ORDER DENYING DEFENDANT MAUI COUNTY’S MOTION FOR PARTIAL SUMMARY JUDGMENT RE ALL WRONGFUL DISCHARGE CLAIMS
SAMUEL P. KING, Senior District Judge.
I. THE MOTION
This case arises from the dismissal of Plaintiff William P. Carroll from employment with Maui County on August 19, 1992. His second amended complaint basically alleges that the Defendants conspired to silence him and that he was fired for whistleblowing in violation of Haw.Rev.Stat. § 378-62 and the United States Constitution. He asserted several causes of action including wrongful discharge, violations of 42 U.S.C. § 1983, violations of Civil RICO provisions (18 U.S.C. §§ 1961-65), as well as various other common law claims. In previous orders, this court dismissed some of the causes of action against certain defendants. In the present motion, Defendant County of Maui and Defendants Lingle, Kaya, Miller, Hipólito, Morgan, Parabieoli, and Suzuki, in their official capacities (collectively, “the Maui County Defendants”), have moved for partial summary judgment on all wrongful discharge claims, asserting that Plaintiff
is barred by doctrines of prior adjudication (i.e. res judicata and collateral estoppel) from litigating such claims. This court heard the matter on August 12, 1994. Robert A. Smith represented Plaintiff, Cyrus W. Chan appeared for the Maui County Defendants, Daniel A. Bent appeared for Maui employee Defendants (other than Lingle and Kaya) in their individual capacities, and other defendants joined.
II. BACKGROUND
Plaintiff was an operator at a Maui County Wastewater Reclamation Facility (“WWRF”). After being hired in 1989, he made a series of complaints to superiors, the Department of Health, the Environmental Protection Agency, the media,
and others. Plaintiff allegedly is well-known as a “staunch advocate of compliance with environmental regulations.”
Among Plaintiffs complaints were that Maui County was hiring an improperly qualified individual and that the State Board of Certification of Wastewater Plant Operators (“Board”) was improperly certifying the individual in violation of its regulations. The Board asked Plaintiff for proof of his allegations. Plaintiff responded by producing documents obtained from the individual’s personnel file. Apparently, the Board then presented the documents to Defendant Kaya, Director of the Maui County Department of Public Works.
Plaintiff was then fired by Maui County for (1) producing confidential documents without prior authority,
(2) alter
ing information on a government document, and (3) insubordination for deliberately refusing to carry out a proper order from a superior (Plaintiff refused to reveal who gave him the documents).
After being fired, Plaintiff applied for unemployment compensation benefits. A claims examiner disqualified him from receiving benefits pursuant to Haw.Rev.Stat. § 383-30(2)
because he was “discharged for misconduct connected with work.” Plaintiff appealed the examiner’s determination to the State Department of Labor and Industrial Relations, Employment Security Appeals Office. After a hearing, an appeals officer affirmed the determination. The December 15, 1992 decision provides in pertinent, part:
The relevant issue in this case is- whether the claimant was discharged for misconduct connected with work.
The issue in this case is whether or not those reasons cited by the employer for claimant’s discharge constituted misconduct connected with work. As stated above, misconduct may be found where there is a willful or deliberate disregard of the employer’s interest or a knowing violation of the standards of behavior which an employer has the right to expect of an employee. With reference to employer’s charge that claimant altered a document, there is no evidence that a document was altered or that such alternation was critical to the discharge. Therefore, employer’s charge of altering a document is not given weight in this matter. Claimant refuses to divulge the name of the individual(s) whom he states obtained the copies of the documents from the employee’s personnel file and gave it [to] him. As such, in the absence of any other evidence, it is concluded that claimant obtained the documents from the employee’s file -and copied these documents for his personal use. The evidence in the record establishes, moreover, that claimant was aware that access to the files was restricted to only certain individuals in management capacity and that such documents were private. Claimant was also aware that he was prohibited from removing any documents from these files without permission from the individual. Despite claimant’s awareness of these requirements, the facts show that claimant released information from an employee’s personnel file to a third party without the expressed permission from the employee in question.
Claimant’s actions to take this route was a conscious] and willful decision on his part. The personnel rules and regulations specifically state that all documents in an employee’s personnel file are confidential and may be released only under specific conditions. Claimant’s bargaining unit also limits access to an employee’s personnel file to that individual himself. Claimant knew, or should reasonably have known, therefore, that accessing another individual’s personnel file when he was not in a position or authority to do so, removing such documents from a personnel file without permission from the employer, and
releasing such information to a third party without the expressed permission of the employee in question was a clear violation of the personnel rules and regulations
and a deliberate disregard of the employer’s interests and of the standards of behavior which an employer has a right to expect of an employee. The claimant was discharged for misconduct connected with work.
DECISION
The determination of the Department is affirmed. The claimant is disqualified for benefits beginning August 16, 1992, and continuing until he is reemployed and paid wages five times his weekly benefit amount after August 22, 1992, on the basis that he
was discharged for misconduct connected with work.
Exhibit 7 to the Maui County Defendants’ motion (emphasis added).
Plaintiff did not appeal the decision. Haw.Rev.Stat. § 383-41 provides that decisions on unemployment benefits may be judicially reviewed by state circuit court. Because Plaintiff did not seek judicial review, the decision became final 30 days after being issued.
III. DISCUSSION
Given the decision in Plaintiffs unemployment compensation proceeding, the dispositive question is whether this court should grant partial summary judgment on all claims in this suit sounding in wrongful discharge because doctrines of prior adjudication bar such claims. For the reasons set forth, the answer is no. Therefore, Defendants’ motion is DENIED.
A.
Léong v. Hilton Hotels
The Maui County Defendants rely on
Leong v. Hilton Hotels Corp.,
698 F.Supp. 1496 (D.Haw.1988). The
Leong
court held that á former employee’s discrimination-related claims were barred on res judicata grounds because the claims were grounded on a showing of constructive discharge, which had been adversely determined in her previous unemployment compensation proceeding.
Leong,
however, is distinguishable from the present case in several critical ways.
In
Leong,
plaintiff Susan Leong resigned from her position as director of personnel at the Hilton Hawaiian Village, and filed for unemployment compensation. Leong initially stated that she “quit” for “personal” reasons; she later stated that her immediate supervisor had “undercut” her position at the hotel and that she had “good cause” to quit and was thus entitled to benefits.
Leong appeared pro se before the Claims Examiner of the State Department of Labor and Industrial Relations, Unemployment Insurance Division. The Examiner determined that there was no conclusive evidence that Leong’s position had been undercut or that continued employment was unsuitable. The Examiner denied Leong’s application, determining that she quit “for personal, non-compelling reasons and without cause.” 698 F.Supp. at 1497.
Leong retained counsel and appealed the Examiner’s decision to the Employment Security Appeals Office. After a full evidentiary hearing on the merits, the Appeals Referee affirmed the denial of her unemployment benefits. Leong subsequently lost her appeal of the Referee’s decision to the State Circuit Court. The circuit court held that the Referee’s decision was not clearly erroneous or defective on either procedural or substantive grounds.
Id.
at 1498.
Leong then filed a complaint in federal court alleging a Title VII claim, constructive discharge in breach of an implied employment contract, constructive discharge in violation of public policy, intentional infliction of emotional distress, and violation of the due process and equal protection provisions of the Hawaii Constitution. Defendants moved for summary judgment, arguing that doctrines of prior adjudication prevented her from relitigating the essential issue of constructive discharge.
The
Leong
court noted that 28 U.S.C. § 1738 requires “federal courts to give state court
reviewed
administrative adjudications the same full faith and credit that the adjudication would have in the state’s own courts.” 698 F.Supp. at 1499 (quoting
Mack v. South Bay Beer Distributors, Inc.,
798 F.2d 1279, 1283 (9th Cir.1986) (emphasis in original)). Thus, the court applied Hawaii law. The court recognized that “three. critical issues [are] considered in determining whether the principles of res judicata and collateral estoppel are applicable: (1) Was the issue decided in the prior adjudication identical with the one presented in the action in question? (2) Was there a final judgment on the merits? (3) Was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication?” 698 F.Supp. at 1499 (citing
Santos v. State,
64 Haw. 648, 653, 646 P.2d 962 (1982)). The court then held:
The issue decided by the Appeals Referee was whether Leong had good cause to leave her job. Leong’s remaining claims in federal court encompassing wrongful termination, breach of contract, violation of public policy, intentional infliction of emotional distress and violation of the Hawaii Constitution are all grounded in the claim of constructive discharge.
As for the specific matter of racial or national discrimination, that issue could have been raised in the prior proceeding.
Res Judicata “‘precludes the relitigation, not only of the issues which were actually litigated in the first action, but also of all grounds of claim or defense which might have been properly litigated in the first action but were not litigated or decided.’ Estate of Bernice P. Bishop,
36 Haw. 403, 416 (1943).”
Silver v. Queen’s Hospital,
63 Haw. 430, 435-36, 629 P.2d 1116 (1981).
698 F.Supp. at 1500 (emphasis added). The
Leong
court also reasoned that
Administrative Rule 12-5-47 of the Rules and Regulations of the Department of Labor and Industrial Relations, State of Hawaii, defines “good cause” for resignation as [inter alia]:
(3) Discrimination which violates federal or state laws regarding equal employment opportunity practices;
Plaintiffs non-Title VII claims must be precluded if the remaining prongs of the
Santos
preclusion test are satisfied since she could have raised discrimination in the prior proceedings which adjudicated the issue of constructive discharge.
Id.
In
Pete Defense Fund v. Paty,
73 Haw. 578, 837 P.2d 1247 (1992), the Hawaii Supreme Court reiterated the general principles of res judicata and collateral estoppel that were noted in
Santos,
emphasizing that “these principles are tempered only by the prerequisite that a plaintiff have a full and fair opportunity to litigate the relevant issues.” 73 Haw. at 600, 837 P.2d at 1261.
Indeed, in
Leong,
the court analyzed “fully and fair opportunity to litigate,” stressing several factors:
The Appeals Referee’s decision was appealed through the Circuit Court and was a final judgment on the merits____ Leong had a full and fair opportunity to litigate the matters which will be precluded, in light of her extensive expertise in the area of employment grievances [(she was the personnel director)], the full evidentiary hearings and numerous appeals of which Leong took advantage, and her opportunity to have an attorney present throughout the proceedings in question.
698 F.Supp. at 1500.
The Mam County Defendants argue that, like
Leong,
the
Santos
test is satisfied here since the parties involved are identical, and Plaintiff had a “full and fair opportunity” to raise and appeal his claims. The County points to Plaintiffs deposition testimony where he admits that he could have raised all the claims he asserts against the County now in the administrative proceeding below.
In opposition, Plaintiff responds that he did not have a “full and fair opportunity to litigate the issue” because, unlike
Leong,
Plaintiffs administrative decision here was unreviewed by state courts. Plaintiff also reasons that: (1) the Appeals Officer refused to consider his First Amendment and whistleblower claims; (2) the Appeals Officer, who is not an attorney, had a limited charter, and- refused his requests to subpoena witnesses; (3) the hearing did not provide for discovery; and (4) he did not have counsel, while the County was represented by a Deputy Corporation Counsel.
This court agrees that Plaintiff did not have a full and fair opportunity to litigate his claims sounding in wrongful discharge. In particular, the Appeals Officer specifically refused to consider whether Plaintiffs disclosure of personnel documents (assuming they were confidential) was protected by HRS § 92F-14, quoted earlier; or HRS § 378-62
or both. The Officer told Plaintiff at the hearing:
Mr. Carroll, with reference to your request for subpoena that you submitted on October 8 for Jerry Morgan---- The reason that [your] subpoena request was denied, sir, is that you’ve already testified as to what happened at the Board meeting, why you presented the documents to the Board____ What happened and the merits of your complaint to the Board is not the issue before me. [Hearing Tr. 10/9/92, at 2-3].
Later, the Officer said:
You understand that I’m not here to determine the validity of your complaint of whether or not Mr. Grov [sic] meets the requirements or not____ The only issue is whether or not the reasons as presented by the employer for your discharge constitutes misconduct connected with work, therefore, we have to separate your complaint to the certification board from this proceeding because that’s not relevant. [Id. at 38],
Neither did the Appeals Officer’s decision give any indication that she considered whether the disclosure was protected.
Moreover, it is not clear whether the appeals officer should consider, or even has authority to consider, such “defenses.” In
Leong,
the officer was determining whether the plaintiff was separated for “good cause.” In making such a determination, Hawaii Administrative Rule (“HAR”) 12-5-47(c)(1)(3) specifically provides for consideration of “discrimination which violates federal or state laws regarding equal employment opportunity practices.” Here, unlike
Leong,
the Appeals Officer was making a determination of whether Plaintiff was “discharged for misconduct connected with work” under HAR 12-5-51. No specific HAR section provides for the officer to consider whether federal, or state employment laws are violated (although HAR 12-5-51(d)(l) provides generally that “the department shall consider any relevant evidence presented which relates to ... Employee’s reasons for the act”).
Cf. Swineford, v. Snyder County Pennsylvania,
15 F.3d 1258 (3d Cir.1994) (analyzing offensive collateral estoppel).
Furthermore, Hawaii case law indicates that Hawaii courts would not give preclusive effect to the administrative proceedings in this case. Unlike
Santos,
where critical aspects of the case had been reviewed by the Hawaii Public Employment Relations Board and State Circuit Court, the decision here was unreviewed. In
State v. Alvey,
67 Haw. 49, 678 P.2d 5 (1984), the Hawaii Supreme Court also indicated that “a helpful supplement to the
[Santos
] list” in deciding whether to give preclusive effect to administrative agency decisions are two factors:
The first is procedural [comparing] the quality and intensiveness of the opportunity to litigate, and the incentive to litigate____ Assuming that the procedural opportunity afforded in the original action warrants normal application of the rules of res judicata, a second consideration arises. That consideration is whether extrinsic policies indicate that the second forum should nevertheless examine the matter in question anew. These policies concern the relative competence and responsibility of the two forums, for example, as between an administrative agency and a court.
67 Haw. at 54, 678 P.2d at 8-9 (citations omitted). Also, in
Yarnell v. City Roofing, Inc., 8
Haw.App. 543, 812 P.2d 1199,
aff'd in part, rev’d in part on other grounds,
72 Haw. 272, 813 P.2d 1386 (1991), the Hawaii Intermediate Court of Appeals indicated that in administrative situations “res judicata should be applied with flexibility. The doctrine should be qualified or rejected when its application would contravene an overriding public policy or result in manifest injusticef.]” 8 Haw.App. at 556-57, 812 P.2d at 1206. This court concludes that Hawaii courts would not give preclusive effect to unemployment compensation proceedings in a subsequent proceeding for claims sounding in wrongful discharge, where the plaintiff did not have a full and fair opportunity to litigate its claims.
For these reasons,
Leong
does not apply to the situation at bar; res judicata principles do not preclude Plaintiffs wrongful discharge claims.
B. The effect of Plaintiff’s failure to appeal the administrative decision.
The preceding analysis does not end the inquiry. The Maui County Defendants also argue that Plaintiff should not benefit from his failure to appeal the decision affirming his denial of unemployment compensation benefits. They assert that
unreviewed
agency findings and conclusions of law are also given preclusive effect, and that this court should apply collateral estoppel to bar relitigation of wrongful discharge claims.
In
University of Tennessee v. Elliott,
478 U.S. 788, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986), the Supreme Court held that “when a state agency acting in a judicial capacity resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, federal courts must give the agency’s factfinding the same preclusive effect to which it would be entitled in the State’s courts.”
Id.
at 799, 106 S.Ct. at 3226 (internal quotations and citations omitted). The standard was first announced in
United States v. Utah Construction & Mining Co.,
384 U.S. 394, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966) (preclusive effect to federal administrative decisions) and later affirmed by
Kremer v. Chemical Construction Corp.,
456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982)
In
Elliott,
plaintiff, a black employee of the University of Tennessee was fired for inadequate work performance and misconduct on the job. He requested an administrative hearing. Prior to the commencement of the administrative proceedings, plaintiff filed suit in federal court seeking relief under Title VII and the Reconstruction Civil Rights Statutes. The court allowed the administrative proceedings to go forward and an administrative law judge ruled that plaintiffs discharge was not racially motivated. Instead of seeking state court review of the administrative proceedings, plaintiff returned to federal court. The court granted summary judgment for the University on the ground that the administrative law judge’s ruling was entitled to preclusive effect. The Court of Appeals reversed, but the Supreme Court reversed the Court of Appeals, holding that the court must give the agency’s factfinding, the same preclusive effect to which it would be entitled in the State’s courts.
Thus, for the unreviewed determinations of an administrative agency to have preclusive effect,
Elliott
nevertheless requires that the
Utah Construction
standards be satisfied:
(1) The state agency must be acting in a “judicial capacity”;
(2) The disputed issues must have been properly before the agency; and
(3) The parties must have had an adequate opportunity to litigate the issue.
478 U.S. at 797-98, 106 S.Ct. at 3225-26.
The Ninth Circuit has expanded on
Elliott,
giving some agency determinations of issues of
law
preclusive effect as well.
Eilrich v. Remas,
839 F.2d 630 (9th Cir.),
cert. denied,
488 U.S. 819, 109 S.Ct. 60, 102
L.Ed.2d 38 (1988);
Guild Wineries and Distilleries v. Whitehall Co.,
853 F.2d 755, 758 (9th Cir.1988).
In
Eilrich,
plaintiff, a municipal police officer, was discharged by the City of Riverbank after making statements about a controversy within the police department to the Riverbank City Council. A city administrative hearing officer, in upholding plaintiffs discharge, determined that the statements were not protected by the first amendment. After the decision, the City Attorney immediately sent a letter notifying plaintiff that judicial review of this determination by a California superior court was available. However, the administrative decision became final when plaintiff failed to appeal within the statutory period. Plaintiff subsequently filed a § 1983 action in the U.S. District Court claiming that the City impermissibly discharged him for exercising his first amendment rights. The district court granted summary judgment, finding that collateral estoppel barred consideration of the claim because the scope of protection afforded the statements by the first amendment had been determined in the prior proceeding. The Ninth Circuit affirmed, holding that under
Elliott,
collateral estoppel applied to bar plaintiffs § 1983 claim.
The Ninth Circuit specifically rejected plaintiffs argument that preclusion should not apply because the administrative decision was not reviewed by the California courts. The court noted that “[i]f an adequate opportunity for review is available, a losing party cannot obstruct the preclusive use of the state administrative decision simply by foregoing [the] right to appeal.”
Eilrich,
839 F.2d at 632, (quoting
Plaine v. McCabe,
797 F.2d 713, 178 (9th Cir.1986)). Moreover, the court also noted that “[allowing relitigation of [plaintiffs] claims would encourage litigants to forego state court review to receive federal review in § 1983 actions. This result would contravene the dictate of
Elliott,
where five Justices determined that § 1983 claims did not necessarily mandate a federal forum.”
Id.
at 635.
Importantly, the
Eilrich
court distinguished a previous ease,
Mack v. South Bay Beer Distributors, Inc.,
798 F.2d 1279 (9th Cir.1986), where preclusive effect was not given to an unreviewed administrative determination.
The court in
Mack
declined to give an unreviewed administrative hearing preclusive effect primarily because the plaintiff had had no opportunity to litigate his age discrimination claim, applying the
Utah Construction
standard. The nature of the unemployment compensation hearing had denied him the opportunity to litigate his claim and it was unclear if any evidence at all on the issue of age discrimination had been presented.
The facts of this case are clearly distinguishable from those in
Mack,
where we could not determine from the record whether any evidence on the plaintiffs age discrimination claim had even been presented.
Eilrich,
839 F.2d at 633-34 (citations omitted).
In applying
Utah Construction,
the Ninth Circuit looked to the character of the proceedings:
In the present case, Eilrich was afforded a 14-day proceeding resembling a trial, documented by an eleven-volume transcript____ [B]oth sides were entitled to call, examine and cross-examine witnesses under oath or affirmation. At the hearing, both parties were represented by counsel, twenty-one sworn witnesses testified, subpoenas were issued, and both parties presented oral argument and written memoranda. Both sides briefed the first amendment issue, the hearing officer considered these arguments and applied the appropri
ate legal standards to the facts surrounding Eilrieh’s statements and discharge. In addition, because the hearing officer applied an established rule to specific existing facts rather than establishing a rule of law applicable to future cases, he acted in a judicial capacity.
Eilrich,
839 F.2d at 634.
Clearly, the present case is more like
Mack
than
Eilrich.
The Appeals Officer was determining whether Carroll’s conduct constituted misconduct under HAR § 12-5-51, as authorized by Haw.Rev.Stat. § 383-30(2). The Officer was acting in a judicial capacity. Therefore, the dispositive issue remains whether Plaintiff had a full and fair opportunity to litigate the issues. As analyzed previously, he did not.
Furthermore, applying the next element of
Utah Construction,
the disputed issues must have been “properly before the agency.” The Ninth Circuit noted in
Guild Wineries
that “[a]n issue is properly before an administrative tribunal if that body has jurisdiction to decide it.” 853 F.2d at 759. This is a matter of state law. Haw.Rev.Stat. §§ 383-30 et seq. provide for administrative determinations of whether a discharge is for “misconduct connected with work.” However, as analyzed earlier, it is unclear whether the Employment Security Appeals Office has the authority to determine issue regarding the first amendment, the state Whistleblowers’ Protection Act, and the Uniform Information Practices Act (Modified). On the contrary, sound policy indicates that the authority be limited to issues necessary to determine unemployment benefits.
Finally, the
Eilrich
court noted that the review that plaintiff failed to pursue was a de novo judicial review. 838 F.2d at 632. In contrast, here Plaintiffs review would have been confined to the administrative record,
see
Haw.Rev.Stat. § 91 — 14(f);
HOH Corp. v. Motor Vehicle Industry Licensing Bd.,
69 Haw. 135, 736 P.2d 1271 (1987). The issue now before the court is not whether Plaintiff should receive unemployment benefits. The remaining issues involve whether he was wrongfully terminated in violation of HRS § 378-62 and the United States Constitution and whether he is entitled to damages under 42 U.S.C. § 1983.
TV. CONCLUSION
Because Plaintiff did not have a “full and fair opportunity” to litigate his claims sounding in wrongful discharge in his unemployment compensation benefits proceeding, this court refuses to apply either issue preclusion or claim preclusion. Accordingly, Defendants’ motion is DENIED.
IT IS SO ORDERED.