FILED
NOT FOR PUBLICATION
NOV 14 2013
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TERRY YAHWEH, No. 11-17917
Plaintiff - Appellant, D.C. No. 2:11-cv-00410-ROS
v.
CITY OF PHOENIX, a political MEMORANDUM*
subdivision of the State of Arizona,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, Senior District Judge, Presiding
Submitted November 5, 2013 **
San Francisco, California
Before: THOMAS and RAWLINSON, Circuit Judges, and DUFFY, District
Judge.******
Terry Yahweh appeals from the district court’s dismissal on the basis of res
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Kevin Thomas Duffy, United States District Judge for the
Southern District of New York, sitting by designation.
judicata his Title VII lawsuit alleging race discrimination and retaliation against
the City of Phoenix. We review de novo a dismissal based on res judicata. Mpoyo
v. Litton Electro-Optical Sys., 430 F.3d 985, 987 (9th Cir. 2005). Because the
district court properly dismissed Yahweh’s Title VII lawsuit on the basis that it
was precluded by Yahweh’s state lawsuit brought under the Arizona Civil Rights
Act (“ACRA”), we affirm.
The three elements required for res judicata to apply to Yahweh’s Title VII
lawsuit are satisfied here: (1) the two suits involve the same parties; (2) the first
suit resulted in a final judgment on the merits; and (3) the suits involve the same
claim. See Dressler v. Morrison, 130 P.3d 978, 981 (Ariz. 2006) (en banc).
First, there is no dispute that Yahweh’s ACRA and Title VII suits involve
the same parties.
Second, the state court’s dismissal of Yahweh’s ACRA lawsuit for failure to
give proper notice to the City is considered a final judgment on the merits under
Arizona law. See, e.g., 4501 Northpoint LP v. Maricopa Cnty., 128 P.3d 215,
218–19 (Ariz. 2006) (en banc) (reading “adjudication on the merits” broadly to
include any final resolution that is binding on the parties, including procedural
resolutions); Phillips v. Ariz. Bd. of Regents, 601 P.2d 596, 598 (Ariz. 1979) (en
banc) (dismissal for failure to meet procedural prerequisite was “on the merits”).
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Third, Yahweh’s ACRA and Title VII suits involve the same claim under
Arizona law. Arizona courts rely on the “same evidence” test to assess whether
lawsuits involve the same claim. Rousselle v. Jewett, 421 P.2d 529, 532 (Ariz.
1966) (in banc); Pettit v. Pettit, 189 P.3d 1102, 1105 (Ariz. Ct. App. 2008). “If no
additional evidence is needed to prevail in the second action than that needed in the
first, then the second action is barred.” Phx. Newspapers, Inc. v. Dep’t of
Corr., 934 P.2d 801, 804 (Ariz. Ct. App. 1997) (citing Rousselle, 421 P.2d 529).
An ACRA plaintiff may be required to rebut the affirmative defense that the
defendant would have made the same employment decision even if the plaintiff’s
race had not been taken into account, see Timmons v. City of Tucson, 830 P.2d 871,
877 (Ariz. Ct. App. 1991), while a Title VII plaintiff alleging race discrimination
needs only to demonstrate that race was a motivating factor in discriminatory
employment action, 42 U.S.C. § 2000e–2(m); see Univ. of Tex. Sw. Med. Ctr. v.
Nassar, 133 S.Ct. 2517, 2526 (2013). Here, since Yahweh’s Title VII claim was
filed subsequent to Yahweh’s ACRA claim, “no additional evidence is needed to
prevail in the second action than that needed in the first.” Phx. Newspapers,
Inc., 934 P.2d at 804.
Res judicata thus applies to Yahweh’s Title VII lawsuit.
AFFIRMED.
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