[Last updated March 13, 2007]

XII. Res judicata/Collateral estoppel

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In Germann v. USDOL, No. 05-74174 (9th Cir. Oct. 2, 2006) (unpublished opinion available at 2006 WL 2818027) (case below ARB No. 04-008, ALJ No. 2002-STA-28), the Petitioner had initiated a wrongful termination suit in California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.