GENERAL LEGAL PRINCIPLES; COLLATERAL ESTOPPEL; RES JUDICATA – Type or Nature of Prior Proceeding

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1405.00000 – GENERAL LEGAL PRINCIPLES; COLLATERAL ESTOPPEL; RES JUDICATA
1405.02000 – Type or Nature of Prior Proceeding

While employees and unions often have a choice whether to pursue claims in multiple forums, if they choose to do so, collateral estoppel may apply as to subsidiary issues. (p. 25.) Collateral estoppel applied to certain factual findings of the State Personnel Board (SPB) but did not apply to the ultimate questions which SPB did not decide, viz. whether employee’s protected activity was a motivating or substantial factor in the decision to terminate him, or what state employer would have done in the absence of protected activity, which are critical questions in resolving a Dills Act retaliation claim. (Garrett v. City and County of San Francisco (9th Cir. 1987) 818 F.2d 1515, 1520 [even where collateral estoppel applies to prior decision finding employer issued discipline that was proportionate to proven misconduct, such a finding does not determine whether the employer would have exercised discretion in the same manner absent discrimination].) Accordingly, PERB does not presume whether the level of discipline SPB found warranted is the level the state employer would have issued absent the employee’s protected activity. (pp. 27-28.)