Gorney v. Arizona Board of Regents et al

Filing 41

ORDER ADOPTING REPORT AND RECOMMENDATION: It is Ordered the Report and Recommendation (Doc. 38 ) is adopted. It is further Ordered that Defendants' Motion to Dismiss (Doc. 33 ) is granted, and the the claims in the First Amended Complaint are dismissed with prejudice, without leave to amend the First Amended Complaint. The case is terminated, and the Clerk of Court is directed to enter judgment accordingly. Signed by Judge Cindy K Jorgenson on 9/3/2014. (MFR)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Dale Gorney,

No. CV-13-00023-TUC-CKJ
Plaintiff,

10
11

v.

12

Arizona Board of Regents, et al.,

13

ORDER

Defendants.

14
15
16

Plaintiff Dale Gorney, who is proceeding pro se, filed this case alleging that he

17

was wrongfully terminated from his employment at the University of Arizona. (Doc. 32,

18

First Amended Complaint (FAC).) Defendants filed a Motion to Dismiss the FAC, and

19

Plaintiff opposed. (Docs. 33, 34.) Magistrate Judge Charles P. Pyle issued a Report and

20

Recommendation (R & R) recommending that the Motion to Dismiss be granted. (Doc.

21

38.) Plaintiff filed objections to the R & R, and Defendants have filed a response. (Doc.

22

39, 40.)

23

The Court will overrule Plaintiff’s objections, adopt the R & R, grant the Motion

24

to Dismiss, and terminate the action.

25

I.

Governing Standard

26

The Court reviews de novo the objected-to portions of the Report and

27

Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The Court reviews for

28

clear error the unobjected-to portions of the Report and Recommendation. Johnson v.

1

Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999); See also, Conley v. Crabtree, 14

2

F.Supp.2d 1203, 1204 (D. Or. 1998).

3

II.

Procedural Background

4

Plaintiff filed his action in state court, and Defendants removed the case to the

5

federal district court. Defendants moved to dismiss, and this Court dismissed the

6

complaint with leave to amend. (Doc. 25.) On October 23, 2013, Plaintiff filed his FAC.

7

(Doc. 32.) Plaintiff alleges that he was wrongly terminated from his employment at the

8

University of Arizona (UA) after he made three “disclosures” of wrongful employee

9

conduct and asserted rights under the Arizona Board of Regents whistleblower policy

10

(ABOR Policy 6-914). He names as Defendants the Arizona Board of Regents; Steve

11

Husman, Director of the UA Tucson Area Agricultural Center; Jacqueline Lee Mok, UA

12

Senior Vice President and Chief of Staff, Office of the President; Thomas P. Miller, UA

13

Associate Provost of Faculty Affairs; and Allison Vaillancourt, UA Vice President,

14

Human Resources. (FAC ¶ 11.) Plaintiff asserts claims for (1) wrongful termination in

15

violation of public policy; (2) violation of 42 U.SC. § 1983; (3) retaliation under the Fair

16

Labor Standards Act (FLSA); (4) breach of implied-in-law covenant of good faith and

17

fair dealing; and (5) tortious interference with contract.

18

employment; an employment contract; backpay; reimbursement for money spent and

19

early withdrawals from his IRA due to his termination; general damages for emotional

20

distress caused from stress due to financial repercussions of his termination; and punitive

21

damages. (FAC ¶¶ 29-32.)

He seeks reinstatement of

22

Defendants move to dismiss the FAC, arguing, among other things, that Plaintiff

23

failed to appeal from the University’s decision discharging him from employment by

24

filing an action in Superior Court under the Administrative Review Act, Ariz. Rev. Stat.

25

§ 12-901 et seq., and that this failure precludes him from filing the claims raised in the

26

FAC. (Doc. 33.)

27
28

-2-

1

III.

Factual Allegations

2

Plaintiff does not object to the factual allegations as stated in the R & R, and the

3

Court adopts them. Briefly, the facts show that between March 18 and April 26, 2011,

4

Plaintiff filed a series of complaints (disclosures) regarding his supervisor and several

5

Defendants. He was advised that the matters did not rise to the level of matters of public

6

concern, and he was told to meet with appropriate supervisors.1

7

Plaintiff claimed overtime incurred in drafting the disclosures. (FAC ¶¶ 10.18,

8

23.1.) Defendant Husman, Plaintiff’s supervisor, “required [Plaintiff] on more than one

9

occasion to meet personally with him to discuss overtime and extra work hours…related

10

to the disclosure(s).” (FAC ¶ 23.2).) Plaintiff claimed the disclosures were confidential

11

and refused to meet with Defendant Husman. (FAC ¶ 23.2) Plaintiff was given a Written

12

Warning, placed on Disciplinary Probation, and given a pre-discharge notice for his

13

repeated refusal to meet with Defendant Husman to discuss his overtime claims. (Id.; see

14

also FAC ¶ 8 (Plaintiff refused to meet with Defendant Husman while on disciplinary

15

probation).) Plaintiff also refused to meet with Defendant Husman for the disciplinary

16

probation and pre-discharge meetings, because Plaintiff claimed that such “directives to

17

meet with him were illegal.” (FAC ¶ 23.4.) On May 25, 2011, Defendant Husman

18

terminated Plaintiff for cause. (FAC ¶ 24.2.)

19
20
21
22
23
24
25
26
27
28

1

For example, Defendant Miller informed Plaintiff that under ABOR Policy 6-914,
Plaintiff “must first make a good faith disclosure of alleged wrongful conduct to a public
body or to a designated University officer on a ‘matter of public concern.’ The subject of
such a disclosure must go beyond personal grievances and internal policies of the
University; must fairly relate to a matter of political, social or other concern to the
community, rather than merely to the individual who makes the statement; and must be
helpful to the community in evaluating the performance of public institutions.” (FAC, Ex.
5 (April 18, 2011 Letter)) (emphasis in original.) Defendant Miller wrote Plaintiff that he
did “not find the allegations that you have made—that your supervisor refuses to provide
work schedules of other employees to you—to rise to the level of a [sic] ‘a matter of
public concern.’” (Id.).
-3-

1

Plaintiff requested a post-termination hearing under University Policy 406.0.

2

(FAC ¶ 24.2.) A hearing was held on May 15, 2012, and on June 22, 2012, the review

3

panel issued the Hearing Decision upholding Plaintiff’s termination. (FAC ¶ 25; see also

4

Doc. 33, Ex. B.)

5

recommendation denying Plaintiff’s appeal. (FAC ¶ 25.1; see also Doc. 33, Ex. C.)

6

Plaintiff requested reconsideration of the decision, and on July 26, 2012, Defendant Mok

7

affirmed her decision. (FAC ¶ 25.3; see also Doc. 33, Ex. D.) In her letter denying the

8

request for reconsideration, Defendant Mok advised that Plaintiff had the right to appeal

9

her decision to the Superior Court pursuant to A.R.S. § 12-901, Arizona’s Administrative

10

Review Act, and that such appeal must be filed within 35 days from the date on which

11

Plaintiff was served with the decision denying his request for reconsideration. (Doc. 33,

12

Ex. D.)

On July 13, 2012, Defendant Mok accepted the panel’s

13

It is undisputed that Plaintiff did not seek an appeal pursuant A.R.S. § 12-901.

14

Instead, he filed a separate complaint in state court which Defendants removed to this

15

Court.

16

IV.

Analysis

17

A.

Preclusion and the Eleventh Amendment

18

Magistrate Judge Pyle concluded that because Plaintiff failed to file an appeal with

19

the state superior court pursuant to the state’s Administrative Review Act, Ariz. Rev.

20

Stat. § 12-901 et seq., within 35 days of receipt of Mok’s decision denying

21

reconsideration, Plaintiff is precluded from bringing his claims for wrongful termination,

22

under both state-law and § 1983; his claim for FLSA overtime, and his claim for breach

23

of the implied covenant of good faith and fair dealing. (Doc. 38 at 9-12.) Plaintiff

24

objects to the R & R, arguing that claim preclusion does not apply to his claims and that

25

the Bd. of Regents waived its Eleventh Amendment immunity when it removed the case

26

to federal court. (Doc. 39 at 2.)

27

First, Plaintiff relies on Federated Dept. Stores, Inc. v. Moite, 452 U.S. 394, 403

28

(1981), asserting that there are cases in which res judicata must give way “to what the

-4-

1

Court of Appeals referred to as ‘overriding concerns of public policy and simple

2

justice.’” (Blackmun, J., concurring in the judgment.) But in Federated Dept. Stores,

3

Inc., the Supreme Court reversed the determination of the Ninth Circuit Court of Appeals,

4

which had refused to apply res judicata. The concurrence cited by Plaintiff noted that this

5

case was “clearly not one in which equity requires that the doctrine give way. Unlike the

6

nonappealing party in Reed [v. Allen, 286 U.S. 191, 209 (1932)], respondents were not

7

‘caught in a mesh of procedural complexities.’” (Cardozo, J., joined by Brandeis and

8

Stone, JJ., dissenting) (“A system of procedure is perverted from its proper function when

9

it multiplies impediments to justice without the warrant of clear necessity.”) In fact, the

10

Court in Federated Dept. Stores, Inc., recognized the public policy considerations in

11

applying principles of res judicata:

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

The doctrine of res judicata serves vital public interests
beyond any individual judge’s ad hoc determination of the
equities in a particular case. There is simply “no principle of
law or equity which sanctions the rejection by a federal court
of the salutary principle of res judicata.” (Internal citation
omitted.) The Court of Appeals’ reliance on “public policy” is
similarly misplaced. This Court has long recognized that
“[p]ublic policy dictates that there be an end of litigation; that
those who have contested an issue shall be bound by the
result of the contest, and that matters once tried shall be
considered forever settled as between the parties.”
452 U.S. at 401.
Plaintiff further argues 28 U.S.C § “1738 requires federal courts to give the same
preclusive effect to state court judgments that those judgments would be given in the
courts of the State from which the judgments emerged” but that here there has been no
state court judgment because Defendants removed the case. (Doc. 39 at 3-4, citing Migra
v. Warren City Sch. District Bd. of Ed., 465 U.S. 75, 81 (1984).) He concludes that
Article VI of the Constitution contains authority for the Court to apply Lapides v. Bd. of
Regents of Univ. System of Ga., 535 U.S. 613 (2002), which held that a State’s act of
removing a lawsuit from state court to federal court waives its Eleventh Amendment
immunity from state-based claims. But in Embury v. King, the Ninth Circuit noted that
its holding extending Lapides to federal claims did not apply to cases where Congress
-5-

1

acted beyond its power over the States and had not validly abrogated the State’s

2

immunity through the Fourteenth Amendment. Embury v. King, 361 F.3d 562, 566, n. 20

3

(9th Cir. 2004). As this Court has previously held, because Congress has not validly

4

abrogated the States’ sovereign immunity on FLSA claims, see Alden v. Maine, 527 U.S.

5

706, 712 (1999), the Board did not waive its immunity on Plaintiff’s FLSA claim by

6

removing this action to federal court. (See Doc. 25 at 6.)

7

In addition, to the extent that Plaintiff is arguing that by removing the case to

8

federal court Defendants waived their preclusion defense the Court disagrees. Plaintiff

9

cites no authority for this argument.

Lapides, on which Plaintiff apparently relies,

10

addresses waiver of Eleventh Amendment immunity, not waiver of all defenses. As the

11

Supreme Court noted, its holding is limited “to the context of state-law claims, in respect

12

to which the State has explicitly waived immunity from state-court proceedings.” 535

13

U.S. at 617. The Court overrules the objection.

14
15

Here, Plaintiff identifies nothing that would justify rejection of issue
preclusion/res judicata in this case.

16

B.

Full and Fair Opportunity to Litigate the Issues

17

Plaintiff also argues that he did not have a full and fair opportunity to litigate his

18

claims because (1) as previously found by this Court, he filed suit well before the one

19

year statute of limitations and the Administrative Review Act allows only 35 days to file

20

suit and (2) he would not have access to the Arizona Appellate Courts because under the

21

Administrative Review Act, he would have to go straight to the Arizona Supreme court

22

for his appeal.2 (Doc. 39 at 4-5.) He claims that “the issue is not claim preclusion

23

regarding a state board acting in a judicial capacity but one of validity (what is a lawsuit)

24

and the statute of limitations.” (Id. at 5.) He argues that the Administrative Review Act

25

is “out of step” with Arizona’s Rules of Civil Procedure and Appellate Procedure. (Id. at

26

5-6.) He objects to the Magistrate Judge’s application of United States v. Utah Constr. &

27
2

28

Defendants filed a Motion to Dismiss the original complaint, arguing that the
complaint was not filed within the one-year statute of limitations. (Doc. 3.) The Court
applied equitable tolling and held that the complaint was timely filed. (Doc. 25 at 10.)
-6-

1

Mining Co., which Plaintiff argues applied to government contracts and dispute clauses.

2

(Id. at 5.) Plaintiff does not dispute the R & R finding that the Arizona Board of Regents

3

is an agency subject to the state’s Administrative Review Act. (See Doc. 38 at 6.)

4

The R & R notes that “[w]hen a state agency acts in a judicial capacity to resolve

5

disputed issues of fact and law properly before it, and when the parties have had an

6

adequate opportunity to litigate those issues, federal courts must give the state agency’s

7

fact-finding and legal determinations the same preclusive effect to which it would be

8

entitled in that state’s courts.” (Doc. 38 at 6, citing Olson v. Morris, 188 F.3d 1083, 1086

9

(9th Cir. 1999) (citing University of Tennessee v. Elliott, 478 U.S. 788, 798-99, (1986).)

10

Plaintiff argues that Olson states that courts “have denied preclusive effect to

11

administrative agency determinations where the plaintiff was denied an adequate

12

opportunity to litigate issues regardless of whether the state court would have done so.”

13

(Doc. 39 at 7, quoting Olson, 188 F.3d at 1086, citing Mack v. South Bay Beer

14

Distributers Inc., 789 F.2d 1279, 1283-84 (9th Cir. 1986).)

15

But in Olson, the Court found that claim preclusion was appropriate, including for

16

the plaintiff’s First Amendment claim, because the procedures at the administrative

17

hearing comported with the requirements of Utah Construction. 188 F.3d at 1086.

18

Specifically, Olson had contested the revocation of his psychologist’s license; the

19

revocation was based on his performance of an exorcism. The civil rights action asserted

20

that revocation of his license violated his First Amendment religious freedoms. The

21

Court of Appeals found that at the administrative proceedings the issue was whether

22

Olson had engaged in unprofessional conduct in the course of providing psychological

23

evaluation and treatment; it was undisputed he knew he was entitled to representation by

24

counsel; and he presented a largely factual defense at the hearing, offering evidence that

25

the psychological services he rendered were an appropriate “modality” under the

26

circumstances of the case. The appeals court noted Olsen specifically asserted before the

27

Board his right to freedom of religion under the First Amendment. Id. at 1087.

28

-7-

1

And Mack, where the court found no adequate opportunity to litigate an age-

2

discrimination claim at the administrative level, is distinguishable from Plaintiff’s case.

3

In Mack, a discharged employee had been denied unemployment benefits and later

4

brought an action for age discrimination. The Ninth Circuit held that because of the

5

nature of the proceedings, there was no adequate opportunity to litigate the plaintiff’s

6

age-discrimination claims before the Unemployment Insurance Appeals Board, noting

7

that the Administrative Law Judge made no specific findings concerning the plaintiff’s

8

age- discrimination claim and the record did not disclose whether evidence was ever

9

presented on the issue. Mack, 789 F.2d 1283-84.

10

To apply claim preclusion, the district court must independently assess the

11

adequacy of the state’s administrative forum and determine whether it was conducted

12

with sufficient safeguards to be equated with a state court judgment. Olson, 188 F.3d at

13

1086 (citing University of Tennessee v. Elliott, 478 U.S. 788, 798-99, (1986); Guild

14

Wineries and Distilleries v. Whitehall Co., 853 F.2d 755, 758 (9th Cir.1988)).

15

addition, Utah Construction requires that: (1) the administrative agency act in a judicial

16

capacity; (2) that the agency resolve disputed issues of fact properly before it; and (3) the

17

parties have an adequate opportunity to litigate. Utah Construction & Mining Co., 384

18

U.S. 394, 422 (1966).

19
20
21
22
23
24
25
26
27
28

In

Plaintiff does not object to the findings of fact set forth in the R & R as to the
procedures at the hearing. The Magistrate Judge found that
[Plaintiff] admitted 44 exhibits into evidence, made an
opening statement, examined and cross-examined witnesses,
called no witnesses but testified in his own behalf, and made
a closing argument to the panel. (Id.). The panel and Hearing
Officer issued a Hearing Report setting forth: a Hearing
Summary; a Statement of the University Disciplinary Action
Policy; Background of the Dispute; Findings of Fact;
Conclusions; and Panel Recommendations. (Id.) The Hearing
Decision also reflects that [Plaintiff] requested: “many forms
of compensation and relief from the University, including
reinstatement, back pay to June 1, 2011 with interest thereon,
a written employment contract, liquidated damages under the
Fair Labor Standards Act and compensation for penalties
associated with early withdrawal of retirement funds.”2 (Id.
at p. 4). After the Hearing Decision issued, [Plaintiff] was
permitted to request reconsideration of the decision
-8-

(Defendants’ Motion, Exh. C), which he did, and which was
denied. (Motion, Exh. D).

1
2
3

(Doc. 38 at 7.) The Court adopts these findings. The Magistrate Judge also found that

4

Plaintiff “was informed of his right to file an appeal with the state superior court pursuant

5

to Arizona’s Administrative Review Act, A.R.S. § 12-901, et seq., within 35 days from

6

receipt of Defendant Mok’s decision denying his request for reconsideration, (see

7

Defendants’ Motion, Exh. D)” and did not do so. (Id.) The Court adopts this finding.

8

The R & R also concluded that the procedures met the criteria in Utah

9

Construction. (Id.) Plaintiff objects to this conclusion; as noted he objects on the

10

grounds of the statute of limitations, the lack of available review by Arizona’s Court of

11

Appeals, and, apparently, that an appeal under the Administrative Procedure Act is not a

12

“lawsuit” or “civil action” within the meaning of the Arizona Civil Procedure Act. The

13

Court overrules these objections.

14

inadequate opportunity to litigate his issues at the administrative hearing.

Plaintiff does not actually object that he had an

15

First, the jurisprudence on the preclusive effect of state agency fact-finding and

16

legal determinations clearly contemplates the use of state-agency procedures that are not

17

identical to procedures used in civil lawsuits in the state courts. That is why the district

18

court is to determine the adequacy of the opportunity to litigate the issues at the

19

administrative hearing. There is no requirement that administrative procedures or review

20

be identical to state-court procedures. Plaintiff fails to explain why the shorter statute of

21

limitations or the lack of appellate-court review denied him an adequate opportunity to

22

litigate his issues at the administrative hearing.3

23

The Court also overrules Plaintiff’s objections as to the propriety of the

24

Administrative Review Act. As Defendants note, the Arizona Court of Appeals held that

25
3

26
27
28

The Court notes that the shorter statute of limitation is appropriate because the
issues have been identified by the administrative procedure and record and the action to
review will review the existing administrative record. Ariz. Rev. Stat. § 12-904 A, B. In
addition, the decision, order, judgment or decree of the superior court is reviewable by
the Arizona Supreme Court; therefore appellate review is available. Id. § 12-913. The
review is de novo. See Carlson v. Ariz. State Personnel Bd., 214 Ariz. 426, 153 P.3d
1055 (App. Div. 1 2007).
-9-

1

an unclassified employee who believes he was terminated for whistleblowing “may file

2

either a wrongful discharge action or an administrative complaint.” (Doc. 40 at 4-5,

3

citing Walters v. Maricopa County, 195 Ariz. 476, 481, 990 P.2d 677, 682 (App. 1999)

4

(emphasis added).) If such an employee wants to forego the expeditious route of an

5

administrative review, he may file directly with the court. Id. But an employee may not

6

file an administrative complaint, appeal the administrative decision, and file a wrongful

7

termination action, which would be a prohibited collateral attack of the administrative

8

decision. See Mullenaux v. Graham County, 207 Ariz. 1, 7, 82 P.3d 362, 368 (App.

9

2004) and Guertin v. Pinal County, 178 Ariz. 610, 612, 875 P.2d 843, 845 (App. 1994).

10

Moreover, the statutory language makes clear that an appeal of an administrative

11

determination to the superior court is an “action”; the Administrative Procedure Act

12

consistently refers to “an action” to review a final administrative decision. Ariz. Rev.

13

Stat. §§ 12-903A, 904A, 905B, 906, 908.

14

As to Plaintiff’s claim for wrongful termination, the hearing Decision finds that

15

supervisory employees did not provide advance authorization for Plaintiff’s overtime

16

work; Plaintiff repeatedly refused to meet with his supervisors and, contrary to Plaintiff’s

17

claim, the information sought by his supervisor was not confidential for purposes of the

18

UA’s whistleblower protection policy; the meeting requests were reasonably necessary to

19

direct the work force; and Plaintiff was insubordinate in repeatedly failing to comply with

20

reasonable instructions and directives. (Doc. 33, Ex. B.) The determination of sufficient

21

grounds to terminate Plaintiff is sufficiently established.

22

limitations and state-court arguments, which the Court rejects, Plaintiff does not claim

23

that he had an inadequate opportunity to litigate this issue at the administrative

24

proceeding. Plaintiff is precluded from bringing a claim for wrongful termination.

Other than the statute of

25

Plaintiff’s § 1983 claim relies on the same facts as his wrongful termination claim.

26

Specifically, he alleges that Mok, Miller, Husman, and Vaillancourt violated his First

27

Amendment and the Fourteenth Amendment rights. (FAC ¶ 11.) He claims that his

28

disclosures fell within the whistleblower policy and statute and that Defendants retaliated

- 10 -

1

against him and violated his constitutional rights by, inter alia, not following ABOR

2

Policy 6-914, by failing to authorize overtime, and by terminating his employment. He

3

asserts that in retaliation for filing his complaint with the Department of Labor regarding

4

overtime violations, Vaillancourt delayed the his post-termination review hearing six

5

months and failed to inform him he was eligible for re-employment with the UA. (FAC

6

¶¶ 24.3-23.4). Plaintiff further claims that Mok violated his constitutional rights by

7

“collaborating” with the hearing review panel, denying him access to ABOR Policy 6-

8

914, condoning Vaillancourt’s delay of the post-termination review hearing, and denying

9

the for reconsideration.

10

Plaintiff does not object to the Magistrate Judge’s finding that these issues could

11

have been brought before the hearing panel or on appeal to the state court. Thus, the

12

Court adopts the R & R as to these matters and holds that his failure to appeal precludes

13

the claims under § 1983.

14

Regarding the FLSA claim, Plaintiff asserts that Defendants’ violation of ABOR

15

Policy 9-614, in failing to accord his disclosures whistleblower protection, in turn,

16

resulted in retaliation against him in violation of the FLSA. (FAC ¶¶ 26.1-26.5.) He

17

argues that the Board waived Eleventh Amendment immunity when it removed the case

18

to federal court; the Court has already rejected this argument. Moreover, the FLSA issue

19

was raised at the administrative hearing, he requested damages, and findings were made

20

regarding the claim for overtime. Plaintiff could have raised his claim on appeal to the

21

state court pursuant to the Administrative Review Act, but he did not, and does not object

22

to the findings. The Court adopts the R & R as to the FSLA claim. Plaintiff is precluded

23

from raising this claim in a separate suit.

24

Plaintiff raises a claim for breach of the implied-in-law covenant of good faith and

25

fair dealing. This Court has already held that Arizona does not recognize such; a claim

26

“in Arizona, a ‘tortious []bad faith[] cause of action arising out of a breach of

27

employment agreement, when no public policy is violated, is prohibited.” (Doc. 25 at

28

15.) Moreover, the Hearing Decision found sufficient grounds to terminate Plaintiff’s

- 11 -

1

employment. Because he did not properly appeal the decision, he is precluded from

2

raising the claim in a separate lawsuit. The Court adopts the R & R as to this claim.

3

Finally, Plaintiff claims tortious interference with a contractual relationship,

4

alleging that Mok, Miller, Vaillancourt, and Husman acted outside the scope of their

5

authority to tortiously interfere with his contractual employment relationship with the

6

University and that they “collaborat[ed] with each other by refusing [him] access to

7

policy 6-914 and condoning [his] unlawful termination from employment.” (FAC ¶ 28.)

8

The District Court previously dismissed this claim because “the Defendants are all

9

employees of the University and according to the Complaint were acting within the scope

10

of their authority in assessing Plaintiff’s disclosures, Defendants cannot be liable for

11

interfering with Plaintiff’s contractual relationship. (Doc. 25 at 16.) In the R & R, the

12

Magistrate Judge found that although Plaintiff now claims that they acted outside the

13

scope of their authority by violating University policies and state and federal law,

14

Plaintiff failed to allege facts showing that Defendants were not acting as university

15

employees at the relevant times. Plaintiff does not object to this finding. Moreover, as

16

noted, the Hearing Decision established sufficient grounds for termination. The Court

17

adopts the R & R as to this claim.

18

C.

Unclean Hands

19

Plaintiff argues that even if issue preclusion applies to other claims, it should not

20

apply to his first claim for wrongful termination.

(Doc. 39 at 11-13.)

He asserts

21

generally that the Bd. of Regents has unclean hands because it knew or should have

22

known that Plaintiff’s disclosures were legitimate under the UA policy. But the question

23

for claim preclusion is whether Plaintiff had an adequate opportunity to litigate these

24

matters at the administrative hearing, and he offers nothing to show that he did not.

25

Moreover, the arguments he makes now could have been raised on appeal from the

26

administrative decision.

27

Having reviewed the pleadings and considering Plaintiff’s arguments, the Court

28

finds that Plaintiff had an adequate opportunity to present evidence at the administrative

- 12 -

1

hearing, the agency resolved issues of fact properly before it, and the findings of fact and

2

conclusions of law relate to the issues raised in the present lawsuit. Plaintiff did not file

3

an action in state court to appeal the administrative decision. Therefore, Plaintiff is

4

precluded from bringing the present action. Because amending the complaint would be

5

futile, the Court will grant the Motion to Dismiss without leave to amend.

6

Accordingly,

7

IT IS ORDERED:

8

(1)

The Report and Recommendation (Doc. 38) is adopted.

9

(2)

Defendants’ Motion to Dismiss (Doc. 33) is granted, and the claims in the

10

First Amended Complaint are dismissed with prejudice, without leave to amend the

11

First Amended Complaint.

12
13
14

(3)

The case is terminated, and the Clerk of Court is directed to enter judgment

accordingly.
Dated this 3rd day of September, 2014.

15
16
17
18
19
20
21
22
23
24
25
26
27
28

- 13 -