discharged on March 16, 1990. Plaintiff requested, in Count II, the following relief from the state court: "unconditional reinstatement as Senior Engineer and a judgment in the amount of $10,000 for compensatory, punitive or exemplary damages together with costs, interest, and attorney fees."

   In response to an interrogatory propounded by Consumers in the state action, plaintiff described each act that allegedly occurred to form the basis of count II by responding: "See facts related to (1) Plaintiff's complaint to the United States Department of Labor and attachments .... " (Ex. 3 to Consumer's Motion to Dismiss)

   On March 19, 1991 Consumers filed in the state action, a "Motion to Adjourn and Clarify" the mediaton that was scheduled for May 16, 1991 pursuant to Michigan Court Rules. The motion asked the court to decide whether the doctrine of collateral estoppel or res judicata would prevent the complainant from proceeding to trial in the Department of Labor case if the parties accepted the mediation panel's evaluation. On April 1, 1991, the trial judge ruled that the parties, acceptance of the mediation panel's evaluation would terminate further state court actions. He stated that he would let the federal judge determine whether res judicata applied to the federal case. (Ex. 4 to Complainant's Brief in Support of Answer to Respondent's Motion to Dismiss.)

   On July 11, 1990 the case was presented for mediation, which is governed by Michigan Court Rule (MCR) 2.403. In this process, all claims by one party against another are treated as a single claim. Documents may be filed and representatives of the parties may make a fifteen minute presentation; the rules of evidence do not apply. (MCR) 2.403 (J). Each party must file a written acceptance or rejection of the panel's evaluation with the mediation clerk within twenty-eight days of the panel's, evaluation. MCR 2.403(L)

   The mediation panel issued its evaluation on July 11, 1991 and twenty-eight days later both parties accepted. On August 28, 1991 the trial judge entered judgment for the Plaintiff and ordered that upon payment of the mediation award, "this case is hereby dismissed with prejudice." On the same date, counsel for Plaintiff signed a Satisfaction of Judgment stating that the judgment is deemed satisfied in full land of no further force and

effect."

   Consumers now moves for summary judgment or dismissal, contending that the Michigan judgment and dismissal with prejudice is entitled to full faith and credit and triggers the doctrine of res judicata as to the instant case.

   Complainant contends that the DOL proceeding is not barred by res judicata because (1) the Michigan court rejected the notion that "Acceptance of mediation" would serve as res judicata as to the federal claim; (2) the mediation panel refused to consider the federal claim; (3) that acceptance of the mediation evaluation is not an "adjudication" within the meaning of res judicata; (4) Michigan state law controls as to whether res judicata is applicable to bar the federal claim citing Espinoza v. Thomas, 189 Mich. App. 110 (1990); and (5) Complainant contends that the parties never intended that the dismissal with prejudice of state court action would impact on the federal action, but would only preclude further state court action. Complainant relies upon the Satisfaction of Judgment which states, inter alia ... "[S]aid Judgment is deemed satisfied in full and of no further force and effect." In my view, these contentions are without merit. For the reason discussed below, I conclude that res judicata applies and the complaint should be dismissed.

   Under federal law, "(t)he . . . judicial proceedings of any court of any . . . State . . . shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State . . . " 28 U.S.C. § 1738. Thus, section 1738 requires federal courts to give effect to a state judgment to the extent the state would give its own prior judgment such effect.

   According to Michigan state law, the doctrine of res judicata bars a litigant from relitigating a claim when (1) the former action was decided on the merits; (2) the matter contested in the second action was or could have been decided in the first; and (3) the two actions are between the same parties or their privies." Ozark v. Kais, 184 Mich. App. 302 (1990); Admiral Merchants Motor Freight, Inc. v. Dep't of Labor, 149 Mich. App. 344, 350; (1986). Westwood Chem. Co. v. Kulick, 656 F-2d 1224, (6th Cir. 1981). "It bars relitigation on every issue actually

litigated or which could have been raised with respect to that claim" Westwood, 656 F. 2d at 1227. "To constitute a bar there must be an identity of the causes of action--that is, an identity of the facts creating the right of action and of the evidence necessary to sustain each action." Id. "A cause of action consists of a core of operative facts that give rise to a remedy, (citing cases)." Ray v. Tennessee Valley Authority, 667, F.2d 818, 821 (11th Cir. 1982), cert. denied, 459 U.S. 1147 (1983): "The principal test for determining whether the causes of action are the same is whether the primary right and duty or wrong are the same in each case."; "Wickham Contracting Co. v. Board of Education, 715 F.2d 21 (2d Cir. 1983); Restatement (Second) of Judgments § 24 (1980).

   There is no question that the parties in the state and federal actions are identical. Further, in both claims, Complainant contends that the Respondent fired her essentially because she "blew the whistle" on safety violations which she alleges is a violation of public policy in the state court as well as violation of a federal statute, 42 U.S.C. 5851. Indeed, that the claims in both forums arise from the same core of operative facts is established by Complainant's response to an interrogatory that rests her state claim on the same facts alleged in her federal claim.

   Under Michigan Court rules, mediation is a vehicle to achieve settlement and to finally terminate all aspects of the litigation by incorporating the accepted evaluation into the Court's judgment, which, in these circumstances, is in the nature of a consent judgment. See Espinoza v. Thomas 189 Mich. App. 110 (1991).

   The Michigan courts have decided that "res judicata applies to default judgments and consent judgments as well as to judgments derived from contested trials, and includes every point properly the subject of the litigation which the parties could have brought forward in the earlier action." In re Cook Estate, 155 Mich. App. 604, 609 (1986). Thelen v. Ducharme, 151 Mich. App. 441, 446; 390 N.W.2d 264 (1986). Since the core facts giving rise to the issues in both cases are the same, and have been finally resolved by the state judgment, I conclude that the judgment is entitled to full faith and credit in this forum and permits the defense of res judicata to be raised by motion to bar the instant case.

   Complainant's reliance on the result in Espinoza to defeat the application of res judicata is misplaced. Espinoza determined that a malpractice action against plaintiff's former counsel for failure to file a timely assault and battery action was not barred where Complainant filed a second action based upon another legal theory arising from the same incident and accepted the mediation evaluation. The Court of Appeals held that Espinoza lost a viable cause of action for assault and battery which adversely impacted on determining the full extent of his damages due to the malpractice. This was a summary dismissal proceeding in which the Michigan Court of Appeals overturned the trial court and held that material facts were in dispute. No issue of res judicata was raised. Therefore, Espinoza does not change my conclusion that the state court's judgment is a consent judgment entitled to full faith and credit to which the principle of res judicata applies as an affirmative defense to bar further action in this federal administrative proceeding. Compare United State v. Utah Mining and Construction Co. 383 U.S. 394 (1966).

   Pusuant to 29 C.F.R. 24.5(e)(4,ii, The complaint of Ursula Koscuick in case No. 90-ERA-56 is dismissed with prejudice.

       ROBERT G. MAHONY
       Administrative Law Judge

Dated: January 9, 1992
Washington, D.C.
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