Employee Walks Through an Issue Preclusion Thicket by Bringing Claims in Multiple Forums Including Arbitration, Grievance and Mandamus as Well as Multiple Lawsuits

I understand the desire of an employee (or employee’s attorney) to exhaust all avenues to contest the wrongful discriminatory and/or retaliatory termination of an employee, but White v. City of Pasadena __F.3d___ (9th Cir Jan 17, 2012) is a prime example of why such a shotgun approach can be shortsighted and dangerous.

Ms. White was a police officer with the City of Pasadena. White was diagnosed with multiple sclerosis, but continued to do her job. The City then fired her, claiming she was associating with a known drug dealer and lied about it. Officer White, through her union’s grievance process, arbitrated her termination and she was reinstated to her position as a police officer.

Instead of letting “good enough” alone, Officer White filed a lawsuit in state court (White I), claiming the City of Pasadena harassed and discriminated against her based upon her disability. The jury found for the City, the California Court of Appeals upheld the verdict, and the California Supreme Court refused to review the ruling.

While White I was pending on appeal, the City fired Officer White a second time. Here, there was some evidence that White had attempted suicide, which Ms. White denied. The City investigated and found that she had attempted suicide and that she had lied about it. Ms. White contested her termination through the administrative process, where the City Manager found for the City. Ms. White again took this to the courts, filing a writ of mandamus in state court (White II), which she lost. She appealed to the California Court of Appeals, and again lost.

Finally, Officer White filed a third lawsuit in state court, alleging that the City discriminated against her, harassed her, violated 42 USC ยง1983, as well as her first and fourteenth Amendment rights (White III).

The defendant removed the case to federal court, as the case contained federal rights. The federal district court held that officer White’s claims were barred because of issue preclusion.

The Ninth Circuit upheld this ruling in a fairly convolutive manner, holding that all of the claims brought in White III had been litigated effectively and were precluded by either White I or White II.

This case is a prime example of why employees and their lawyers should think before they litigate. I did not agree with all the reasoning of the Ninth Circuit here (for example, I don’t agree that the White II administrative record was neutral enough to count for issue preclusion, because a City Manager isn’t a neutral fact finder, and I also don’t agree that White I and White III litigated the same issues – how could they, as White III contested the second firing, which hadn’t occurred by the time of the jury trial in White I? And litigation decisions can be more difficult with public employees who face a variety of administrative procedures. However, there are lessons to be learned here: be extra careful to decide – on a case by case basis – whether and in what forum to contest a termination. If Officer White had simply accepted the first reinstatement rather than suing after she had been put back to work, she wouldn’t have had the White I record to weigh her down.

There is no black letter law for when to use administrative or grievance procedures and when not to use them. A lot may depend upon the facts of the case, the particular procedure available and memorandum of understanding. However, it goes without saying that a strategic analysis of whether or when to do so is always necessary.

Jody I. LeWitter
June 18, 2012