Terry YAHWEH, Plaintiff-Appellant, v. CITY OF PHOENIX, a political subdivision of the State of Arizona, Defendant-Appellee, 544 F. App'x 776

MEMORANDUM Terry Yahweh appeals from the district court’s dismissal on the basis of res judica-ta 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 ju-dicata 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, 212 Ariz. 279, 130 P.3d 978, 981 (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., 212 Ariz. 98, 128 P.3d 215, 218-19 (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, 123 Ariz. 596, 601 P.2d 596, 598 (1979) (en banc) (dismissal for failure to meet procedural prerequisite was “on the merits”). 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, 101 Ariz. 510, 421 P.2d 529, 532 (1966) (in banc); Pettit v. Pettit, 218 Ariz. 529, 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., 188 Ariz. 237, 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 plaintiffs race had not been taken into account, see Timmons v.

City of Tucson, 171 Ariz. 350, 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, — U.S. —, 133 S.Ct. 2517, 2526, 186 L.Ed.2d 503 (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. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.