Unpublished Disposition, 848 F.2d 198 (9th Cir. 1988)

MEMORANDUM^* 

Elizabeth McComack appeals from a summary judgment granted in favor of the City of Alhambra (City). The district court determined that a prior state administrative adjudication precluded further relitigation of McComack's pendent state law discrimination claims under the California Fair Employment and Housing Act (FEHA). We affirm.

The threshold inquiry in this appeal is whether McComack's hearing before the Alhambra Civil Service Commission precludes her from maintaining her pendent claims under California's FEHA. "Traditionally, collateral estoppel gives preclusive effect in a subsequent court action to a final adjudication made by a court in a prior proceeding." Plaine v. McCabe, 797 F.2d 713, 718 (9th Cir. 1986). To determine whether a prior state adjudication has a preclusive effect, federal courts apply the preclusion law of the state in which the judgment was rendered. See id. at 719 n. 13 (citing Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373 (1985)). Thus, in this case, we apply California law.

In People v. Sims, 32 Cal. 3d 468, 186 Cal. Rptr. 77, 651 P.2d 321 (1982), the California Supreme Court adopted a two-part test for determining when administrative adjudications will be given preclusive effect. See Plaine, 797 F.2d at 720. First, the California Supreme Court adopted standards established by the United States Supreme Court in United States v. Utah Constr. & Mining Co., 384 U.S. 394, 422 (1966). Unreviewed state administrative adjudications, as opposed to state court judgments, will be given the preclusive effect accorded to a court judgment " [w]hen an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate...."¹  Utah Construction, 384 U.S. at 422 (emphasis added). Second, the California Supreme Court adopted the traditional criteria for res judicata or collateral estoppel. Sims, 32 Cal. 3d at 484, 186 Cal.Rpt. at 87, 651 P.2d at 331; Plaine, 797 F.2d at 720.

McComack argues that the findings of the Commission do not bar her claim under FEHA because FEHA's protections and enforcement services go beyond those available under the California Civil Service Act, Cal. Gov't.Code Sec. 18500 et seq. (West 1980), and because the hearing before the Commission was not equivalent to a hearing before a state trial court or a federal district court. We disagree. We hold that the requirements of California's two-part test for determining preclusive effect of administrative adjudications are satisfied.

First, the Commission's hearing was similar to an adversary court proceeding. McComack voluntarily presented her claims of employment discrimination to the Commission, was accorded a due process hearing, was given notice and opportunity to present evidence, and was represented by counsel. The fact that the Mayor of Alhambra appoints Commission members does not make the members biased as a matter of law. Thus, McComack's hearing satisfied the Utah Construction criteria.

The second prong of the test requires that the traditional requirements of res judicata or collateral estoppel be satisfied. In University of Tennessee v. Elliott, 106 S. Ct. 3220, 3225 (1986), the Supreme Court held that based upon the legislative history of Title VII, an administrative adjudication is not res judicata on a Title VII claim. At oral argument McComack's counsel admitted that she had no Title VII claim because she retired voluntarily. He also agreed that Elliott and the cases cited therein precluded her Sec. 1983 claim. Counsel gave us no reason to treat state law claims differently from the Sec. 1983 claims. Accordingly, the facts of this case do not justify an exception to the rule of preclusion.

We hold that the Commission's decision meets the traditional res judicata requirements: (1) the determination was final (the determination was reviewable in state court although McComack chose not to pursue review); and (2) the parties were identical. Even though the FEHA created another remedy, McComack voluntarily submitted her case to an administrative tribunal for a full and fair hearing in proceedings tantamount to a trial.

AFFIRMED.