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Plumber v. UAA (4/18/97), 936 P 2d 163
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NOTICE: This opinion is subject to formal correction before
publication in the Pacific Reporter. Readers are requested to bring
errors to the attention of the Clerk of the Appellate Courts, 303 K
Street, Anchorage, Alaska 99501, telephone (907) 264-0608, fax (907)
264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
DAHLIE A. PLUMBER, )
) Supreme Court No. S-7024
Appellant, )
) Superior Court No.
v. ) 3AN-94-03595 CI
)
UNIVERSITY OF ALASKA ) O P I N I O N
ANCHORAGE, )
) [No. 4810 - April 18, 1997]
Appellee. )
______________________________)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Charles K. Cranston, Judge.
Appearances: Hugh W. Fleischer, Hedland,
Fleischer, Freidman, Brennan & Cooke,
Anchorage, for Appellant. Mark E. Ashburn,
Ashburn & Mason, Anchorage, for Appellee.
Before: Rabinowitz, Matthews, Compton, and
Eastaugh, Justices, and Carpeneti, Justice pro
tem. [Moore, Chief Justice, not
participating.]
CARPENETI, Justice pro tem.
I. INTRODUCTION
Dahlie Plumber (Plumber) appeals the superior court's
affirmance of the decision by the Chancellor of the University of
Alaska, Anchorage (UAA) to dismiss Plumber's grievance. We affirm
the superior court's decision to uphold the chancellor's action,
but do so for reasons different from those relied upon by the
superior court. (EN1)
II. FACTS AND PROCEEDINGS
Dahlie Plumber was the Manager of Computer Operations for
UAA. She sued the university and three university administrators
in federal court on August 4, 1993, alleging racial and sexual
discrimination, breach of contract, intentional infliction of
emotional distress and other claims. On August 23, 1993, Plumber
received an unfavorable Performance Appraisal from Dr. Elaine Ader,
one of Plumber's superiors. (EN2)
On September 7, Plumber's counsel wrote to the university
claiming that the poor evaluation was given in retaliation for the
lawsuit and indicating that plaintiff was reevaluating her position
and would amend the complaint to add a count for retaliation.
Plumber amended the complaint on September 16, and did add a claim
for retaliation.
On October 11, the university offered to settle all
claims against all defendants in the federal action for a lump sum
payment. Plumber accepted the offer on October 18. An amended
final judgment was entered in federal district court on November 8.
(EN3)
At the time the federal suit was settled a university
regulation set a minimum standard for the award of annual salary
increments. Regent's Policy 04.05.01(B)(4) provided:
The salary structure for administrative/
professional/technical positions shall be a
set of ranges organized in a matrix for
purposes of placement and movement. Movement
within each range will be accompanied by a
minimum 3 percent annual salary increase. All
recipients of annual in-range salary
increments shall have at least a satisfactory
performance evaluation.
(Emphasis added.) This policy was last revised in 1990, and was
still in effect at the time of this appeal.
On January 2, 1994, Plumber failed to receive a three
percent cost-of-living increase because her latest evaluation, the
evaluation of August 23, 1993 rated her below "Satisfactory." On
January 5, she sent a grievance to the university governance office
which stated: "I am filing this grievance because of the unfair
manner in which my previous employee evaluation was rated." The
only matter she grieved on January 5 was the August evaluation
(although Plumber noted that the evaluation had been signed by Dr.
Beeton, the university president, on December 9, 1993). At that
point, Plumber and the university entered into the grievance
process, which included an attempt at informal resolution. Plumber
rejected the proposed resolution by appealing to the grievance
council. Plumber's appeal contained a more lengthy statement of
the grievance. (EN4) Her opening paragraph reads in full:
The grievance concerns the August 23,
1993, appraisal of performance of grievant by
Dr. Ader in which the overall rating was
"needs improvement"and resulted in the loss
of a 3% salary increase effective on or about
January 2, 1994.
At the completion of the formal grievance process the
university grievance council recommended to the chancellor that the
grievance be dismissed on the grounds that it was not in proper
form under Regents' Policy 04.08.08(IV)(C)(3) and (4). The
chancellor adopted this recommendation. In addition, he rested
denial of the grievance on the further ground that the grievance
was not timely under Regents' Policy 04.08.08.
Plumber appealed the final decision of the chancellor to
the superior court. That court held that the grievance was timely
and was not barred by the doctrine of res judicata, but that the
grievance was properly dismissed because it was not in the proper
form.
Plumber appeals that decision to this court.
III. DISCUSSION
A. Standard of Review
This case involves an appeal from a decision of the
superior court acting as an intermediate court of appeal. In such
a case, we will "approach the issues independently," Union Oil Co.
of California v. State, Dep't of Revenue, 560 P.2d 21, 23 n.5
(Alaska 1977), giving "[n]o deference . . . to the superior court's
decision." Handley v. State, Dep't of Revenue, 838 P.2d 1231, 1233
(Alaska 1992) (citing Tesoro Alaska Petroleum Co. v. Kenai Pipe
Line Co., 746 P.2d 896, 903 (Alaska 1987)). See also Jager v.
State, 537 P.2d 1100, 1106 (Alaska 1975); State v. Marathon Oil
Co., 528 P.2d 293, 298 (Alaska 1974).
B. Res Judicata
The doctrine of res judicata as adopted in Alaska
provides that a final judgment in a prior action bars a subsequent
action if the prior judgment was (1) a final judgment on the
merits, (2) from a court of competent jurisdiction, (3) in a
dispute between the same parties (or their privies) about the same
cause of action. Blake v. Gilbert, 702 P.2d 631, 634-35 (Alaska
1985). See also DeNardo v. Municipality of Anchorage, 775 P.2d
515, 517 (Alaska 1989). Because all of these elements are present
here, the doctrine bars Plumber's appeal.
1. Final judgment
The federal district court's judgment was a final
judgment on the merits. That it was based on an accepted offer of
judgment in no way diminishes the effectiveness of the resulting
final judgment. Indeed, this court has held that a stipulation to
dismiss claims with prejudice is sufficient for res judicata
purposes: "[A] stipulation [to dismiss claims with prejudice] is
just as valid as a final judgment resulting from a trial on the
merits, and is res judicata as to all issues that were raised or
could have been determined under the pleadings." Tolstrup v.
Miller, 726 P.2d 1304, 1306 (Alaska 1986).
2. Court of competent jurisdiction
There is no question that the federal district court is
a court of competent jurisdiction.
3. Same parties, same cause of action
The same parties are present here as in the federal
district court case: Dahlie Plumber and the University of Alaska.
While the same issue is involved -- whether the August, 1993,
evaluation was unfair and retaliatory -- the causes of action are
based on alleged violations of different laws. In the federal
court case Plumber alleged in relevant part that the poor
evaluation was in retaliation for her lawsuit and therefore
violated the Alaska Whistleblower Act, AS 39.90.100(a). In her
grievance, which appeal is presently before us, Plumber claimed
that the motivation behind the evaluation and the manner in which
it was conducted violated several university policies and
regulations. Under these circumstances, it might be thought that
the causes of action are not the same.
However, res judicata bars not only relitigation of the
same cause of action, but also new claims arising from the same
transactions as those in the first suit. The same transaction, the
August, 1993 evaluation of Plumber, is at issue in both the first
suit in federal court and the present appeal in state court. "A
final judgment extinguishes all claims 'with respect to all or any
part of the transaction, or series of connected transactions' out
of which the previous action arose. Restatement (Second) of
Judgments sec. 24 (1982)." Tolstrup, 726 P.2d at 1306. What
factual grouping constitutes a "transaction"is determined by
"whether the facts are related in time, space, origin, or
motivation,"and "whether they form a convenient trial unit."
Restatement (Second) of Judgments sec. 24(s) (1982).
Plumber's August, 1993 evaluation (the motivation for it,
the circumstances surrounding it, and the actual evaluation) is the
only transaction at issue in this case. The events are closely
related in time, space, origin and motivation and form a convenient
trial unit. The events occurred within a short period of time, and
are all directly related to the evaluation. The same facts,
evidence and witnesses would be produced to prove a violation of
the Alaska Whistleblower Act as those produced to prove violations
of university policies and regulations. At issue in both the first
and second suit is whether there was an improper motive in giving
Plumber a poor evaluation, even if the theories of liability
(violation of the Whistleblower Act or violation of university
policies) differ. Because the same transaction was at issue both
in the federal court suit and in the present appeal, res judicata
bars Plumber's present claim.
Plumber seeks to avoid the conclusion that her grievance
is barred by res judicata by arguing that she was unaware of one of
the effects of the August 1993 evaluation, that it would result in
her losing a salary increase until after she entered into the
settlement. Because she was unaware of one of the effects of the
August 1993 evaluation, Plumber argues, she did not have an
opportunity to litigate the issue. Under the holding of Cameron v.
Beard, Plumber argues that she should not be barred by res
judicata. Cameron, 864 P.2d 538, 545 (Alaska 1993) ("[R]es
judicata does not apply when one party has not had an opportunity
to litigate an issue.").
It is true that res judicata does not act as a bar when
the conduct giving rise to the second suit occurs after the
conclusion of the first suit. Restatement (Second) of Judgments
sec. 24 cmt. f (1982); see Pankratz v. State, Dep't of Highways,
652 P.2d 68, 73-74 (Alaska 1982). Plumber failed to receive a cost
of living increase on January 2, 1994, after the conclusion of the
first lawsuit. However, Plumber's argument is incorrect for three
reasons.
First, it is clear that university regulations in place
throughout the period in question barred cost-of-living increases
for employees who did not maintain at least "satisfactory"ratings.
(EN5) Plumber, a long-time university employee of fairly high
ranking, is presumed to be aware of the regulations as a general
matter. Moreover, there is a clear suggestion that at least
Plumber's counsel during the federal court litigation was aware of
the effects of not receiving a satisfactory rating. In the letter
of September 7 which counsel sent to the university complaining
about the poor evaluation, counsel argued that Plumber was "being
singled out for a barrage of memoranda, and critical written
materials, which seem clearly designed to . . . justify future and
further adverse actions." (Emphasis added.)
Second, even if Plumber was entirely unaware of Regent's
Policy 04.05.01(B)(4), ignorance of the effects of a final judgment
is immaterial in determining whether res judicata applies. It is
the general rule that
if a plaintiff who has recovered a judgment
against a defendant in a certain amount
becomes dissatisfied with his recovery and
commences a second action to obtain increased
damages, the court will hold him precluded;
his claim has been merged in the judgment and
may not be split. . . . It is immaterial that
in trying the first action he was not in
possession of enough information about the
damages, past or prospective, or that the
damages turned out in fact to be unexpectedly
large and in excess of the judgment.
Restatement (Second) of Judgments sec. 25, cmt. c (1982). As UAA
persuasively argues in its reply brief:
The fact that Plumber was not aware of one of
the financial consequences of a settled claim
does not allow Plumber to relitigate the same
claim once she becomes aware of that financial
consequence. If that were the case, the
doctrine of res judicata would be eviscerated
by a protestation of ignorance by a litigant
as to the scope of damage.
Plumber did have the opportunity to litigate the poor evaluation:
it was an important part of her federal claim. That she did not
litigate it further (because of a strategic decision or ignorance
or other reason) does not change the fact that she had the
opportunity to litigate it. As we noted in Pankratz, "Res Judicata
prevents the relitigation in a second suit for relief from judgment
of matters which were adjudged or could fairly have been adjudged"
in the first suit. Pankratz, 652 P.2d at 74 (quoting Moran v.
Poland, 494 P.2d 814, 815 (Alaska 1972)) (emphasis in Pankratz).
Third, Plumber's second suit was not based upon conduct
occurring after she settled with UAA in federal court. While she
does claim that she should be given the three percent cost of
living salary increase, she does not contend that the regulation
denying her the raise was improperly applied given her most recent
evaluation. Rather, she challenges the evaluation itself, which
occurred before the conclusion of the first suit. As noted above,
a review of her grievance leaves no doubt that it arose from the
same transaction as her first suit, the August 1993 evaluation.
The denial of the cost of living increase was a trigger for the
second action, but the validity of the denial was not at issue. As
the Restatement provides, it is immaterial that in settling the
first suit Plumber was not in possession of enough information
about the potential future damages stemming from her evaluation.
Restatement (Second) of Judgments sec. 25, cmt. c (1982). The
damages she obtained in settlement embody compensation for her
entire injury from the evaluation. She is barred from relitigating
to obtain a better settlement. We hold that her grievance, and
this appeal, are barred by res judicata.
The superior court denied the res judicata claim here on
the following reasoning:
[Plumber] raises a complex of issues she
claims to arise because of violations of
numerous provisions of the Regents' Policy.
One of her allegations claims that Dr. Ader's
appraisal was unfair and retaliatory.
However, her administrative claim is not
limited to that issue. For that reason the
Court concludes that this administrative
action did not involve the same cause of
action as the federal suit. Accordingly, the
Court rejects UAA's argument that the doctrine
of Res Judicata bars [Plumber's]
administrative action.
We cannot agree with the reasoning of the superior court. As noted
above, a review of Plumber's grievance (as stated both in the
January 14, 1994 grievance to Dr. Ader, and the longer appeal to
the grievance council of February 23, 1994) leaves no doubt that
the only subject of her grievance was the August 1993 evaluation.
As Plumber herself made clear in filing the grievance, "I am filing
this grievance because of the unfair manner in which my previous
employee evaluation was rated."
The superior court may have been misled by the fact that
Plumber alleged that several Regents' Policies had been violated,
but it is crystal clear that, in her words:
The grievance concerns the August 23,
1993, appraisal of performance of grievant by
Dr. Ader in which the overall rating was
"needs improvement"and resulted in the loss
of a 3% salary increase effective on or about
January 2, 1994.
The Regent's [sic] policies and
University regulations which have been
violated by the above action are as follows.
(Emphasis added.) That Plumber alleged several policies had been
violated does not change the essential fact: her grievance
concerned only problems which she saw with the August 1993
evaluation. The August 1993 evaluation was the subject of the
federal lawsuit. As such, the grievance (and this appeal) are
barred by res judicata.
We conclude that the res judicata issue is dispositive,
and that the administrative appeal should have been dismissed by
the superior court on res judicata grounds. Given this conclusion,
it is not necessary to reach the two other issues presented in this
appeal.
IV. CONCLUSION
For the reasons set out above, this court AFFIRMS the
decision of the superior court.
ENDNOTES:
1. In affirming a judgment, a reviewing court may rely upon
grounds different from those used by the administrative agency.
See, e.g., ASEA v. APEA, 825 P.2d 451, 458 (Alaska 1991); Ehrlander
v. State, Dep't of Trans., 797 P.2d 629, 636 n.18 (Alaska 1990).
2. Plumber's overall rating was "Needs Improvement."
3. Plumber received $100,000, including interest, plus an amount
for costs incurred in bringing the suit, including reasonable
attorney's fees, from the university. The settlement was not an
admission that UAA was liable, nor was it an admission that Plumber
had suffered any damage.
4. In this statement of her grievance, Plumber alleged that in
various respects her August evaluation had violated several
university policies and regulations. She sought a three percent
salary increase retroactive to January 2, 1994, an "appropriate"
evaluation, expungement of the current evaluation from her
university employment records, and attorney's fees and costs.
5. The regulation involved here, Regents' Policy 04.05.01(B)(4),
provides that "[a]ll recipients of annual in-range salary
increments [the three percent increase] shall have at least a
satisfactory performance evaluation." The affidavit provided by
the university affirmed that the regulation was "in effect from
August of 1993 through January of 1994."
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