Thelma DAVIS v. UNITED STATES STEEL SUPPLY, DIVISION OF UNITED STATES STEEL CORPORATION, Appellant

GARTH, Circuit Judge,

concurring.

I concur fully with Judge Adams’s analysis in the majority opinion and the result which it reaches. Thus I am privileged to join that opinion. I write separately, however, to emphasize some particular aspects of this case which clearly bring it within the ambit and reasoning of Kremer v. Chemical Construction Corp., - U.S. -, 102 S.Ct. 1883 , 72 L.Ed.2d 262 (1982).

I preface these remarks by noting that as a member of the panel which initially considered Davis’s appeal, I had been of the view that Congress had always intended to provide victims of employment discrimination with a federal fact-finding forum and that Congress’s clear expression of this intent was sufficient to override and supersede any requirement of Section 1738. It was my belief that the importance of a federal fact-finding forum in the employment discrimination context set off this category of cases from cases that might otherwise respond to the concerns of comity and judicial efficiency, both of which are ordinarily served by applying a res judicata bar. 1

The dissenting opinion of now Chief Judge Feinberg in Mitchell v. National Broadcasting Corp., 553 F.2d 265 , 277-80 (2d Cir. 1977) (Feinberg, J., dissenting), substantiated my view that federal fact-finding in this context was clearly intended. The majority opinion in Mitchell had held that Mitchell, who had filed a complaint charging that she had been dismissed from her position as a result of discriminatory employment practices was barred by res judicata from bringing a Section 1981 claim in federal court. Her federal action had been brought after her claim had been rejected by the New York State Division of Human Rights, and after her appeals had been rejected by the New York State Human Rights Appeals Board and the Appellate Division of the New York State Supreme Court. Judge Feinberg had dissented from the majority’s conclusion that Mitchell was not entitled to still another trial on her employment claim.

I had also been influenced by this court’s decision in Smouse v. Genera] Electric Co., 626 F.2d 333 (3d Cir. 1980), a Title VII action brought against General Electric claiming discrimination against women who had been transferred from full to part-time positions as a result of a phase out of opera *178 tions at General Electric’s plant in West Mifflin. In Smouse, this court held that state administrative proceedings conducted by the Pennsylvania Human Relations Commission, even though reviewed through and by the highest court of Pennsylvania, could not bar federal relitigation of Title VII discrimination claims for purposes of res judicata. Then, as now, I perceived no reason to distinguish an action commenced under Section 1981 (Davis’s and Mitchell’s) from an action commenced under Title VII (Smouse’s), and I would have held that the predominant federal policy involved in both those types of actions did not permit res judicata to operate as a bar to the maintenance of a federal suit.

Of course, all of those views are now “water under the bridge.” Since espousing those thoughts, not only has the panel opinion which contained them been vacated, Davis v. United States Steel Supply, Division of United States Steel Corporation, No. 80-2571 (Nov. 6, 1981), but the United States Supreme Court has now decided the very issue with which we are faced, namely, whether a federal discrimination action should be barred by prior state proceedings concerning the same allegation of discrimination, Kremer v. Chemical Construction Corp., supra.

It is clear to me, as Judge Adams’s opinion for the majority of the court holds, that Kremer definitively resolves the issue that res judicata bars the present 1981 action brought by Ms. Davis. The fact that Kremer brought a Title VII action and Davis a § 1981 action, as I have indicated, is a distinction without a difference. Moreover, as I read Kremer , I find that other suggested distinctions are insubstantial.

Justice White, writing for the Kremer Court, must have been aware of Justice Blackmun’s dissenting observation, the thrust of which was that res judicata should not apply where the plaintiff had not sought judicial review of the administrative action but had rather been forced into a state forum by the defendant. Kremer v. Chemical Construction Corp., - U.S. at ---n.18, 102 S.Ct. at 1907 -1909 n.18 (Blackmun, J., dissenting); see also Mitchell v. National Broadcasting Corp., 553 F.2d at 275 n.13. Having been faced with the argument that in such a situation the plaintiff who had been discriminated against might well be barred from prosecuting a later federal action, the majority opinion did not even address that hypothesis. In my opinion, by failing to do so, the Supreme Court has clearly indicated that no such distinction can avoid the res judicata bar. Thus, at least to me, it is now evident that § 1738 bars a federal proceeding which seeks to litigate the same discriminatory actions adjudicated in a prior state court proceeding, even though it was not the plaintiff who chose the state court forum.

Moreover, I observe that in this case Ms. Davis, who could have initially instituted her 1981 action in federal court, did not do so. Ms. Davis was not obliged as was Kremer, to defer to a local administrative agency in the first instance. Kremer, it should be remembered, was a Title VII claimant and was therefore required by statute initially to seek relief under state or local law. See, 42 U.S.C. § 2000e-5(c). Ms. Davis, who was under no such obligation, nevertheless opted to proceed before the Pittsburgh Commission on Human Relations, rather than to file her § 1981 action directly in federal court as she could have. Accordingly, she cannot be heard to complain, when, after having her charges adjudicated by the Pennsylvania state courts, she is now precluded from relitigating those very same claims in federal court.

I note also, as Judge Adams has aptly observed, (Maj. op. page 172), that at no time did Ms. Davis ever challenge the procedures of the Pittsburgh Commission on Human Relations. Ms. Davis never charged that she was denied discovery or that the agency procedures or proceedings were less than adequate (if indeed they were), or that a complete record had not been made (which indeed it had), or that there was any other imperfection with the record developed before the Commission. To the contrary, Ms. Davis stipulated with the defendant that the very same record created before the Commission, with minor exceptions not relevant here, should be the record on which her claims should be re *179 solved, not only in the state courts but in federal court as well. Ms. Davis so stipulated, despite the fact that had the record been insufficient, the Pennsylvania Court of Common Pleas could have heard her complaint de novo. See Pa.Stat.Ann. tit. 53, § 11308(a) (current version at 2 Pa.Cons. Stat.Ann. § 754(a) (1964-1981 Supp.)). Thus, whatever distinction one may seek to assert where an administrative record is developed inadequately or improperly, such distinction is inapposite here.

Hence, for at least two reasons — (1) Davis’s affirmative selection of the Pittsburgh Commission on Human Relations as the forum to hear her claims in lieu of proceeding directly in federal court as she had a right to do; and (2) the fact that a complete, adequate and full record was developed before the Commission and Ms. Davis has never challenged its adequacy before any court — it is evident to me that after Krem er, Davis’s § 1981 claim is a fortiorari barred by res judicata.

Because no other issue raised in this case is appropriate for consideration in light of our res judicata holding, I express no opinion with respect to the “findings” made by the district court concerning liability or damages, 2 even though it was the standard governing our review of those findings which gave rise to this court’s en banc hearing rather than any dispute with the panel’s earlier view that Davis’s § 1981 action had not been barred by the earlier state proceedings.

For these reasons, as well as for all the reasons so ably set forth in Judge Adams’s majority opinion, I join that opinion.

. For a discussion of the res judicata effect of state court judgments in state court, see Lehman v. Lycoming County Childrens Services, 648 F.2d 135 , 138-39 (3d Cir. en banc) aff'd, -U.S. -, 102 S.Ct. 3231 , 73 L.Ed.2d 928 (1982).

. Because the merits of Ms. Davis’s claims (racial discrimination, damages, mitigation of damages) need not be reached and thus have not been addressed, I believe it is also inappropriate to imply, as Judge Sloviter’s dissenting opinion seems to, that the district court judgment in Ms. Davis’s favor would have withstood appellate review, or that she would have fared differently on the merits in federal court than she did in state court.