                                                                          FILED
                           NOT FOR PUBLICATION
                                                                           NOV 14 2013

                    UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


TERRY YAHWEH,                                    No. 11-17917

              Plaintiff - Appellant,             D.C. No. 2:11-cv-00410-ROS

  v.

CITY OF PHOENIX, a political                     MEMORANDUM*
subdivision of the State of Arizona,

              Defendant - Appellee.


                   Appeal from the United States District Court
                            for the District of Arizona
                 Roslyn O. Silver, Senior District Judge, Presiding

                          Submitted November 5, 2013 **
                             San Francisco, California

Before: THOMAS and RAWLINSON, Circuit Judges, and DUFFY, District
Judge.******

       Terry Yahweh appeals from the district court’s dismissal on the basis of res


*     This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

**     The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable Kevin Thomas Duffy, United States District Judge for the
Southern District of New York, sitting by designation.
judicata 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 judicata 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, 130 P.3d 978, 981 (Ariz. 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., 128 P.3d 215,

218–19 (Ariz. 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, 601 P.2d 596, 598 (Ariz. 1979) (en

banc) (dismissal for failure to meet procedural prerequisite was “on the merits”).


                                            2
      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, 421 P.2d 529, 532 (Ariz.

1966) (in banc); Pettit v. Pettit, 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., 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 plaintiff’s

race had not been taken into account, see Timmons v. City of Tucson, 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, 133 S.Ct. 2517, 2526 (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.


                                          3
