Chunhye Kim Lee v. Arizona Board of Regents;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHUNHYE KIM LEE,
Plaintiff - Appellant,
v.
ARIZONA BOARD OF REGENTS; et al.,
Defendants - Appellees.
No. 14-15404
D.C. No. 3:13-cv-08256-DGC
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Submitted March 16, 2016**
San Francisco, California
Before: McKEOWN, WARDLAW, and TALLMAN, Circuit Judges.
Dr. Chunhye Kim Lee (Dr. Lee) appeals the Rule 12(b)(6) dismissal of her
2013 first amended complaint (FAC) against the Arizona Board of Regents, the
State of Arizona, Northern Arizona University (NAU), and certain individual
FILED
MAR 21 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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employees of NAU (collectively, Appellees) on res judicata grounds. We have
jurisdiction under 28 U.S.C. § 1291 and we affirm.
1. The district court correctly concluded that Dr. Lee’s 2013 FAC alleged
claims arising out of the “same transactional nucleus of facts” as the claims alleged
in her 2010 action against Appellees, which were dismissed in a final judgment on
the pleadings on August 4, 2011.1 See Frank v. United Airlines, Inc., 216 F.3d
845, 851 (9th Cir. 2000). Dr. Lee’s 2010 action alleged whistleblower retaliation
based on a May 2008 email she sent to her supervisor, Dean Schulz, that raised
concerns about Dean Schulz’s academic credentials. Before she filed her 2010
action, Dr. Lee communicated her concerns about Dean Schulz and other NAU
faculty to “those charged with enforcing the Arizona Board of Regents criteria for
faculty credentials” in a Spring 2010 letter. In the 2013 FAC, Dr. Lee alleges
whistleblower retaliation based on the Spring 2010 letter. The district court
correctly found that Dr. Lee alleged the same acts of retaliation in both actions
resulting from the same concerns expressed in the 2008 email and Spring 2010
letter. See ProShipLine Inc. v. Aspen Infrastructures Ltd., 609 F.3d 960, 968 (9th
Cir. 2010). That Dr. Lee was formally terminated after the 2010 action had closed
1A dismissal based on a final judgment on the pleadings is a final judgment
on the merits. See Stewart v. U.S. Bancorp, 297 F.3d 953, 957 (9th Cir. 2002);
Dworkin v. Hustler Magazine Inc., 867 F.2d 1188, 1192 (9th Cir. 1989).
2

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does not alter this analysis. Although the 2013 action alleges some claims that
differ from those adjudicated in the 2010 action, there is no question that all of the
claims she now alleges were either “raised or could have been raised in [the] prior
action.” Cell Therapeutics, Inc. v. Lash Grp., Inc., 586 F.3d 1204, 1212 (9th Cir.
2009).
2. Because the district court correctly concluded that Dr. Lee’s 2013 action
was barred by claim preclusion, the district court was not required to address
whether it was also barred under the doctrine of issue preclusion. See Los Angeles
Branch NAACP v. Los Angeles Unified Sch. Dist., 750 F.2d 731, 746 n.17 (9th Cir.
1984).
3. The district court correctly concluded that privity exists between the
defendants in the 2010 action and Appellees. The only additional defendants
named in the 2013 FAC are individual NAU employees. An employer-employee
relationship satisfies the claim preclusion privity requirement. See Spector v. El
Ranco, Inc., 263 F.2d 143, 145 (9th Cir. 1959).
3

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4. In sum, as the district court reasoned, the two actions raise “essentially
the same grievance against the same parties.” The doctrine of claim preclusion
thus bars re-litigation of the same grievance.2
AFFIRMED
2 Appellees’ request for attorneys’ fees on appeal is denied.
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