IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
________________________
No. 98-30153
Summary Calendar
________________________
MITCHELL RUSSO,
Plaintiff-Appellant,
v.
JEFFERSON PARISH WATER DEPARTMENT,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 96-CV-2134-N
_________________________________________________________________
February 12, 1999
Before EMILIO M. GARZA, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Plaintiff-appellant Mitchell Russo appeals from the district
court’s partial grant of summary judgment in favor of defendant-
appellee Jefferson Parish Water Department (“JPWD”). The
district court found that the doctrine of collateral estoppel
precludes Russo from maintaining his claims under the Family and
Medical Leave Act of 1993. For the reasons discussed below, we
AFFIRM.
Background
JPWD employed Russo, first as an operator and then as a
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
superintendent, from 1980 until 1995. Russo alleges that, in the
Spring of 1995, he informed his supervisor that he was suffering
from obstructive sleep apnea and requested that JPWD accommodate
his condition by allowing him to avoid rotating shift work and
compulsory overtime. Russo claims that his supervisor denied
those requests.
On July 18, 1995, Russo placed a written request for a
medical leave of absence on his supervisor’s desk. Russo sought
leave from July 18 through August 31, 1995, and did not return to
work after making his request. The employer denied the request
and subsequently scheduled a meeting to discuss Russo’s leave
request and his continued employment at JPWD. Russo informed
JPWD that he could not attend the meeting as set for August 14,
1995. JPWD nonetheless held to its original meeting time, and
Russo did not attend. In a letter dated August 17, 1995, JPWD
terminated Russo’s employment. The employer cited Russo’s
insubordination in failing to attend the August 14, 1995 meeting
as the basis for its adverse employment action.
On September 12, 1995, Russo contested his termination by
filing a petition of appeal to the Jefferson Parish Personnel
Board (“Board”). In his petition, Russo claimed that he had not
been insubordinate in failing to attend the August 14 meeting and
that his termination violated the Americans with Disabilities Act
(“ADA”) and the Family and Medical Leave Act (“FMLA”).
In response to Russo’s appeal, a hearing was held on
December 14, 1995. At the hearing, Russo was represented by an
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attorney and was able to present evidence and cross-examine
witnesses. The hearing officer viewed Russo’s FMLA and ADA
claims as an affirmative defense to JPWD’s explanation for the
termination. He began the hearing by explaining that Russo could
proceed with his affirmative defense after JPWD concluded its
case-in-chief, in which it would have to justify the termination
by a preponderance of the evidence.
At several points during the proceeding, the hearing officer
sustained JPWD’s objections to the appellant’s questions
regarding Russo’s accommodation and leave requests, his physical
and mental condition, his reasons and documentation for failing
to attend the August 14 meeting, and the FMLA’s requirements.
Although refusing to allow Russo to raise certain issues during
the employer’s case-in-chief, the hearing officer did indicate
that Russo would be able to recall the employer’s witnesses as
hostile witnesses when the time came to present his affirmative
defense. Further, the hearing officer stated that, at the
conclusion of the hearing, Russo could proffer evidence he was
not able to elicit from the employer’s witnesses and could submit
a brief to counter any perceived inadequacies of the hearing.
Russo was the only witness to testify on his behalf. After
Russo testified, the hearing officer temporarily left the matter
open in case Russo decided to call additional witnesses. There
is no indication in the record that the appellant ever provided
additional evidence or briefs to support his claim.
On February 28, 1996, the Board issued its decision, finding
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that JPWD was justified in terminating Russo’s employment. In
reaching this conclusion, the Board stated:
The appellant [Russo] urges by way of [an] affirmative
defense that he somehow was discriminated against in
that the appointing authority, in view of the terms and
conditions of the Family [and] Medical Leave Act, . . .
somehow treated [him] inappropriately. Suffice it to
say, . . . this appellant failed to maintain his burden
in going forward with the evidence regarding the
specificity required not only in pleading such an
affirmative defense but also in offering evidence to
support such a claim.
Russo had a right to appeal the Board’s decision to a state court
of appeals, but he instead filed the instant suit in federal
district court.
On January 16, 1998, the district court granted in part and
denied in part JPWD’s motion for summary judgment. The court
denied the motion with respect to Russo’s claims under the ADA
after finding that the Board’s decision did not preclude Russo
from proceeding with those claims. With respect to Russo’s FMLA
claims, however, the district court found that doctrine of
collateral estoppel precluded Russo from re-litigating the issues
raised by those claims. In reaching this conclusion, the
district court found that the administrative hearing had afforded
Russo a full and fair opportunity to be heard and that his FMLA
claims had been essential to the judgment rendered by the Board.
The district court also dismissed Russo’s pendant claim under La.
Rev. Stat. Ann. § 51:2242 for lack of subject matter jurisdiction
and granted summary judgment in favor of JPWD with respect to
Russo’s claims for punitive damages. The district court
subsequently ordered judgment pursuant to Fed. R. Civ. Pro.
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54(b). Russo filed a timely Notice of Appeal and now challenges
the district court’s grant of summary judgment as it pertains to
his claims under the FMLA.
Discussion
The question presented is whether Russo’s FMLA claims are
precluded by the Jefferson Parish Personnel Board’s decision
affirming JPWD’s termination of Russo’s employment. “The federal
courts must give an agency’s fact finding the same preclusive
effect that they would a decision of a state court, when the
state agency is acting in a judicial capacity and gives the
parties a fair opportunity to litigate.” Stafford v. True Temper
Sports, 123 F.3d 291, 295 (5th Cir. 1997) (citing University of
Tennessee v. Elliott, 478 U.S. 788, 799 (1986)). If a state
agency decision is unreviewed, as in this case, the law of the
forum state and the application of the criteria set forth by
Elliott determine whether the agency decision has a preclusive
effect. See 18 James Wm. Moore et al., Moore’s Federal Practice
§ 131.32[2] (3d ed. 1997). Where a “valid and final judgment is
conclusive between the same parties, except on appeal or other
direct review,” Louisiana recognizes the doctrine of collateral
estoppel “with respect to any issue actually litigated and
determined if its determination was essential to that judgment.”
La. Rev. Stat. Ann. § 13:4231.
An exception to the presumption in favor of collateral
estoppel applies “if Congress manifests an intent, pursuant to a
statutory scheme, that state administrative decisions have no
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such preclusive effect.” Id. In this case, the appellant has
not challenged the district court’s conclusions that the Board
acts in a judicial capacity and that its decisions, as a general
rule, may serve as the basis for applying collateral estoppel
against FMLA litigants. Because the appellant has not raised the
issue, we need not inquire whether the FMLA evinces any
Congressional intent to deviate from the presumption favoring
collateral estoppel. We will assume for the purpose of this
appeal that preclusive effect may be given to a state
administrative agency’s resolution of FMLA claims.
Russo argues that he did not have a full and fair
opportunity to litigate his FMLA claims before the Board. First,
Russo seeks to distinguish the question addressed by the Board--
i.e., whether JPWD was justified in terminating Russo based on
his failure to attend the meeting on August 14, 1996--from the
claim that he raised before the district court--i.e., that JPWD
violated the FMLA by denying his leave request and by terminating
him for failing to report to work while on a leave that should
have been recognized as proper under the FMLA. We fail to see
the distinction. To reach the conclusion that JPWD was justified
in terminating Russo for his failure to attend the August 14
meeting, the Board necessarily had to have found that he was not
away from work on an FMLA-covered leave of absence. Russo in
fact recognized this when he argued before the hearing officer:
If the issue here is the justification of this
termination and Mr. Russo should have been on a leave
of absence during this time frame, legally, and that
the Appointing Authority decided that they weren’t
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going to grant that leave, in violation of the law,
then the request to come in on the 14th is also
violative of the law. And his failure to come in on
that time, because he was on what should have been his
leave of absence, would have been justified. And I
think that’s extremely relevant to this proceeding.
Because the question whether Russo’s leave request should have
been granted was subsumed within the question whether the JPWD
was justified in terminating him, Russo cannot now distinguish
the claim addressed by the Board’s decision from the claim made
before the district court.
Second, Russo argues that, even if his FMLA claims were
necessarily decided by the Board’s resolution of his appeal, he
was not afforded a full and fair opportunity to litigate those
claims. After reviewing the record, we agree with the district
court that Russo had every incentive to litigate fully his FMLA
claims before the Board and that he was afforded the opportunity
to do so. The possibilities for the appellant to present his
challenge to the termination by calling witnesses and submitting
written argument in support of his claims outweigh the instances
in which the hearing officer sustained objections to FMLA-related
questions. Russo’s decision not to pursue his claims more
rigorously does not negate the overall fullness and fairness of
the administrative hearing and the resulting decision.
We therefore AFFIRM the decision of the district court.
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