White v. City of Pasadena

• Decision Date: 17 January 2012
• Docket Number: No. 08–57012.,08–57012.
• Parties: Karin WHITE, an individual, Plaintiff–Appellant, v. CITY OF PASADENA, a governmental entity; City of Pasadena Police Department, a governmental entity; Bernard K. Melekian, an individual, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

12 Cal. Daily Op. Serv. 634

2012 Daily Journal D.A.R. 613

25 A.D. Cases 1185

671 F.3d 918

Karin WHITE, an individual, Plaintiff–Appellant,

v.CITY OF PASADENA, a governmental entity; City of Pasadena Police Department, a governmental entity; Bernard K. Melekian, an individual, Defendants–Appellees.

No. 08–57012.

United States Court of Appeals, Ninth Circuit.

Argued March 2, 2010.Submitted Jan. 5, 2012.Filed Jan. 17, 2012.

Richard A. Love, Esq., Kathleen M. Erskine, Esq., Law Offices of Richard A. Love, Los Angeles, CA, for plaintiff-appellant Karen White.

Richard R. Terzian, Esq., Robert J. Tyson, Esq., Burke, Williams & Sorensen, LLP, Los Angeles, CA, for defendants-appellees City of Pasadena, et al.

Appeal from the United States District Court for the Central District of California, Manuel L. Real, District Judge, Presiding. D.C. No. 2:08–cv–03390–R–JWJ.Before: WILLIAM C. CANBY, JR., RONALD M. GOULD, and SANDRA S. IKUTA, Circuit Judges.

OPINION

IKUTA, Circuit Judge:

After her first termination from the City of Pasadena Police Department and subsequent reinstatement, Karin White brought a lawsuit in state court claiming that she had been discriminated against and harassed by the City due to its perception that she had a disability. After her second termination, she reiterated her discrimination and harassment claims in an administrative proceeding, where she also argued that the termination was retaliatory. Both of White's actions resulted in a decision in favor of the City. White now brings claims in federal court based on the same theories litigated in state proceedings. We conclude that California principles of issue preclusion prevent us from reaching these issues here.

I.

The lengthy course of litigation at issue in this case began with the City's attempted termination of White in 2004. The City had hired White as a police officer in 1996. Two years later, White was diagnosed with relapsing/remitting multiple sclerosis, which her doctor said would not limit her performance of her official duties. In November 2004, the City terminated White for allegedly associating with a known drug dealer (who was also the father of her son) and for lying to the department about her relationship with him. The City based this decision on telephone recordings between the drug dealer and White, which had been obtained through a wiretap of the drug dealer's phone. White challenged the termination by pursuing a grievance proceeding, as allowed under the Memorandum of Understanding (MOU) between the City of Pasadena and the Pasadena Police Officer's Association. The arbiter issued an advisory opinion concluding that the City had violated state and federal wiretap laws in recording her conversations, and the City's disciplinary action was barred by the applicable one-year limitations period. See Cal. Gov.Code § 3304(d). After receiving this ruling, the City reinstated White on the statute of limitations ground. White returned to work as a police officer on July 15, 2005.

A

White filed the first action at issue in this case in December 2005 (“ White I ”). White's complaint, filed in the state superior court, alleged that:

defendants entered into a pattern or plan of discrimination and harassment against plaintiff by attempting to force plaintiff to resign, or to terminate plaintiff, from employment due to the incorrect assumption or perception, and prejudice, by defendants that plaintiff suffered from or had or suffered from a disability due to the November, 1998 Multiple Sclerosis flare up and diagnosis.

She also alleged that the department had illegally used tape-recorded conversations in the internal affairs investigation that led to her November, 2004 termination. Finally, she alleged that the City's discrimination and harassment based on her perceived disabilities had continued after her return to work and constituted a continuing violation. Among other things, she claimed that she had been removed from the “coveted position” of Community Outreach, was not reinstated, and was subjected “to further discrimination and harassment by her superiors in their criticism, critique, and evaluation of her job performance, and unfounded disciplinary actions.”

According to White, all of these actions amounted to “discrimination based upon a perceived physical disability,” and unlawful harassment based on an actual or perceived disability, both of which violated the California Fair Employment and Housing Act (FEHA). See Cal. Gov.Code § 12926( l ) (defining “physical disability”), 12940(a)(generally making it an “unlawful employment practice” to discriminate on the basis of physical disability); Cal. Gov.Code § 12940(j)(1) (making it unlawful to harass an employee because of a disability). In addition to these two FEHA causes of action, she alleged that the City's use and disclosure of wiretaps recording her conversations with the drug dealer violated her right to privacy under California law. See Cal.Penal Code §§ 631, 637.2.

On April 2, 2007, after a lengthy trial, the jury returned a special verdict finding that the City did not “take an adverse employment action against [White] based on its knowledge or belief that she had a disability,” and that White was not “subjected to unwanted harassing conduct by a supervisor ... because she was believed to have a disability.” The jury also found that the City had illegally used “conversations, which had been tape recorded without [White's] consent, to initiate an internal investigation into the conduct of [White],” that the use of these conversations was a “substantial factor in causing harm” to White, and that White had suffered $1,000,000 in damages as a result. The trial court denied White's discrimination and harassment claim under FEHA, but trebled the damages award for her right to privacy claim under the applicable statute, and entered judgment for White in the amount of $3,000,000.

Both the City and White appealed. The California Court of Appeal rejected White's appeal from the jury verdict against her on the disability discrimination cause of action. White v. City of Pasadena, No. B200594, 2009 WL 1234094, at *1 (Cal.Ct.App. May 7, 2009). The court also reversed the verdict as to White's privacy claims, holding that the City was immune from civil liability for invasion of privacy. Id. at *6; see Cal. Gov.Code § 821.6. The California Supreme Court denied White's petition for review on August 12, 2009.

B

On June 25, 2006, before trial began in White I, White was shot in the face in her home. As subsequently explained by the California Court of Appeal, “[t]he only other person present was her 18–year old son, Kamron Williams.” White v. City of Pasadena, No. B221687, 2011 WL 3130626, at *1 (Cal.Ct.App. July 26, 2011). The son “told the 911 operator, as well as deputies who arrived on the scene, that his mother had shot herself.” Id. at *1. White “denied having attempted suicide, and told a sheriff's investigator that she had been accidentally shot while struggling with Williams in an attempt to prevent him from shooting himself.” Id. Both the Los Angeles Sheriff's Department and the Pasadena police department conducted investigations of the incident; both concluded that White had attempted suicide. The City adopted this conclusion and thereupon ruled that White had made false statements about the shooting incident to the Sheriff's Department and the police department. The City terminated White on August 30, 2007 on this basis.

White again pursued an administrative appeal of her termination. These administrative proceedings, and their subsequent review on a writ of mandamus, constitute the second action at issue in this case (“ White II ”). Under the terms of the MOU, if an employee cannot resolve a grievance with the employee's immediate supervisor or department head, the employee is entitled to advisory arbitration. The employee (and employer) may submit issues to an arbiter, who holds a hearing where parties can introduce witnesses and documents. Following the hearing, the arbiter prepares a written advisory opinion “which shall not be binding on either party, and shall be limited to the issue, or issues, presented to the arbiter.” That advisory opinion is sent to the City Manager, who makes the final decision as to what action, if any, the City will take. The employee is entitled to representation throughout the grievance process.

In White's administrative appeal of the second termination, the parties submitted briefs in October 2008, and the administrative hearing commenced in November. The arbiter defined the issues before him as:

1. Was there just cause to terminate Karin White's employment with the City?

2. Was the [Police] Department's action timely under Government Code § 3304(d)?

3. If the answer to either question is no, what is the appropriate remedy?

Both White and the City made opening statements, called witnesses, admitted exhibits, and filed closing briefs. During the hearing, White introduced evidence that the City's investigation and her termination were in retaliation for the White I lawsuit.

In his written advisory opinion, the arbiter stated that the key question with respect to the “just cause” issue was whether the City carried its burden of proving that White attempted to commit suicide. The arbiter ultimately concluded that the City did not carry its burden of proof on this issue, and that White had been “the victim of a sloppy and biased investigation and report.” In light of this determination, the arbiter stated that he could not “reach a conclusion that White was the victim of retaliation” by the Chief of Police. The arbiter also found that the City's termination of White was untimely under state law. See Cal. Gov.Code § 3304(d). The arbiter therefore recommended that White be reinstated with full back pay and benefits.

As required in the MOU, the arbiter's advisory opinion, along with a transcript of the proceedings, was sent to the City...