dissenting:
At the inception, I note that the motion for summary judgment was based on three grounds, (1) res judicata, (2) failure to comply with the notice provisions of § 24-10-109, C.R.S.1973, and (3) failure to state a claim, all of which were pled as affirmative defenses in the answer to the complaint. The trial court based its dismissal on (1). The majority has disposed of (1) and, in effect, (3), but (2) remains for further consideration on remand.
Based on Umberfield v. School District No. 11, 185 Colo. 165, 522 P.2d 730 (1974) and Colorado Springs Coach Co. v. State of Colorado Civil Rights Commission, 35 Colo.App. 378, 536 P.2d 837 (1975), cert. denied, 424 U.S. 948, 96 S.Ct. 1420, 47 L.Ed. 355 (1976), I would affirm the judgments in favor of both defendants on the basis of res judicata.
In June 1974, Marino was discharged because of emotional instability which rendered him unfit for the job of police officer. He appealed his discharge to the Pueblo Civil Service Commission. Marino and Wil-loughby (and through him the City) appeared and were represented by counsel, and there was a full hearing on the basic question of whether Marino’s discharge should be sustained or rejected.
At the hearing, Marino did not raise, but could have raised, the issues on which he has based his present lawsuit-whether his discharge was illegal because it was prohibited by certain state and federal statutes and was in violation of his constitutional rights. Had he raised these issues and prevailed, the Commission could have reversed the discharge, in which event he could have been reinstated and given back pay and benefits-which is the relief he is asking for in the present action.1 Or, if for any reason (and I can think of none) he was prevented from raising these issues at the Commission hearing, he could have appealed the decision of the Commission to the district court and raised these issues there. This he did not do, and, instead, commenced this separate action four years later.
This case is analogous to the situation in Umberfield, supra, where, instead of appealing the administrative agency’s decision to terminate his employment, the plaintiff filed a complaint with the Colorado Civil Rights Commission. In that case, after first holding that the doctrine of res judica-ta may be applied to administrative proceedings, the Court held that “the doctrine of res judicata operates as a bar to the relitigation of issues which Umberfield raised or could have raised in the hearing before the [teacher tenure panel] and on judicial review.” See also Norby v. City of Boulder, 195 Colo. 231, 237, 577 P.2d 277, 281 (1978).
The issues, and the claims for damages, in Marino’s complaint are the identical issues and claims which he could have raised before the Commission or before the district court had the Commission’s decision been appealed. Hence, the doctrine of res judi-*732cata requires a dismissal of Marino’s present action.
. In his complaint, the “monetary relief,” the damages, he asked for was the money equivalent of what, had he not been discharged, he would have earned, from the date of his discharge through his active duty and retirement life expectancy, in salary (both in present and higher grade) and in other benefits such as health insurance, sick leave, vacation, and retirement, plus compound interest, or ‘reinstatement together with back pay and benefits.”