State of California (Department of Youth Authority) (Janowicz) (PERB 1080S)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

FRANK D. JANOWICZ,
Charging Party, . Case No. LA-CE-257-S

Vv. PERB Decision No. LOS80-S

STATE OF CALIFORNIA (DEPARTMENT
OF YOUTH AUTHORITY),

January 12, 1995

Respondent.

eet ee et Ne Net et et et tet et

Appearances: Frank D. Janowicz, on his own behalf: State of
California (Department of Personnel Administration) by Joan E.
Branin, Labor Relations Counsel for State of California
(Department of Youth Authority).

Before Blair, Chair; Garcia and Johnson, Members.

GARCIA, Member: This case is before the Public Employment
Relations Board (PERB or Board) on appeal by Prank D. Janowicz
(Janowicz) of an administrative law judge’s (ALJ) proposed
decision (attached) dismissing an unfair practice charge on the
basis of collateral estoppel. In his charge, Janowicz alleged
that the State of California (Department of Youth Authority)

(DYA) retaliated against him by denying him work opportunities in
violation of section 3519(a) of the Ralph C. Dills Act (Dills

Act).' After review of the entire record, including Janowicz’s

'The Dills Act is codified at Government Code section 3512
et seq. Unless otherwise indicated, all statutory references are
to the Government Code. Section 3519 provides, in part, that:

It shall be unlawful for the state to do any
of the following:

exceptions and DYA's response, the Board hereby affirms the ALJ's
proposed decision.
JURISDICTION
PERB has jurisdiction over this case for the following
reasons: Janowicz is an employee and DYA is an employer under	
and
the Dills Act; Janowicz's unfair practice charge alleges a
violation of the Dills Act; the unfair practice charge was timely	
charge
filed; and the disputed conduct was not subject to a grievance
agreement between the exclusive representative representing
Janowicz (California State Employees' Association, Local 1000
(CSEA) ) and DYA.'
JANOWICZ'S EXCEPTIONS
Janowicz filed a statement of exceptions that bears a
surface resemblance to the format required by PERB Regulation
32300,' by mentioning specific page numbers in the proposed
(a) Impose or threaten to impose reprisals
on employees, to discriminate or threaten to
discriminate against employees, or otherwise
to interfere with, restrain, or coerce
employees because of their exercise of rights
guaranteed by this chapter. 	For purposes of
this subdivision, "employee" includes an	
"employee"
applicant for employment or reemployment.
In a letter dated January 22, 1993, a Board regional
attorney denied DYA's request for deferral to arbitration, based
on State of California, Department of Youth Authority (1992) PERB
Decision No. 962-S.
PERB regulations are codified at California Code of
Regulations, title 8, section 31001 et seq. 	PERB Regulation
32300 provides, in pertinent part:
(a) 	The statement of exceptions or
brief shall:
2

decision. However, most of Janowicz's exceptions are simply
attempts to revisit earlier phases of the case or re-argue the
merits without addressing the collateral estoppel issue central
to the proposed decision.* Most of the exceptions fail to comply
with the requirement to state "specific issues of procedure,
fact, law or rationale. " The Board does not consider the
exceptions which do not comply with PERB Regulation 32300.
(1) State the specific issues of procedure,
fact, law or rationale to which each
exception is taken;
(2) Identify the page or part of the
decision to which each exception is taken;
(3) Designate by page citation or exhibit
number the portions of the record, if any,
relied upon for each exception;
(4) 	State the grounds for each exception.
One such category is the "Court Cases Exceptions" referred
to by DYA in its response. Challenges to a civil court judgment
are outside PERB's jurisdiction and do not qualify as proper
exceptions under our regulation. (Examples of this type of
exception" include statements that the courts held Janowicz in
'disdain" since he was not an attorney, and statements that
Janowicz could not appeal one of the state court decisions
because he did not have enough money. ) 	We do not consider these
exceptions.
Another category of exceptions, the "PERB Exceptions, "
addresses many subjects but fails to address the collateral
estoppel issue. This group also does not conform to the
regulation and is not considered herein. Examples of this
category include Janowicz's claim that the PERB regional attorney
refused to allow him to amend his charge, without offering
evidence how this transpired, and claims that go to the merits of
the underlying charge.
The "CSEA exception" is not considered since it is clearly
outside the scope of this case.
3

The only exception that is properly before the Board
involves Janowicz's allegation that the ALJ failed to mention
that the 1988-1991 Memorandum of Understanding (MOU) , which
expired on or about July 11, 1991, had been extended through
December 31, 1991. Janowicz asserts that the ALJ omitted this
fact to "conceal her ineptness. "
DYA'S RESPONSE TO EXCEPTIONS
DYA responded to Janowicz's exceptions by category: those
involving the court cases filed by Janowicz; those related to
PERB's handling of the unfair practice charge; and the one
alleging that CSEA mishandled Janowicz's grievance.
DYA contends that Janowicz's exceptions pertaining to the
court cases contain inaccuracies and do not justify reversing the
ALJ's decision.
With respect to Janowicz's exceptions involving PERB's
handling of the unfair practice charge, DYA responds that some of
the exceptions contain inaccurate statements; others attempt to
address the merits of the case; and none adequately explain why
the ALJ's decision on the main issue (collateral estoppel) was
erroneous .
Regarding Janowicz's assertion that CSEA was negligent in
representing him, DYA responds that this issue has no place in
this case.
The Board notes that Janowicz filed an unfair practice
charge (Case No. LA-CO-52-S) against CSEA, alleging that CSEA
failed to assist him in eliminating unfair practices directed
against him by his employer. The Board upheld a Board agent's
dismissal of that charge in California State Employees

DISCUSSION
As stated above, the sole exception that is properly before
the Board is Janowicz's allegation regarding the ALJ's failure to
mention that the 1988-1991 MOU expired but was extended through
December 31, 1991. Despite Janowicz's belief that the ALJ
omitted such a reference to "conceal her ineptness, " Janowicz
offers no evidence to substantiate the statement that the MOU was
extended, nor, more importantly, why the omission would affect
the collateral estoppel ruling. 	Therefore, the Board finds that
this exception lacks merit.
After reviewing the doctrine of collateral estoppel, we
agree that it is properly applied in this case, and there is no
need to relitigate the same issues before PERB.
ORDER
The complaint and unfair practice charge in Case
No. LA-CE-257-S are hereby DISMISSED.
Chair Blair and Member Johnson joined in this Decision.
Association (Janowicz) (1994) PERB Decision Nos. 1043 -S and
1043a-S.
5

STATE OF CALIFORNIA	
OF
PUBLIC EMPLOYMENT RELATIONS BOARD	
EMPLOYMENT
FRANK D. JANOWICZ,
Charging Party,
V .
STATE OF CALIFORNIA (DEPARTMENT
OF YOUTH AUTHORITY) ,
Respondent .
Unfair Practice
Case No. LA-CE-257-S
PROPOSED DECISION
(9/9/94)
Appearances : 	Frank D. Janowicz, on his own behalf; Joan E.
Branin, Labor Relations Counsel, for State of California
(Department of Youth Authority) .
Before W. Jean Thomas, Administrative Law Judge.
PROCEDURAL HISTORY
On April 7, 1992, Frank D. Janowicz (Janowicz), filed an
unfair practice charge with the Public Employment Relations Board
(PERB or Board) against the State of California (Department of
Youth Authority) (DYA) . The charge alleged that DYA, acting
through several of its agents, retaliated against Janowicz, in
violation of the Ralph C. Dills Act (Dills Act) , ' by denying him
work opportunities because he filed grievances, complaints, and
lawsuits against his supervisor and her subordinates.
On January 22, 1993, the Office of the General Counsel of
PERB issued a complaint alleging that DYA, through its agents,
Rachel Mccoy (Mccoy) , Tony Lombardo (Lombardo) , and Bernard Cadle
(Cadle) took adverse action against Janowicz by failing to call
The Dills Act is codified at Government Code section 3512
et seq. 	All section references, unless otherwise noted, are to
the Government Code.

him in for teaching assignments beginning on or about December 9,
1991, which had the effect of laying him off. These actions
allegedly were taken because of Janowicz's exercise of his right
to file grievances in 1991, and therefore violated section
3519 (a) of the Dills Act.
DYA answered the complaint on February 16, 1993, denying all
material allegations of unfair conduct and asserting a number of
affirmative defenses.
An informal conference on February 25, 1993, failed to
resolve the dispute.
A formal hearing was held before the undersigned on
April 27, 1993. 	The hearing was bifurcated to take evidence on
the procedural issue presented by DYA's motion to dismiss on the
basis of collateral estoppel filed on April 22, 1993.
DYA argues that Janowicz is barred by the doctrine of
collateral estoppel from bringing the same charge of retaliation
before PERB that was part of his claim in lawsuits brought in
both the Superior Court of the State of California, the County of
Los Angeles, and in the United States District Court for the
2section 3519 provides, in relevant part, as follows:
It shall be unlawful for the state to:
(a) Impose or threaten to impose reprisals
on employees, to discriminate or threaten to
discriminate against employees, or otherwise
to interfere with, restrain, or coerce
employees because of their exercise of rights
guaranteed by this chapter. 	For purposes of
this subdivision, "employee" includes an
applicant for employment or reemployment.
2

Central District of California. DYA further alleges that
Janowicz's claim in both suits were identical to his complaint
before PERB and that judgments were against Janowicz in both
actions . 	It is further asserted that since the issues were
previously litigated in judicial actions and final judgments have
been entered in both cases, under the doctrine of collateral
estoppel, Janowicz's charges before PERB should be dismissed.
During the hearing, Janowicz did not offer either oral or
written objections to the motion. Both parties did, however,
present documentary evidence pertaining to both the state and the
federal actions. 	The formal hearing was thereafter recessed
pending a ruling on the motion to dismiss.
On July 2, 1993, Janowicz filed a motion to amend the
complaint to substantiate his allegations in a more definite
manner . 	DYA filed an opposition to this motion on July 12, 1993.
No ruling was issued on the motion to amend pending a ruling on
the threshold procedural matter presented by DYA's motion to
dismiss.
On December 23, 1993, the record of the formal hearing was
re-opened to receive additional evidence relevant to a ruling on
the motion to dismiss. In lieu of witness testimony, the parties
agreed to submit additional evidence via stipulations of fact and
additional exhibits. This documentation was filed on January 26,
1994, and the case was resubmitted for proposed decision.
W

FINDINGS OF FACT
Stipulations
The following findings of fact are based on the parties'
stipulations which are set forth verbatim as follows:
1 . 	At all times relevant to the Complaint in this case
Frank D. Janowicz was a state employee within the meaning of
Government Code section 3513 (c) .
2 . 	At all times relevant to the Complaint in this case
Frank D. Janowicz was a member of [State of] California
Bargaining Unit 3.
3 . 	A Collective Bargaining Agreement (CBA) or Memorandum
of Understanding (MOU) existed between the State of California
and Bargaining Unit 3 and was effective for the dates between
July 1, 1988 and June 30, 1991. A copy of that CBA is attached
and marked Exhibit A.
4 . 	Frank D. Janowicz filed a grievance on January 8, 1991,
complaining that he was not given teaching assignments though he
possessed a teaching credential. A copy of that grievance and
the State's responses to it are attached and marked as Exhibit B. 	B.
5 . 	Frank D. Janowicz filed a grievance on August 27, 1991,
complaining that he was denied vacation time and not given
teaching assignments though he possessed a teaching credential.
A copy of that grievance and the State's responses to it are
attached and marked as Exhibit C.
6. 	Frank D. Janowicz filed a grievance on December 26,
1991, complaining about diminishing work hours and

discrimination. A copy of that grievance and the State's
responses to it are attached and marked as Exhibit D.
7 . 	Frank D. Janowicz filed a grievance on January 27,
1992, complaining about diminishing work hours and
discrimination. A copy of that grievance and the State's
responses to it are attached and marked as Exhibit E.3
'In addition to the instant charge, Janowicz also filed an
unfair practice charge (Case No. LA-CO-52-S) against California
School Employees Association, Local 1000 (CSEA) , his exclusive
representative, on April 7, 1992. That charge alleged that CSEA
failed to assist him in "eliminating unfair practices" directed
against him by his employer.
Following a hearing, the complaint and the charge were
dismissed by the undersigned in a proposed decision issued
December 30, 1993. 	The dismissal was upheld by the Board in
Frank D. Janowicz v. California State Employees Association,
Local 1000 (1994) PERB Decision Nos. 1043 -S and 1043a-S.
It is appropriate to take official notice of the record of
that case to explain the procedural posture of this case.
At the time that Janowicz filed his charges against CSEA
and the State, the 1988-91 MOU had expired on or about July 11,
1991. Following protracted successor contract negotiations, in
about May or June 1992, CSEA and the State reached agreement for
a successor MOU with an effective term from November 1, 1992,
through June 30, 1995.
During the interim between MOUs, CSEA and the State had an
ongoing dispute about processing grievances subsequent to the
expiration of the 1988-91 MOU. Thus, no motion to dismiss and
defer to the contractual grievance procedure was filed by the
respondents to either cases based on any of Janowicz's grievances
filed between January 1991 and January 1992.
This circumstance, coupled with the Board's adoption of the
rule in December 1992, that arbitration clauses do not survive
after expiration of a collective bargaining agreement, with
certain exceptions, made it inappropriate for PERB, sua sponte,
to defer this charge to the grievance procedure. 	(See Pierce
Johnson, Jr. and Steve Bornstedt v. State of California
(Department of Youth Authority) (1992) PERB Decision No. 962-S.)
5

8. 	On September 19, 1991, Frank D. Janowicz filed a
complaint with the United States District Court of the Central
District of California, Case No. CV 91-5045. A copy of that
complaint is attached and marked as Exhibit F.
9 . 	Between April 20, 1992 and May 6, 1992, Frank D.
Janowicz filed a First Amended Complaint in Case No. CV 91-5045.
A copy of the amendment has been filed with the Public Employment
Relations Board.
10. On January 30, 1992, Frank D. Janowicz filed a second
complaint with the United States District Court for the Central
District of California, Case No. CV 92-0614. A copy of that
complaint has been filed with the Public Employment Relations
Board.
11. On January 9, 1992, Frank D. Janowicz filed a complaint
with the Superior Court of the State of California for the County
of Los Angeles, Case No. VC 008246. A copy of that complaint has
been filed with the Public Employment Relations Board.
Additional Background
In February 1987, Janowicz began his employment with DYA as
a permanent intermittent (PI) vocational instructor (industrial
arts) at the Fred C. Nelles School (FCN) . FCN is a DYA
correctional facility for boys located in Whittier, California.
It has a population of 850 wards. FCN is responsible for the
wards' education by providing an educational program that meets
the requirements of the State Department of Education.

Since mid-1988, Mccoy has been supervisor of the 	of
Correctional Education Program (SCE) at FCN and serves as its
school principal. As SCE, Mccoy has overall administrative and
supervisory responsibility for the program, including the hiring
and assignments of teachers to both the academic and vocational
classes offered at FCN. The teaching staff includes full-time
and PI teachers. 	PI teachers are generally assigned on a day-to-
day substitute basis.
At all times relevant, Lombardo was the supervisor of
academic instruction (SAI) , and Janowicz's immediate supervisor.
Cadle, who is a subordinate to both Mccoy and Lombardo, sometimes
serves as acting SAI on behalf of Lombardo.
Janowicz's 1991-92 Court Actions
a . 	The September 1991 Federal Lawsuit	September
On September 19, 1991, Janowicz filed a complaint with the
United States District Court for the Central District of
California (Case No. CV 91-5045) against named defendants Mccoy,
I. R. Schulman (Schulman) , the assistant superintendent at FCN,
and B. T. Collins (Collins) , the director of DYA, alleging
discrimination under Title VII of the Civil Rights Act of 1964.
More specifically, the complaint alleged discrimination by
Mccoy on the basis of Janowicz's race (white) and sex (male)
beginning in January 1991, because Janowicz (1) filed an adverse
action request against Mccoy with Schulman; (2) filed two
discrimination complaints against Mccoy, one in-house and one
with the Equal Employment Opportunity Commission (EEOC) ;

(3) applied for workers' compensation in March 1991; and (4) sent
a complaint letter to Collins in May 1991.
On April 20, 1992, U.S. District Judge Edward Rafeedie
issued an order granting the defendants' motion to dismiss for
failure to state a claim upon which relief can be granted under
applicable federal law. The motion was granted with leave for
Janowicz to amend his complaint within 20 days.
Subsequently, Janowicz filed a first amended complaint (FAC)
on or about April 29, 1992, alleging race and sex discrimination.
Janowicz filed an amendment to the FAC on or about June 27, 1992,
adding DYA as a new defendant.
The bulk of the allegations in the FAC essentially raised a
disparate treatment cause of action in which Janowicz alleged
that he was given insufficient amounts of teaching time at FCN in
1990 and 1991 because of his race and sex. 	Other allegations
included (1) denial of vacation time, (2) failure to assist him
in obtaining an emergency academic teaching credential,
(3) failure to properly investigate discriminatory practices,
grievances, and complaints about violations of sections 5.5 and
18 (j) of the MOU and violations of the California Education and
Labor Codes.
On or about August 17, 1992, the defendants filed a
memorandum of points and authorities in support of a motion for
summary judgment .
The matter was heard before Judge Rafeedie on September 21,
1992. He issued an order granting defendants' motion for summary
8

judgment and dismissing the plaintiff's claims on September 29,
1992 . 	Janowicz did not appeal this judgment.
b. The January 1992 Federal Lawsuit
Janowicz filed a second complaint (Case No. CV 92-0614) with
the United States District Court of Central California on January
20, 1992. This complaint was against defendants Mccoy, Lombardo,
Cadle, Schulman, Henry C. Vander Weide, the superintendent of
FCN, and Francisco Alarcon, the chief deputy director of DYA.
This complaint alleged violations of Title VII of the
Civil Rights Act of 1964, citing four causes of action, namely,
1) retaliation, (2) conspiracy, (3) blacklisting, and
(4) intentional infliction of emotional distress. 	The complaint
specifically alleged retaliation by Mccoy, Cadle and Lombardo
because he (Janowicz) filed a state discrimination complaint in
April 1991; sent a complaint letter to Collins in May 1991; filed
an adverse action request against Mccoy with the State Commission
on Teaching Credentialing in August 1991; complained to Lombardo
by letter on September 11, 1991, about the rotational work
schedule for PI teachers; filed a federal retaliation complaint
on September 24, 1991; filed a grievance and a complaint against
Mccoy on December 26, 1991; and filed a civil lawsuit in state
court against all named defendants on January 9, 1992. 	The
complaint also alleged that on January 29, 1992, Janowicz
received an answer to his (August 27, 1991) grievance from
Alarcon, dated October 22, 1991, in which Alarcon accused him of
9

filing grievances, discrimination complaints, and lawsuits
against Mccoy as a form of harassment against her.
The complaint of this civil action was served on the
defendants on or about April 14, 1992, and subsequently amended
at an unrevealed time. In response, the defendants filed a
motion to dismiss the FAC.
On October 13, 1992, in a hearing before U.S. District Judge
Richard Gadbois, he granted defendants' motion to dismiss the FAC
for lack of subject matter jurisdiction, and denied Janowicz's
motion to amend the FAC.
The lawsuit was dismissed in its entirety by entry of
judgment on November 4, 1992. This judgment was not appealed.	
4,
C. 	The January 1992 State Lawsuit
On January 9, 1992, Janowicz filed a complaint for damages
(Case No. VC 008246) with the Superior Court of the State of
California, County of Los Angeles (Norwalk) , against the same
defendants that were named in the second federal lawsuit. His
damage claim was based on four causes of action, namely,
(1) reprisals, (2) conspiracy, (3) blacklisting, and
(4) intentional infliction of emotional distress. In this case,
Janowicz sought damages in excess of $5, 500, 000.
In his reprisals cause of action, Janowicz set forth
substantially the same course of wrongful conduct by Mccoy,
Lombardo, and Cadle from February 1991 through January 2, 1992,
that was alleged in the second federal lawsuit. 	These
allegations included, among other things, references to the
10

defendants' discriminatory practices because he filed the
August 27 and the December 1991 grievances. The allegations also
claimed diminished working hours and loss of income in December
1991 as a result of Mccoy's alleged discriminatory practices
against Janowicz. 	At some unrevealed date, this complaint was
amended.
Pursuant to the provisions of the California Code of Civil
Procedure, section 1141.10, and Rule 1065 of the California Rules
of Court, the case was submitted to court-ordered arbitration. 	A
hearing was held before Arbitrator Kemp A. Richardson
(Richardson) on November 5, 1992. On November 7, Richardson
issued an award in favor of the defendants. The award stated as
follows :
The source of plaintiff's alleged contract
rights, the MOU, does not appear to give any	
g"ve
particular employee a right to an assignment.
Art. 18, section j does state factors to be	j
considered in scheduling. However, the
section does not say that the most qualified
PI must be given an assignment over another
qualified instructor.
Assuming, arguendo, that the plaintiff's
diminished work hours does establish personal
favoritism in violation of section j, the
arbitrator finds that defendants introduced
sufficient evidence to conclude that the
CYA's [sic] operational needs were such that
the decrease and the eventual elimination of
plaintiff's hours were justified.
As a final matter, plaintiff introduced no
proof of damages sufficient to render
damages, if appropriate. Judgment in favor
of all defendants against Frank Janowicz.
Subsequent to this decision, Janowicz rejected the award and
requested a trial de novo as provided for by state law. Before
11

the trial in this matter, the defendants filed a motion for
summary judgment with supporting documentation to which Janowicz
filed a response in opposition.
In his response, Janowicz asserted, among other things, that
(1) Mccoy, Lombardo, and Cadle violated the California Education
Code by limiting his hours of employment after September 1991;
(2) he was illegally laid off by Mccoy on December 9, 1991, in
retaliation for engaging in protected activities which included
filing grievances in 1991, filing discrimination complaints and
lawsuits against her, and filing a request for adverse action
with the State Commission on Teaching Credentialing which
notified Mccoy in November 1991 that it would not take action
against her; and (3) finally violations by these employees of
various other provisions of the contractual MOU. Janowicz also
argued a causal action between his protected activities and the
layoff by Mccoy.
He also mentioned in the complaint that because CSEA failed
to assist him in regaining his teaching position at FCN, he filed
a complaint (unfair practice charge) with PERB in April 1992
against CSEA. 	However, no mention was made of the instant unfair
practice charge also pending against DYA at that time.
The defendants filed a reply memorandum of points and
authorities in support of their motion for summary judgment, on
January 20, 1993, arguing, among other things, that there were no
triable issues of material fact concerning an essential element
of Janowicz's prima facie case of retaliation, namely, an adverse
12

employment action, for engaging in activities protected by the
relevant statutory provisions under which the complaint had been
filed. 4
On January 25, 1993, in a proceeding before Superior Court
Judge Daniel Pratt, the judge denied the defendants' motion.
Thereafter, the defendants filed a motion for reconsideration and
the parties were ordered to brief the issue of "constructive
discharge. "
In a second proceeding before Judge Pratt on February 26,
1993, he granted the defendants' motion, concluding that "not
enough time [had] passed for constructive discharge to occur.
Plaintiff worked 1575 hours in 1991. " The latter comment
undoubtedly referred to the language in Article 18 (a) of the
1988-91 MOU that allowed PI employees to work up to 1500 hours	
u~)
per calendar year. Although Janowicz argued during the hearing
in this case that the ruling in the state court action was
inappropriate, he did not appeal the judgment.
ISSUES
Whether any or all of the prior federal and state lawsuits
by Janowicz against the DYA, and/or its agents, should be given
collateral estoppel effect and thus bar litigation of the
discrimination/retaliation issue raised before PERB in this case?
California Fair Employment and Housing Act, Government Code
section 12940 et seq and Equal Employment Opportunity Act of
1964, Title VII, 29 U.S. C., section 2000e (b) .
13

CONCLUSIONS OF LAW
The Test for Collateral Estoppel
The doctrine of collateral estoppel precludes a party to an
action from relitigating in a second proceeding, matters
litigated and decided in a prior proceeding. (People v. Sims
(1982) 32 Cal . 3d 468, 477 [186 Cal . Rptr. 77] .) Collateral
estoppel is an aspect of, but not coextensive with, the broader
concept of res judicata. As stated by the court in Lockwood v.
Superior Court (1984) 160 Cal . App. 3d 667, 671 [206 Cal . Rptr.
785]	785], I
. Where res judicata operates to
prevent relitigation of a cause of action
once adjudicated, collateral estoppel
operates . 	to obviate the need to
relitigate issues already adjudicated in
the first action.
The purpose of the doctrine is
. to promote judicial economy by
minimizing repetitive litigation, to
prevent inconsistent judgments which
undermine the integrity of the judicial
system, [and] protect against vexatious
litigation.
(Ibid. )
Collateral estoppel traditionally has barred relitigation of
an issue if " (1) the issue is identical to one necessarily
decided at a previous proceeding; (2) the previous [proceeding]
resulted in a final judgment on the merits; and (3) the party
against whom collateral estoppel is asserted was a party or in
privity with a party at the prior [proceeding] . [Citation. ]" 11
(People v. Sims, supra, 32 Cal . 3d at p. 484.)
14

It is implicit in this three-prong test that only issues
actually litigated in the initial action may be precluded from
the second proceeding under the collateral estoppel doctrine. 	An
issue is actually litigated
[W]hen [it] is properly raised, by the
pleadings or otherwise, and is submitted
for determination, and is determined .
A determination may be based on a failure
of 	[Citation. ]
(Ibid. ) ' proof . . .
The above test will be applied in the analysis to the facts of
this case in determining whether to grant collateral estoppel
effect to the judgements in any or all of Janowicz's prior
lawsuits.
A. 	Identicalness of Issues
The issue of discrimination/retaliation was raised by
Janowicz in all three lawsuits. However, in the first federal
action, the complaint of alleged discriminatory conduct by DYA
and its agents was not based on conduct that would have presented
a cognizable claim under the Dills Act. Even after Janowicz
amended the complaint in April 1992, the allegations essentially
claimed disparate treatment, namely, insufficient amounts of
teaching time at FCN in 1990 and early 1991 because of his race
and sex. 	Hence, this case stemmed from a different set of facts
than those presented in the unfair practice case. Since the
issue of reprisals in October and December 1991 for filing
grievances and employment-related complaints was not "properly
raised" nor submitted for a "determination, " the retaliation
15

claim in this action is not identical to the issue adjudicated in
the first federal action.
Although the issue of retaliation for filing grievances and
employment-related complaints in 1991 was raised in the second
federal action, the second case did not result in an adjudication
of the issue on its merits. Instead, the trial judge concluded
that the complaint was defective as to its form, and dismissed
it, in response to the defendants' motion, in November 1992 for
lack of subject matter jurisdiction.
In Janowicz's 1992 state lawsuit, he raised the issue of
reprisals in the form of diminished working hours and, in effect,
a layoff in December 1991 because he engaged in protected
activities, including the filing of grievances in 1991. 	This
issue was addressed in subsequent pleadings and supporting papers
filed by both parties to the action. Further, the issue was
submitted for determination and was determined in two separate
proceedings.
First, in a court-ordered arbitration hearing, the
arbitrator found that Janowicz's decreased hours and the eventual
elimination of his work hours was justified by DYA's operational
needs . 	He also found that Janowicz had established no proof of
damages because of this circumstance.
Then, in response to Janowicz's request for a trial de novo,
the trial judge eventually granted defendants' motion for summary
judgment, concluding that Janowicz was not "constructively
discharged" since he worked 1575 hours in 1991.
16

Even though this case was adjudicated by the judge without a
trial on the facts, a judgement entered after granting a motion
for summary judgment is as final and conclusive a determination
of the merits as a judgment after trial. (See Code Civ. Proc. ,
sec. 437c and 7 Witkin, Cal. Proc. (3d ed. 1985) Judgment, sec.
219, p. 655.)
In the state lawsuit, the same factual allegations were in
issue as have been raised in this unfair practice case. 	No
relevant new facts or changed circumstances have occurred since
the judgment was rendered in the state lawsuit.
Though the purpose of the state civil action was different
from an unfair practice hearing, the retaliation issue is
identical. In the civil action, the parties had to meet the
preponderance of evidence standard as to triable issues of facts
presented by the case. 	(7 Witkin, Cal. Proc. (3d ed. 1985) ,
Trial, sec. 280, p. 284.) The same evidentiary standard is used
in PERB hearings. When the issue of retaliation was submitted
first to the arbitrator and then to the trial judge, the
arbitrator and the judge "necessarily decided" factual issues
identical to the ones Janowicz seeks to relitigate in this PERB
proceeding . 	(See People v. Sims, supra, 32 Cal . 3d at p. 485.)	
Sims,~-----='
It is thus concluded that the first prong of the test has
been satisfied.
B. 	Finality of Judgment on the Merits
For purposes of issue preclusion, "final judgment includes
any prior adjudication of an issue in another action that is
17

determined to be sufficiently firm to be accorded conclusive
effect. " 	This concept of finality for collateral estoppel was
invoked in Sandoval v. Superior Court (1983) 140 Cal . App. 3d 932
[190 Cal . Rptr. 29]. A judgment or order may be final in nature,
but it does not become res judicata until it is final in the
other sense of being free from direct attack. Hence, while an
appeal is pending, or though no appeal has yet been taken, the
time for appeal has not expired, the judgment is not conclusive.
In this case, the judgment in the state lawsuit was entered
on February 26, 1993. When the unfair practice hearing in this
matter commenced on April 27, 1993, no appeal of the judgment had	
of
been filed nor did Janowicz indicate an intent to file an
appeal.' In fact, according to the timelines established by
California Code of Civil Procecure section 437c (1) , the period
for a timely appeal had expired. Thus, the final judgment in the
state action was a conclusive determination of the retaliation
issue raised in that case.
C. 	Privity of the Parties
As stated earlier, Mccoy, Lombardo and Cadle were	
Lombardo
individually-named defendants in Janowicz's state civil action.
In that case they were alleged to be employees of the DYA, acting
within the scope and course of their employment, and thus serving
as agents of the DYA.
'Code of Civil Procedure section 437c(1) states that a
summary judgment entered thereunder is an appealable judgment.
18

In the current unfair practice charge, the DYA is charged
with engaging in unlawful conduct through its agents Mccoy,
Lombardo and Cadle. 	It is further noted in the record that all
the employees of the DYA who were named defendants in the state
action were defended by representatives acting on behalf of the	
Jn
DYA.
This difference in the moving party is inconsequential. The
employees named as parties in the state lawsuit have a clear
identity of interest with DYA in the case before PERB. 	They also
have a personal stake in the outcome of the defense that DYA is
asserting to avoid repetitive litigation. (See California Union
of Safety Employees v. State of California (Department of
Developmental Services) (1987) PERB Decision No. 619-S,
pp. 21-22.)
Given this analysis of the relationship between the DYA and
its employees in both cases, it is found that the privity
requirement has been satisfied.
CONCLUSION
For all of the reasons discussed above, it is concluded that
the technical prerequisites to applying collateral estoppel to
the PERB proceeding have been satisfied. Moreover, estopping
Janowicz from asserting before PERB that the DYA unlawfully
retaliated against him for engaging in protected activities would
further the traditional public policies underlying application of
the doctrine. Giving conclusive effect to the state court
judgment exonerating DYA and its employees from a charge of
19

unlawful retaliation would promote judicial economy by minimizing
repetitive litigation. It is thus concluded that Janowicz is
barred by collateral estoppel from asserting before PERB that DYA
took adverse action against him in October and December 1991 in
retaliation for his filing of grievances and employment- related
complaints in 1991.
PROPOSED ORDER
Based upon the foregoing findings of fact, conclusions of
law, and the entire record in this matter, Unfair Practice Case
No. LA-CE-257-S, Frank D. Janowicz v. State of California
(Department of Youth Authority), is hereby DISMISSED.
Pursuant to California Code of Regulations, title 8,
section 32305, this Proposed Decision and Order shall become
final unless a party files a statement of exceptions with the
Board itself at the headquarters office in Sacramento within
20 days of service of this Decision. In accordance with PERB
regulations, the statement of exceptions should identify by page
citation or exhibit number the portions of the record, if any,
relied upon for such exceptions. 	(See Cal. Code of Regs. ,
tit. 8, sec. 32300.) A document is considered "filed" when
actually received before the close of business (5:00 p.m. ) on the
last day set for filing ". 	or when sent by telegraph or
certified or Express United States mail, postmarked not later
than the last day set for filing 	. ." 	" 	(See Cal. Code of Regs. ,
tit. 8, sec. 32135; Code Civ. Proc., sec. 1013 shall apply . ) Any
statement of exceptions and supporting brief must be served
20

concurrently with its filing upon each party to this proceeding.
Proof of service shall accompany each copy served on a party or
filed with the Board itself. (See Cal. Code of Regs. , tit. 8,
secs. 32300, 32305 and 32140.)
W. JEAN THOMAS
Administrative Law Judge
HOMAS	
r~
Admini:ative
21