The Dead Hand of the Past

Ly v. Cnty. of Fresno, No. F072351 (D5 Oct. 12, 2017)

Plaintiffs are some prison guards who claim employment discrimination. But along with their FEHA claims, they also filed a workers’ comp appeal for the emotional injuries that arose from the same alleged discriminatory acts. The workers’ comp cases—which are an ALJ proceedings—moved faster than the discrimination case in court. The ALJs found adversely to plaintiffs in each of the workers comp cases, with each case finding that the adverse actions were not motivated by discriminatory animus.

The Employer, as defendant in the FEHA case, filed an SJ motion based on the preclusive effect of the workers’ comp judgments. The trial court granted the motion, finding that the issues litigated in the workers’ comp cases were issue preclusive in the FEHA case. Plaintiffs appealed. 

Substantively, it was permissible for  Plaintiffs to seek workers comp. The workers comp scheme does, in fact, permit a claim grounded in the psychological injury inflicted by workplace discrimination. But you generally need to elect whether to pursue that claim in workers comp or in a FEHA action. When you don’t elect, you risk preclusion from the first decided case.

It seems like this would be easy to resolve as a matter of collateral estoppel. Case 1 found no discrimination. Case 2 has the same parties. Discrimination is a required element in Case 2. Viz., can’t win Case 2. But for some inexplicable reason, the Court of Appeal decides that it’s more of a res judicata thing.

Which means we need to figure out whether the workers comp claim and the FEHA case arise from the same primary right. As is the ordinary fight on these things, that comes down to framing and levels of generality. Plaintiffs say the primary rights are different because workers comp is about a right to promt compensation for workplace injury, while FEHA is about the right to be free of discriminatory treatment. Defendants say it’s all the same because, under the facts of both cases, the workplace injury is the result of alleged discriminatory treatment. 

The Court here goes with the Defendants and decides to define the primary right as based on the same injury. Why? Because it says so. It’s not like there’s actual law that rigorously explains the appropriate level of generality in which a primary right needs to be framed. Cuz that’s how the primary rights doctrine rolls. 

Affirmed.