Case Name: Oscar Cielos v. San Jose Unified School District
Case No.: 2014-1-CV-261786

This is an action alleging employment discrimination and violations of the FEHA. The remaining claims in the operative First Amended Complaint (“FAC”) that are alleged against Defendant San Jose Unified School District (“Defendant”) are the 1st cause of action for disability discrimination in violation of the FEHA; the 2nd cause of action for failure to engage in an interactive process in violation of the FEHA; the 3rd cause of action for failure to accommodate disability in violation of the FEHA, and the 5th cause of action for whistleblower retaliation and wrongful discharge.

The Court (Hon. Elfving) previously stayed this action on September 4, 2014 pending the completion of the proceedings, initiated by Plaintiff, before the Public Employees Relations Board (“PERB”), as the PERB has exclusive initial jurisdiction over claims of unfair practices brought against a school district by an employee. (See Gov. Code §3541.5.) The Court noted in its order that: “All of Plaintiff’s claims in his verified FAC are based on, and expressly incorporate, the allegations that also form the basis of the unfair practice claims against the District and Teachers’ Association. See FAC at 11-46. The alleged unfair practices (including the alleged improper evaluation of Plaintiff) and alleged FEHA claims for discrimination are linked because Plaintiff’s purported disability (anxiety and depression) on which his FEHA claims are based is alleged to have come into being in late Jan. 2014 after his Oct. 2013 evaluation and Jan. 16, 2014 written reprimand. Plaintiff alleges the disability was caused by these events. See FAC at 54. The 5th cause of action for whistleblower retaliation (Labor Code §1102.5) alleges that Plaintiff’s contract was not renewed because he made a claim with the DFEH alleging that Defendants policies’ did not follow the law. It is thus apparent that the remaining claims in this action are based upon issues within the exclusive initial jurisdiction of the PERB and allowing the PERB to make determinations as to those matters within its jurisdiction may clarify, and possibly resolve, Plaintiff’s remaining claims.” (See Sept. 4, 2014 Order at 3:2-18.)

With the PERB having now ruled after a hearing before an administrative law judge that Defendant did not discriminate or retaliate against Plaintiff for protected activity, Defendant brings a motion for judgment on the pleadings (“JOP”) as to all the remaining claims alleged against it, asserting that the PERB decision has res judicata and/or collateral estoppel effect on those claims.

A JOP motion is the functional equivalent of a general demurrer but is made after the time to demur has expired and more than 30 days before trial. (See CCP §438.) Except as provided by the statute, the rules governing demurrers apply. The motion may be brought on the same grounds as a general demurrer, i.e., that the pleading at issue fails to state facts sufficient to constitute a legally cognizable claim or defense. (See Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999; County of Orange v. Association of Orange County Deputy Sheriffs (2011) 192 Cal.App.4th 21, 32; Southern Calif. Edison Co. v. City of Victorville (2013) 217 Cal.App.4th 218, 227.) As with a demurrer, a JOP motion may not be brought against only part of a claim. As with a demurrer, the Court may not consider any extrinsic evidence. (See Smiley v. Citibank (South Dakota) N.A. (1995) 11 Cal.4th 138, 146 [“[T]he trial court generally confines itself to the complaint and accepts as true all material facts alleged therein… [and] may extend its consideration to matters that are subject to judicial notice.”]) Accordingly the Court has not considered the declaration of Plaintiff’s Counsel Tomas Flores, any of the attached exhibits, or any of the opposition arguments dependent upon such extrinsic evidence.

As with a demurrer the doctrine of res judicata/collateral estoppel may be the basis for a JOP motion. A general demurrer or JOP motion lies where the facts alleged in the complaint or matters judicially noticed show that plaintiff is seeking relief from the same defendant on the same cause of action as in a prior action, or is asserting an issue decided against plaintiff in the prior action. (See Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 792 [plaintiff’s wrongful death action barred by her prior voluntary dismissal of loss of consortium action against same defendant]; Gabriel v. Wells Fargo Bank, N.A. (2010) 188 Cal.App.4th 547, 556 [complaint barred by collateral estoppel].)

Requests for Judicial Notice
Defendant’s request for judicial notice (“RJN”) of four documents, copies of 1) Plaintiff’s Unfair Practice Charge filed with the PERB on May 8, 2014 (exhibit A to the request); 2) the Corrected Complaint issued by the PERB in Plaintiff’s action against Defendant (exhibit B to the request); 3) the PERB’s decision on Plaintiff’s charge, declared final effective April 26, 2016 (exhibit C to the request), and; 4) a prior decision of the PERB, Decision No. 201, Novato Fed. Of Teachers, Local 1986 v. Novato Unified School District, (exhibit D to the request) is GRANTED pursuant to Evidence Code §452(c) rather than §452(d) as the documents presented are not court records.

It is well established that the records and files of an administrative board are properly the subject of judicial notice under Evidence Code §452(c) and notice may be taken of such material in support of a demurrer or JOP motion. (See Taiheiyo Cement U.S.A., Inc. v. Franchise Tax Board (2012) 204.Cal.App.4th 254, 267, fn. 5; Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 518; Hogen v. Valley Hospital (1983) 147 Cal.App.3d 119, 125. See Also D’Arrigo Bros. of California v. United Farmworkers of America (2014) 224 Cal.App.4th 790, 795, fn. 1 [Court of Appeal took judicial notice of several ALRB decisions, some on its own motion, in reviewing denial of anti-SLAPP motion].)

Plaintiff’s argument that the Court may not take notice of the truth of factual findings of the PERB is not a basis for denying judicial notice. Whether those findings were correct is irrelevant to the determination of whether they have res judicata/preclusive effect on Plaintiff’s remaining claims. (See Proctor v. Vishay Intertechnology, Inc. (2013) 213 Cal.App.4th 1258, 1270-1271 [action barred by collateral estoppel subject to demurrer even if issue wrongly decided in first action].)

Plaintiff’s request for judicial notice of two documents, pre-hearing rulings by the PERB Administrative Law Judge (exhibits A and B to the request) is GRANTED pursuant to Evid. Code §452(c).

Motion for Judgment on the Pleadings
Defendant’s motion for JOP is GRANTED as the PERB determination that Plaintiff was neither discriminated against nor retaliated against for protected activity has res judicata and collateral estoppel effect in this proceeding, and establishes that Plaintiff cannot prevail on his remaining claims.

In California, “[t]he doctrine of res judicata describes the preclusive effect of a final judgment on the merits. It promotes judicial economy as it precludes piecemeal litigation by splitting a single cause of action or relitigation of the same cause of action on a different legal theory or for different relief. The doctrine has two aspects: the first is claim preclusion, otherwise known as res judicata, which prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them. The second is issue preclusion, or collateral estoppel, which precludes relitigation of issues argued and decided in prior proceedings. . . . [Para] In analyzing whether a second action or proceeding is barred by issue preclusion or collateral estoppel, we look to whether the decision in the initial proceeding was final and on the merits and the issue sought to be precluded from relitigation is identical to that decided in the first action and was actually and necessarily litigated in that action. [Para.] The doctrine of res judicata, whether applied as a total bar to further litigation or as collateral estoppel, rests upon the sound policy of limiting litigation by preventing a party who has had one fair adversary hearing on an issue from again drawing it into controversy and subjecting the other party to further expense in its reexamination.” (Alpha Mechanical, Heating & Air Conditioning, Inc. v. Travelers Casualty & Surety Co. of America (2005) 133 Cal.App.4th 1319, 1326-1327 [internal quotation marks and citations omitted].)

“‘In California the phrase ‘cause of action’ is often used indiscriminately … to mean counts which state [according to different legal theories] the same cause of action….’ But for purposes of applying the doctrine of res judicata, the phrase ‘cause of action’ has a more precise meaning: The cause of action is the right to obtain redress for a harm suffered, regardless of the specific remedy sought or the legal theory (common law or statutory) advanced. As we explained in Slater v. Blackwood, supra, 15 Cal.3d at page 795, 126 Cal.Rptr. 225, 543 P.2d 593: ‘[T]he ‘cause of action’ is based upon the harm suffered, as opposed to the particular theory asserted by the litigant. [Citation.] Even where there are multiple legal theories upon which recovery might be predicated, one injury gives rise to only one claim for relief. ‘Hence a judgment for the defendant is a bar to a subsequent action by the plaintiff based on the same injury to the same right, even though he presents a different legal ground for relief.’ [Citations.]’ Thus, under the primary rights theory, the determinative factor is the harm suffered. When two actions involving the same parties seek compensation for the same harm, they generally involve the same primary right.” (Boeken, supra, at 798 [internal citations omitted].)

As the Court recognized in the prior September 4, 2014 Order, all of Plaintiff’s remaining claims against Defendant in this action are based on the same claimed harm as his unfair practice claims brought before the PERB; that his performance was improperly evaluated, leading to an adverse employment action and purported disability, and that he suffered retaliation (including not having his contract renewed, “non-reelection”) when he complained to the DFEH that Defendant’s policies were improper. Thus, under the primary right theory the “cause of action” is the same for purposes of a res judicata/claim preclusion analysis regardless of the multiple legal theories advanced by Plaintiff.

The PERB’s “Conclusions of Law” in its final decision dismissing Plaintiff’s charge, reached after formal hearings on September 16, 17, 18, 21, 22, October 12 and November 23, 2015 during which Plaintiff was represented by counsel (see Ex. C to Defendant’s RJN), included a determination that Plaintiff’s performance was not improperly evaluated: “The overarching purpose of the new evaluation system was to involve consulting teachers in the evaluation process. It was not intended to make it easier for teachers to be rated meets standards. . . . While there did appear to be a lack of clear direction from the TQP [Teacher Quality Panel] as to whether a single ineffective rating should result in an overall does not meet standards rating and whether a third classroom observation could be required if the teacher met standards overall after the second evaluation, the District did not exploit these anomalies to make Cielos’s evaluations more onerous or oppressive. The District gave into Cielos’s demand that the evaluation process cease after the second classroom observation. . . . He complains that [consulting teacher] Thurmond had difficulty explaining her expectations. The argument is unconvincing. The evaluation form is detailed in stating expectations and Thurmond carefully explained what she observed in her initial evaluation. Cielos simply disagreed with Thurmond based on her not having sufficient experience teaching English-language learners.” (See Ex. C to Defendant’s RJN at pgs. 24-25, brackets added.)

The PERB also concluded that the adverse employment action (the “non-reelection”) was not based on discrimination or retaliation against Plaintiff for his complaints about the evaluation process or his filing of this lawsuit, but his unreasonable conduct towards Thurmond after her evaluation of his performance. “While the elements of a prima facie case of discrimination have been satisfied based on the departure from standard procedures and the temporal proximity of the non-reelection decision and he protected activity, the evidence as a whole fails to meet Cielos’s burden of proof by a preponderance of the evidence that the non-reelection would not have occurred but for his protected activity. . . . Cielos’s email to Thurmond was reasonably found to be hostile, insulting, unprofessional, and ambiguously threatening of physical harm. The note, which he thoughtfully and carefully prepared as an in-kind response to Thurmond’s visit, concluded with an explicit characterization of her delivery of the holiday gift as a threat. Whatever personal issues Cielos harbored, he lacked professional judgment in loading Thurmond with the pain associated with those matters using scathing language. He was deserving of more than a verbal counseling. [District Superintendent] Matthews was unaware of Cielos’s protected activity in January when he informed [Assistant Superintendent, Human Resources] Canelake of his criterion for non-reelection based on formal discipline. The District did not discriminate or retaliate against Cielos for his protected activity.” (See ex. C to Defendant’s RJN at pgs. 27-28, brackets added.)

Based on the PERB’s conclusions, Plaintiff’s remaining claims fail. Under the primary rights theory, the crucial factor is the harm claimed. The harm underpinning the claims alleged in the FAC is that the District did not retain Plaintiff as a teacher in order to retaliate against him because of his complaints regarding the evaluation system and his filing of this lawsuit, and/or because of discrimination towards a perceived disability (which Plaintiff alleges was caused by “mistreatment” that did not occur). The PERB decision establishes that this was not the case, that Plaintiff was not improperly evaluated, and the Plaintiff was let go because of his behavior towards Thurmond, which merited the discipline he had received.

Alternatively and in addition to res judicata/claim preclusion, Plaintiff’s remaining claims are also barred by collateral estoppel/issue preclusion.

“It has long been recognized that collateral estoppel not only prevents relitigation of court findings, but also may be applied to the decision of an administrative agency when that agency is acting in a judicial or quasi-judicial capacity. Giving preclusive effect to prior administrative findings in appropriate cases furthers the policies underlying the collateral estoppel doctrine, in that it ‘promote[s] judicial economy by minimizing repetitive litigation,’ prevents ‘the possibility of inconsistent judgments which may undermine the integrity of the judicial system,’ and protects parties ‘from being harassed by repeated litigation.’” (Basurto v. Imperial Irrigation District (2012) 211 Cal.App.4th 866, 878 [internal citations omitted].) “Indicia of [administrative] proceedings undertaken in a judicial capacity include a hearing before an impartial decision maker; testimony given under oath or affirmation; a party’s ability to subpoena, call, examine, and cross-examine witnesses, to introduce documentary evidence, and to make oral and written argument; the taking of a record of the proceeding; and a written statement of reasons for the decision.’” (Id. at 878-879 [quoting Pacific Lumber Co. v. State Water Resources Control Bd. (2006) 37 Cal.4th 921, 944].) “California precedent makes clear that an administrative hearing, to qualify as sufficiently ‘judicial’ for collateral estoppel purposes, need not be identical to a judicial trial, so long as basic due process considerations are satisfied.” (Id. at 884.)

The PERB hearing sufficiently meets this criteria. The fact that Plaintiff complains in his opposition that the Administrative Law Judge ruled against him on some issues does not mean due process considerations were not satisfied. Notably, Plaintiff did not file any statement of exception to the PERB’s proposed decision pursuant to Cal. Code Regs., tit. 8, §32300, which would have afforded him an opportunity to identify issues of procedure, fact or law, and explain his belief that decision(s) made by the ALJ were incorrect. (See Ex. C to Defendant’s RJN, April 26, 2016 cover letter to decision, stating that no exceptions were filed.)

Plaintiff’s first cause of action for disability discrimination in violation of the FEHA is clearly barred as the PERB found that the reason for Plaintiff’s discipline and non-reelection was not discrimination on the basis of perceived disability but his behavior towards Thurmond, who had conducted a proper evaluation of Plaintiff. Plaintiff thus cannot establish that discrimination by Defendant was the basis for the adverse employment action, an essential element of the claim.

The second cause of action is also barred by the PERB decision. Despite the label of failure to engage in interactive process, this claim alleges (FAC at 65) that Plaintiff was improperly disciplined for his communication with Thurmond. Plaintiff cannot establish causation as the PERB found he was properly disciplined for his unreasonable conduct towards Thurmond, a conclusion it reached even after giving consideration to the “extenuating circumstances” Plaintiff alleges were ignored by Defendant. (FAC at 67.)

Plaintiff’s third cause of action for failure to accommodate disability is also barred by the collateral estoppel effect of the PERB decision. Plaintiff alleges that Defendant “used Plaintiff’s perceived disability to discipline and defame Plaintiff.” (FAC at 71.) After a full hearing the PERB concluded this was not the case, and the Plaintiff was properly disciplined for his “thoughtfully and carefully prepared” communication sent to Thurmond, which Defendant “reasonably found to be hostile, insulting, unprofessional, and ambiguously threatening of physical harm.” (See Ex. C to Defendant’s RJN, pgs. 27-28.)

Finally Plaintiff’s fifth cause of action for whistleblower retaliation and wrongful discharge is also barred as the PERB found that Plaintiff’s “non-reelection” was neither wrongful nor retaliation for protected activity.

Plaintiff may not relitigate issues that were already decided in a proper forum. “Fundamentally, giving estoppel effect to an appropriate, quasi-judicial administrative decision ‘accords a proper respect’ to an agency’s internal procedures, which provide a means for the agency to quickly determine if it has committed error, and if so, ‘to minimize, and sometimes eliminate, any monetary injury to the plaintiff by immediately reversing its initial decision.’ In Sims, the Supreme Court recognized that ‘[g]iving conclusive effect’ to such an agency decision ‘would promote judicial economy by minimizing repetitive litigation.’ In contrast, permitting relitigation of issues that a party already has had a full opportunity to litigate would ‘substantially diminish[ ]’ the value of the administrative process. Indeed, as the Supreme Court emphasized in Johnson, ‘Refusing to give binding effect to the findings of administrative agencies in quasi-judicial proceedings would . . . undermine the efficacy of such proceedings, rendering them in many cases little more than rehearsals for litigation.’” (Basurto, supra, at 893 [internal citations omitted].)

Leave to amend is DENIED as no further amendment can alter the legal effect of the PERB decision on Plaintiff’s remaining claims. (See Schonfeldt v. State of Calif. (1998) 61 Cal.App.4th 1462, 1467-1468.)