discrimination claim. We conclude the arbitration
encompassed that claim. Accordingly, we affirm the grant of a summary judgment
in favor of respondents Marine Terminals Corporation and Ports America
Management Corporation (collectively MTC) on appellant‟s cause of action for
wrongful termination in violation of public policy.
FACTUAL AND PROCEDURAL HISTORY
Appellant, an African-American male, was employed as a steady vessel
1
planner by MTC. Appellant was a member of Local 63 of the International
Longshore and Warehouse Union (ILWU or the Union). The ILWU is certified as
the exclusive bargaining representative for longshore employees employed by
MTC.
1
A vessel planner is a specialized marine clerk who plans the loading and
unloading of ships. A “steady” vessel planner is a full-time employee who works
exclusively for a particular terminal and in a particular position.
2
As a member of Local 63, appellant was subject to a CBA, the pacific coast
longshore and clerks‟ agreement contract document for clerks and related
classifications (PCCCD). Section 13.1 of the PCCCD prohibited discrimination
against union members. It provided in pertinent part: “There shall be no
discrimination . . . either in favor of or against any person because of membership
or nonmembership in the Union, activity for or against the Union or absence
thereof, race, creed, color, sex (including gender, pregnancy, sexual orientation),
age (forty or over), national origin, religious or political beliefs, disability,
protected family care or medical leave status, veteran status, political affiliation or
marital status. Also prohibited by this policy is retaliation of any kind for filing or
supporting a complaint of discrimination or harassment.”
The PCCCD required Union members to submit any grievances related to
their employment to binding arbitration. Section 13.2 of the PCCCD provided in
pertinent part: “All grievances and complaints alleging incidents of discrimination
or harassment . . . in connection with any action subject to the terms of this
Agreement based on race, creed, color, sex . . . or alleging retaliation of any kind
for filing or supporting a complaint of such discrimination or harassment, shall be
processed solely under the Special Grievance/Arbitration Procedures For The
Resolution of Complaints Re Discrimination and Harassment Under the Pacific
Coast Longshore & Clerk‟s Agreement . . . .”
On September 5, 2008, appellant was laid off. He was the fourth steady
vessel planner released by MTC that year. Jeff Blaschko, the manager who made
the decision to release appellant, stated that he selected appellant because of his
poor work performance. At the time appellant was released, he had more seniority
than three of the six steady vessel planners MTC retained.
3
Following his release, appellant filed a grievance alleging that he had been
laid off in violation of the PCCCD. In his written grievance, he stated:
“Section 18 of the PCC[C]D Contract has a Good-Faith Guarantee. The
following planners were hired and laid off according to seniority, with the
exception of myself: [Names].
“There are three Planners with less seniority than myself that are still
employed at MTC. Section 13 of the PCC[C]D Contract has been violated,
and as a result, I feel discriminated against.
“On record are Grievances I have filed with the Union against MTC
employees for discriminatory practices in the past. The Grievances were
upheld, and disciplinary action was taken against MTC employees and
management.
“MTC continues to demonstrate unfair discriminatory practices against
minority employees.”
The grievance was arbitrated in early 2009. At the arbitration hearing,
appellant was represented by a Union lawyer. The lawyer framed the grievance as
whether appellant was released in violation of the seniority system, and whether
appellant was discriminated against in violation of Section 13.1 of the PCCCD for
his Union activity. Appellant‟s written grievance was read into the record, three
witnesses (including appellant) were called in support, and numerous documents
were introduced into evidence. Appellant‟s earlier grievances, alleging that two
MTC employees had made inappropriate racial remarks and that MTC had failed
to discipline them for those remarks, were also introduced into evidence.
On February 17, 2009, the arbitrator issued a written decision. In his
decision, the arbitrator stated that the issues presented were: “Whether Calvin
Wade, hereafter Wade, was released improperly from the position of steady vessel
planner. Also was Wade released in violation of Section 13.1 of the PCCCD?”
The arbitrator concluded that “the PCCCD governs this dispute and permits the
4
Employer to properly release Wade in the instant dispute.” The arbitrator also
found “no compelling evidence to support the claim of the Union that Section 13.1
was violated by the Employer.”
On August 25, 2010, appellant filed an action in the superior court, alleging
a single cause of action: retaliation and wrongful termination in violation of public
policy. Specifically, he alleged he was terminated in violation of the public policy
against racial discrimination and retaliation, as codified by the Legislature in the
FEHA.
After filing an answer generally denying the allegations, respondents moved
for summary judgment. They asserted that appellant‟s claim was barred by res
judicata, as the identical claim had been adversely decided against appellant in the
labor arbitration.
Appellant opposed summary judgment. He contended his claim was not
barred by res judicata, as the arbitration involved discrimination on the basis of his
union activities, not racial discrimination. He further contended the arbitration
award did not bar his claim, citing federal and state cases holding that an adverse
decision by an arbitrator had no preclusive effect on statutory discrimination
claims.
Respondents filed a reply, asserting the arbitration had encompassed
appellant‟s racial discrimination claim. They further asserted that as appellant did
not assert a claim under the FEHA or any other statute, he could not rely upon
cases addressing the preclusive effect of arbitration on statutory claims.
On December 9, 2011, the superior court granted respondents‟ motion for
summary judgment. The court determined that “[appellant]‟s single cause of
action for retaliation and wrongful termination in violation of public policy is
barred because [he] previously litigated his claim that he was wrongfully
5
terminated from his employment with [respondents] based on race and
retaliation . . . [¶] . . . The arbitrator‟s decision was final and binding and bars
[appellant]‟s attempt to re-litigate the issue of racial discrimination and retaliation
presented in [his] complaint as a common law cause of action.”
Judgment in favor of respondents was entered December 14, 2011.
Appellant timely appealed.
DISCUSSION
Appellant contends the trial court erred in determining that his claim was
barred by res judicata. He argues a labor arbitration has no preclusive effect on
common law causes of action related to the FEHA. Alternatively, he argues the
arbitration did not address his claim that he was wrongfully terminated because of
his race.
A. Res Judicata and Labor Arbitrations
“„Res judicata‟ describes the preclusive effect of a final judgment on the
merits. Res judicata, or claim preclusion, prevents relitigation of the same cause of
action in a second suit between the same parties or parties in privity with them.”
(Mycogen Corp. v. Monsanto Co. (2002) 28 Cal. 4th 888, 896 (Mycogen Corp.).)
“The doctrine of res judicata applies not only to judicial proceedings but also to
arbitration proceedings. [Citation]” (Thibodeau v. Crum (1992) 4 Cal. App. 4th
749, 755; see also Sartor v. Superior Court (1982) 136 Cal. App. 3d 322, 328
[confirmed private arbitration award in favor of architectural firm bars
homeowner‟s identical causes of action against firm‟s employees].) Thus, in Kelly
v. Vons Companies, Inc. (1998) 67 Cal. App. 4th 1329, the court held that a labor
arbitration award had a preclusive effect on common law causes of action for fraud
and negligent misrepresentation. (Id. at pp. 1332, 1336; see also Conner v. Dart
Transportation Service (1976) 65 Cal. App. 3d 320, 322-323 [doctrine of collateral
6
estoppel applied to bar former employee‟s cause of action for wrongful discharge
where labor arbitration established that employee was fired for dishonesty].)
In Alexander v. Gardner-Denver Co. (1974) 415 U.S. 36 (Gardner-Denver),
however, the United States Supreme Court held that a labor arbitration award had
no preclusive effect on an employment discrimination claim under title VII of the
federal Civil Rights Act of 1964, Title 42 United States Code section 2000e et seq.
(Title VII), the federal analogue to the FEHA. (Gardner-Denver, supra, 415 U.S.
at pp. 49-50.) There, the plaintiff, an African-American employee of the defendant
company and a union member, filed a grievance alleging wrongful discharge under
the relevant CBA. The CBA prohibited discrimination against employees “„on
account of race, color, religion, sex, national origin, or ancestry,‟” and provided for
compulsory arbitration of grievances. (Id. at p. 39.) Although the plaintiff‟s
grievance did not mention racial discrimination, he testified at the arbitration
hearing that he was discharged because of his race. The arbitrator ruled that the
plaintiff had been discharged for just cause; the arbitration award did not mention
the racial discrimination claim. (Id. at pp. 39, 42.)
Prior to the arbitration, the plaintiff had filed a racial discrimination charge
with the Equal Employment Opportunity Commission (EEOC). (Gardner-Denver,
supra, 415 U.S. at p. 39.) After the EEOC rejected the plaintiff‟s claim and
notified him of his right to sue, the plaintiff brought suit in federal district court
alleging a claim under Title VII for racial discrimination. (Id. at p. 43.) The
district court dismissed the suit, and the Court of Appeals affirmed. (Ibid.) The
United States Supreme Court reversed, holding that the labor arbitration had no
preclusive effect on the plaintiff‟s Title VII claim.
In reaching its decision, the court explained that Title VII vests “federal
courts with plenary powers to enforce the statutory requirements; and it specifies
7
with precision the jurisdictional prerequisites that an individual must satisfy before
he is entitled to institute a lawsuit.” (Gardner-Denver, supra, 415 U.S. at p. 47.)
“In addition, legislative enactments in this area have long evinced a general intent
to accord parallel or overlapping remedies against discrimination.” (Ibid.) “Title
VII provides for consideration of employment-discrimination claims in several
forums. [Citations.] And, in general, submission of a claim to one forum does not
preclude a later submission to another. Moreover, the legislative history of Title
VII manifests a congressional intent to allow an individual to pursue independently
his rights under both Title VII and other applicable state and federal
statutes. . . . In sum, Title VII‟s purpose and procedures strongly suggest that an
individual does not forfeit his private cause of action if he first pursues his
grievance to final arbitration under the nondiscrimination clause of a collective-
2
bargaining agreement.” (Id. at pp. 47-49, fn. omitted.)
In Camargo, the court applied the holding in Gardner-Denver to FEHA
claims. (Camargo, supra, 86 Cal.App.4th at p. 1008.) There, the plaintiff, a
female employee and a union member, submitted grievances based on sex
discrimination and sexual harassment to arbitration, as required by the relevant
CBA. (Id. at p. 999.) Before the arbitration began, she also filed an administrative
2
The United States Supreme Court later limited the holding in Gardner-
Denver to those situations where the CBA does not clearly and unmistakably show
an intention to arbitrate statutory anti-discrimination claims. (See 14 Penn Plaza
LLC v. Pyett (2009) 556 U.S. 247, 251 [provision in a collective-bargaining
agreement that clearly and unmistakably requires union members to arbitrate
claims arising under the Age Discrimination in Employment Act of 1967 (ADEA),
29 U.S.C. §§ 621 et seq., is enforceable]; see also Wright v. Universal Mar. Serv.
Corp. (1998) 525 U.S. 70, 80 [union-negotiated waiver of employees‟ statutory
right to a judicial forum for claims of employment discrimination must be clear
and unmistakable]; Gilmer v. Interstate/Johnson Lane Corp. (1991) 500 U.S. 20,
23 [employee may agree to arbitrate ADEA claim].)
8
claim for sexual discrimination and harassment with the California Department of
Fair Employment and Housing (DFEH). (Id. at p. 1000.) After the arbitrator ruled
against her, she filed a complaint in superior court seeking damages for sexual
discrimination and harassment under the FEHA. (Id. at p. 999.) In her complaint,
she alleged that she had filed a sexual discrimination claim with DFEH and had
received a right-to-sue letter. (Id. at p. 1004.) The superior court dismissed the
complaint, but the appellate court reversed. (Id. at p. 999.) The court held that an
arbitration award of a FEHA claim under a CBA can be given preclusive effect
only if (1) the agreement to arbitrate the FEHA claim in the CBA is clear and
unmistakable, and (2) the procedures of the arbitration allow for the full litigation
and fair adjudication of the FEHA claim. Because the record showed neither
condition had been satisfied, the arbitration award had no preclusive effect. (Id. at
pp. 1018-1019.)
Gardner-Denver and Camargo addressed only the preclusive effect of a
labor arbitration award on statutory employment discrimination claims. No federal
or California court has extended those holdings -- expressly based on statutory
schemes -- to hold that a labor arbitration award may not preclude nonstatutory
employment discrimination claims. Appellant argues that failing to extend
Camargo to nonstatutory employment discrimination claims “would create an
indefensible distinction that places the form of a claim above the substance.” We
disagree. The exceptions carved out in Gardner-Denver and Camargo were based
on the courts‟ interpretation of the statutory schemes set forth in Title VII and the
FEHA. There are legally significant distinctions between FEHA claims and
common law discrimination claims. For example, like Title VII, the FEHA has
specific “jurisdictional prerequisites that an individual must satisfy before he is
entitled to institute a lawsuit.” (Gardner-Denver, supra, 415 U.S. at p. 47.)
9
“Under the FEHA, the employee must exhaust the administrative remedy provided
by the statute by filing a complaint with the [DFEH] and must obtain from the
[DFEH] a notice of right to sue in order to be entitled to file a civil action in court
based on violations of the FEHA.” (Romano v. Rockwell Internat., Inc. (1996)
14 Cal. 4th 479, 492.) In contrast, a plaintiff alleging a claim for wrongful
termination in violation of public policy need not exhaust those administrative
remedies. (Palmer v. Regents of University of California (2003) 107 Cal. App. 4th
3
899, 904.) Additionally, the FEHA has a one-year limitations period (Gov. Code,
§ 12965, subd. (b)), not applicable to common law claims for wrongful termination
in violation of public policy against racial discrimination. (Carmichael v. Alfano
Temporary Personnel (1991) 233 Cal. App. 3d 1126, 1132 [claim that plaintiff was
wrongfully terminated in violation of public policy, in retaliation for filing racial
discrimination charges with EEOC, is “independent” of the FEHA, and thus not
subject to its limitations period].) Applying the holdings of Gardner-Denver and
Camargo to the instant case would allow a plaintiff to benefit from the FEHA
statutory scheme without complying with any of its prerequisites, including those
essential to jurisdiction. To extend Camargo to nonstatutory employment
discrimination claims would thus upset the comprehensive scheme established by
the Legislature in the FEHA. We decline to do so.
Appellant‟s reliance on Little v. Auto Stiegler, Inc. (2003) 29 Cal. 4th 1064
(Little) is misplaced. There, in the context of an employer‟s motion to compel
arbitration, the California Supreme Court held that an employee‟s claim for
wrongful termination in violation of public policy may be subject to mandatory
arbitration only if the arbitration provides the minimum procedural requirements
3
No evidence suggests appellant filed an administrative charge or complaint
with the DFEH.
10
set forth in Armendariz v. Foundation Health Psychcare Services, Inc. (2000)
24 Cal. 4th 83 (Armendariz). (Little, supra, 29 Cal.4th at p. 1077.) The case did
not address arbitration of racial discrimination claims pursuant to an agreed-upon
and bargained-for agreement between an employer and a labor union. Nor did it
address the preclusive effect of such arbitrations on a subsequently filed action
asserting wrongful termination in violation of public policy. (Cf. Camargo, supra,
86 Cal.4th at p. 1019, fn. 8 [noting that its holding is “not altered by the recent
opinion of our Supreme Court in Armendariz,” as that decision did not “discuss the
question of collateral estoppel effect to be given to the arbitrator‟s findings” and
“[t]he agreement to arbitrate in Armendariz was not a collective bargaining
agreement”].) Accordingly, we conclude that a labor arbitration award, pursuant to
a CBA, may bar the employee from bringing a common law claim alleging
retaliation and wrongful termination in violation of public policy, if the arbitration
award addressed the same cause of action. (Mycogen Corp., supra, 28 Cal.4th at
p. 896 [res judicata prevents relitigation of the same cause of action in a second
suit between the same parties or parties in privity with them].) We now address
whether the cause of action was the same in both the arbitration and superior court
proceedings.
B. Identity of Cause of Action
“California‟s res judicata doctrine is based upon the primary right theory.”
(Mycogen Corp., supra, 28 Cal.4th at p. 904.) “The most salient characteristic of a
primary right is that it is indivisible: the violation of a single primary right gives
rise to but a single cause of action. [Citation.]” (Crowley v. Katleman (1994)
8 Cal. 4th 666, 681.) “As far as its content is concerned, the primary right is simply
the plaintiff‟s right to be free from the particular injury suffered. [Citation.] It
must therefore be distinguished from the legal theory on which liability for that
11
injury is premised: „Even where there are multiple legal theories upon which
recovery might be predicated, one injury gives rise to only one claim for relief.‟”
(Id. at pp. 681-682.)
Additionally, under the doctrine of res judicata, “all claims based on the
same cause of action must be decided in a single suit; if not brought initially, they
may not be raised at a later date. “„“Res judicata precludes piecemeal litigation by
splitting a single cause of action or relitigation of the same cause of action on a
different legal theory or for different relief.”‟ [Citation.]” (Mycogen Corp., supra,
28 Cal.4th at p. 897; see also Sutphin v. Speik (1940) 15 Cal. 2d 195, 202 (Sutphin)
[“[P]rior judgment is res judicata on matters which were raised or could have been
raised, on matters litigated or litigable”].) “[C]ase law also indicates that
arbitrating parties are obliged, in the manner of Sutphin, to place before their
arbitrator all matters within the scope of the arbitration, related to the subject
matter, and relevant to the issues [citations].” (Thibodeau v. Crum, supra,
4 Cal.App.4th at p. 755.)
Here, appellant submitted a grievance to arbitration, asserting that he was
wrongfully terminated (1) despite his seniority over three remaining employees,
(2) as a result of his prior filing of grievances alleging racially discriminatory
practices by MTC employees and management, and (3) due to MTC‟s “continue[d]
[and] demonstrate[d] unfair discriminatory practices against minority employees.”
At the arbitration hearing, appellant‟s counsel argued that appellant had been
improperly terminated in violation of the seniority system, and in violation of
Section 13.1 of the PCCCD, which prohibits discrimination and retaliation for
Union activities, as well as on the basis of race. On this record, appellant asserted
a single primary right: his right not to be discharged for wrongful reasons. His
grievance presented three different legal theories why his release was wrongful:
12
violation of the seniority system, retaliation for filing prior grievances alleging
racially discriminatory practices, and discrimination against minority employees.
But the sole injury for which he sought relief was his termination. That same
allegedly wrongful termination was the basis for his subsequently filed action in
superior court. Thus, the same primary right was at issue both in the labor
arbitration proceeding and in the superior court action. Accordingly, res judicata
applied to bar appellant‟s single cause of action for wrongful termination in
violation of public policy.
Moreover, the arbitration encompassed appellant‟s common law racial
discrimination claim. Appellant alleged in his grievance that his termination was a
result of “unfair discriminatory practices against minority employees” -- an express
claim that he was allegedly terminated because of his race. At the arbitration
hearing, his counsel read the entire grievance into the record, and introduced the
earlier grievances alleging racially discriminatory practices into evidence.
Appellant presented no direct evidence that he was released because of racial
discrimination, and the arbitrator found no evidence to support the claim that
Section 13.1 of the PCCCD, which prohibited racial discrimination, had been
violated. That finding is binding on appellant, and precludes his subsequent claim
that he was wrongfully terminated because of his race.
Even were we to conclude that appellant‟s allegation of “unfair
discriminatory practices against minority employees” is not an express racial
discrimination claim, he would still be barred from litigating that claim in superior
court, because it is “„within the scope of the action, related to the subject-matter
and relevant to the issues.‟” (Thibodeau v. Crum, supra, 4 Cal.App.4th at p. 755.)
Section 13.2 of the PCCCD required that all racial discrimination claims be
arbitrated; racial discrimination as a reason for appellant‟s release is related to the
13
subject matter of the arbitration, which was the propriety of his release; and racial
discrimination is relevant to the issues, because evidence of racial discrimination
would undermine management‟s stated reason that appellant was released because
of his poor work performance. Thus, appellant could and should have raised the
issue of “wrongful termination in violation of the public policy against racial
discrimination” in the arbitration proceeding. (Cf. Castillo v. City of Los Angeles
(2001) 92 Cal. App. 4th 477, 482 [plaintiff collaterally estopped from relitigating
racial discrimination claim because even if “the issue of discrimination was not
litigated in the administrative or mandate proceedings,” he did not show that “he
was prevented from introducing admissible evidence relevant to that issue”].)
Accordingly, he is barred from filing the subsequent superior court action. (See
Sutphin, supra, 15 Cal.2d at p. 202 [“[P]rior judgment is res judicata on matters
4
which were raised or could have been raised, on matters litigated or litigable.”].)
The decisions in Agarwal v. Johnson (1979) 25 Cal. 3d 932 (Agarwal),
disapproved on other grounds in White v. Ultramar, Inc. (1999) 21 Cal. 4th 563,
Acuña v. Regents of University of California (1997) 56 Cal. App. 4th 639 (Acuña),
and George v. California Unemployment Ins. Appeals Bd. (2009) 179 Cal. App. 4th
1475 (George), on which appellant relies, do not assist him. Agarwal and Acuña
held that Title VII and the FEHA protect an employee‟s primary right to be free
from invidious employment discrimination. (Agarwal, supra, 25 Cal.3d at p. 955;
Acuña, supra, at pp. 644-646.) They did not address a situation where the plaintiff
alleged the same cause of action -- wrongful termination -- in an arbitration
proceeding and a superior court action.
4
As respondents note, even were we to find appellant‟s racial discrimination
had not been previously litigated, under Section 13.2 of the PCCCD, his exclusive
remedy would be arbitration.
14
George is similarly inapposite. There, a civil service employee challenged
disciplinary actions with the State Personnel Board, but did not argue that the
disciplinary actions were retaliatory or discriminatory. After the board rendered its
decision partially affirming some of the disciplinary actions, the employee filed an
action in superior court, alleging that the disciplinary actions constituted retaliation
and discrimination in violation of the FEHA. (George, supra, 179 Cal.App.4th at
pp. 1480-1481.) Emphasizing the “unique circumstances of [the] case,” the
appellate court concluded that the administrative proceeding did not bar the
employee‟s FEHA claims for retaliation and discrimination. The court
distinguished another case with similar facts on the ground that there, “the prior
actions resolved the key issue in the FEHA claim -- whether the discharge was for
good cause. This is not the case here.” (Id. at p. 1485.) In contrast, here, the
arbitrator resolved the key issue in the superior court action -- whether appellant‟s
release violated Section 13.1 of the PCCCD (prohibiting, inter alia, employment
discrimination on the basis of race). In addition, the employee in George did not
assert that the disciplinary actions were retaliatory or discriminatory; here,
appellant asserted in his grievance that his termination was retaliatory and
discriminatory. Finally, as noted, appellant has not alleged a FEHA claim.
In sum, appellant is barred under the doctrine of res judicata from bringing
his single cause of action for retaliation and wrongful termination in violation of
public policy in superior court, because an arbitrator previously resolved that same
cause of action adversely against him. The superior court properly granted
5
summary judgment in favor of respondents.
5
Appellant contends the labor arbitration had no preclusive effect because
respondents have not shown the arbitration provided him a full and fair opportunity
to litigate his racial discrimination claim. The procedural fairness of the arbitration
15
DISPOSITION
The judgment of dismissal is affirmed. Costs are awarded to respondents.
CERTIFIED FOR PUBLICATION.
MANELLA, J.
We concur:
EPSTEIN, P. J.
SUZUKAWA, J.
is relevant only if Camargo is applicable to appellant‟s claim. (See Camargo,
supra, 86 Cal.App.4th at pp. 1018-1019 [arbitration award of a FEHA claim under
a CBA can be given preclusive effect if (1) the agreement to arbitrate the FEHA
claim in the CBA is clear and unmistakable, and (2) the procedures of the
arbitration allowed for the full litigation and fair adjudication of the FEHA claim].)
As we have concluded that Camargo is inapplicable, we need not address this
issue.
16