Three Laotian correctional officers, Va Ly, Travis Herr and Pao Yang, were allegedly subjected to racial and national origin discrimination, harassment and retaliation by their employer, the County of Fresno, and its employees. The three filed suit against the County pursuant to the Fair Employment and Housing Act (FEHA), Government Code section 12900 et seq., while simultaneously pursuing their workers’ compensation remedies.

Prior to commencing the FEHA action, each plaintiff filed a workers’ compensation claim with the Department of Industrial Relations, Workers’ Compensation Appeals Board, for psychiatric injuries arising from the discrimination, harassment and retaliation.

Ly testified in the workers’ compensation case that he was subjected to racial discrimination and harassment when his requests to swap shifts with other officers were denied; he was moved out of his regular assignment and repeatedly reassigned to the main jail; and his sergeant, referred to him as “the Swap King,” which led to teasing by other officers. WCJ Geoffrey H. Sims found the denial of Ly’s swap request “as not a discriminatory action and was made as a good faith personnel action,”and the reassignments were due to business necessity and were not discriminatory actions and ordered that Ly take nothing by way of his application.

In Herr’s case, WCJ Thomas J. Heslin issued his decision, in which he found Herr did not sustain industrial injury to his psyche and ordered that he take nothing as a result of his claim. In response to a petition for reconsideration, the WCAB found that the actions of Herr’s supervisors “were good faith personnel actions” that “were taken in order to provide for the best and most effective staffing at the jail.”

In the Yang case, WCJ Dominic E. Marcelli issued his decision, in which he found Yang did not sustain “a compensable industrial injury to his psyche” and ordered he take nothing by way of his application. Marcelli determined the County’s actions were “lawful, non-discriminatory and done in good faith.” Yang filed a petition for reconsideration, which the WCAB dismissed as untimely.

The County moved for summary judgment of the new civil FEHA case based on the doctrines of res judicata and collateral estoppel, arguing the workers’ compensation decisions barred plaintiffs’ FEHA claims. The trial court granted summary judgment. The court of appeal affirmed in the unpublished case of Va Li et.al.v County of Fresno.

An employee who claims to have been discriminated against or harassed in the workplace has a choice of remedies: a claim may be made under the FEHA or under workers’ compensation. Here, plaintiffs elected to pursue both remedies. The workers’ compensation claims were resolved first, in the County’s favor.

The case is analogous to Busick v. Workmen’s Comp. Appeals Bd. (1972) 7 Cal.3d 967, 973-974. There, the petitioner was shot by her former employer when she was picking up her final paycheck. She filed both a workers’ compensation claim on the theory that her injury arose out of and in the course of her employment, and a superior court action for assault and battery. (Id. at p. 971.) The superior court action was resolved before the workers’ compensation case was final, with the court finding in her favor and awarding her damages.

The subsequent workers’ compensation decision which denied her compensation because the injury did not arise out of the course and scope of her employment. The Supreme Court concluded res judicata barred the workers’ compensation action. The Court concluded the workers’ compensation proceeding was brought on the same cause of action as in the superior court case, since in the latter, petitioner sought “redress for injuries suffered from one tortious act, the shooting incident. . . . Violation of one primary right in the [workers’ compensation] case constitutes a single cause of action even though two mutually exclusive remedies are available.” (Busick, supra, 7 Cal.3d at p. 975.)

In sum, plaintiffs had one primary right: their right to recover for an injury caused by discrimination, harassment and retaliation in the workplace. Two alternate forums were available to them to redress the injury. Plaintiffs proceeded first with their workers’ compensation remedy, even though the standard for recovery under FEHA may be broader. The workers’ compensation decisions are now final and binding. When two tribunals have jurisdiction and neither party objects to the jurisdiction of one or the other, then the first final judgment from one of the tribunals becomes conclusive and renders the same issue res judicata in the other court. (Busick, supra, 7 Cal.3d at p. 977.)