Bahra v. Cnty. of San Bernardino

945 F.3d 1231

Eric BAHRA, Plaintiff-Appellant,

v.COUNTY OF SAN BERNARDINO; San Bernardino County Department of Children and Family Services ; Kristine Burgamy, In Her Individual and Official Capacity ; Nickola Hackett, In Her Individual and Official Capacity, Defendants-Appellees.

No. 18-55789

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 13, 2019 Pasadena, California

Filed December 30, 2019

Valerie Ross (argued), Law Offices of Valerie Ross, Victorville, California; A. Cabral Bonner (argued) and Charles A. Bonner, Law Offices of Bonner & Bonner, Sausalito, California; for Plaintiff-Appellant.

Susan E. Coleman (argued) and Kristina Doan Strottman, Burke Williams & Sorensen LLP, Los Angeles, California; for Defendants-Appellees.

Before: Susan P. Graber, Marsha S. Berzon, and Morgan Christen, Circuit Judges.

GRABER, Circuit Judge:

Plaintiff Eric Bahra was fired from his post as a social services practitioner in Defendant San Bernardino County’s Department of Children and Family Services ("CFS"). Plaintiff challenged his termination, unsuccessfully, through an appeal to the Civil Service Commission of the County of San Bernardino ("Commission"). He then filed this action, in which he alleges that CFS and two of its employees fired him in retaliation for his whistleblowing activities, in violation of California Labor Code section 1102.5 and 42 U.S.C. § 1983. The district court dismissed the action on the ground, as relevant here, that the Commission’s decision precluded Plaintiff’s claims. We affirm in part, reverse in part, and remand.

BACKGROUND¹

CFS investigates referrals regarding child abuse and provides services to children and families. In June 2013, Plaintiff was assigned as the lead investigator to look into allegations of abuse brought by a group of children against their former foster parent. As part of his investigation, Plaintiff used the CFS database, which generally keeps track of child abuse information. Plaintiff alleges that he discovered that the foster home at issue had a prior history of child abuse and neglect but that the database did not correctly reveal that history because of typographical errors in past reports and database entries.

Plaintiff informed his manager, Defendant Kristine Burgamy, on the same day that he discovered the database errors. The next day, Plaintiff found Burgamy and Defendant Nickola Hackett, Deputy Director of the Victorville CFS office, "rifling through" files on his desk.

In July 2013, the County conducted an "administrative interview" with Plaintiff to determine whether he had violated any policies, rules, or practices. Plaintiff then left for a short vacation and, upon his return, the County placed him on desk duty. Shortly thereafter, the County placed him on administrative leave pending the outcome of the disciplinary process. The County then conducted a second "administrative interview." At that interview, Plaintiff was represented by counsel, and Burgamy and Hackett attended for the County.

In September 2013, Plaintiff was issued a Notice of Proposed Dismissal, which contained several grounds for termination. The notice also explained that it was a "proposed action only" and that Plaintiff could respond to his appointing authority, which he did.

Thereafter, a hearing officer conducted an administrative hearing. Plaintiff was represented by counsel at the hearing, and he submitted another written response to the notice. The hearing officer "gave more credence to the County’s position" and issued Plaintiff an Order of Dismissal in October 2013. The order contained twelve reasons for dismissal.

A few days later, Plaintiff appealed and requested an evidentiary hearing pursuant to San Bernardino Personnel Rule X, Section 9. That hearing took place over 14 days during 2014. In total, the hearing included 27 witnesses, 2,045 pages of testimony, 154 pages of post-hearing briefs, and 89 exhibits.

Throughout the hearing, Plaintiff alleged that his termination was retaliatory and that Defendants had engaged in a "witch hunt" against him. Plaintiff primarily argued at the hearing that he was terminated in retaliation for his union organizing activity. In October 2012, Bahra circulated a petition protesting his supervisors’ management style and the "hostile working environment" in the Victorville CFS Office. At least nine CFS employees signed the petition, which was addressed to Human Resources. Several witnesses at the hearing, including Bahra, testified about this petition.

In July 2015, the hearing officer issued a decision. The hearing officer concluded that Plaintiff had not produced evidence of retaliation and that five allegations against Plaintiff were substantiated. Consequently, the hearing officer recommended that the Commission uphold Plaintiff’s termination and deny his appeal.

The Commission adopted the hearing officer’s report and sustained CFS’s order of dismissal. The Commission also advised Plaintiff of his right to seek judicial review through a writ of mandamus under California Code of Civil Procedure section 1094.5.

Plaintiff did not seek a writ under section 1094.5. Instead, he filed this action, alleging several claims. The district court granted summary judgment for Defendants, holding in part that Plaintiff’s claims under California Labor Code section 1102.5 and 42 U.S.C. § 1983 were barred by claim preclusion and issue preclusion. Plaintiff timely appeals.

STANDARD OF REVIEW

We review de novo a district court’s grant of summary judgment. King v. County of Los Angeles , 885 F.3d 548, 556 (9th Cir. 2018). Likewise, we review de novo whether preclusion applies. See Media Rights Techs., Inc. v. Microsoft Corp. , 922 F.3d 1014, 1020 (9th Cir. 2019) (claim preclusion); Wabakken v. Cal. Dep’t of Corr. & Rehab. , 801 F.3d 1143, 1148 (9th Cir. 2015) (issue preclusion).

DISCUSSION

We grant the same preclusive effect to state court judgments as those judgments would receive in the state in which they were rendered. 28 U.S.C. § 1738. State administrative agency decisions, similarly, receive the same preclusive effect that they would receive in state court. Avila v. L.A. Police Dep’t , 758 F.3d 1096, 1100 (9th Cir. 2014) (citing Univ. of Tenn. v. Elliott , 478 U.S. 788, 799, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986) ).

A. Plaintiff’s Claim Under California Labor Code Section 1102.5.

In California, decisions by administrative agencies typically have preclusive effect, provided that they have a sufficiently "judicial character" and that the elements of claim or issue preclusion are satisfied. Murray v. Alaska Airlines , 50 Cal.4th 860, 114 Cal.Rptr.3d 241, 237 P.3d 565, 568–69 (2010) ; Runyon v. Bd. of Trs. , 48 Cal.4th 760, 108 Cal.Rptr.3d 557, 229 P.3d 985, 994 (2010). But courts will not afford preclusive effect to an administrative decision if doing so would contravene the intent of the California legislature. Fahlen v. Sutter Cent. Valley Hosps. , 58 Cal.4th 655, 168 Cal.Rptr.3d 165, 318 P.3d 833, 845–46 (2014) ; see also State Bd. of Chiropractic Exam’rs v. Superior Ct. , 45 Cal.4th 963, 89 Cal.Rptr.3d 576, 201 P.3d 457, 464 (2009) (California courts do not give preclusive effect to the results of agency proceedings "if doing so is contrary to the intent of the legislative body that established the proceeding in which [preclusion] is urged." (quoting Pac. Lumber Co. v. State Water Res. Control Bd. , 37 Cal.4th 921, 38 Cal.Rptr.3d 220, 126 P.3d 1040, 1055 (2006) )).

The California Court of Appeal recently applied the legislative-intent exception and held that administrative findings by a state agency do not preclude claims for retaliation brought under section 1102.5. Taswell v. Regents of Univ. of Cal. , 23 Cal.App.5th 343, 232 Cal. Rptr. 3d 628, 643 (2018). Accordingly, unless we are "convinced" that the California Supreme Court would disagree with Taswell , we are bound by its holding. Poublon v. C.H. Robinson Co. , 846 F.3d 1251, 1266 (9th Cir. 2017) (quoting Miller v. County of Santa Cruz , 39 F.3d 1030, 1036 n.5 (9th Cir. 1994) ).

The California Supreme Court’s decision in Murray does not convince us to deviate from Taswell . In Murray , the California Supreme Court considered the preclusive effect of a federal agency’s investigative findings when the plaintiff had elected not to pursue a formal adjudicatory hearing or subsequent judicial review. 114 Cal.Rptr.3d 241, 237 P.3d at 566. The court held that the plaintiff’s retaliation claim was precluded. Id. , 114 Cal.Rptr.3d 241, 237 P.3d at 568. But Murray does not require us to give preclusive effect here to the Commission’s order with respect to Plaintiff’s section 1102.5 claim, for several reasons.

First, the California Supreme Court expressly limited the scope of its holding in Murray . The court held that preclusion applied there in light of "the particular factual and procedural circumstances of this case, and the particular provision of the ... statutory scheme here at issue." Id. Murray does not stand for the proposition that all administrative agency findings preclude claimants from asserting section 1102.5 claims in civil actions. Additionally, Murray involved concerns for "comity and federalism," id., 114 Cal.Rptr.3d 241, 237 P.3d at 577, that are wholly inapposite to this case.

Most significantly, Murray applied a different test than the test applied in Taswell . Murray considered whether the federal administrative proceeding possessed a "sufficiently judicial character." Id., 114 Cal.Rptr.3d 241, 237 P.3d at 568. Taswell considered the legislative intent of section 1102.5. 232 Cal. Rptr. 3d at 643. Both tests apply in analyzing whether preclusion applies. Pac. Lumber , 38 Cal.Rptr.3d 220, 126 P.3d at 1055–56. In other words, Taswell and Murray assessed different legal questions. Thus, they are not inconsistent.

Moreover, Defendants have not persuaded us that the Taswell court misapplied California law such that the California Supreme Court would disagree with its...