Bradshaw v. Golden Road Motor Inn

• Citation: 885 F. Supp. 1370
• Decision Date: 18 April 1995
• Docket Number: No. CV-N-94-0074-ECR.,CV-N-94-0074-ECR.
• Parties: Susan BRADSHAW, Plaintiff, v. GOLDEN ROAD MOTOR INN, et al., Defendants.
• Court: U.S. District Court — District of Nevada

885 F. Supp. 1370

Susan BRADSHAW, Plaintiff, v. GOLDEN ROAD MOTOR INN, et al., Defendants.

No. CV-N-94-0074-ECR.

United States District Court, D. Nevada.

April 18, 1995.

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Michael E. Langton of Langton & Kilburn, Reno, NV, for plaintiff.

Bruce Laxalt of Laxalt & Nomura, Ltd., Reno, NV, for defendant.

ORDER

EDWARD C. REED, Jr., District Judge.

This is a sex discrimination case brought under Title VII by Susan Bradshaw against her former employer, the Clarion Hotel Casino in Reno, Nevada. There are pendent state statutory and tort claims. The Clarion has filed a motion for summary judgment. Doc. # 29. Bradshaw has opposed, Doc. # 19, and the Clarion has replied. Doc. # 24. The Clarion's motion will be GRANTED.

Bradshaw worked for the Clarion as a dealer from April 10, 1991, until she was fired on September 2, 1993. The Clarion claims she was fired because her job performance was inadequate, and, more specifically, because of her behavior during an incident on the casino floor on August 28, 1993. Bradshaw's contention, as explained below, is not entirely clear. We address first some collateral matters.

I. Nevada Revised Statute 612.533

The parties also argue at length about the import of NRS 612.533, which provides, in relevant part, that "any finding of fact or law, judgment, determination, conclusion or final order" made pursuant to the state statutes on unemployment compensation is "not admissible or binding" in a separate suit between the employer and employee before a "court or judge of this state or the United States...."

A. Collateral Estoppel

We note, first, that the statute addresses two separate issues: evidence, when it states that state Employment Security Division findings are not admissible in subsequent judicial proceedings, and collateral estoppel, when it states that those findings are not binding in such proceedings. We turn first to the latter issue. Collateral estoppel in the federal courts is a question of federal law, and

it is well settled that 28 U.S.C. § 1738 requires federal courts to give state court reviewed administrative adjudications the same full faith and credit that the adjudications would have in the state's own courts. Section 1738, however, does not require federal courts to apply preclusive effect to a state agency determination that has not been judicially reviewed. In instances where section 1738 does not require preclusive effect, federal courts ... may still apply res judicata and collateral estoppel under federal common law rules.

Mack v. South Bay Beer Distributors, Inc., 798 F.2d 1279, 1283 & n. 4 (9th Cir.1986) (citations omitted). As a matter of federal common law, federal courts under Elliott must "give preclusive effect ... to the fact-finding of state administrative tribunals." Miller v. County of Santa Cruz, 39 F.3d 1030, 1032 (9th Cir.1994).¹

After she was fired, Bradshaw applied for unemployment insurance benefits, which the Clarion controverted. A hearing was held before an appeals referee of the state Employment Security Division, who ruled that Bradshaw was not entitled to benefits because she had been discharged for "misconduct" — specifically, for refusing her supervisor's direct order to go to his office, and for manifesting that refusal by loud and inappropriate conduct on the casino floor, in front of customers and her coworkers. Doc. # 29 Exh. H. The referee's ruling was never reviewed by a court. Indeed, the ruling was not even reviewed within the Employment Security Division, as Bradshaw's appeal was filed late and the Division's Board of Review therefore refused to hear it. The Clarion argues strenuously and at length, see Doc. # 29 at 4-9; Doc. # 24 at 3-7, that because "this matter has been fully and finally adjudicated" by the Employment Security Division, Doc. # 24 at 4, we must "afford that prior adjudication res judicata effect," Doc. # 29 at 9, and dismiss Bradshaw's claims.

That is incorrect. Bradshaw's only federal claim is for sex discrimination under Title VII, and unreviewed state administrative proceedings have no preclusive effect on Title VII claims. University of Tennessee v. Elliott, 478 U.S. 788, 796, 106 S.Ct. 3220, 3225, 92 L.Ed.2d 635 (1986).² This result is mandated by federal common law. NRS 612.533 dictates the same result, but would come into play only if the referee's decision had been reviewed by a state court. Only then would this court, pursuant to 28 U.S.C. § 1738, look to the state statute and give the decision the same preclusive effect a Nevada court would give it, i.e., none at all.

B. Admissibility

We turn, then, to the more difficult question: whether the decision of the Employment Security Division's appeals referee, which has no preclusive effect, can at least be admitted into evidence. As a general rule, arbitral decisions may come into evidence and are allowed such weight as the trial court deems appropriate. Alexander v. Gardner-Denver Co., 415 U.S. 36, 60, 94 S.Ct. 1011, 1025, 39 L.Ed.2d 147 (1974). In Alexander, which involved arbitration of a discrimination claim under a collective bargaining agreement, the Court noted that the "relevant factors" in determining admissibility would include

the existence of provisions in the collective-bargaining agreement that conform substantially with Title VII, the degree of procedural fairness in the arbitral forum, adequacy of the record with respect to the issue of discrimination, and the special competence of particular arbitrators. Where an arbitral determination gives full consideration to an employee's Title VII rights, a court may properly accord it great weight.

Id. at n. 21. Though Alexander dealt with an arbitral decision, that case's analytical framework can be applied just as easily to a decision rendered by an agency responsible for investigating and adjudicating claims of employment discrimination as to a decision rendered by a labor arbitrator.³

Only a few cases address the admissibility in an employment discrimination suit of decisions by state unemployment compensation officials. The most thorough opinions are Barfield v. Orange County, 911 F.2d 644 (11th Cir.1990), and Baldwin v. Rice, 144 F.R.D. 102 (E.D.Cal.1992).⁴ In Barfield, the plaintiff sought to exclude from evidence an EEOC report and a report of proceedings of the Florida Unemployment Appeals Commission. The court held that the EEOC report was admissible, in the trial court's discretion and in light of Rule 403, as a public record under Rule 803(8). It paid little attention to the unemployment commission's report, explaining that, because FRE 803(8) "makes no distinction between federal and nonfederal offices and agencies" and "because a finding of misconduct is clearly relevant to a charge that an employee has been fired not for any proper reason but because of racial discrimination," id. at 649-50 & n. 7, its analysis of the admissibility of the EEOC report applied equally to the unemployment commission's report.

In Baldwin, the court admitted a decision of the California Unemployment Insurance Appeals Board, for a variety of reasons:

— it was a "decision on the facts" that was "directly pertinent to the issues" in the case;

— the defendant had "participated fully in the unemployment appeals process," so the Board's decision was "not occasioned by the absence" of the defendant's input;

— any harm to the defendant could be "addressed by referring to deficiencies in the record or other evidence" which would discredit the Board's findings;

— "admissibility of evidence requires less rigorous standards than collateral estoppel," so, like an equal employment opportunity (EEO) complaint, the unemployment decision, while not given preclusive effect, could be admitted into evidence;

— in this particular case, the parties had ample incentive to litigate the unemployment claim, the unemployment decision was a part of the EEO file (which itself would be admissible), and the unemployment hearing appeared to have been more extensive and reliable than the EEO investigation.

Baldwin, 144 F.R.D. at 105-07. The Baldwin court ruled as it did despite the fact that a California statute, basically identical to Nevada's, made such unemployment decisions inadmissible.

We assume that a decision by a state unemployment board or officer is a "public record" within the meaning of Rule 803(8). We note that there may be cases in which, as in Baldwin, an unemployment compensation hearing has been unusually complete, with each party given a chance to participate fully and afforded the full complement of procedural protections. We note, also, that a finding by an unemployment board or officer that, say, an employee was or was not fired for "misconduct," will usually be relevant to an employment discrimination suit.

Nevertheless, we must disagree with the Barfield and Baldwin courts, essentially for two reasons. First, we think that an unemployment compensation hearing will normally fail to meet the four Alexander criteria. The hearing may well be procedurally fair and an adequate record may be made on the issue of discrimination. Still, state unemployment statutes are even less likely than collective bargaining agreements to contain provisions that "conform substantially" to Title VII; the question at the hearing is whether the employee is entitled to compensation under state statutes, not whether the employee was discriminated against in violation of federal law. Also, the hearing officer or board will typically have no special competence in deciding claims of discrimination.

Related to the fact that an unemployment hearing is not designed to resolve discrimination claims is a serious policy concern, enunciated most clearly by our circuit:

... an employee's incentive to litigate an unemployment benefits claim is generally much less than his incentive to litigate a discrimination claim where generally the stakes are much higher. When the amount in controversy in the

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