Wehrli

Opinion by Judge CANBY; Dissent by Judge KLEINFELD.

Plaintiff-appellant Mark Wehrli brought this action pursuant to 42 U.S.C. § 1983 , claiming that certain actions of his employer, Orange County, California, violated his federal constitutional rights. The issue for decision on this appeal is whether an earlier state administrative adjudication of Wehrli’s claim, which he voluntarily precipitated, is to be given preclusive effect in the present proceedings. We conclude that the administrative ruling is not pre-clusive, and we accordingly reverse the district court’s summary judgment in favor of the County.

BACKGROUND

Wehrli, a Deputy Marshal at the Orange County courthouse, suffered an off-duty epileptic seizure, and so advised his employer. A county physician restricted Wehrli to light duty for the next five years, the period following an initial seizure during which there remains a significant risk of recurrence. The County informed Wehrli that it had no hght duty positions for a Deputy Marshal and instead offered him a clerical position. The County conditioned this offer on Wehrli’s waiver of his right to challenge his removal from the Deputy Marshal position, and the waiver…

dissenting:

I respectfully dissent.

Wehrli claimed that he was wrongfully fired as a deputy marshal because of his handicap, epilepsy. He wanted to avoid the delay of judicial proceedings, so he elected to pursue a state administrative procedure to obtain a remedy. The procedure is voluntary. Wehrli was free to pursue all his remedies under the law. But by electing to use the administrative procedure, he subjected himself to rules waiving alternative procedures and judicial review. Rule D(8) of the Court Personnel Rules and Regulations said “[t]he decision of the panel judge shall be final and binding on all parties and shall not be subject to judicial review.” In cases where the grievance was decided by a judge pursuant to the procedure (a municipal court judge decided this case), Rule D(l) provided that both the person bringing the grievance and the Association of Deputy Marshals of Orange County “relinquish any current or future claim to seek or obtain a remedy through any other court appeal procedures.”

The hearing officer rendered a split decision. He held that “based on the medical information available to Marshal Carona ... Carona acted reasonably in discharging…