Kevin Murray v. Alaska Airlines, Inc.

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KEVIN MURRAY,
Plaintiff - Appellant,
v.
ALASKA AIRLINES, INC.,
Defendant - Appellee.
No. 06-15847
D.C. No. CV-05-03633-MJJ
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Martin J. Jenkins, District Judge, Presiding
Argued and Submitted March 13, 2008
San Francisco, California
Submission Withdrawn April 10, 2008
Resubmitted October 19, 2010
Before: REINHARDT, McKEOWN and FISHER, Circuit Judges.
Kevin Murray appeals from the district court’s entry of summary judgment
in favor of Alaska Airlines, Inc. (“Alaska”). Murray alleges that he was
wrongfully terminated and retaliated against for whistleblowing against his
employer, in violation of the public policy of California. See Cal. Labor Code
FILED
OCT 21 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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§ 1102.5(b). The district court granted summary judgment to Alaska based on
collateral estoppel. We affirm.
After oral argument, we certified to the California Supreme Court the
question whether, as a matter of California law, issue-preclusive effect should be
given to a federal agency’s investigative findings, when the subsequent
administrative process provides the complainant the option of a formal
adjudicatory hearing to determine the contested issues de novo, as well as
subsequent judicial review of that determination, but the complainant elects not to
invoke his right to that additional process. See Murray v. Alaska Airlines, Inc., 522
F.3d 920, 920 (9th Cir. 2008) (order) (“Murray I”). The California Supreme Court
accepted the certified question for review and, in August 2010, issued an opinion
answering that question in the affirmative. See Murray v. Alaska Airlines, Inc.,
237 P.3d 565, 577 (Cal. 2010) (“Murray II”).
The state supreme court’s determination of California law is binding on us
and is dispositive of this appeal. In response to Murray’s administrative complaint
under 49 U.S.C. § 42121, the Secretary of Labor found that Murray failed to
establish a causal nexus between his protected activity and an adverse employment
action. See Murray I, 522 F.3d at 921. Causation is an element of the claims
Murray asserts in this action. See Murray II, 237 P.3d at 569 n.4; Murray I, 522

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F.3d at 922-23 & n.2. Under Murray II, the Secretary of Labor’s finding on
causation is entitled to preclusive effect here. Murray thus cannot establish an
essential element of his claims. The judgment of the district court must therefore
be affirmed.
In his supplemental brief, Murray argues that applying issue preclusion here
would deny him the constitutional right to a jury trial. Assuming this argument has
not been waived even though Murray failed to raise it earlier, see Devereaux v.
Abbey, 263 F.3d 1070, 1079 (9th Cir. 2001), Murray presents no legal authority to
support his argument. The decision on which he relies, United States v. Utah
Construction & Mining Co., 384 U.S. 394, 421-22 (1966), addresses federal
procedural law, not federal constitutional law. As a general matter, the Seventh
Amendment does not bar application of the collateral estoppel doctrine. See
Parklane Hosiery Co. v. Shore, 439 U.S. 322, 337 (1979). Murray has not offered
any authority for the proposition that this general rule does not apply here.
AFFIRMED.

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