DIVISION XII -- RES JUDICATA/COLLATERAL ESTOPPEL
[Last updated Aug. 10, 2010]
- XII. Res judicata/Collateral estoppel
In Abbs v. Con-Way Freight, Inc. , ARB No. 08-017, ALJ No. 2007-STA-37 (ARB July 27 , 2010), the Complainant filed an STAA whistleblower complaint with OSHA. He also filed a complaint in federal district court alleging several causes of action including breach of contract, age and employment discrimination under the ADEA and Title VII of the Civil Rights Act, and wrongful discharge under the FMCSIA and the STAA. The Respondent filed a motion for summary judgment in district court. In regard to the STAA complaint, the Respondent argued that a private cause of action was not permitted under the STAA and the claim was not properly before the court. The Complainant denied that he had brought an STAA claim before the court and maintained that his only STAA complaint was pending with OSHA. The district court granted summary judgment as to all counts, including the STAA complaint, on the theory that the STAA only protects employees who refuse to drive, and that the Complainant had not refused to drive. The court did not address the Respondent's argument that the STAA complaint was not before the court. The Sixth Circuit affirmed the district court's decision without addressing the STAA claim. OSHA dismissed the complaint on the ground that it had been adjudicated in court. The ALJ issued a recommended decision holding that the doctrines of collateral estoppel and res judicata barred the complaint from being relitigated. The ARB reversed and remanded.
The ARB held that res judicata did not bar the STAA complaint because the district court lacked jurisdiction to determine the STAA claim. The ALJ had made an alternative finding that the district court had supplemental jurisdiction under 28 USCA 1367(a). The ARB held that, by its terms, section 1367(a) excepts federal court supplemental jurisdiction where a federal statute provides otherwise, and that the STAA whistleblower provision accords exclusive jurisdiction to the Secretary of Labor, subject to review before federal circuit courts.
The ARB held that collateral estoppel did not bar the STAA complaint because the Complainant did not have a full and fair opportunity to litigate the issue of whether the Respondent's proffered reason for discharging him was the true reason or was a mere pretext for unlawful retaliation. The ALJ had found that the court's finding the Complainant had failed to demonstrate pretext under the ADEA raised the precise issue of pretext under the STAA, resulting in collateral estoppel. The ARB, however, found the ALJ failed to take into account that the pretext showings may not be the same. The ARB found that allegations of disparate treatment which were irrelevant under the ADEA might, if proven, serve as evidence of pretext under the STAA. Thus, the precise issues were not the same. The ARB also found that because of the manner in which dismissal was sought, it could not be said that the Complainant was afforded a full and fair opportunity to litigate the issue. The Respondent challenged the district court's jurisdiction, and the Complainant thus never had a reason to present evidence on pretext under the STAA. The ARB therefore remanded the case for further proceedings before the ALJ.
[STAA Digest XII]
ISSUE PRECLUSION; DEFERENCE NOT AFFORDED TO STATE UNEMPLOYMENT PROCEEDING WHERE STATE LAW BARRED SUCH, AND WHERE THERE WAS NO EVIDENCE WHETHER THE STATE PROCEEDINGS ADDRESSED THE STAA CAUSATION ELEMENT AT ISSUE
In Peters v. Renner Trucking and Excavating , ARB No. 08-117, ALJ No. 2008-STA-30 (ARB Dec. 18, 2009), the Respondent argued that issue preclusion prevented the Complainant from asserting that he was terminated for complaints about brakes in his federal STAA whistleblower proceeding because he did not make that argument during a state unemployment compensation proceeding. The ARB noted that the ALJ found that he could not defer to the state decisions in the unemployment proceedings because the state's law barred using "decisions, findings, conclusions, final orders, and judgments" of its unemployment hearings and appeals "for the purpose of claim preclusion or issue preclusion in any other action or proceeding" except under the state unemployment insurance statute. The ARB also noted that the ALJ also found that he could not defer to those proceedings under 29 C.F.R. § 1978.112(c) because the record did not contain evidence that those proceedings addressed whether the Respondent discharged the Complainant because of his complaints about the brakes and the Respondent's post trip vehicle inspection report forms, which he believed violated federal DOT specifications. Earlier in the decision, however, the ARB had found it notable, in determining whether the Respondent's articulated non-discriminatory reasons for discharging the Complainant were legitimate, that the Complainant had not mentioned that he thought that he was discharged for his alleged protected activity rather than for absences and tardiness during the state employment compensation hearing.
[STAA Digest XII]
JUDICIAL ESTOPPEL; FAILURE OF COMPLAINANT TO DISCLOSE STAA PROCEEDING TO BANKRUPTCY COURT; ESTOPPEL APPLIES TO CLAIM FOR MONETARY DAMAGES, BUT NOT TO CLAIM FOR REINSTATEMENT
In White v. Gresh Transport Inc. , ARB No. 07-035, ALJ No. 2006-STA-048 (ARB Nov. 20, 2008), the ARB affirmed the ALJ's grant of summary decision pursuant to the doctrine of judicial estoppel in regard to any monetary damages that may have resulted from the Complainant's termination from employment in violation of the STAA whistleblower provision, where the Complainant had failed to disclose the STAA case to a bankruptcy court in which he had filed a Chapter 7 bankruptcy petition, even though the STAA complaint was filed after the Complainant had filed his original bankruptcy petition. The ARB, however, remanded for resolution of the Complainant's request for reinstatement based on caselaw indicating that judicial estoppel is not applicable to requests for injunctive relief.
XII Res judicata/collateral estoppel
In Brown v. Besco Steel Supply, 93-STA-30 (ALJ Aug. 26, 1994), the ALJ declined to apply collateral estoppel based on a finding by a state Court in Alabama in an unemployment compensation hearing that Complainant had not been discharged but rather had quit his job with Respondent. The ALJ reasoned that "acceptance of the state proceeding would serve little purpose since collateral estoppel generally is applied to avoid duplicative litigation, and the parties in the instant case have already developed extensive evidence and the only matter remaining is the issuance of the Court's decision based on that evidence."
[STAA Digest XII]
ISSUE PRECLUSION; STATE COURT JURY VERDICT
In Germann v. USDOL , No. 05-74174 (9th Cir. Oct. 2, 2006) (unpublished opinion available at 2006 WL 2818027) (case below ARB No. 04-008, ALJ No. 2002-STA-28), the Petitioner had initiated a wrongful termination suit in California state court, and a jury determined that he had not proved "by a preponderance of the evidence that he was terminated by Defendant because he disclosed information to a law enforcement agency which he had reasonable cause to believe disclosed a violation of a state law or regulation." 2006 WL *1 (quoting jury verdict). The California court of appeals affirmed and no further appeal was taken. In the meantime, the Petitioner had filed a STAA complaint with OSHA alleging that his termination had been in retaliation for complaining to the California Highway Patrol about hours of service violations. Earlier, the Petitioner had been victorious in a STAA whistleblower suit in which it was found that the Defendant had suspended him for that complaint. The ALJ found that the California suit compelled summary judgment against the Petitioner on issue preclusion grounds. The ARB affirmed. On appeal, the Ninth Circuit found that the case met all requirements for issue preclusion. The Petitioner argued that he did not have full and fair opportunity to litigant the issue in the California court because the burden shifting and mixed motive analyses of the STAA were allegedly not available in the state proceeding. The Ninth Circuit, however, looked at California law and found that it included the same burden shifting analysis as that used in STAA cases, and that even if it did not, a shift in the burden would have changed the outcome only if the employer had failed to offer a legitimate, non-discriminatory reason for the termination (a failure which had not occurred). The mixed motive analysis was not relevant because the Petitioner had not established the presence of an unlawful motive.
[STAA Digest XII]
COLLATERAL ESTOPPEL; STATE CIVIL SUIT PRESENTING IDENTICAL ISSUE ALLEGED IN STAA COMPLAINT
In Germann v. Calmat Co. , ARB No. 04-008, ALJ No. 2002-STA-28 (ARB May 31, 2005), appeal docketed sub nom Germann v. USDOL, Administrative Review Board (9th Cir), the ARB affirmed the ALJ's grant of summary judgment to the Respondent on the basis of collateral estoppel where the Complainant had filed a civil suit in the California courts alleging that he had been discharged in violation of state statutes prohibiting an employer from retaliating against an employee who discloses violations of federal or state safety laws to government or law enforcement agencies, the civil suit was tried before a jury which found against the Complainant, and the California Court of Appeals affirmed the jury verdict. The ARB applied California law regarding when to give preclusive effect to a decision by another California court, and found that all elements were present in the instant case (identical issue; final judgment on the merits; same party). The Board also found that the STAA regulations at 29 C.F.R. § 1978.112(c) mandated deferral to the state court determination.
[STAA Digest XII]
DEFERRAL TO OTHER PROCEEDINGS
The regulation at 29 C.F.R. §1978.112(c), which addresses deferral to the results of other proceedings, is a codification of the doctrine of issue preclusion. Scott v. Roadway Express, Inc. , ARB No. 99-013, ALJ No. 1998-STA-8 (ARB July 28, 1999).
[STAA Digest XII]
LAW OF THE CASE
In Polgar v. Florida Stage Lines , 94-STA-46 (ARB Mar. 31, 1996), the matter had been appealed to the Eleventh Circuit, and affirmed. Complainant petitioned the ARB for an award of additional back pay. In discussing Respondent's objections, the ARB indicated that the basic formula for the back pay award, having been set out in the Secretary of Labor's June 5, 1995 decision, and affirmed by the circuit court, was now the law of the case. Slip op. at 3 n.3 and Slip op. at 4.
XII. Res judicata
In Judd v. Helena Truck Lines, Inc., 91-STA-48 (ALJ Dec. 24, 1992), the administrative law judge noted that the Supreme Court has liberalized the applicability of the doctrine of equitable estoppel, or issue preclusion, and therefore other courts will continue to do so. University of Tennessee v. Elliott, 478 U.S. 788 (1986); United States v. Utah Construction & Mining Co., 384 U.S. 394 (1966). Such an approach has been endorsed under the STAA since the regulations promulgated thereunder authorize the Secretary of Labor to afford deference to the determinations of other jurisdictions on issues related to the Act. See 29 C.F.R. § 1978.112.
The ALJ concluded, however, that collateral estoppel should not be applied where the determination relied on was made by the Area Director of the Equal Employment Opportunity Commission based on evidence obtained from an agency investigation rather than through a judicial process. In making this determination, the ALJ stated that if an agency, whether federal or state, is "acting in a judicial capacity" and "the proceedings were fair, regular and free of procedural infirmities" with both parties having "a full and fair opportunity to argue their version of the facts and an opportunity to seek court review of any adverse findings," then the determination should be controlling on another agency which is addressing the same factual issue. Elliott, 788 U.S. at 799; 29 C.F.R. § 1978.112(c); Utah Construction & Mining Co., 394 U.S. at 422.
A closer question was presented by the decision of an appeals referee of the Tennessee Department of Employment Security. That referee conducted a hearing, the decision was appealed to the Board of Review of the state agency, and that decision was then appealable to the Chancery Court of Tennessee. The record before the ALJ, however, did not reveal whether the proceeding of the state agency was of a judicial nature with the parties being afforded a fair and reasonable opportunity to present credible evidence. Specifically, the record did not reveal the procedural or evidentiary aspects of the referee hearing. Moreover, the ALJ noted that acceptance of the state proceeding would serve little purpose since collateral estoppel generally is applied to avoid duplicative litigation, and the parties in the instant case had already developed extensive evidence and the only matter remaining was the issuance of the ALJ's decision based on that evidence.