McInnes v. State of Cal.

Decision Date28 August 1991
Docket NumberNo. 89-16242,89-16242
Citation943 F.2d 1088
Parties56 Fair Empl.Prac.Cas. (BNA) 1257, 57 Empl. Prac. Dec. P 40,946 Theresa McINNES, Plaintiff-Appellant, v. STATE OF CALIFORNIA, California Department of Consumer Affairs, Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

James B. Macy, Sacramento, Cal., for plaintiff-appellant.

Ronald W. Beals, Sacramento, Cal., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of California.

Before FLETCHER, NORRIS and TROTT, Circuit Judges.

FLETCHER, Circuit Judge:

Plaintiff Theresa McInnes appeals from the district court's adverse grant of summary judgment in her Title VII employment discrimination suit against the State of California and the California Department of Consumer Affairs ("DCA"). The district court held, based on issue preclusion, that McInnes's suit was barred by a prior decision of the California State Personnel Board ("SPB") awarding McInnes damages and other remedies for the same discrimination alleged in her federal complaint. Because unreviewed state administrative decisions lack preclusive effect in subsequent Title VII actions, we reverse.


The present suit is but one skirmish in an ongoing battle between McInnes and her government employers over sexual harassment and discrimination. McInnes commenced her employment with the government of California in 1978, when she joined The DCA assigned McInnes to work under the immediate supervision of Reuben Dennis, a Supervising Special Investigator I in the Sacramento Office with a history of hostile and discriminatory treatment of women investigators. Dennis treated McInnes no better than he had treated other women under his supervision. During McInnes's orientation, Dennis harassed her about her financial affairs, which had fallen into some disarray because of her health problems. He told her that her credit problems would prevent her from successfully completing her training. He also berated her like a would-be drill sergeant, repeatedly referring to her as "no good" and "useless" and then criticizing her response to these disparagements as "emotional." SPB Decision, No. 20342, at 14-16 (Sept. 3, 1986). In comments representative of his hostile attitude toward McInnes, Dennis said to her at one point:

                the California Department of Justice ("DOJ") as an Associate Governmental Program Analyst.   Three years later she filed a complaint with the DOJ, alleging that her supervisors and co-workers had harassed and discriminated against her because of her gender.   In June of 1984, McInnes and the DOJ entered into a stipulated settlement of her complaint.   The settlement awarded McInnes damages, vacation and sick-leave credits, retirement fund contributions, and partial disability status for gastrointestinal problems that arose during her dispute with the DOJ.   The settlement also required the DOJ to help place McInnes in the position of Senior Special Investigator with the Division of Investigation of the DCA and provide her with the necessary peace officer training ("POST Training") through a training and development assignment.   Following that assignment and a probationary period at the DCA, McInnes would be entitled to apply for employment with or transfer to the DOJ as either a Supervising Special Investigator I or as a Special Agent. 1  Pursuant to the settlement, in July of 1984 McInnes was placed in the Sacramento District Office of the DCA's Division of Investigation for her training and development assignment

I'll tell you frankly that if it had been up to me, I wouldn't have hired you. You're no good to anybody. You are emotionally unable to do your job. You've gotta straighten out your life, lady. And the way you reacted the other day [in a meeting regarding her financial situation], you did not handle that well at all emotionally. People who break out in tears are useless!

Id. at 15. McInnes had no such troubles with other superiors and colleagues at the DCA. Indeed, another male inspector with whom she worked found her "to be very attentive and receptive to instruction, a quick learner, well balanced emotionally, and very professional." Id. at 17.

Unwilling to tolerate Dennis's abuse, McInnes complained to Michael Vega, the Assistant Chief of the DCA's Division of Investigation. Vega discussed the complaint

                with Chief Duane Lowe, who then initiated a formal internal affairs investigation into Dennis's conduct.   On August 8, 1984, McInnes gave Vega a written complaint that was labeled "rough draft" and was addressed to the SPB, the agency responsible for enforcing California's civil service laws.   The DCA immediately called off its internal investigation of Dennis and began a comprehensive review of McInnes's attendance record, which included several authorized work absences necessitated by her recurring gastrointestinal problems.   Her health worsened, causing her to miss several weeks of work.   During this absence from work, the DCA notified her that it was terminating her training and development assignment
The SPB Proceedings

On August 27, 1984, McInnes filed a formal complaint of discrimination with the SPB. An SPB executive officer first ruled against her, but upon McInnes's appeal, an SPB Administrative Law Judge ("ALJ") held evidentiary hearings and ruled in her favor. The ALJ's ruling, adopted by the SPB on September 3, 1986, found that Dennis had harassed and discriminated against McInnes on the basis of her gender and that the DCA had terminated her in retaliation for the "rough draft" complaint she had shown to Vega. The ALJ ordered the DCA to cease and desist its discriminatory and retaliatory conduct, report to the SPB all complaints of sex discrimination and harassment by employees of the Division of Investigation for the next three years, and require supervisors and managers within the Division to undergo training on avoiding and preventing sex discrimination and harassment. To compensate McInnes, the ALJ ordered the DCA to restore her vacation and sick leave, reimburse her for out-of-pocket medical expenses incurred as a result of her gastrointestinal illness, and pay her $10,000 in compensatory damages. Finally, the ALJ's order required the DCA to offer McInnes "a new training and development assignment under the same terms and conditions previously provided in her agreement with the Department of Justice." SPB Decision, No. 20342, at 40 (Sept. 3, 1986). The ALJ rejected McInnes's request for attorney's fees on the ground that there was no "statutory or decisional authority authorizing the Board to make such an award." Id. at 38.

Despite the mandate of the ALJ's order, the parties were unable to agree on a new training and development assignment. In January of 1987, McInnes filed with the ALJ a request for modification of the SPB's decision. McInnes requested, among other things, "[a]ppointment to the classification of Special Agent, C Range, Department of Justice, effective December 16, 1985," and "[i]mmediate placement into the position of Special Agent, C Range or higher, as a peace officer, at the DOJ, in either the Bureau of Investigation or the Bureau of Organized Crime and Criminal Intelligence, assigned in Sacramento." She specifically stated that she did not want the modification to include "any assignment on a training and development (T & D) basis."

The ALJ solicited the views of the DOJ and the DCA, both of which opposed her request. The DOJ argued that the modification would put McInnes in a better position than she would have been under the original 1984 settlement, while the DCA claimed that it had fully complied with its obligations under the ALJ's order by offering her several training and development assignments, all of which she rejected. In a ruling adopted by the SPB on October 6, 1987, the ALJ denied McInnes's modification request, agreeing with the positions of both the DCA and the DOJ. Neither party sought judicial review of this or the original SPB decision, although such decisions are subject to review in a California court by writ of mandate or writ of review (certiorari). See Cal.Civ.Proc.Code §§ 1067, 1068, & 1094.5 (West 1980 & Supp.1991); Boren v. State Personnel Bd., 234 P.2d 981, 983, 37 Cal.2d 634 (1951).

The Title VII Proceedings

On November 15, 1984, while her complaint was pending before the SPB, McInnes filed a discrimination claim with the Equal Employment Opportunity Commission ("EEOC") pursuant to Title VII, 42 U.S.C. § 2000e-5 (1988). By waiting to file McInnes filed her initial Title VII complaint in federal district court on January 26, 1988. In her first and final amended complaint, she alleged the same discrimination and retaliation that was at issue in the SPB proceedings. She sought injunctive relief, back pay, attorney's fees and costs, and "an order reinstating plaintiff to the position she would have occupied, or a similar position, and restoring to her the benefits she would have received, but for the discrimination and retaliation." The appellees filed a motion to dismiss for lack of subject matter jurisdiction and failure to state a claim, Fed.R.Civ.P. 12(b)(1) & (6), which the district court denied without prejudice. The court's order stated that the SPB decision would be binding on the parties under the doctrine of collateral estoppel, 2 and that the appellees could renew their motion to dismiss or move for summary judgment "if evidence is offered that there is no legal and/or practical steps this court can take in formulating a remedy pursuant to Title 7 that was not invoked or enforced by the SPB." Order Denying Motion to Dismiss Without Prejudice, at 2 (June 17, 1988).

                her claim until two and a half months after initiating the SPB proceedings, McInnes complied with Title VII's requirement that where state or local law prohibits discrimination and provides procedures for obtaining

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