Petition — Kremer v. Chemical Constr. Corp.
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No.
In the
SUPREME COURT OF THE UNITED STATES
October Term, 1989
RUBIN KREMER,
Petitioner,
-against-
CHEMICAL CONSTRUCTION CORPORATION,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
FREDERICK A. O. SCHWARZ, JR.
One Chase Manhattan Plaza
New York, N.Y. 10005
(212) 422-3000
Attorney for Petitioner
of Counsel:
DAVID A. BARRETT
JOANNE M. GENTILE
CRAVATH, SWAINE & MOORE
One Chase Manhattan Plaza
New York, N.Y. 10005
January 13, 1981
QUESTIONS PRESENTED
In a Title VII religious discrimination case, the
Second Circuit--regarding itself as bound by its decision in
an earlier pro se case in which none of the relevant authority
(including this Court's interpretations of the de novo
hearing requirement of Title VII) was briefed or discussed,
and despite the contrary views of two other courts of
appeals, eight district courts and the EEOC-~-held that the
Pederal claim was barred by the res judicata effect of a
sharply limited state court review of a mandatory state
agency determination under a state discrimination statute.
This petition thus raises the following questions:
1. Whether a Title VII action commenced in the
Federal courts is barred by a plaintiff's appeal of a mandatory
state administrative determination to a state court under a
sharply limited standard of review?
2. Whether the court of appeals' decision in
Sinicropi v. Nassau County, 601 F.2d 60 (2d Cir.), cert.
denied, 444 U.S. 983 (1979), should be applied retroactively,
thereby denying petitioner the de novo Federal trial that
he had sought for several years before Sinicropi was decided?
TABLE OF CONTENTS
Questions Presented COCCOHECOOOHOHHHSCHHHHHEHHHHHSEHHEEEE®
Table of Authorities eoeeceseeseeeseeseseseseeeeeeeeee?
Prior Opinions 006) 600000000 HHOOHHHOHHHHHHSHHOHSEEE®S
Jurisdiction COOHOSOHESHESHOHHOHHHSHHHHHHHHHHHHHHHHHHTOOES
Statutes Involved COSSSHSSSSSSHSSSHOHSHSHHHHHHHHHHHHHEHSEE®S
Statement of the Case ecoeceeeeeeeeeeeeeeeeeeeeeeeeeeee
A.
B.
Reasons
l.
2.
3.
4.
Facts and State ProceedingS «sseeseeeeeseees
Proceedings Below eeceeeeeeeeeeeeeeeeeeeeeeee?
for Granting the Writ eeeeeeeeeeeeeeeeeeeeee
Conflicts Among the Circuits and in
the District Courts eeeeeeeeeeeeeeeeeeeeeeee
Inconsistency with this Court's
Analysis 000000 OOOOH HHHSHHHHHHHHHHHHEEHHE®
Frustration of the Statutory Schewe
of Title VII eee seeeeseeeeeseeeeeeeeeeeeeeeee
Framework of Title VII eeeeeeeeeeeeeeeee
Right to a Trial de NOVO «eeeeeeeeeeeess
Role of State Proceedings
Under Title VII eeeeeeeeeeeeeeeeeeeeeeee
Misapplication of Res Judicata
in Title VII Actions eeeeeeeeeeeeeeeeee
Harmful Impact on the Judicial System ...«---
Conclusion Pry UT TTTTTLT eee
-ii-
TABLE OF AUTHORITIES
; Page
CASES:
Alexander v. Gardner-Denver Co.,
* . eeeeeeeeeeeeeee eee eeeeeeeeeee 9, li, 12,
16, 17, 18
Al-Hamdani v. State University of New York,
upp. eeeeeeaeaeneeeeeee 6
Batiste v. Furnco Construction Corp.,
503 F.2d 447 (?th Cir. 1974), cert. denied,
420 U.S. 928 (1975) eeeeeeeeee eee eee eeeeeeeeeeee 8, 9
Beck v. Mather,
. Supp. 648 (W.D. Va. 1976) eeeeeeeeeeneeneee 6
Benneci v. Dep't of Labor, N.Y.S. Div. of
5. gery eine 4 ope bake neh SE Pa
Brown v. Felsen,
7 . (1979) eeeeeeeee eee eeeeeeeeeeeeeeee 16
Chandler v. Roudebush,
. . eeeerteeeeeeeeeeeeeeeeeeeeeee 9, ll
Chevron Oil Co. v. Huson,
. . eeeeeeeeeeeeeeeeeeeeeeeeeeeee 15, 16
cooper v. Philip Morris. Inc.,
>. t re eeeeeeeeeeeeeevreeeeee 8
Dasho v. Susquehanna Corp.,
461 F.2d i (7th Cir.), cert. denied,
408 U.S. 925 (1972) eeeeeeeeer ee eeeeeeeeeeeeeeee 16
Garner v. Giarrusso
F. ( t Cir. 1978) eeeeeeeeeeeeveeeeee 8
Gavin v. Peoples Natural Gas Co.,
(W.D. Pa. 9),
vacated and remanded on other grounds,
eeeeeeeeeeeeeee eee ee 5
Gelpcke v. ot of Dubuque,
Wa > = +. 863) eeeeeeeeeeeeeeeeeee 15
Goss v. Revlon, Inc.,
546 F.2d 405 (2d Cir. 1976),
cert. denied, 434 U.S. 968 (1977) «eeeseceeeesess 10
Gunther v. Iowa State Men's Reformator
cert. denied,
; t
Bike. 1OO B.Ce, 2047 TEMUET cceteccccsces 8, 9e 205
17
-iii-
Occidental Life Irs. Co. v. EEOC,
Sinicropi v. Nassau County,
601 F.2d 60 (and Cir.) (per curiam), cert.
aenin’: 444 U. s. 983 (1979) eeeereeereeeeeeeeeeeee
Smouse v. General Electric Co.,
. re eeeeeeeeeeeeeeeeeeee
Tipler v. E.I. duPont deNemours & Co.,
Voutsis v. Union Carbide a
.* Le
’
cert. denied, 406 U.S. 918 (1972) wesecececevecs
Weahkee v. Perry,
> (D.C. Cir. 1978) eeeeeeeaeeeeeeeeee
Young v South Side Packing Co.,
F. upp. E.D. Ww Ss. 973) eeeeeeee eee eeee
Zweibon v. Mitchell,
606 F.2d Ti?v2 {D.c. Cir. 1979) eeeeeeeeeeeeee eee
STATUTES:
28 U.S.C. § 1254(i) e@eeeeeeeeeeoeeeeeeeeeeeeeeeeeee
-iv-
Page
8, 9
1, 6, 7,
15, 16
1, 6, 15,
18
l, 5, 6,
15, 18
9, ll
4, 5, 7,
10, 14, 15
passim
8, 17
28 U.S.C.
28 U.S.C.
28 U.S.C.
28 U.S.C.
28 U.S.C.
42 U.S.C.
42 U.S.C.
42 U.S.C.
42 U.S.C.
42 U.S.C.
N.Y.
N.Y.
N.Y.
N.Y.
N.Y.
N.Y.
EXEC.
1331(a) cocccecccccccccccsscsssseseees
1337(a) cccccccccccccccccvssscseseeees
1343 cocccccccccccvccceccccccccssoeres
1343(a) (4) cecccccccceecessesseserrere®
1738 ceccccccccccccccccccsccsooseseces
1981 ceccccccccccvccccsccsesssseessse®
2000e, Ct SEGe coeeereesereesesecsere®
2000e-2(a) cccccecececesessrseseserse®
2000eHK5(C) cocccceccceserseeerreeeerr®
2000eK5(£) cccccecccseseeeesesererrer®
LAW § 296(1)(a) cececceeceereresrsrcrrs
LAW § 297 weccecccesesreesseseesererer®
LAW § 297(4) (a) eececcescccersesserrere
LAW § 297-a(7)(@) eooeeereerererererer®
LAW § 298 CoeeeSeSeeSHSSSeSSSeeeseeeeseeee®
cIV. PRAC. LAW § 7803 (3)(4) eeeeeeeeeeeeeeee
OTHER AUTHORITIES:
Interpretive Memorandum of Senators Clark & Case,
110 CONG. REC. 7213 (1964) eceeeeeeeseeeeeeeeeeee?
1B Moore's Federal Practice
q 0.405 (1974) ee RERSRRAD ORES SSCODOHS CSCC CHOSE EHOCS
Comment, State A llate Court Judgment on
orecrintnation is Res Todicate
Employment
in Subsequent Federal |
Note,
and Section 1961, 59 N.Y.U.L. REV. 107 (1978) «es
————
‘ction under Section 1981,
era
‘Twas a Nibble and Not a Bite: Res Judicata
-V~-
Page
14
16
No.
In The
Supreme Court of the United States
October Term, 1980
RUBIN KREMER,
Petitioner,
~against-
CHEMICAL CONSTRUCTION CORPORATION,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Petitioner Rubin Kremer seeks a writ of certiorari
to review the judgment of the United States Court of Appeals
for the Second Circuit, entered on June 2, 1980 (rehearing
en banc denied October 15, 1980).
PRIOR OPINIONS
The opinion of the court of appeals is reported at
623 F.2d 786 (2d Cir. 1980), and appears at A. 01.* Two
opinions of the United States District Court for the Southern
District of New York in this case are reported at 477 F.
Supp. 587 (S.D.N.¥. 1979) (Sofaer, J.), and 464 F. Supp.
468 (S.D.N.¥. 1978) (Pierce, J.), and appear respectively at
A. 12 and A. 28.
* References to the Appendix to this petition will be
cited as "A. Re
JURISDICTION
The judgment of the court of appeals, entered on
June 2, 1980, appears at A. 01. The orders of that
court of October 15, 1980, denying a timely filed petition
for rehearing en banc (Judges Oakes and Newman dissenting),
appear at A. 40-41. The jurisdiction of this Court is
invoked under 28 U.S.C. § 1254(1). Jurisdiction in the
district court was based on 42 U.S.C. § 2000e-5(f) and
28 U.S.C. §§ 1331(a), 1337(a), 1343(a) (4).
STATUTES INVOLVED
The pertinent text of each of the statutes involved
appears as indicated:
42 U.S.C. § 2000e-2(a) appears at A. 42.
42 U.S.C. § 2000e-5(c) appears at A. 42.
N. Y¥. Exec. Law § 296(1)(a) appears at A. 42.
N. ¥. Exec. Law § 297-a(7)(e) appears at A. 42.
N. Y¥. Exec. Law § 298 appears at A. 43.
N. ¥. Civ. Prac. Law § 7803(3) and (4) appears at A. 43.
STATEMENT OF THE CASE
Petitioner Rubin Kremer is a 63-year-old engineer
who emigrated from Poland in 1970. Mr. Kremer was fired ana
denied reemployment by respondent Chemical Construction
Corporation ("Chemico") allegedly because of his Jewish
faith and his national origin. Petitioner is appealing to
this Court because his religious and ethnic discrimination
Claims under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e, et seg., were dismissed below without a
judicial hearing despite the Congressional mandate in Title
VII and the decisions of this Court that require a de novo
ae
Federal court hearing of his claims.
A. Pacts and State Proceedings. After his discharge,
Mr. Kremer, acting pro se, filed a discrimination charge
with the Equal Employment Opportunity Commission ("EEOC").*
As required by the "deferral" provisions of Title VII,** the
EEOC referred the complaint to the New York State Division of
Human Rights ("NYHRD").
The NYHRD conducted what turned out to be the only
investigation of petitioner's Claims, and it was perfunctory
at best.t Petitioner was summoned to "review" documents sub-
mitted by Chemico and was admonished by the functionary who
conducted the session: “Read faster. I have to go for lunch.”
Subsequently, NYHRD issued its finding of no probable cause.
In his quest for a hearing at the administrative
level, Mr. Kremer, still without counsel, appealed NYHRD's ruling
to the New York State Human Rights Appeals Board and, there-
after, to the Appellate Division of the State Supreme Court.
Under state law, both the Appeals Board and the Appellate
* Petitioner had been employed by Chemico since 1973.
A supervisor recommended a month before his discharge, “Hold
for knowledge and skills." He was considered “technically
competent . . . with excellent background", a “competent
engineer”. Shortly before he was fired, Mr. Kremer was
removed from projects in which his work had produced cost
savings and other improvements and was ordered to charge his
time improperly and to waste time by needlessly writing up
work.
Mr. Kremer was the only Jewish employee in his department.
Other employees of the same job description who were laid off
at the same time were later rehired, but Mr. Kremer was not
despite repeated applications. Petitioner filed his charges
** 42 U.S.C. § 2000e-5(c) (1974), A. 42.
t Petitioner presented his claims to the NYHRD under the
state antidiscrimination statute. N.¥. EXEC. LAW § 296(1) (a)
(McKinney Supp. 1972-1980), A. 42.
-3-
Division were limited to determining whether NYHRD's findings
were “arbitrary or capricious” or "an abuse of discretion".*
Neither had legal authority to hold a full hearing and
neither had power to do more than remand to NYHRD for further
investigation. The Appeals Board affirmed the determination
of NYHRD and, without any hearing, the Appellate Division
"confirmed" the Appeals Board order. Thus, Mr. Kremer's
only court “hearing” (and that in a state, not a Federal
court) occurred under a narrowly limited legal standard that
prohibited anything approaching a de novo inquiry.
Relying entirely on NYHRD's “findings” and
"record", the EEOC then decided that there was "not reason-
able cause to believe the charge is true" and issued a right
to sue letter so that petitioner could pursue his right to
a trial de novo in a Federal court. This right exists
regardless of the quality of mandatory administrative
inquiries and proceedings.
B. Proceedings Below. Still without counsel,
petitioner brought this action in the district court. Before
filing its answer, respondent Chemico moved for dismissal or
summary judgment on the ground of res judicata. Respondent,
relying solely upon the decision in Mitchell v. National
Broadcasting Company, 553 F.2d 265 (2d Cir. 1977), claimed
that Mr. Kremer's appeal of the NYHRD's decision to the
Appellate Division precluded any Federal court action.
Mitchell had held that an employment discrimination action
brought under 42 U.S.C. § 1981 (1974) is barred by the
* See N.Y. EXEC. LAW § 297~a(7)(e) (McKinney 1972), A. 42;
and N.Y. EXEC. LAW § 298 (McKinney Supp..1972-1980), A. 43;
N.Y. CIV. PRAC. LAW § 7803(3) and (4) (McKinney 1963), A. 43.
-4-
res judicata effect of an Appellate Division appeal from
an NYHRD determination.
The district court initially denied respondent's
motion in an opinion that carefully considered and rejected
respondent's contention that the reasoning of Mitchell
should be extended to Title VII cases. 464 F. Supp. 468
(Pierce, J.), A. 28. The district court concluded that
significant distinctions between the statutory scheme of
Title vit and the century-old section 1981 required different
res judicata results. Id. at 472-73, A. 35-39.
Some months later, the Second Circuit decided
another pro se case, Sinicropi v. Nassau County, 601 F.2d 60
(2d Cir.) (per curiam), cert. denied, 444 U.S. 983 (1979).
The facts in Sinicropi were similar to those in Mitcheil with
one vital difference--Ms. Sinicropi was a Title VII complainant.
The court of appeals, however, relied entirely on its reasoning
in Mitchell and saw “no reason to distinguish between section
1981 and Title VII for res judicata purposes". 601 F.2d at
62. Neither the briefs in Sinicropi nor the cursory two-page
per curiam opinion discussed either the legislative history
or the decisions of this Court that mandate a de novo Federal
hearing in Title VII cases. Nor was there any discussion of
the seven district court opinions that had already reached a
contrary result, with the four decided after Mitchell
specifically distinguishing it as involving section 1981
rather than Title VII.*
* See Gavin v. Peoples Natural Gas Co., 464 F. Supp. 622
(W.D. Pa. , vacated and remanded on other grounds, 613
F.2d 482 (3d. Cir. 1980); Kremer v. Chemical Construction
Corp., 464 F. Supp. 468 (S.D.N.¥. 1978) (Pierce, J.);
ckel v. Highway Industries, Inc., 441 F. Supp. 477 (W.D.
-5-
Armed with the Sinicropi decision, respondent
Chemico renewed its motion to dismiss Mr. Kremer's complaint
in the district court. In an opinion that urged the over-
ruling of Sinicropi and that was highly critical of both
Mitchell and Sinicropi, Judge Sofaer nevertheless found
that "Sinicropi permits no choice" but to grant respondent's
motion. 477 F. Supp. 587, A. 12. He added that "“[t]o submit
to . . . Sinicropi . . . is not to agree with [it])", that its
conclusion "seems fanciful", that it “judicially revis[ed]”"
Title VII, and that its result would be to increase the
burden on the Federal courts while, at the same time, under-
mining state antidiscrimination efforts. Id. at 591-593,
A. 17-23.
Represented by counsel on appeal to the Second
Circuit, petitioner urged that Sinicropi be overruled.
Alternatively, he argued that it should be given prospective
effect only, so that it would not apply where, as here, the
state court appeal occurred before it was decided. The court
of appeals panel refused to reconsider Sinicropi. 623 F.2d
786, 788, A. 04-05. On the retroactivity claim, it held
that, despite the consistent line of district court decisions
Wis. 1977); Al-Hamdani v. state University of New York, 438
F. Supp. 299 -D.N.Y. eck v. ther, 41? F. Supp.
648 (W.D. Va. 1976)? Ahan v. Dep't of Labor, 388 F. Supp.
1080 (S.D.N.¥. 1975); Young v. ora Side P acking Co., 369 F.
Supp. 59 (E.D. Wis. 1573).
The Sinicropi court also ignored the commentators who
sharply criticized extending Mitchell to Title VII actions.
See e.g., Comment, State Appellate Court Judgment on Employ-
ment Scrimination is Res Judicata in Subsequent Federal
Action Under Section 1961, 62 MINN. L. (1578); Note,
Twas a Nibble and Not a “a Bite: Res Judicata and Section 1981,
are. twee Aertel eee
=
holding that state court appeals did not bar Title VII
actions, the Mitchell decision (which specifically left
the question open, 553 F.2d at 275, n.13) put litigants on
notice that Title VII cases would be precluded by state
appeals. Id. at 789-90, A. 08-10.
Petitioner sought rehearing en banc. He was joined
by the Equal Employment Opportunity Commission, as amicus
curiae, in urging that Sinicropi be overruled.* Neverthe-
less, rehearing en banc was denied, Judges Oakes and Newman
dissenting. A. 4l.
REASONS FOR GRANTING THE WRIT
The decision below should be reviewed for four
reasons:
(1) it conflicts with the decisions of two other
circuit courts, and at least eight district court
decisions;
(2) it conflicts with this Court's interpretation
of Title VII in analogous cases;
(3) as stressed by the EEOC as amicus below, it
frustrates the statutory scheme of Title VII in reaching
a perverse and unjust result; and
(4) as emphasized by the district court opinion and
the EEOC, its practical effect will be to increase the
burden on the Federal courts, and at the same time, to
undermine state administrative processes.
* As the EEOC--the agency charged by Congress with the
enforcement of Title VII--contended, "Sinicropi thwarts the
clear Congressional purpose of affording Title VII complain-
ants a right to a de novo hearing in court. . . ." EEOC
Amicus Brief at 6, A. 53.
A copy of the EEOC's brief in support of Mr. Kremer's
petition for a rehearing en banc appears at A. 44.
~ >
1. CONFLICTS AMONG THE CIRCUITS AND IN THE DISTRICT COURTS.
It is most significant that the Second Circuit's
holding in Sinicropi, applied in this case, stands alone. As
the Third Circuit recognized, Sinicropi is “the only circuit
court case that does not adopt the majority view". Smouse
v. General Electric Co., 626 F.2d 333, 336 (3d Cir. 1980).
The courts of appeals that have had an opportunity
to consider the issue in the short time since Sinicropi was
decided have refused to follow its holding and criticized
its reasoning. See Smouse v. General Electric Co., supra at
335-36; Gunther v. Iowa State Men's Reformatory, 612 F.2d
1079, 1083-84 and n.6 (8th Cir.), cert. denied, U.S. ,
100 S&. Ct. 2942 (1980). (These decisions are discussed
in more detail at pages 10-11, 17 below.) Decisions in other
circuits suggest that they, too, are unlikely to follow
Sinicropi.* Thus, while the particular facts of Smouse and
Gunther allowed those decisions to rest on other grounds,
they create a conflict among the circuits that this Court
should resolve.
In addition, at least eight district courts around
the nation have reached a result contrary to Sinicropi.**
In the latest such decision, the district court in Maryland
squarely confronted the preclusion issue in Sinicropi. The
, 587 F.2d 1256 (D.C, Cir.
F.2d 1330 (Sth Cir. 1978);
p., 503 F.2d 447 (7th Cir.
975); Cooper v. Philip
972).
A ; Dp Uebe F
Morris, Ince, 464 F.2d 9 (6th Cir. 1
land,
cases cited p. 6
court declined to follow Sinicropi, stating that “in the
absence of guidance from the Supreme Court. . . this Court
will follow the better-reasoned authority exemplified by
Batiste (v. Furnco Construction Corp., supra] and Gunther
(v. Towa State Men's Reformatory, Supra)". Kralowec v.
Prince George's County Maryland, supra, slip op. at ll.
In short, every court not bound by Sinicropi has
chosen not to follow it or has adopted contrary reasoning.
2. INCONSISTENCY WITH THIS COURT'S ANALYSIS
Unanimous decisions of this Court in analogous
cases--which were neither argued by the parties nor discussed
by the opinion in Sinicropi--leave no doubt that when
Congress enacted Title VII, it intended to grant plaintiffs
the right to a de novo Federal court hearing--a right denied
by the court below. See, e.g., Chandler v. Roudebush, 425
U.S. 840 (1976); Alexander v. Gardner-Denver Co., 415 U.S.
36 (1974); McDonnell Douglas Corp, v. Green, 411 U.S. 792
(1973). (These decisions are discussed in more detail at
pages 11-12, 15, 18 below.)
Indeed, only last term this Court expressly recog-
nized, in a case in which there had been proceedings in both
the NYHRD and the Appellate Division, that Title VII “provides
a supplemental right to sue in Federal court if satisfactory
relief is not obtained in state forums". New York Gaslight
Club, Inc. Vv; Carey, 48 U.S.L.W. 4645, 4649 (June 9, 1980)
(emphasis added).
3. FRUSTRATION OF STATUTORY SCHEME
a. T VII
In enacting and amending Title VII, Congress
created a complex and carefully thought out structure for the
resolution of employment discrimination claims. But when
the Second Circuit decided Sinicropi, it relied solely on its
reasoning in Mitchell, a section 1981 action, and gave no
thought to the framework of Title VII. That framework goes
far beyond the bare grant of Federal jurisdiction (now 28
U.S.C. § 1343) that is the only procedural provision dating
from the Reconstruction Era statutes, such as section 1981
considered in Mitchell. The essential frameworks of the
statutes--section 1981 and Title VII--are simply different.*
The express Congressional grant of a de novo review right in
Title VII sets it apart from section 1981 for res judicata
purposes,.**
"(T]he unique statutory scheme of Title VII",
Gunther v. Iowa State Men's Reformatory, supra, 612 F.2d at
1084, n.6, applicable only to claims under that law, requires
resort to the EEOC and to state antidiscrimination remedies.
Detailed timetables for state and EEOC action are set forth.
It is only after exhaustion of these remedies, intended to
resolve complaints without Federal court involvement, that a
* In sharp contrast to Title VII, section 1981 does not
have the complex statutory structure, the legislative history
or the judicial interpretations that establish the right to a
de novo hearing under Title VII. No consideration was given
during the Poe of the Civil Rights Act of 1866 (of which
section 1981 was a part) to the development of state antidiscri-
mination procedures. Thus, for example, prior recourse to
state and Federal administrative remedies is not a prerequisite
to bringing a Section 1981 action. §& ’ Goes Vv; sevions
Inc., to Hn 405, 407 (2d Cir. i978} ae denied,
5. 9 ( ).
** The specific Congressional grant of a right to de
_ novo review in Title VII overrides the more general statu-
oe a 4 requirement of 28 U.S.C. § 1738, relied upon in Mitchell
with respect to section 1981 actions, 553 F.2d at 274, thet
rhe courts must give full faith and credit to state court
udgments.
-10<
claim may be brought to Federal court. But once the proce-
dural prerequisites are met, “unlike other civil rights
statutes, Title VII clearly provides for a de novo hearing in
federal court". Id.
b. Right to a Trial De Novo.
A Title VII plaintiff has a “statutory right to
attempt to establish his claim in a federal court". Alexander
v. Gardner-Denver Co., supra, 415 U.S. at 56. "Congress
intended Federal courts to exercise final responsibility for
enforcement of Title VII." Id. Because Congress "“consid-
ered the policy against discrimination to be of the ‘highest
priority'", id. at 47, it gave the Federal courts plenary
powers to enforce Title VII, id. at 44, 47; Chandler v.
Roudebush, supra, 425 U.S. at 844-845. In short, “employees
are entitled under... Title VII ...to... a trial
de novo". Id.; see also Alexander v. Gardner-Denver Co.,
Supra, 415 U.S. at 38; McDonnell Do glas Corp. v. Green,
Supra, 411 U.S. at 798-799.
This Court has noted that Congress in 1972 defeated
attempts to give the EEOC the power to hear and determine
cases, subject to judicial review. Chandler v. Roudebush,
Supra, 425 U.S. at 841. The EEOC may investigate claims, but
whatever findings it makes are irrelevant in any subsequent
suit. It strains credulity to believe that when Congress
expressly rejected the notion that Federal bureaucrats could
finally determine the rights of the parties, it intended to
permit state bureaucrats to do so. See Voutsis v. Union
Carbide Corp., 452 F.2d 889 (2d Cir. 1971), cert. denied, 406
U.S. 918 (1972), cited with approval in Alexander v. Gardner-
Denver Co., supra, 415 U.S. at 49 n.1l.
-ll-
c. Role of State Proceedings Under Title VII.
In fact, Congress intended state proceedings to
supplement rather than supplant Title VII rights. The
Federal court forum is available despite resort to state
procedures because Congress expressly intended "to accord
parallel or overlapping remedies against discrimination",
Alexander v. Gardner-Denver Co., supra, 415 U.S. at 47,
and "to allow an individual to pursue independently his rights
under both Title VII and other applicable state and federal
Statutes". Id. at 48. See also EEOC Amicus Brief at 10-11;
A. 57-58.
The New York procedures followed in this case
are precisely of the type that Congress intended to be used
to supplement Title VII rights. However, Congress explicitly
rejected these administrative procedures for the ultimate
enforcement of Title VII.
The state proceedings begin with an administrative
investigation. Only if probable cause is found and concili-
ation efforts fail is an adversarial hearing held. N.Y.
Exec. Law § 297(4)(a) (McKinney, Supp. 1972-1980). Both the
Human Rights Appeals Board and the Appellate Division have
power only to determine whether the NYHRD's findings are
supported by substantial evidence or are arbitrary, capricious
or an abuse of discretion.* Thus, when petitioner went to
the Appellate Division (incidentally, following the advice of
an EEOC official that he had nothing to lose in doing so), he
was, as a matter of law, merely seeking to obtain a full
* N. Y. EXEC. LAW § 297-a(7) (McKinney 19/2), A. 42;
CIV. PRAC. LAW § 7803(3) and (4) (McKinney 1963), A. 43.
administrative hearing. Under state law, he could not
possibly have obtained a de novo judicial review. At most,
the Appellate Division could have remanded to the NYHRD for
further proceedings. Precisely because of its limited
nature, such state judicial proceedings cannot transform an
administrative investigation into the equivalent of the
Federal court trial that Congress mandated.*
d. Misapplication of Res Judicata in Title VII
Actions.
The issue that can be raised on appeal in the state
court is not the same issue chat Title VII requires the
Federal court to hear de novo. As noted above, the Appellate
Division can consider only the narrow question whether the
NYHRD decision was arbitrary or capricious on the basis of
the record developed by the agency. But the issue before
a district court is different: it must determine whether
there was in fact discrimination. In doing so, it must
afford the opportunity for a "full scale inquiry", Voutsis v.
Union Carbide Corp., supra, 452 F.2d at 893, and make a
"fresh determination of the facts and issues". Weahkee v.
Perry, supra, 587 F.2d at 1263. For example, a district
court may not “abdicate its responsibility” to conduct a de
* In addition, as petitioner showed below, he has not had
any meaningful hearing of his claim, either in the NYHRD,
in the Appellate Division, or in the EEOC. He has never
had an opportunity to confront any live representatives of
Chemico or to subpoena and cross-examine any of the witnesses
he repeatedly identified. The Appeals Board file did not
include Mr. Kremer's letter arguing his position, and the
Appellate Division file did not contain the certified admini-
strative record. Indeed, the envelope containing the Appellate
Division's order was postmarked three days before the
order was dated. The EEOC investigation consisted merely
of examining the NYHRD file, such as it was.
@]3<
novo hearing by applying a substantial evidence test. Id. at
1265; see also Interpretive Memorandum of Senators Clark and
Case, 110 Cong. Rec. 7213 (1964).*
Thus, because the issue that Congress mandated the
Federal courts to determine de novo under Title VII--whether
there was in fact discrimination--cannot be raised in a state
appeal of an agency determination, Sinicropi is both inconsis-
tent with Congressional intent and a misapplication of the
principles of res judicata.** The fact that the dismissal
by the NYHRD here was "confirmed" by a state court, under
an abuse of discretion standard, does not alter the strong
policy considerations which dictate that petitioner is
entitled to a trial de novo in Federal court.
* It is worth noting that even if NYHRD had held a hearing
on petitioner's charges, the Appellate Division would have
reviewed its determination applying only the “substantial
evidence" standard of review. N.Y. EXEC. LAW § 297 (McKinney
1972 and Supp. 1980). The fact that (as noted in the text) a
Federal court must conduct a de novo inquiry into the facts,
rather than apply the lesser substantial evidence test,
further demonstrates the inadequacy of the state court review
in a Title VI{f action.
** The fact that the same “issue” that must be heard in
Federal court was initially presented to the NYHRD cannot
be determinative, since Title VII always requires resort to
the state agency; thus, the issue presented to the state
agency is necessarily identical to the one before the Federal
court. But, of course, state agency determinations do not
have res judicata effect. See Benneci v. Department of
Labor, supra, 388 F. Supp. at l ; tchell v. National
Sesaahaetin Corp., supra, 553 F.2d at 276-00 (Feinberg, J.,
dissenting). if petitioner were seeking review of the
single issue that was actually litigated in state court--
whether the NYHRD determination was arbitrary or capricious
or an abuse of discretion--he might be estopped from commenc-
ing a Federal action on that issue. But that is, of course,
not the issue on which he seeks a Federal court hearing.
Even if, however, the application of res judicata
had been technically correct, its use should still have been
‘rejected in this case.
Res judicata is a flexible, equitable doctrine.*
* So is the doctrine of retroactivity. The court below
rejected petitioner's argument that Sinicropi, if not over-
ruled, should be applied prospectively only, see 623 F.2d at
788, A. 06, although petitioner showed that he meets the
standards governing nonretroactivity in civil cases set
forth in Chevron Oil Co. v. Huson, 404 U.S. 97, 106-107
(1971). © suppor s conclusion, the court of appeals
essentially relied only on the proposition that the result
of Sinicrops was “clearly foreshadowed" by Mitchell. See 623
F.2 a o A. 09.
The facts simply are to the contrary.
Mitchell expressly reserved decision on the question of
Title VII preclusion decided in Sinicropi. 553 F.2d at 275
n.13. When petitioner took his case to the Appellate Divi-
sion, there were consistent, explicit holdings on this
question by district courts across the country. See p. 6 n.*
supra. While the dissenting opinion in Mitchell argued
at the same result would follow in Title VII cases, liti-
gants were entitled to rely upon the well-reasoned district
court decisions that distinguished Mitchell, rather than upon
a dissent that--like SS eer not even discuss the
distinctions between e and section 1981. Indeed,
it is exalting form beyond all reasonable bounds to say that
a pro se litigant should have anticipated the result in
Sinicropi when a United States District Judge in this very
case concluded, after lengthy analysis, that Mitchell did not
control. Kremer v. Chemical Construction Corp., Supra. 464
F. Supp. erce, J.), A. ° ndeed, no one, least of
all the agencies charged with the enforcement of Title VII,
foresaw Sinicropi. As Judge Sofaer noted:
&
"Indeed, in cases such as the present one, the state
and federal agencies handling civil rights claims have
uniformly assumed that federal review remained available
under Title VII irrespective of prior proceedings... .
There seems little equity in imposing a rule of forfei-
ture upon applicants such as Kremer under circumstances
where even the expert agencies could not have anticipated
one. . » « (I)ndividuals who sought review in state
court prior to Sinicropi have lost their right to federal
court consideration of an important federal claim without
notice or fault.” 477 F. Supp. at 593, A. 23-24,
The retroactivity decision is "a pragmatic one", Zweibon
v. Mitchell, 606 F,2d 1172, 1177 (D.C. Cir. 1979), which is
governed by “the plainest principles of justice". Gelpcke v.
-15-
It is not “rigidly applied”, but is “qualified or rejected
when [its] application would contravene an overriding public
policy". Tipler v. E.I. du Pont de Nemours & Co., 443 F.2d
22Ps —_,
125, 128 (6th Cir. 1971). Accord, Brown v. Felsen, 442 U.S.
127, 132 (1979); 1B Moore's Federal Practice 4 0.405 at
783-791 (1974). Title VII implements just the sort of
“overriding public policy" that limits the application of
res judicata. Cf. Occidental Life Ins. Co. v. EEOC, 432
U.S. 355, 367 (1977). Indeed, Alexander v. Gardner-Denver Co.,
supra, is itself the best example of how the express mandates
of Title VII override otherwise clear Federal policies barring
relitigation of claims. There, this Court held that an
employee's submission of a discrimination claim to arbitration
under a labor contract did not preclude a Title VII action
based on the identical facts. This Court pointed out that
Title VII grants “a statutory right independent of the arbi-
tration process", id. at 54, and therefore gives the employee
what is, in effect, an additional right to a hearing. If the
strong Federal policy favoring final arbitration of labor
City of Dubuque, 1 Wall. (68 U.S.) 175, 206 (1863). The
eta ine principle “is to avoid unfairness to parties who
may have acted in reliance on the old rule". Dasho vy.
Sunguehanna Ls 461 F.2d ll, 921 (7th Cir.) (Stevens, J.),
cert. denied, U.S. 925 (1972). See Chevron Oil Co. v,
uson, supra.
Notwithstanding these principles, the court of appeals
applied sinicrops retroactively here. 623 F.2d at 788,
A. 06. nder all of the circumstances, the “plainest prin-
ciples of justice” dictate a get ata result. To “avoid
unfairness” to petitioner, who was, in effect, relying on
"the old rule", sinicropt should not be applied in this case.
For this reason, e retroactivity issue has been raised as
the second question presented by this petition, although it
need not be reached, of course, if the first question is
resolved in petitioner's favor. :
-16-
disputes was insufficient to outweigh the policy of Title VII
mandating a de novo Federal hearing in Alexander, that same
Title VII policy must require a de novo Federal hearing in
this case, notwithstanding petitioner's resort to state
antidiscrimination procedures.
* * *
It is clear that the Sinicropi decision--without
argument or discussion of the issue--mistakenly equated
Title VII and section 1981 for res judicata purposes. In
doing so, it ignored major differences in the legislative
history and structure of the two statutes, as well as
unanimous decisions of this Court. For these reasons, as
noted above, other circuit courts have without hesitation
refused to follow Sinicropi.
The Third Circuit in Smouse v. General Electric Co.,
Supra, stated unequivocally that
"(G)iven our analysis of Title VII and its objective,
we cannot agree that a state determination at any stage
is an absolute bar to a Title VII action. To the
extent that Sinicropi's reasoning may be inconsistent
war our own, we decline to adopt it." 626 F.2d at
Supra,
the Eighth Circuit, in its discussion of Sinicropi, stated that
"(T)here are several bases to distinguishing between
section 1981 and Title VII with regard to the applica-
tion cf res judicata. . . .(Wle agree with these courts
{that declined to extend Mitchell to Title VII actions)
that the Pt ae statutory scheme of title VII supports
the proposition that res judicata and collateral
estoppel should not be applied". 612 F.2d at 1084, n.6.
4. HARMFUL IMPACT ON THE JUDICIAL SYSTEM
As the EEOC and both district court opinions
recognized, if the decision below stands, no well-informed
litigant will appeal NYHRD determinations to the Appellate
@17@
Division.* This would thwart the intent of Congress in
enacting Title VII to give states the opportunity to remedy
employment discrimination claims before the Federal system
acts, and will cause two unfortunate results. First, the
Federal court docket will be burdened with de novo hearings
of all cases that are now disposed of by the state courts.
Their numbers could well exceed the number of Federal cases
that can be dismissed on res judicata grounds under Sinicropi,
as plaintiffs quickly learn to avoid state appeals. This
Court specifically addressed this policy issue in Alexander,
concluding that “the possibility of voluntary compliance or
settlement of Title VII claims would . . . be reduced [by
giving arbitral decisions res judicata effect], and the result
could well be more litigation, not less". 415 U.S. at 59.
The second result of Sinicropi will be a deteriora-
tion of the state administrative process. Since plaintiffs
who wish to preserve Federal hearing rights will no longer
appeal to the state courts, those courts will have less
opportunity to oversee state administrative agencies.
The resulting decline in the quality of state agency process
is hardly consistent with notions of comity and federalism.
See Kremer v. Chemical Construction Corp., supra, 477 F.
Supp. at 592-593, A. 21-23.
* See EEOC Amicus Brief at 6, 14-15, A. 53, 61-62;
dg hE at 592-594, A. 22-25; 464 F. Supp. at 475,
A. = .
-18-
CONCLUSION
The decision below is inconsistent with the purpose
and structure of Title VII, with this Court's decisions and
with the decisions of other courts of appeals. The petition
for a writ of certiorari should be granted and the judgment
reversed.
Dated: January 13, 1981
Respectfully submitted,
FREDERICK A. O. SCHWARZ, JR.,
One Chase Manhattan Plaza,
New York, N. Y¥. 10005
(212) 422-3000
Attorney for Petitioner.
DAVID A. BARRETT,
JOANNE M. GENTILE,
Cravath, Swaine & Moore,
One Chase Manhattan Plaza,
New York, N. YY. 10005
Of Counsel.
-19-
APPENDIX
Kremer v. Chemical Construction Corp.,
623 F.2d 786 (2d Cir. 1980)
A,O1
Rubin Kremer, Plaintiff-Appellant,
v.
Chemical Construction Co ration
De fendant-Appellee.
United States Court of Appeals,
Second Circuit.
Argued March 12, 1980.
Decided June 2, 1980.
Before LUMBARD, FRIENDLY and MESKILL, Circuit Judges.
FRIENDLY, Circuit Judge:
Plaintiff Rubin Kremer was employed as an engineer
by defendant Chemical Construction Corporation (Chemico). He
was laid off, along with a number of other employees, on
August 1, 1975. Some of these employees were later rehired
but Kremer was not, despite several applications. He claims
that the termination and failure to rehire were due to his
being of the Jewish faith; Chemico asserts it was due to
legitimate business reasons.
Mr. Kremer filed a discrimination charge with the
Equal Employment Opportunity Commission (EEOC) under Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(b),
on May 6, 1976. The EEOC, as required by 42 U.S.C. § 2000e-5(c),
referred his complaint to the New York State Division of
Human Rights (NYHRD). NYHRD conducted an investigation
A.02
which included examination of documents submitted by Chemico
and three interviews with Mr. Kremer. On March 4, 1977, he
requested the EEOC to undertake an investigation in light
of the lack of progress by NYHRD. On April 28, 1977, NYHRD
issued a Determination After Investigation which stated there
was no probable cause to believe that Chemico had engaged in
the discriminatory practice charged. Mr. Kremer appealed to
the Appeal Board pursuant to N.Y. Executive Law § 297-a on
both substantive and procedural grounds, and argued his case
both orally and in writing. The Appeal Board affirmed the
determination of the Division. Attached to the order of the
Appeal Board was a notice that any complainant, respondent
or other person aggrieved by the order might obtain judicial
review by filing a proceeding in the appropriate Appellate
Division within 30 days of service of the order.
Mr. Kremer again brought his complaint to the atten-
tion of the EEOC by letter dated December 4, 1977, and also
filed, on December 6, 1977, a petition with the Appellate
Division of the Supreme Court of New York for the First
Department pursuant to § 298 of the N.Y. Human Rights Law
and CPLR Article 78 to set aside the adverse determination of
the NYHRD. On February 27, 1978, the Appellate Division
unanimously ordered that the determination of the Appeal Board
be confirmed. Mr. Kremer did not endeavor to obtain review
by the New York Court of Appeals. The District Director of
the EEOC on May 11, 1978, made a determination concluding
that there was not reasonable cause to believe that the charge
of discrimination was true and issued a notice of right to sue
in a United States district court. After the District Direc-
A.03
tor, having reviewed the case file and spoken with the
investigator, denied a request for reconsideration, Mr. Kremer
brought this Title VII action in the District Court for the
Southern District of New York.
Chemico moved for dismissal of the complaint or
summary judgment on the basis that the determination of the
Appellate Division constituted a bar under the reasoning of
our decision in Mitchell v. National Broadcasting Co., 553
F.2d 265 (2 Cir. 1977), where a divided panel held that a
similar judgment operated as res judicata with respect to
an action under 42 U.S.C. § 1981. Judge Pierce denied the
motion in an opinion, 464 F. Supp. 468 (S.D.N.Y¥. 1978), which
sought to distinguish the res judicata effect of a state
court determination on an action under Title VII from that
upon an action under 42 U.S.C. § 1981, a point left open in
the majority opinion in Mitchell, 553 F.2d at 275 n.13.
Later, after our decision in Sinicropi v. Nassau County, 2
Cir., 601 F.2d 60, cert. denied, 444 U.S. 983, 100 S.Ct. 488,
62 L.Ed.2d 411 (1979), which applied the reasoning of Mitchell
to a claim under Title VII, Chemico renewed its motion to
dismiss or for summary judgment. Judge Sofaer, to whom the
case had been transferred, felt constrained to grant the
motion but delivered a lengthy opinion, 477 F. Supp. 587
(S.D.N.¥. 1979), devoted mainly to an endeavor to show that
the Mitchell and Sinicropi decisions were in error.
Appealing from the judgment of dismissal, Mr. Kremer,
now represented by counsel, seeks reversal on two grounds:
A.04
One is that Sinicropi was wrongly decided; the other is that
it should not be applied "retroactively."1
This panel cannot properly entertain the claim
that Sinicropi was wrongly decided. In the absence of any
decisions by the Supreme Court or our own court in the brief
interval since Sinicropi was decided that would cast doubt on
its viability, and none has been called to our attention, a
panel of this court will not overturn a recent decision of
another panel, rendered after full consideration of the very
point at issue. This is something to be done, if at all, only
by the full court sitting en banc. See United States v.
Fatico, 603 F.2d 1053, 1058 (2 Cir. 1979), cert. denied,
U.S. , 100 §.Ct. 1018, 62 L.Ed.2d 755 (1980); Ingram
v. Kumar, 585 F.2d 566, 568 (2 Cir. 1978), cert. denied, 440
U.S. 940, 99 S.Ct. 1289, 59 L.Ed.2d 499 (1979); In re Jaylaw
Drug, Inc., 621 F.2d 524, 527 (2 Cir. 1980); contrast United
States v. Taylor, 464 F.2d 240, 242-44 (2 Cir. 1972) (1944
decision which was no longer being followed in practice;
overruling opinion circulated to and approved by all judges
in active service); Benjamins v. British European Airways,
l while neither Judge Sofaer's opinion nor the brief of
counsel for Mr. Kremer suggested that Sinicropi was distin-
guishable, at the oral argument there was some discussion of
a possible distinction on the basis that Mr. Kremer had gone
initially to the EEOC and was sent to the New York adminis-
trative agency by it pursuant to the deferral provision of
42 U.S.C. § 2000e-5(c), whereas Ms. Sinicropi began her pro-
ceeding in the NYHRD. Although this may make Mr. Kreiliir's
case somewhat more attractive, we do not think the dis-
tinction has legal significance. Ultimately both claimants
brought suit in a federal district court and the question is
the binding effect of a determination by the Appellate Division
in judicial proceedings initiated by them. If Ms. Sinicropi had
gone first to the EEOC, she would have been sent to the New York
administrative agency, exactly as was Mr. Kremer.
572 F.2d 913, 916-17 (2 Cir. 1978), cert. denied, 439 U.S.
1114, 99 S.Ct. 1016, 59 L.Ed.2d 72 (1979) (reconsideration
by panel of two cases decided in the 1950's which appeared
inconsistent with more recent decisions on a related subject);
Boothe v. Hammock, 605 F.2d 661, 664 (2 Cir. 1979) (inter-
vening Supreme Court decision) .? We can be confident that
the full court will have an cpportunity to overrule Sinicropi
if it wishes since counsel for Mr. Kremer advised us that he
would seek rehearing en banc if we should affirm. ?
2 This is the rule in other circuits as well. See, e.g.,
United States v. Caldwell, 543 F.2d 1333, 1369 (D.C. cir.),
cert. denied, 423.U.S. 1087, 96 S.Ct, 877, 47 L.Ed.2d 97 (1976)
(on petition for rehearing); United States v. Inmon, 594 F.2d
352, 354 (3 Cir.), cert. denied, -S. ’ S.Ct. 121,
62 L.Ed.2d 78 (1979); United States v. Lewis, 475 F.2d 571,
574 (5 Cir. 1973); Timmreck v. United States, 577 F.2d 372,
376 n.15 (6 Cir. 1978), rev'd on other grounds, 441 U.S. 780,
99 S.Ct. 2085, 60 L.Ed.2d 634 (1979); cf. Rules of the United
States Court of Appeals for the Seventh Circuit, Rule 16 ("A
proposed opinion approved by a panel of this court adopting a
position which would overrule a prior decision of this court
- « « Shall not be published unless it is first circulated
among the active members of this court and a majority of them
do not vote to rehear in banc the issue of whether the position
should be adopted."). The only contrary expression we have found
is in Speigner v. Jago, 603 F.2d 1208, 1212 n.4 (6 Cir. 1979),
cert. dented, os. , 100 S.Ct. 1023, 62 L.Ed.2d 758
would be a waste of judicial time and resources to
automatically require an en banc hearing each and every time this
Court overrules or modifies one of its previous decisions"). As
noted, en banc renearing is not required “each and every time"
a previous panel decision is modified, but only when the basis
for ee ee the previous decision is simply that it is wrong
although nothing new has occurred to show it to be so. The views
expressed in Speigner were those of Judge Peck alone, since Chief
Judge Edwards concurred separately, not finding it necessary to
overrule the precedent in question, id. at 1215 n.1l, and Judge
Weick dissented, partly on the ground that "[nJo panel of this
Court has the power or right to overrule the decision of another
panel.” Id. at 1217. For an illustration of the difficulties
that can arise from panels taking divergent courses, see Davis
417 U.S. 333, 94 S.Ct. 2298, 41 L.Ed.2d
(1974).
3 Rehearing en banc was denied in Sinicropi itself when no
active judge or judye who was a member of the panel requested
that a vote be taken pursuant to a petition for rehearing
en banc.
A. 06
We likewise reject the alternative argument that
the Sinicropi decision should not be applied to this case
because Mr. Kremer brought his proceeding in the Appellate
Division a year and a half before it was rendered. "The gen-
eral rule of long standi:g is that judicial precedents normally
have retroactive as well as prospective effect." National
Association of Broadcasters v. FCC, 554 F.2d 1118, 1130 (D.C.
Cir. 1976). To this general rule the Supreme Court has
announced an exception which was defined, with respect to civil
cases, in Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92
S.Ct. 349, 355, 30 L.Ed.2d 296 (1971):
In our cases dealing with the nonretroactivity
question, we have generally considered three separate
factors. First, the decision to be applied nonretro-
actively must establish a new principle of law, either
by overruling clear past precedent on which litigants
may have relied, see, e.g., Hanover Shoe Inc. v. United
Shoe Machinery Corp., supra, [392 U.S. 481] at 496, [88
S.Ct. 2224, 20 L.Ed.2d 1231] or by deciding an issue of
first impression whose resolution was not clearly fore-
shadowed, see, e.g., Allen v. State Board of Elections,
supra, [393 U.S. 544] at 572 [89 S.Ct. 817, 22 L.Ed.2d 1].
Second, it has been stressed that "we must .. . weigh
the merits and demerits in each case by looking to the
prior history of the rule in question, its purposes and
effect, and whether retrospective operation will further
or retard its operation." Linkletter v. Walker, supra,
(381 U.S. 618] at 629 [85 S.Ct. 1731, 14 L.Ed.2d 601].
Finally, we have weighed the inequity imposed by retro-
active application, for "(wJhere a decision of this Court
A.07
could produce substantial inequitable results if applied
retroactively, there is ample basis in our cases for
avoiding the ‘injustice or hardship’ by a holding of
nonretroactivity." Cipriano v. City of Houma, supra,
[395 U.S. 701] at 706 [89 S.Ct. 1897, 23 L.Ed.2d 647].
Although the Court was not obliged to decide in Chevron whether
it was necessary to pass each of these hurdles to secure a
denial of retrospectivity, since it found all the required
factors were present, the courts of appeals have held that
unless the first factor is satisfied, there is no occasion to
consider the other two. United States v. Bowen, 500 F.2d
960, 975 & n.l (9 Cir. 1974), aff'd, 422 U.S. 916, 95 S.Ct.
2569, 45 L.Ed.2d 641 (1975); Ferguson v. United States, 513
F.2d 1011, 1012 (2 Cir. 1973); Jordan v. Weaver, 472 F.2d
985, 996 (7 Cir. 1973), rev'd on other grounds sub nom. Edel-
man v. Jordan, 415 U.S. 651, 658-59 n.7, 94 S.Ct. 1347, 1353-
54, 39 L.Ed.2d 662 (1974). This finds support not only in
the language of the Chevron opinion itself, 404 U.S. at 106,
92 S.Ct. at 355 ("the decision to be applied nonretroactively
must establish a new principle of law") (emphasis supplied),
see Jordan v. Weaver, supra, 472 F.2d at 996, but also
by other Supreme Court decisions analyzing questions of retro-
spectivity. See, e.g., Hanover Shoe, Inc. v. United Shoe
Machinery Corp., 392 U.S. 481, 499, 88 S.Ct. 2224, 2234, 20
L.Ed.2d 1231 (1968) (decisions applied retrospectively
because they "did not constitute a sharp break in the line of
earlier authority or an avulsive change which caused the cur-
rent of the law thereafter to flow between new banks");
Desist v. United States, 394 U.S. 244, 248, 89 S.Ct. 1030,
A. 08
1032, 22 L.Ed.2d 248 (1969) (retrospectivity analysis appro-
priate where decision was “a clear break with the past");
Gosa v. Mayden, 413 U.S. 665, 673, 93 S.Ct. 2926, 2932, 37
L.Ed.2d 873 (1973) (same for “a decisional change in attitude
that had prevailed for many decades"). Six months after
writing Chevron, Justice Stewart wrote that "[a]n issue of
the ‘retroactivity’ of a decision of this Court is not even
presented unless the decision in question marks a sharp break
in the web of the law." Milton v. Wainwright, 407 U.S. 371,
381 n.2, 92 S.Ct. 2174, 2180, 33 L.Ed.2d 1 (1972) (Stewart,
J., dissenting; the majority did not reach the issue). See
generally Beytagh, Ten Years of Non-Retroactivity: A Cri-
tigue and A Proposal, 61 Va. L. Rev. 1557, 1582-83, 1608-09
(1975). Any broader reading of Chevron would require courts
to engage in the balancing process demanded by the second
and third factors whenever a recognized legal principle, here
res judicata, had been applied--or not applied--to a situ-
ation not precisely covered by previous decisions.
Under the first Chevron test it is not suffi-
cient that the decision determines a point of law on which
the court had not previously passed. In order to invoke
nonretroactivity the decision must have established "a new
principle of law, either by overruling clear past precedent
on which litigants may have relied, . . . or by deciding an
issue of first impression whose resolution was not clearly
foreshadowed.” Chevron, supra, 404 U.S. at 106-07, 92 S.Ct.
at 355. Sinicropi certainly did not overrule a "clear past
precedent on which litigants may have relied." Prior to
Mitchell, as shown by Judge Feinberg's dissent, 553 F.2d at
A. 09
277-80, the application of state decisions to actions under
various federal civil rights statutes as res judicata in
general and under 28 U.S.C. § 17384 in particular was an area
of considerable turmoil. The specific question decided in
Sinicropi was expressly left open in Mitchell, supra, 553 F.2d
at 275 n.13, which was decided some time before Mr. Kremer
took his case to the Appellate Division. There was thus
nothing on which Mr. Kremer could have relied since Mitchell
“clearly foreshadowed" Sinicropi. While, as stated, the
Mitchell majority left the point open, its reasoning, 553
F.2d at 275-76, dictated the Sinicropi result. See Shea v.
City of St. Paul, 601 F.2d 345, 351 (8 Cir. 1979). Judge
Feinberg made this a principal ground of his Mitchell dis-
sent, 553 F.2d at 278, and joined in the per curiam panel
opinion in Sinicropi which stated "we all believe that the
reasoning of that [the Mitchell] decision controls this one."
Against all this it is of no moment that at the time Mr.
Kremer resorted to the Appellate Division there were five
4 This reads:
The Acts of the legislature of any State, Territory
or Possession of the United States, or copies thereof,
shall be authenticated by affixing the seal of such State,
Territory or Possession thereto.
The records and judicial proceedings of any court
of any such State, Territory or Possession, or copies
thereof, shall be proved or admitted in other courts
within the United States and its Territories and
Possessions by the attestation of the clerk and seal of
the court annexed, if a seal exists, together with
a certificate of a judge of the court that the said
attestation is in proper form.
Such Acts, records and judicial proceedings or
. copies thereof, so authenticated, shall have the same
full faith and credit in every court within the United
States and its Territories and Possessions as they have
by law or usage in the courts of such State, Territory
or Possession from which they are taken.
A.10
district court decisions,” two in this circuit, which held
that an adverse state judicial decision in a proceeding
initiated by the plaintiff did not bar a Title VII action.
See Cates v. Trans World Airlines, Inc., 561 F.2d 1064, 1072-
74 (2 Cir. 1974).
We add that if it were necessary to consider she
second and third Chevron factors, our conclusion would not be
different. Retrospective application of Sinicropi would
surely further rather than retard the operation of a principle
designed to prevent relitigation in the federal courts of
issues already determined by the state courts. The third
factor likewise is not met. A litigant represented by coun-
sel would have known, even before Mitchell and surely there-
after, that going from the state administrative agency to the
state courts involved serious risk of the application of res
judicata if the state court decision was adverse. No one
contends that Mr. Kremer, who was actine pro se, had any
knowledge of the district covrt decisions, or, for that
matter, of Mitchell. ® It cannot therefore be said that liti-
5 young v. South Side Packing Co., 369 F. Supp. 59 (E.D.
Wis. LAE Benneci v. Dep't of Labor, 388 F. Supp. 1080
(S.D.N.Y¥. 1975); Beck v. father; 417 F. Supp. 648 (W.D. Va.
1976); Al-Hamdani v. State University of New York, 438 F. Supp.
299 (W.D.N.¥. 1977); Nickel v. Pa wey ndustries, Inc., 441
F. Supp. 477 (W.D. Wis. ° y the latest two of these
decisions, in addition to Judae Pierce's opinion in this case,
supra, 464 F. Supp. 468, were decided after Mitchell.
6 some point is made that the notice given to Mr. Kremer
by the Appeal Board of his right to obtain review in the
Appellate Division may have misled him as to the consequences
of failure in that court on a Title VII action. The notice
was a commendable effort to inform Mr. Kremer of his rights
under New York law; the Appeal Board was under no obligation
to go further.
A. 1l
gants in Mr. Kremer's position had any justifiable reliance
interest which it would be inequitable to violate by retro-
spective application of Sinicropi. See Dasho v. Susquehanna
Corp., 461 F.2d ll, 21 (7 Cir.), cert. denied, 408 U.S. 925,
92 S.Ct. 2496, 33 L.Ed.2d 336 (1972) (guiding principle is
"to avoid unfairness to parties who may have acted in reli-
ance on the old rule").
The judgment is affirmed.
Kremer v. Chemical Construction Corp.,
477 F. Supp. 587 (S.D.N.¥. 1979) (Sofaer, J.)
A.12
Rubin KREMER, Plaintiff,
Vv.
CHEMICAL CONSTRUCTION
CORP., Defendant.
No. 78 Civ. 3182.
United States District Court,
S. D. New York.
Sept. 20, 1979.
As Amended Oct. 2, 1979.
OPINION
SOFAER, District Judge:
This is an action under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seg. Plaintiff
Kremer claims he was discharged and has not been rehired
by defendant Chemical Construction Corp. (Chemico) because
of his religion (Jewish) and national origin. He filed a
discrimination charge with the Equal Employment Opportunity
Commission (EEOC) on May 6, 1976. EEOC referred the matter
to the New York State Division of Human Rights (NYHRD),
as mandated. 42 U.S.C. § 2000e-5(c). NYHRD concluded
that plaintiff had failed to establish probable cause to
believe that Chemico had engaged “in the unlawful discrimin-
ation practice complained of," and made findings that
A.13
plaintiff had not been rehired for lawful reasons.
No express findings were made with respect to Kremer's
initial discharge.“ The papers filed by Kremer indicate,
however, that the evidence of discrimination on rehiring
is more substantial than the evidence advanced on the
illegality of the initial discharge. The NYHRD seems
therefore to have impliedly rejected plaintiff's additional
claims. On November 25, 1977, the NYHRD's determination
was upheld by its Appeal Board as “not arbitrary, capri-
cious or an abuse of discretion."
Plaintiff then appealed to the Appellate Division,
First Department, for a judgment pursuant to § 298 of the
Human Rights Law and pursuant to CPLR Article 78. He
offered all the evidence and arguments there that he has
most recently advanced in this court. The decision was
unanimously “confirmed" by five Justices on February 27,
1978. Plaintiff again petitioned the EEOC for relief.
On May ll, 1978, the EEOC found no probable cause to believe
1 The determination recited:
The record shows that this complainant was not
rehired by the respondent employer because one employee
with greater seniority was chosen.
The other person that was rehired, [sic) filled
a lesser position than that held by complainant.
Complainant's creed, or age, was not a factor
in these selections.
The complaint is therefore ordered dismissed,
and the file is closed.
"Determination after Investigation," NYHRD, April 28, 1977,
Exhibit C, Defendant's Motion to Dismiss, Sept. 5, 1978.
2 ta., Exhibit c.
A-l4
plaintiff's claims, but it confirmed (on the usual printed
form) a right to “pursue this matter further, if so
desired, by filing a private action in Federal District
Court within 90 days."? This action followed.
Chemico has argued from the outset of this
litigation that plaintiff's Title VII claims are barrec« by
res judicata. Defendant formally moved for dismissal on
September 5, 1978, basing its argument primarily on
Mitchell v. National Broadcasting Co., 553 F.2d 265 (2d Cir.
1977). Mitchell was an action under 42 U.S.C. § 1981 by
@ black woman claiming racial discrimination by her employer.
Like Kremer, she was denied relief by the NYHRD, unsuccess-
fully sought review by its Appeal Board, and then applied
to the Appellate Division, First Department, which unanimously
confirmed. Mitchell thereafter applied to the EEOC. After
the EEOC found no probable cause, she sued in federal court
under 42 U.S.C. § 1981. The only significant difference,
therefore, between Mitchell and the present case is that
plaintiff Kremer sues in the federal courts under Title VII,
whereas Mitchell sued under § 1981.
The Second Circuit held in Mitchell thet a
federal action under § 1981 was barred under principles of
res judicata. In so holding, the court found it necessary
to distinguish its earlier decision in Voutsis v. Union
Carbide Corp., 452 F.2d 889 (2d Cir. 1971), cert. denied,
406 U.S. 918, 92 S.Ct. 1768, 32 L.Ed.2d 117 (19/2), which
held that resort to a state agency to test a racial dis-
crimination claim does not bar a subsequent federal suit
3 ta., Exhibit H.
A.15
under Title v1.4 Because the plaintiff in Mitchell had
gone one step beyond the state agency level by seeking
limited review in the state courts by way of an Article 78
proceeding, a majority of the Second Circuit panel concluded
that the state decision should be accorded the same res
judicata effect it would have in the New York State courts.»
The plaintiff in Mitchell, though suing under
§ 1981, argued that to apply res judicata to her case would
conflict with the legislative scheme of Title VII. But
the court disagreed. The federal interest in encouraging
deferral of civil rights claims to state adjudication
applied only, the court found, to state agencies where
conciliation cf civil rights claims is attempted. "Once
review of a state agency determination is sought in the
state courts, however, these considerations disappear."
553 F.2d at 275. This result, the court stated, allows
state agencies to apply their expertise in discrimination
claims and at the same time affords a federal remedy to
claimants who choose to sue in the federal courts rather
than seek review in the state courts. Id. at 265.
Judge Feinberg dissented in Mitchell. He con-
cluded that if res judicata applied in an action under
42 U.S.C. § 1981, it should also apply to a claim under
Title VII, a result he found unacceptable. He reasoned
‘ In Alexander v. Gardner-Denver Co., 415 U.S. 36, 94
S.ct. loll, 39 L.8d.2d 147 (1974), the Supreme Court cited
the Voutsis decision with approval, noting that "[mjost
courts have recognized that the doctrine of election of
remedies does not apply to suits under Title VII", at 49 n.
ll, 94 S.Ct. at 1020. See also Cooper v. Philip Morris,
Inc., 464 F.2d 9 (6th cir. 1572).
5 Because Mitchell sought relief in the federal court
on the same grounds as in the state court, the court reasoned
that she had had her “day in court." The fact that no
opportunity for a formal evidentiary hearing had been afforded
did not, in the court's view, preclude application of res
judicata so long as there was an identity of issues and the
plaintiff had had the right to appear and an opportunity to
be heard. 553 F.2d at 271.
A.16
that, since Congress had provided for a de novo hearing
of all Title VII cases in the federal courts after both
state and federal agency determinations, it made no sense
to deprive a complainant of de novo review because he or
she pursued an additional, limited review in the state
courts. He noted that Congress had provided in civil rights
cases for considerable duplication and overlapping of
remedies, and that this legislative purpose should not be
overridden by judicial resort to the normal but inapposite
policy against repetitious litigation. Id. at 277-80;
see 28 U.S.C. § 1738.
Despite Mitchell, defendant's motion to dismiss
in this case was denied by Judge Lawrence W. Pierce on
December 7, 1978.°
Judge Pierce essentially adopted Judge
Feinberg's reasoning in Mitchell, but concluded that the
specific statutory grant of de novo federal review in
Title VII justified distinguishing, for res judicata
purposes, cases under Title VII from cases under the other
civil rights statutes. He agreed also with Judge Whitman
Knapp's opinion in Benneci v. Department of Labor, 388
F.Supp. 1080 (S.D.N.¥.1975). To apply res judicata to
Title VII cases, Judges Pierce and Knapp concluded, would
defeat the general purposes of the statutory scheme as
construed by a unanimous Supreme Court in Alexander v.
Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d
147 (1974). "Such a holding would impliedly restrict the
6 purther indication of the Second Circuit's attitude
on repetitious litigation was provided by the intervening
decision in Winters v. Lavine, 574 F.2d 46 (2d Cir. 1978),
applying collateral estoppel in an action under 42 U.S.C.
§ 1983.
A.17
express provision for a second independent hearing to those
instances where state proceedings had been terminated
without state court review. There being no limitation
of this nature on the availability of a de novo hearing
imposed by Congress, the insertion of a qualification by
judicial fiat is unwarranted." Kremer v. Chemical Con-
struction Co., 464 F.Supp. 468, 473 (S.D.N.Y¥.1978).
On June 12, 1978, however, the Second Circuit
extended the Mitchell rule to Title VII cases. In a per
curiam opinion, it held that res judicata would bar a
Title VII claim where the plaintiff had previously sought
state court review on the same question presented to the
federal courts. The panel saw "no reason to distinguish
between Section 1981 and Title VII for res judicata purposes."
Without discussion of the de novo review requirement of
Title VII, Mitchell was deemed to control. “The crucial
factor is that appellant chose to submit her case to the <
state courts for review and she cannot now relitigate the
same issues in federal court." Sinicropi v. Nassau County,
601 F.2d 60 at 62 (2d Cir. 1979). (Emphasis in original.)
Judge Feinberg, who dissented in Mitchell, agreed its
reasoning required dismissal of Title VII cases, as he
had predicted.
Sinicropi permits no choice but to dismiss
plaintiff's complaint in this case on grounds of res
judicata. Plaintiff urges what he regards as distinguishing
features: perfunctory treatment by the NYHRD and an order
by the Appellate Division that misleads by reciting that
plaintiff appeared and argued in his behalf. These
deficiencies, however, are less substantial than--though
similar to--the deficiencies raised by the plaintiff in
Mitchell. See 553 F.2d at 268 (lack of witnesses, no
cross-examination, no counsel). Nor is it significant
that the NYHRD's opinion expressly refers only to the
plaintiff's claim based on defendant's failure to rehire
him; the papers indicate tliat both the agency and the
state court were presented with all aspects of plaintiff's
claim of religious discrimination--identical to the claim
presented in this court--and they denied relief.
To submit to Mitchell and Sinicropi, however,
is not to agree with them. The Mitchell majority's
conclusion that Title VII's de novo review is satisfied
by a combination of an agency finding of no probable cause
coupled with Article 78 review seems fanciful. No amount
of judicial explication can alter the reality that a
litigant who pursues his civil rights claim in a state
court with limited powers of review loses his statutory
A;18
right to full review in the federal courts. This disparity
in remedial opportunity is merely obfuscated by the
assertion that agency consideration of probable cause
coupled with limited Article 78 review is equivalent to
a summary judgment proceeding in federal court and thus
satisfies the de novo review requirement. It is well settled
that in considering a Title VII claim a federal district
court is not bound by administrative findings of fact.
Chandler v. Roudebush, 425 U.S. 840, 844-45, 96 S.Ct.
1949, 48 L.Ed.2d 416 (1976). A Title VII trial may there-
foreencompass anything reasonably within the scope of an
’ EEOC investigation. See Comment, T'was a Nibble Not a
Bite: Res Judicata and Section 198l1--Mitchell v. National
A.19
Broadcasting Co., 53 N.Y¥.U.L.Rev. 187, 204-05 (1978).
Whether the district court decides the claim on a motion
for summary judgment or after a full trial, it is entitled
to request additional affidavits and evidence and, if
necessary, to hold an evidentiary hearing. See generally
Wright & Miller, Federal Practice and Procedure: Civil
§ 2721 (1973). By contrast, the New York Appellate Division,
like most appellate courts, is limited to the record of
facts gathered and evidence presented in the agency
proceedings. Comment, State Appellate Court Judgment on
Employment Discrimination is Res Judicata in Subsequent
Federal Action Under Section 1981 of the Civil Rights Act
of 1866, 62 Minn.L.Rev. 987, 1006 (1978). As a result,
the appellate court determination is subject to all the
procedural infirmities of the administrative proceeding.
Even if state agency and appellate court
review were considered sufficiently analogous to federal
summary judgment in the abstract, res judicata would still
appear an inappropriate mechanism to bar Title VII claims
in the federal courts. As the Second Circuit stated in
Voutsis, supra, “(a] federal claim allows the district
court to conduct a ‘full scale inquiry into the charged
unlawful motivation in employment practices'", 452 F.2d
at 893, quoting Bowe v. Colgate-Palmolive Co., 416 F.2d
7ll, 715 (7th Cir. 1969). Such a full scale inquiry will
often call for a trial on the merits, including independent
fact-finding by the federal court. The Mitchell majority
correctly argued, of course, that a federal court is
empowered to use a summary judgment procedure in all
cases where no genuine issue of material fact is presented;
A. 20
in such cases the issues considered in the federal review
would be quite similar to the issues considered when a
state court “confirms” as reasonable an agency's dismissal
for lack of probable cause. But there is a critical
difference between the authority of the New York and
federal courts in dealing with Title VII issues. A federal
court is permitted to make a summary judgment disposition
of an employment discrimination case. By contrast, the
New York Appellate Division in an Article 78 proceeding
is restricted to using a proceeding similar to summary
judgment; it has no authority to determine whether summary
judgment is, in a given case, preferable to a full judicial
7
trial on the merits. For this reason, the issues presented
7 See generally Comment, Civil Rights--Civil Procedure:
State App tke Court Judgment on P oymen scrimination
s Res Judicata in sequent Federal Action Under Section
of the Civi s Act o , Supra, a nn.
& 6. The Appeal Board reviews smissals for lack of
probable cause only to determine whether the action of the
NYHRD was “arbitrary and capricious or characterized by
an abuse of discretion or a clearly unwarranted exercise
of discretion." Ma Ho n Lumber & Mfg. Co., 33 A.D.2d
310, 313, 307 N.Y.S. ’ » appea smissed, 26 N.Y.2d
962, 311 N.Y.S.2d 5, 259 N.E.2d Pi (1570). Even if the
Board determines that there is a genuine factual dispute
over a key issue, it may not reverse the NYHRD's dismissal
for lack of probable cause. See Merrill Lynch, Pierce
Fenner & Smith, Inc. v. State Div. of H Rights, 46
it empowered to find new facts. See State Div. of Human
Rights v. Columbia Univ., 39 N.Y¥.2d 612, 616, 385 N.¥.5.2d
Id, 21, 350 N.E.od 396, 398 (1976), cert. denied, 429 U.S.
1096, 97 S.Ct. 1112, 51 L.Ed.2d 543 .
The Appellate Division's scope of review in an Article
78 proceeding has been held to be no broader than that of
the Appeal Board. See Mize v. State Div. of Human Bagnes:
33 N.Y¥.2d 53, 57, 379 N. ee , = , oe lL,
233 (1973). Thus, in reviewing the state agency determin-
ations, it seems that the Appellate Division can at most
reverse and remand for a hearing or further investiqation
by the agency. See Mitchell, supra, 553 F.2d at 272 n. 9,
citing Mayo v. Hopeman Lumber & Mfg. Co., supra.
In justifying application of res judicata in Mitchell,
the majority apparently relied on the fact that Secon
Circuit courts have on occasion given res judicata effect
to Article 78 judgments. 553 F.2d at 272 n. 9. None of
the cases cited by the majority, however, involved the
resolution of employment discrimination or similar claims
where Congress expressly provided for de novo federal
court review.
Ae 21
before the state court in an Article 78 proceeding and those
before the federal court under Title VII are necessarily
dissimilar, thus making the application of res judicata
inappropriate. Given the express mandate in Title VII
for federal de novo review, the federal court would appear
obliged to determine independently the nature and extent
of review necessary to protect a claimant from employment
discrimination. Mitchell and Sinicropi foreclose the
federal courts from considering this important question. ®
A primary concern of the Mitchell majority was the
need to enhance comity between the state and federal courts.
Yet, as the Mitchell majority concedes, comity in our
federal system must always begin with a proper implementa-
tion of our national legislature's will. Otherwise, the
concept might be used to create a preference for adjudicat-
ing at least some types o* federal claims in state rather
than federal court. Where Congress has “long evinced
a general intent to accord parallel or overlapping remedies
against discrimination," Alexander v. Gardner-Denver Co.,
supra, 415 U.S. at 47, 94 S.Ct. at 1019, a preference for
state resolution of such claims seems especially inappro-
priate. Furthermore, comity has generally been understood
8 This court concedes that it may not always be inappro-
priate for a federal court to give res judicata effect to
a state court's disposition of an employment discrimination
claim. As two commentators have persuasively argued, res
judicata effect might properly be accorded when the state
proceedings included a trial on the merits, or at least
involved summary disposition where there was a possibility
of full trial on the merits. Comment, Civil Rights--Civil
s ction
nder Section ° @ civ s F of 1666, supra,
a } comment, T'was a e a fe: Res Sudieate
anc Section 1981, supra, 4% °
A. 22
to require deference to state decisions based on the same
scope of review applied in comparable federal proceedings.
It seems a strange version of comity to require a federal
court to relinquish an obligation to grant de novo review
on the ground that a state court has granted limited review
of a state agency decision. One wonders, moreover, why
comity will be served if, as seems likely, individuals
with civil rights claims will strive to avoid the state
courts in order to preserve their right to a federal forum.
The Mitchell majority also wrote of the “interests
of judicial husbandry," and “the equity of protecting
opposing parties . . from vexatious duplicative litigation,"
553 F.2d at 276-277, quoting from Thistlewaite v. City of
New York, 362 F.Supp. 88, 92 (S.D.N.¥.1973), aff'd, 497
F.2d 339 (2d Cir.), cert. denied, 419 U.S. 1093, 95 S.Ct.
686, 42 L.Ed.2d 686 (1974). Even assuming an adequate
basis exists for judicially revising the apparent legis-
lative judgment as to where the balance should be struck
on these interests, do considerations of judicial adminis-
tration and equity truly support the application of res
judicata in Title VII cases?
Title VII plaintiffs will still initially seek
relief before the NYHRD because the federal statute requires
them to do so. Some will still seek review in the state
courts on state law grounds, carefully avoiding any mention
of their federal claims even though they are before a
tribunal competent to review those claims. Most will avoid
the state courts entirely, thus encouraging further
deterioration of the state agency process due to much
less frequent state court supervision. Furthermore, by
A.23
discouraging state court review of agency decisions, Mitchell
and Sinicropi may well serve to increase the number of
discrimination cases brought in the federal courts. Those
plaintiffs who, until Mitchell and Sinicropi, were satisfied
with the handling of their claims by the state courts and
sought no federal review will, after those decisions, pursue
their claims in federal courts at the outset.” Federal
courts who hear these claims will no longer have the
benefit of state court decisions, which have often been
of assistance.
As for the equitable consequences of Mitchell
and Sinicropi, they may create far more unfairness than
they avoid, and proper alternative means for avoiding
vexatious, duplicative litigation seem available. First,
it seems clear that many civil rights claimants have been
misled by prior court decisions, such as Voutsis, into
believing they could seek limited state court review with-
out losing access to the federal courts. Indeed, in cases
9 Cf. Alexander v. Gardner-Denver Co., supra, where the
Supreme Court expressed similar concerns in holding that
federal courts should not give res judicata effect to state
arbitration determinations. The Court noted that to hold
otherwise
might adversely affect the arbitration system as well
as the enforcement scheme of Title VII. Fearing that
the arbitral forum cannot adequately protect their
rights under Title VII, some employees may elect to
bypass arbitration and institute a lawsuit. The
possibility of voluntary compliance or settlement of
Title VII claims would thus be reduced, and the
result could well be more litigation, not less. 415
U.S. at 59, 94 S.Ct. at 1025.
A. 24
such as the present one, the state and federal agencies
handling civil rights claims have uniformly assumed that
federal review remained available under Title VII irrespec-
tive of prior proceedings. For example, after Mr. Kremer
had gone to the state agency, sought state review, and
then federal agency consideration, the EEOC issued a letter
stating that he had a “right to sue" in federal court.
There seems little equity in imposing a rule of forfeiture
upon applicants such as Kremer under circumstances where
even the expert agencies could not have anticipated one.
Granted that the unfairness of applying res judicata to
Title VII cases is lessened with respect to complainants
who seek state court review after Sinicropi; yet the fact
remains that the individuals who sought review in state
court prior to Sinicropi have lost their right to federal
court consideration of an important federal claim without
notice or fault.?°
The Mitchell and Sinicropi decisions will also have
inequitable results in future cases. Undoubtedly some
individuals will continue to seek review of their federal
claims in state courts. These will generally be the
uninformed parties who are commonly seen as pro se plaintiffs
in civil rights cases. Whatever increase is attained in
judicial efficiency through finalizing state court
decisions is likely to be at the expense of these plaintiffs
10 The unfairness of applying Sinicropi to plaintiffs
such as Kremer was brought home to s court when Mr.
Kremer was told his complaint had to be dismissed. He was
obviously shocked to discover that he had no right to
federal review. He complained that he had gone through
all the procedures he had been told to go through, but had
never obtained a hearing on his claim.
A,25
who will not know they should avoid our sister courts. On
the other hand, civil rights defendants will not really
be spared vexatious, duplicative litigation by Mitchell
and Sinicropi. Knowledgeable plaintiffs need dispense
with only one of the several stages of litigation available
to them, one which to defendants must be the least burden-
some stage of all, i. e., a limited review in which the
state agency joins the defendant in opposing the plaintiff's
contentions.
Greater relief for vexed defendants in Title VII cases
is certainly an objective the Circuit Court should strive
to secure. Cases brought by individual plaintiffs seem
particularly burdensome, and most often wweritless. Devices
are potentially available, however, that would be more
effective in deterring vexatious suits and fairer to
plaintiffs than applying the res judicata doctrine. Two
particularly promising measures would be to encourage
federal district judges to use their power to grant summary
judgment on the merits, and to permit them greater authority
in frivolous cases to grant costs and counsel fees against
the losing plaintiff.
The right to a de novo review should not exempt
civil rights claimants from the usual requisites of federal
litigation, including the need to allege facts sufficient to
create a genuine issue of fact as well as a legal theory
upon which relief may be granted. We are perhaps too
reluctant to give full weight at the pleading stage to the
practical reality that, in light of the plaintiff's burden
of proof, discrimination cases based essentially on the
plaintiff's feelings or suspicions often fail to raise
A. 26
issues of fact worth litigating. 2+
Indeed, greater use of
summary judgment in employment discrimination cases finds
support in the Mitchell decision itself. If the court there
was willing to give full faith and credit to a state
procedure which merely resembles federal summary judgment,
it should be even more prepared to affirm a federal district
court's summary disposition of a Title VII claim, especially
since the federal court is free to consider the propriety
of a full trial on the merits.
We naturally resist imposing costs and fees
on individuals who already carry with them, however unjusti-
fiably in the law's eyes, a feeling of having been greatly
wronged. Yet it is here that the courts must show courage
and ingenuity. Instead of precluding suits under judicial
doctrines such as res judicata, we should use statutorily
granted powers to tax costs and fees in cases we have
concluded are meritless. See 42 U.S.C. § 2000e-5(k). The
Supreme Court recently confirmed the propriety of awarding
attorney's fees to a Title VII defendant who prevails on
the merits. Christianburg Garment Co. v. EEOC, 434 U.S.
412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978). Although the
Court concluded that a more stringent standard should apply
to prevailing defendants than would apply to prevailing
plaintiffs, the standard articulated by the Court for
prevailing defendants seeking attorney's fees is far less
stringent than many lower federal courts had assumed. The
Supreme Court stated: "[(A] district court may in its
discretion award attorney's fees to a prevailing defendant
11 One commentator persuasively argues that, where the
moving party does not have the trial burden of proof, the
summary judgment evidentiary standard should be relaxed.
Louis, Federal Summa Judgment Doctrine: A Critical
Analysis, 83 Yale LJ" 745 tig Tay
Aw27
in a Title VII case upon a finding that the plaintiff's
action was frivolous, unreasonable, or without foundation,
even. though not brought in subjective bad faith." 434 U.S.
at 421, 98 S.Ct. at 700. With this new standard, the
assessment of attorney's fees is now available as a poten-
tially effective device for protecting defendants from the
burdens of meritless civil rights claims.
The motion to dismiss is granted, and the com-
plaint is dismissed, without costs to either side.
SO ORDERED.
Kremer v. Chemical Construction Corp.,
464 F. Supp. 468 (S.D.N.¥. 1978) (Pierce, J.)
A. 28
Rubin KREMER, Plaintiff,
Vv.
CHEMICAL CONSTRUCTION, CORP.,
Defendant.
No. 78 Civ. 3182
United States Distict Court,
S. D. New York.
Dec. 7, 1978.
OPINION AND ORDER
PIERCE, District Judge.
The plaintiff, Rubin Kremer, instituted this pro
se action under Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq. The plaintiff alleges that the
defendant, Chemical Construction Corp. ("Chemico"), both dis-
charged him and failed to rehire him because of his religion
and national origin. The defendant has moved for dismissal
under Fed. R. Civ. P. 12(b) or, alternatively, for summary
judgment under Rule 56 on the ground of res judicata. For
the reasons that follow, the Court finds that the plaintiff
is entitled to a de novo hearing on the claims presented to
the Court as provided for in 42 U.S.C. § 2000e-5 and there-
fore denies defendant's motion.
A. 29
FACTS
The plaintiff, a former employee of Chemico,
alleges that he was terminated by the defendant on August l,
1975, because of his national origin and his adherence to
the Jewish religion. He also alleges that Chemico refused
to rehire him later because of his national origin and reli-
gion. These alleged discriminatory acts are prohibited by
both federal and state laws. 42 U.S.C. § 2000e 2(a) (1)
(1970); N.Y. Exec. Law § 296(1) (McKinney Supp. 1977).
The plaintiff filed a discrimination charge with
the Equal Employment Opportunity Commission ("EEOC") on
May 6, 1976, within the filing period. The EEOC referred the
matter to the New York State Division of Human Rights ("HRD")
as mandated in 42 U.S.C. § 2000e-5(c).* HRD is the state
agency charged with the enforcement of state law prohibiting
1. 42 U.S.C. § 2000e-2(a) provides:
"It shall be an unlawful employment practice for an
employer--(1) to fail or refuse to hire or to dis-
charge any individual, or otherwise to discriminate
against any individual . . . because of such indi-
vidual's race, color, religion, sex, or national
origins: . . « «®
N.Y. Exec. Law § 296(1) provides:
"It shall be an unlawful discriminatory practice:
(a) For an employer or licensing agency, because
of the age, race, creed, color, national origin,
sex,or disability, or marital status of any indi-
vidual, to refuse to hire or employ or to bar or
to discharge from employment such individual. .. ."
ae 42 U.S.C. § 2000e-5(c*
"In the case of an alleged unlawful employment
practice occurring in a State, or political sub-
division of a State, which has a State or local
law prohibiting the unlawful employment practice
alleged and establishing or authorizing a State
or local authority to grant or seek relief from
A. 30
employment discrimination. That agency reviewed the com-
plaint which alleged age as well as religious discrimination.
New York's statute expressly prohibits age discrimination
whereas Titie VII does not. Compare 42 U.S.C. § 2000e-2 (a) (1)
with N.Y. Exec. Law § 296(1) (McKinney Supp. 1977).
On March 4, 1977, while the matter was still pend-
ing before HRD, the plaintiff again requested EEOC to investi-
gate his claim because of the state's delay in resolving his
Claims. HRD subsequently reached a determination on April 28,
1977 that the plaintiff's claims were meritless. Its deter-
mination was based on the findings that the plaintiff was not
rehired because one employee who was rehired had greater
seniority than the plaintiff, that another employee who was
rehired filled a lesser position than that previously held
by the plaintiff, and that the plaintiff's creed and age were
not factors considered in Chemico's selection. HRD did not,
however, make an express finding that his creed and age were
not factors considered by Chemico in its decision to discharge
such practice or to institute criminal proceedings
with respect thereto upon receiving notice there-
of, no charge may be filed under subsection (b)
of this section by the person aggrieved before the
expiration of sixty days after proceedings have
been commenced under the State or local law, unless
such proceedings have been earlier terminated, provided..."
Also see 29 C.F.R. 1601.12(b) (1) (iii, iv) (1977)
"The aggrieved party and any person filing a charge
on behalf of an aggrieved party shall be notified,
in writing, that the document which he or she sent
to the Commission has been forwarded to the State
or local agency. . . and that unless the Commission
is notified to the contrary, on the termination of
State or local proceedings, or after 60. .. days
have passed, whichever occurs first, the Commis-
sion will consider the charge to be filed with the
Cormission and commence processing the case. . .
A, 31
him. On administrative appeal, HRD's determination was
affirmed on November 25, 1977 by the State Human Rights
Appeals Board on the grounds that HRD's findings were not
arbitrary or capricious.
The plaintiff then appealed the decision to the
New York State Supreme Court, Appellate Division, First
Department, under N.Y. Exec. Law §§ 296-298. That inter-
mediate appellate court affirmed the decision on February 27,
1978. The matter was not appealed further.
On May 11, 1978, the EEOC reviewed the HRD's find-
ings, the complaint, and the record and determined that there
was no reasonable cause to believe that the plaintiff's claims
were valid. It then issued a notice of right to sue. Plain-
tiff subsequently instituted this action pro se, and requested
a de novo trial under Title VII.
DISCUSSION
The issue presented to the Court by the instant
motion to dismiss the complaint or, in the alternative, for
summary judgment is whether the prior state appellate court
review of the state agency's action under state law bars
a federal action under Title VII.
Chemico urges this Court to adopt the approach
followed in Mitchell v. National Broadcasting Co., 553 F.2d
265 (2d Cir. 1977) and dispose of this motion similarly. In
Mitchell, the plaintiff had instituted an action under 42
"Upon notification of the termination of State or
local proceedings or the expiration of 60 (or 120)
days, whichever occurs first, the Commission will
consider the charge to be filed with the Commission
and will commence processing the case."
A. 32
U.S.C. § 1981, but prior to instituting the federal action,
the plaintiff had brought an action under the N.Y. Human
Rights Law with HRD. Only after she was denied relief and
after instituting an appeal from HRD's decision with the
Appeals Board did that plaintiff seek federal relief by
filing a charge of discrimination with the EEOC. The EEOC
issued a finding of no probable cause after HRD's determina-
tion was affirmed by the Appeals Board and the Appellate Divi-
sion.
The plaintiff then instituted an action under
§ 1981 in federal court, but the action was dismissed on
the ground of res judicata. On appeal, the Court of Appeals
held that the federal action was indeed barred by res judi-
cata because the plaintiff had sought state court review of
the state agency determination. Id. at 276. However, it
expressly reserved judgment on the question of whether the
principle of res judicata would bar a similar action under
Title VII. Id. at 275 n.13.
In comparison, the plaintiff in this action ini-
tially filed a complaint with the EEOC, was referred to HRD,
and resumed his request that tue EEOC investigate his charges
prior to HRD reaching its conclusion. Like the complaint in
Mitchell, the plaintiff, commenced this action in federal
court after failing in his appeal to the state Appellate Div-
ision regarding the Appeals Board's affirmance of the HRD
determination.
The similarity of the facts of the instant action
to those in Mitchell, Chemico contends, is sufficient to
justify a ruling similar to that in Mitchell, particularly
since Title VII does not require exhaustion of state judicial
remedies prior to instituting federal claims and since the
plaintiff chose not to appeal the Appellate Division's affir-
mance to the New York State Court of Appeals. While Title VII
does require that the EEOC defer complaints to HRD, 42 U.S.C
§ 2000e-5(c) (1970), it does not require that complainants
exhaust state judicial remedies before seeking federal relief.
On the contrary, Title VII allows the filing of a complaint
with the EEOC 60 days after proceedings are initiated under
state law. Id. Chemico contends that if the plaintiff had
sought federal relief immediately after the rulings from the
HRD and from the State Appeals Board rather than appealing
to the state court, his right to a de novo federal trial
would have been preserved. See, Voutsis v. Union Carbide
Corp., 452 F.2d 889 (2d Cir.), cert. denied, 406 U.S. 918,
92 S.Ct. 1768, 32 L.Ed.2d 117(1971); Batiste v. Furnco Con-
struction Corp., 503 F.2d 447 (7th Cir.), cert. denied, 420
U.S. 928, 95 S.Ct. 1127, 43 L.Ed.2d 399 (1975).
In determining that state court review barred a
subsequent federal court action under § 1981, the Court in
Mitchell stressed that §296 of the New York Executive Law
is at least as broad as the federal constitution and civil
rights laws in prohibiting discrimination in employment.
553 F.2d at 269-70, that the issues addressed in the state
proceedings were the same as those before the district court,
id. at 270, that the standard for evaluating the plaintiff's
claims under state law is comparable to that for evaluating
a summary judgment motion in the federal courts, id. at 271,
and that the New York state courts are not less capable than
federal courts in resolving the legal sufficiency of a com-
plaint or less sensitive to claims under the State Human
Rights Law which may also be actionable under federal statute.
Id. at 276. The issue to be determined here is whether these
considerations compel a finding of a similar bar of actions
brought under Title vir.?
The principles of collateral estoppel
and res judicata are made applicable to federal courts
with respect to prior state court judgments by 28 U.S.C.
§ 1738. That statute obligates the federal courts to give
full faith and credit to judgments of state courts of com-
petent jurisdiction. 4 The federal court, however, need only
give that state judgment the same effect as it would be given
in the state in which it was rendered. Mitchell v. National
Broadcasting Co., 553 F.2d at 274.9 Ordinarily, this requires
an analysis of the res judicata effect of the state court
proceedings within the state and an examination of the local
law of res judicata and collateral estoppel. Winters v.
Lavine, 574 F.2d at 52 (2d Cir. 1978).
While section 1738 mandates an analysis and
application of the state doctrines of res judicata and col-
lateral estoppel, other considerations must also be evalu-
3. A review of decisions of sister courts in other cir-
cuits has revealed sharply conflicting opinions. Compare
Beck v. Mather, 417 F. Supp. 648 (W.D. Va. 1976) (prior state
court dismissal not res judicata) with Bennun v. Board of
Governors, 413 F. Supp. 1274 (D.N.J. 1976) (prior state court
determination is res judicata).
4 28 U.S.C. § 1738 extended the Full Faith and Credit
provisions of the U.S. Constitution Article 4, § 1 to all
courts, federal as well as state. Davis v. Davis, 305 U.S.
32, 40, 59 S.Ct. 3, 6, 83 L.Ed. 26, 29 (1938). Also see
Winters v. Lavine, 574 F.2d 46, 54 (2d Cir. 1978); American
Mannex Corp. v. Rozands, 462 F.2d 688, 690 (Sth Cir.), cert.
denied, 108 U.S. 1040, 93 S.Ct. 524, 34 L.Ed.2d 489 (1972).
5 But see Theis, Res Judicata in Civil Rights Act
Cases: An introduction to the Problem, 7?) Nw. U.L
Rev. 659, 876 “Although section 1738 counsels the federal
judge to resolve all res judicata problems in all cases
as would a state judge, this admonition is unrealistic
and impossible when the federal judge exercises a concur-
rent jurisdiction granted for special reasons."
ated. As the Mitchell court noted, even if a state court's
determination had a res judicata or collateral estoppel
effect on other courts of that state, federal courts are not
always bound by such prior state decisions. "“"'Other well-defined
federal policies, statutory or constitutional, may compete
with those policies underlying [28 U.S.C. §] 1738 [which pro-
vides that the federal courts give full faith and credit to
judgments of state courts of competent jurisdiction].'" Id.
at 274 (citing American Mannex Corp. v. Rozands, 462 F.2d
688, 690 (Sth Cir.), cert. denied, 409 U.S. 1040, 93 S.Ct.
524, 34 L.Ed.2d 489 (1972)). Especially in civil rights
actions, the res judicata and collateral estoppel require-
ments of § 1738 have not been rigidly applied. See Mitchell,
supra at 274; McCune v. Frank, 521 F.2d 1152, 1156 n.10 (2d
Cir. 1975); also see discussion in Winters, supra at 56. But
the mere fact that a federal civil rights action is involved
is not sufficient reason to deny a state court determination
the full faith and credit required by § 1738. Mitchell v.
National Broadcasting Co., supra.
Recent decisions in this circuit have supported the
conclusion that state court determinations have res judicata
or collateral estoppel effect on subsequent federal civil
rights actions. Winters v. Lavine, supra; Mitchell v. National
Broadcasting Co., supra. Winters was an action under 42 U.S.C.
§ 1983 (accord Hammer v. Town of Greenburgh, 440 F. Supp. 27
(S.D.N.Y. 1977)) and Mitchell was instituted under 42 U.S.C.
§ 1981. Several distinctions exist, however, between the
statutes under which those cases were tried and Title VII.
Under Title VII, the statutory prerequisite for instituting
an action in federal court is that the complainant first
submit his claim to state and federal agencies. 42 U.S.C. §
2000e-5, supra. This requirement is not present under § 1981
or § 1983. The purpose of this requirement is to permit the
state agency to attempt to resolve the matter under state
law through voluntary conciliation and persuasion. Alexander
v. Gardner-Denver, 415 U.S. 36, 44, 94 S.Ct. 1911, 1017, 39
L.Ed.2d 147, 156 (1974); 29 C.F.R. 1601-12(a) (1977). Further-
more, Title VII provides for a de novo hearing by a federal
court once the statutory prerequisites have been met. The
Cou.t must be mindful of these distinctions and their impli-
cations in evaluating the applicability of the holdings in
Winters and Mitchell to the action at bar and in assessing
the federal policies embodied in Title VII.
A review of the history of Title VII indicates
that Congress intended the policy against discrimination, as
manifested in the Civil Rights Act of 1964, be given the
highest priority. Newman v. Piggie Park Fnterprises, 390 U.S.
400, 402, 88 S.Ct. 964, 19 L.Ed.2d 1263(1968) (per curiam).
"Consistent with this view, Title VII provides for considera-
tion of employment discrimination claims in several forums. .
And, in general, submission of a claim to one forum does
not preclude a later submission to another. Moreover, the
legislative history of Title VII manifests a congressional
intent to allow an individual to pursue independently his
rights under both Title VII and other applicable state and
federal statutes. The clear inference is that Title VII was
designed to supplement, rather than supplant, existing laws
and institutions relating to employment discrimination."
Alexander v. Gardner-Denver Co., 415 U.S. at 47-49, 94 S.Ct.
at 1019-1020, accord, 29 C.F.R. 1601.12(a) (1977). Accordingly,
Title VII actions should not be subject to the collateral
A.37
estoppel effects of section 1738 where the result would be
the possible frustration of the congressional objectives
embodied in Title VII, to wit, the availability of separate
federal and state remedies and the independent adjudication
of federal claims.
An earlier Title VII case involving circum-
stances similar to those presented in the action at bar
discussed these policy considerations. In Benneci_v. Dep't
of Labor, 388 F. Supp. 1080 (S.D.N.Y¥. 1975), the plaintiff
claimed that the defendant had engaged in unlawful employment
discrimination and discriminated against him because of his
religion and national ancestry in violation of New York's
Human Rights Law. After HRD determined that there had been
no unlawful discriminatory practice, he appealed to the Appeals
Board which affirmed. Benneci then appealed to the state
appellate court which also affirmed. Having failed to
secure relief from the state, he filed a complaint with
the EEOC. When the EEOC determined that there was no
reasonable cause to believe that an unlawful practice had
been engaged in, plaintiff brought his action in federal
court.
In refusing to give the state court's affirmance
res judicata effect, the district court judge discussed the
congressional objectives embodied in Title VII. In his
opinion, Judge Knapp cited the Supreme Court's unanimous
decision in Alexander v. Gardner-Denver Co., supra, wherein
it was noted that the purpose of Title VII was to assure
equality of employment opportunities through cooperation and
voluntary compliance. Title VII incorporates a procedure
whereby existing state and local agencies as well as the
A. 38
EEOC would have an opportunity to settle disputes before the
complainant was permitted to commence an action in federal
court. The court in Benneci reasoned that to grant defen-
dant's motion for summary judgment because the plaintiff
had sought to comply with these procedures would defeat the
general purpose of the statutory scheme. 388 F. Supp. at
1081. Furthermore, where the complainant has manifested a
preference for the federal forum by initiating his action
with EEOC rather than the state agency, he may be less
inclined to actively and fully pursue his state claim, as
envisioned by the statutory scheme, or to seek review of
arbitrary state agency actions, if a possible loss of his
federal claim would result. This statutory scheme is unique
to Title VII actions and manifests Congress' intent that
there be an initial resort to state remedies. A bar of a
federal action because of collateral estoppel may well
frustrate this congressional purpose. Consequently, a
complainant's resort to state court review should not bar
a Title VII action as it would under other federal civil
rights statutes.
A further reason for distinguishing an action
under Title VII from actions under other federal civil
rights statutes is that Title VII expressly provides for
a de novo hearing by a federal court. Although state courts
may be said to be as capable of evaluating claims of dis-
crimination as tederal courts, where the reviewing state
court does not have plenary power to try the matter anew,
the barring of an independent federal action on grounds of
collateral estoppel wonld have the effect of limiting the avail-
ability of a ue novo hearing. Such a holding woulda impiiediy
A. 39
restrict the express provision for a second independent
hearing to those instances where the state proceedings had
been terminated without state court review. There being
no limitation of this nature on the availability of a de
novo hearing imposed by the Congress, the insertion of
a qualification by judicial fiat is unwarranted.
CONCLUSION
While Benneci was decided prior to the decision
in Mitchell, the reasoning of Benneci is consistent with
the later analysis of the Second Circuit Court of Appeals
in Mitchell. The policy embodied in Title VII was intended
to be effectuated by the entire procedure set forth in
§2000e-5 including the provision for a second, independent
federal hearing. Truncating the procedure on the grounds
of res judicata under these circumstances is not mandated
by Mitchell and would be contrary to the apparent intent oi
Congress.
Accordingly, the defendant's motion to dismiss or,
alternatively, for cummary judgment is denied.
SO ORDERED.
A. 40
UNITED STATES COURT OF APPEALS
SECOND CIRCUIT
At a Stated Term of the United States Court of Appeals,
in and for the Second Circuit held at the United States Court
House, in the City of New York, on the fifteenth day of
October, one thousand nine hundred and eighty.
Present: [SEAL OF
United States Court
HON, J. EDWARD LUMBARD of Appeals, Second
Circuit
HON, HENRY J. FRIENDLY Filed: Oct. 15, 1980)
JON. THOMAS J. MESKILL
Circuit Judges.
Rubin Kremer,
79-7748
Plaintiff-Appellant
(79-7748)
Vv.
Chemical Construction Corp.,
Defendant-Appellee.
i ei i i li i i i aie il
A petition for a rehearing having been filed herein
by counsel for the appellant Rubin Kremer,
Upon consideration thereof, it is
ORDERED that said petition be and it hereby is denied,
pel A. Daniel Fusaro
. Danie usaro
Clerk
A-4l1
UNITED STATES COURT OF APPEALS
SECOND CIRCUIT
At a stated term of the United States Court of
Appeals, in and for the Second Circuit, held at the United
States Court House, in the City of New York, on the 15th day
of October, one thousand nine hundred and eighty
Or rn een een en eee nn meen wn wn wn wn wn aX (SEAL OF
United States
RUBIN KREMER, Court of Appeals
Second Circuit
Plaintiff-Appellant, Filed Oct 15, 1980]
Vv.
79-7748
[79-7748]
CHEMICAL CONSTRUCTION CORPORATION,
Defendant~-Appellee,
Fe See SSB eS BSE MH eee eee eee -—_ ttt? |
A petition for rehearing containing a suggestion that
the action be reheard in banc having been filed herein by counsel
for the plaintiff-appellant, and a poll of the active judges
having been taken, and there being no majority in favor
thereof,
UPON CONSIDERATION THEREOF, it is
Ordered that said petition be and it hereby is
DENIED.
Judges Oakes and Newman voted in favor of rehearing
in banc,
s/ Wilfred Feinber
Chier Judge
A. 42
Pertinent Parts of Statutes Involved
[42 U.S.C.] § 2000e-2. Unlawful Employment Practices--
Employer Sructicas
"(a) It shall be an unlawful employment practice for an
emp loyer--
"(1) to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any
individual with respect to his compensation, terms,
conditions, or privileges of employment, because of
such individual's race, color, religion, sex, or
national origin; or"
{42 U.S.C.] § 2000e-5. Enforcement Provisions--Power of
ommission to Prevent Unlawfu
ployment Practices
"(c) In the case of an alleged unlawful employment
practice occuring in a State, or political subdivision
of a State, which has a State or local law prohibitin
the unlawful employment practice alleged and establish-
ing or authorizing a State or local authority to grant
or seek relief from such practice or to institute
criminal proceedings with respect thereto upon receiving
notice thereof, no charge may be filed under subsection
(b) of this section by the person aggrieved before
the expiration of sixty days after proceedings have
been commenced under the State or local law, unless
such proceedings have been earlier terminated... ."
(N.Y. EXEC. LAW) § 296(1) (a). Unlawful Discriminator
Practices
"1. It shall be an unlawful discriminatory practice:
(a) For an employer or licensing agency, because of
the age, race, creed, color, national origin, sex,
or disability, or marital status of any individual,
to refuse to hire or employ or to bar or to discharge
from employment such individual... .
(N.Y. EXEC. LAW] § 297-a. State Human Rights Appeal Board
"7. The (Human Rights Appeals) board may affirm,
remand or reverse any order of the division or remand
the matter to the division for further proceedings in
whole, or with respect to any part thereof, or with
respect to any party, provided however that the board
shall limit its review to whether the order of the
division is:
“e. not arbitrary, capricious or characterized
by abuse of discretion or clearly unwarranted exercise
of discretion."
(N.Y. EXEC. LAW] § 298. Judicial Review and Enforcement
“Any complainant, respondent or other person
aggrieved by any order of the board may obtain judicial
review thereof .. . in a proceeding as provided in
this section. Such proceeding shall be brought in’
the appellate division of the supreme court... .
(N.Y. CIV. PRAC. LAW] § 7803. Questions Raised
"The only questions that may be raised in a pro-
ceeding under this article are:
"3. whether a determination was made in violation
of lawful procedure, was affected by an error of law
or was arbitrary and capricious or an abuse of discre-
tion, including abuse of discretion as to the measure
or mode of penalty or discipline imposed; or
"4. whether a determination made as a result of
a hearing held, and at which evidence was taken,
pursuant to direction by law is, on the entire record,
supported by substantial evidence."
IN THE UNITED STATES COURT OF APPEALS
POR THE SECOND CIRCUIT
; RUBIN KREMER,
Plaintiff-Appellant,
v.
CHEMICAL CONSTRUCTION CORPORATION,
Defendant~-Appellee.
On Appeal Prom The United States District Court
Por The Southern District of New York
BRIEF FOR THE EQUAL EMPLOYMENT OPPORTUNITY
s COMMISSION AMICUS CURIAE, IN SUPPORT OF
: PETITION FOR REHEARING EN BANC
LEROY D. CLARK
General Counsel
JOSEPH T. EDDINS
Associate General Counsel
LUTZ ALEXANDER PRAGER
VINCENT BLACKWOOD
Attorneys
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
2401 E Street, N.W.
Washington, D.C. 20506
TABLE OF AUTHORITIES
Cases:
Alexander v. Gardner-Denver Co.,
. . 36 eeeeeeeeev eee eeeeeeeeeeeee
American Mannex soca: v. Rozands,
Cir.),
cert, denied, 409 U.S. 1040 (1972) .seceees
Batiste v. Furnco Construction Corp.,
503 F.2d 447 (7th cir. 1974)
. . ,
cert. denied, 420 U.S. 928 (1975) .eesseee
Brown v. Felsen, 442 U.S. 127 (1978) ..seees
Chandler v. Roudebush, 425 U.S. 840
Chevron Oil Co. Vv. Huson, 404 0.8. 97
General Tele of the Northwest
N6esr Veo . 1698
TTAMDEY Toate ihc-'ec seis abet eeBhe déteses
Gunther v. Iowa State Men's Reformatory,
Slo F.2d t re ,
cert. denied, 48 U.S.L.W. 3763
. y 2 , Jeocccccceceeceeeeeeeeseerece
hone Co,
Railway Express Agency,
Johnson v.
ne., 421
Kremer v. Chemical Construction
Orp., 4 » SUPP.
. eBete L979) cocncecesoseescececerococe
Mayo v. Hopeman Lumber & Manufacturing
CO., 33 A.D.2¢d 310, 397 N.Y.S. 2d
691 (1978) cecccccccccesesecesecseseeere
Mitchell v. National Broadcasting Co.,
eeeeeeeeeveene
Page(s)
lL, 6, 7, 8,
9, 10
3, 13
A.45
A.46
TABLE OF AUTHORITIES
Cases: Page(s):
New York Gaslight Club v. Carey,
U.s 48 USLW 46
Tune AN i i a AL ae T |
Occidental Life Insurance Co. v. EEOC,
Sinicropi v. Nassau County,
.2a 60 (2d Cir.),
cert. denied, U.S.__,
100 s.te. 468 UIB79) ccccccccccccccccccccccccccs PASSim
Voutsis v. Union Carbide Corp., 452 F.2d
889 (2a Cir. 1971), cert.
denied, 406 GeBe 918 Et Cab pbiasbédernccercentet
STATUTES:
Title VII, Civil Rights Act of 1964
42 0.8. 2000S St SOGe recesses resevesseeseees sPassim
Section 706(b), 42 U.S.C. 2000@-5 (ff)... eee eS
Section 706(c), 42 U.S.C. 2000@-5(c).....eeee eed
BA BEB CRGER FEROO ccd kncncvescrccdacscoccecvevert
42 U.S.C. 19BL (1976) ...cccececcvessesesesecseceseed
New York CPLR, Article 78... ..eeeseeeeeecssesesevesedp hl
New York Human Rights Law, N.Y. Exec. L.
§§ 285 et seg. (MCKINNEY) .ccccccccccccccccccsecseee
BBOTH cdc cdocsesseesereccccescdececesecececccsoceapane
B297 (2) wccccccccccccccceccccccccccccceceeceoesee ad
§297 (4) SCoPE CCEECS ESTOS HERES OHS DEbECHOS OKO OO OF aL
BO we cdScceeveneeseeceseoesedereeseoceceseresdsae
ii
OTHER AUTHORITIES:
Reorganization Plan No. l of 1978,
43 Fike 19807 (May 9, IT ON Sk tS CORRES EAS Ree bawh eee
Tentative Draft No. 5 of the Restatement of
the Law, Second, Judgments, (1978)... ceeeeeeneveeeesdd
Section GLedccoddcveccecoccneceecoeveceseecesonessect
Section Chi dices vedréivevdbevs vebeketenesebeenso eeceneee
iii
A.47
IN THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
No. 79-7748
RUBIN KREMER,
Plaintiff-Appellant,
Ve
CHEMICAL CONSTRUCTION CORPORATION,
Defendant-Appellee.
On Appeal From The United States District Court
Por The Southern District of New York
BRIEF FOR THE EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION AMICUS CURIAE, IN SUPPORT OF
PETITION FOR REHEARING EN BANC
STATEMENT OF INTEREST
The Equal Employment Opportunity Commission is the agency
established by Congress and the President to administer, interpret,
and enforce federal employment discrimination statutes including
Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seg.
(1976). See Reorganization elan No. 1 of 1978, 43 F.R. 19807
(May 9, 1978). Private Title VII actions provide the Commission
with essential assistance in securing the elimination of employment
discrimination. See Alexander v. Gardner-Denver Co., 415 U.S. 36,
45 (1974).
A. 49
The panel's decision in this case requires Title VII
complainants, whose state administrative claims have been dis-
missed by a state agency, to cnoose between asking a state court
to reinstate their claims and pursuing their Title VII claims in
federal court. Because, in accordance with the unanimous views
of all other courts to have addressed the matter, we believe
that Congress clearly intended victims of employment discrimi-
nation to be free to pursue state remedies without jeopardizing
their right to de novo hearings in federal court, we offer our
views to the Court and urge the Court to rehear the appeal
en banc.
A. 50
STATEMENT OF THE CASE
Rubin Kremer was discharged from his job as an engineer
for Chemical Construction Company (Chemico) on August l, 1975.
Some employees who were laid off with Kremer were later rehired,
out Kremer was not. After his layoff, Kremer applied for a
number of engineering positions advertised by Chemico but was
not hired.
On May 6, 1976, Mr. Kremer filed a charge with the Equal
Employment Opportunity Commission claiming that he was dis-
charged and not rehired because of his religion and national
Origin (A47). The Commission, in accordance with the require-
ment of §706(c) of Title VII, 42 U.S.C. 2000e-5(c), deferred
Mr. Kremer's charge to the New York State Division of Human
Rights (NYHRD), the state administrative agency charged with
enforcement of the New York Human Rights Law, N.Y. Exec. L.
285 et seq. (McKinney 1972 and Supp. 1976). The NYHRD conducted
an ex parte investigation which included interviews with Mr. Kremer,
who was unrepresented by counsel, and a review of documents
submitted by Chemico. After its investigation the NYHRD issued
a determination finding no probable cause to believe that
Chemico's decision not to rehire Mr. Kremer was discriminatory.
(A.100). The NYHRD made no finding as to the original discharge.
Mr. Kremer, still unrepresented by counsel, appealed to the
Human Rights Appeal Board under N.Y. Executive Law §297=-a.
The Appeal Board affirmed the NYHRD's determination. (A.103).
A.51
‘
Proceeding pro se, Mr. Kremer filed a petition with the
Appellate Division of the Supreme Court of New York to set aside
the NYHRD determination. See §298 of the N.Y. Human Rights
Law and CPLR Article 78. (A.43). His petitio. was denied by
the Appellate Division. (A.69). Mr. Kremer did not seek
review by the New York Court of Appeals.
Thereafter, the EEOC, giving full weight to the determination
of the NYHRD (see §706(b) of Title VII) found that there was not
reasonable cause to believe that Mr. Kremer's Title VII charge
was true and issued him a notice of right to sue (A.6, 120-21).
Mr. Kremer then timely brought this suit (A.3). After a panel
of this Court, in another pro se case, Sinicropi v. Nassau
County, 601 F.2d 60, cert. denied, U.S. » 100 S.Ct.
488 (1979), had held that judicial review of NYHRD determinations
had res judicata effect on subsequent Title VII actions, Judge
Sofaer granted Chemico's motion to dismiss, but wrote a long
critique explaining why he felt that Sinicropi had been wrongly
decided. 477 F.Supp. 587 (S.D.N.¥. 1979).
A panel of this Court affirmed. The panel held that
Sinicropi controlled and that only the full Court sitting
en banc could properly consider the argument that the decision
of another panel was erroneous. Slip Op. at 3231. The panel
rejected the argument that, because Mr. Kremer filed his petition
for judicial review over a year before Sinicropi had been
decided, Sinicropi should not be applied to this case.
The panel held that the Sinicropi decision was foreshadowed
in Mitchell v. National Sroadcasting Co., 553 F.2d 265
(2d Cir. 1977), a case brought under 42 U.S.C. 1981. The
panel concluded that the exception to the general rule that
judicial decisions have retroactive effect, announced in
Chevron SO. Vv. Huson, 404 U.S. 97 (1971), therefore,
did not apply. Slip Op. at 3237.
REASONS FOR GRANTING THE PETITION
We share the views expressed by Judge Feinberg, dissenting
in Mitch v. National Broadcasting Co., supra, 553 F.2d at 277,
sy Judge Sofaer in his careful analysis in this case, by the
Eighth Circuit in Gunther v. Iowa State Mens Reformatory, 612
F.2d 1079 (8th Cir. 1980), cert. denied, 48 U.S.L.W. 3763
(May 27, 1980), and by the petition for rehearing. We join
in asking that the Court en banc reconsider the Sinicropi
holding which bound the panel in this appeal.
In our view Sinicropi applied res judicata principles
inflexioly and gave no attention to countervailing policies
embodied in the substantive federal law at issue. For reasons
we discuss below, the use of res judicata to prevent access
to the federal courts to enforce federal law is scarcely
compelled by the doctrine itself. Where its use defeats
a strong federal substantive policy by giving deference to
the type of state administrative and judicial proceedings
which Congress expressly rejected for enforcement of federal
A.53
laws, a better balance between res judicata and federal
Substantive law must be struck.
Sinicropi thwarts the clear Congressional purpose
of affording Title VII complainants a right to a de novo
hearing in court; i.e., to have the fact finding process
performed not by state or federal bureaucrats but by judges.
The major effect of the rule, aside from creating a trap
whereoy Title VII complainants, especially those unrepresented
by counsel, will lose their right to a hearing in federal
court, will be to undermine the effectiveness of state
remedies by creating a strong incentive to forego attempts
to correct state errors within the state system in order to
preserve federal rights.
a. Res judicata as the panel noted in Mitchell, supra,
553 F.2d at 274, is a flexible doctrine. It “ensures the
finality of litigation"; “bars vexatious litigation"; and
“frees the courts to resolve other disputes." Brown v.
Felsen, 442 U.S. 127, 131 (1979). It reflects the desirability
of preserving judicial resources and of creating certainty in
legal relations. But it does not require that these goals be
achieved at all costs.
The Supreme Court nas noted that exceptions to res
judicata are appropriate when, in given circumstances, the
policy favoring res judicata is weak and the policies of
substantive federal law would be undermined by rigid adherence
A.54
| ;
to the doctrine. Brown v. Felsen, supra, 442 U.S. at 132.
C£. Occidental Life Insurance Co. v. EEOC, 432 U.S. 355, 367
(1977) (state policies of repose embodied in state statutes
of limitations are incompatible with the substantive policies
of Title VII).
Similarly, it is established that the res judicata component
of 28 U.S.C. 1738 requiring federal courts to give full faith
and credit to state courts is subject to exception in cases
where "“(o]ther well-defined federal policies, statutory or
constitutional" would be adversely affected by deferral to
state court determinations. American Mannex Corp. v. Rozands,
462 F.2d 688, 690 (Sth Cir.), cert. denied, 409 U.S. 1040
(1972). See also Batiste v. Furnco Construction Corp., 503
F.2d 447, 450 (7th Cir. 1974), cert. denied, 420 U.S. 928 (1975)
l_/ Commentators have similarly urged exceptions to the general rule
governing res judicata. For example, the Tentative Draft No. 5
of the Restatement of the Law, Second, Judgments, §61.1
(1978), provides that the general rule should not apply when
a state court has no power to enforce a federal law. Under
those circumstances a plaintiff “who has litigated a state
claim in state court is not barred from an action in the
federal court in which he may press his claim against the
same defendant under the federal statute." Id. §61.1l(c)
comment (1) at 189. The draft Restatement provides another
relevant exception in §61.2(d) where the "judgment in the
first action was plainly inconsistent with the fair and equit-
able implementation of a statutory or constitutional scheme,
or it is the sense of the scheme that the plaintiff should
be permitted to split his claim." See also §61.2(c). Id.
2./ While it is true that under 28 U.S.C. 1738 federal courts
ordinarily defer to judgments of state courts, it is, as
the Court recognized in Alexander v. Gardner Denver,
(Footnote continued)
-7-
A.55
b. As Judges Feinberg and Sofaer and the petition
note, Congress intended (1) to provide de novo judicial
proceedings in Title VII cases rather than to limit the
parties to judicial review of administrative determinations
and (2) to use state laws to supplement but not supplant the
federal remedy. Sinicropi is incompatible with both of these
Congressional policies.
l. In Alexander v. Gardner-Denver Co., supra, 415 U.S.
at 56, the Supreme Court, in a unanimous decision, declared
that a Title VII claimant has a “statutory right to attempt
to establish his claim in a federal court.” The Court stated:
"The purpose and procedures of Title VII indicate that Congress
intended federal courts to exercise final responsibility for
enforcement of Title VII." Id. The Court concluded that it
would be inconsistent with the purposes of Title VII to
preclude a Title VII suit because of a prior arbitral decision
involving the same claim. See also Chandler v. Roudebush, 425
U.S. 840, 844 (1976) ("It is well established that §706 of the
Civil Rights Act of 1964 accords private-sector employees the
right to de novo consideration of their Title VII claims
{in federal court)").
2./ (Footnote continued)
su , 415 U.S. at 54, equally true that arbitration awards
such as the one held not to have res judicata effect in that
case, are Ordinarily recognized as binding in subsequent
federal court actions. Similarly, the determinations of state
administrative agencies are often afforded res judicata
effect, at least in state courts. See Batiste v. Furnco
a COE.’ supra, 503 F.2d at 450. Whether
unreviewe ecisions of the NYHRD are entitled to res
judicata effect in New York courts is not clear. See
Mitchell v. National Broadcasting Co., supra, 553 F.2d at
As the Court noted in Chandler, Congress in 1972
expressly chose not to make Title VII rights subject to
administrative oversight. It defeated attempts to
create a federal administrative agency with powers to
hear and determine cases, subject to judicial review. 425
U.S at 848-52. Instead, it retained the EEOC's power to
investigate and make determinations of reasonable cause.
Whatever findings the EEOC made, however, were to be
irrelevant in any subsequent suit.
It strains credulity to believe that when Congress
Getermined that federal bureaucrats could not bind the
‘disputants after a federal ex parte investigation it
intended to permit state bureaucrats to do so after a
state ex parte investigation. See Voutsis v. Union
Carbide Corp., 452 F.2d 889 (2d Cir. 1971), cert. denied,
406 U.S. 918 (1972), cited with approval in Alexander v.
Gardner-Denver Co., supra, 415 U.S. at 49 n.ll. The fact
tnat the dismissal by the NYHRD was confirmed as not an
abuse of discretion by a state court--a matter we discuss
below--does not alter the considerations which dictate
that thd plaintiff should have a trial de novo of Title
VII claims in federal court. The strong policy of Title
VII which dictates against deferral by federal courts to
determinations cf state or federal administrative agencies
applies with equal force to determinations which have been
affirmed witnout de novo review, by state courts.
A.57
2. Aside from insisting on de novo reviews of adminstrative
determinations, Congress intended state proceedings to supple-
ment rather than supplant Title VII rights. As this Court
held in Voutsis v. Union Carbide Corp., supra, 452 F.2d at
893:
The Congressional policy here sought to be
enforced is one of eliminating employment discrimi-
nation, and the statutory enforcement scheme
contemplates a resort to the federal remedy if the
State machinery has proved inadequate. The
federal remedy is independent and cumulative.
See also New York Gaslight Club, Inc. v. Carey, U.S. ’
48 U.S.L.W. 4645, 4648 (June 9, 1980) ("It is clear. . .that
Congress viewed proceedings before the EEOC and in federal
court as supplements to available state remedies for employment
discrimination"); and Alexander v. Gardner-Denver Co., supra,
415 U.S. at 47-48. Cf. Johnson v. Railway Express Agency Inc.,
421 U.S. 454, 461 (1975); and General Teleponone Co. of the
Nortawest Inc. v. EEOC, __U.S. , 100 S.Ct. 1698, 1707
(1980).
This complementary enforcement scheme was devised, as the
Court recognized in Voutsis, because, although Congress wanted
to preserve state and local enforcement schemes, it realized
that state and local laws varied widely in effectiveness
oecause of inadequate legislation, inadequate procedures and
inadequate budgets. Voutsis, supra, 452 F.2d at 894. Therefore
"Title VII. . .provides a supplemental right to sue in federal
court if satisfactory relief is not obtained in state forums"
-10-
A. 58
New York Gaslight Club, Inc. v. Carey, 48 U.S.L.W. at 4649.
The panel's conclusion in Mitchell that preclusion
of a federal court Title VII claim is appropriate in this
context because a complainant can satisfy Title VII's deferral
requirement without resorting to state court remedies misses
the point. The fact that a complainant may be able to satisfy
the minimum requirements of Title VII's deferral provision
without going into state court does not mean that Congress'
intent that Title VII “supplement, rather than supplant,
existing laws and instituticns relating to employment
discrimination,” Alexander v. Gardner-Denver Co., supra,
415 U.S. at 48-49, is served by a rule which allows a
complainant to obtain review of the dismissal of his state
claim only at the expense of his right to a federal court
hearing of his Title VII clain.
3. The New York procedures are precisely those which
Congress rejected for enforcement of Title VII and which
are inadequate to replace the federal scheme. The proceedings
begin with a perfunctory ex parte administrative investigation
whicn results in either a finding of probable cause or in
dismissal if the investigator is unable to obtain enough inform-
ation to persuade him and his supervisors that enough evidence
exists to warrant further proceeding. N.Y¥. Executive Law
§297(2) (McKinney. Supp. 1978). Mr. Kremer's, Ms. Sinicropi's
and Ms. Mitchell's claims never survived this stage. Only
if probable cause is found and conciliation efforts fail
-ll-
A.59
is an adversarial hearing held. N.Y. Exec. Law 297(4) (a).
(McKinney. Supp. 1978). After the hearing, the NYHRD must make
findings ane, if it finds the complaint valid, may order
relief. N.Y. Exec. Law §297(4)(c) (McKinney. Supp. 1978).
The approach taken in Sinicropi and this case, involves
artificial distinctions for res judicata purposes between
different stages of the remedial scheme set up by New York
State to handle claims of employment discrimination. The
limited state court review which Mr. Kremer obtained is an
integral part of his state administrative remedy. See
New York Gaslignt Club, Inc. v. Carey, supra, 48U.S.L.W. at 4649.
("The New York state procedure to which respondent's charge
was referred provides for adversarial quasi-judicial hearings
leading to findings of fact, administrative appeals and
judicial] review" (emphasis added).} To treat it
differently for res judicata purposes will produce anomalous
results in many cases and ultimately will do a disservice
to the state's remedial efforts.
The Human Rights Law provides a limited two-
tiered appellate procedure. Appellate review of orders of the
NYHRD dismissing complaints at the end of the NYHRD investigation
is particularly limited. The Human Rights Appeal Board, N.Y.
Exec. Law §297-a(7)(McKinney) and the Appellate Division
of the Supreme Court, N.Y¥. Exec. Law §298 (McKinney. Supp. 1978)
or C.P.L.R. Article 78, are restricted to determining
only whether the NYHRD's findings are arbitrary and capricious
or an abuse of discretion. The findings of the agency are
@-12-
binding if they are supported by the administrative
record.
It is clear that the type of limited review, based on the
administrative record, which can be obtained under the New York
law cannot, precisely because of its limited nature, transform
an administrative fact finding proceeding into the equivalent of
a judicial trial.
When a complainant is dismissed at the first stage of the
administrative process, like Mr. Kremer was, it is especially
inappropriate to attach res judicata effect. to his appeal to
state court. In that situation the complainant is merely
seeking to obtain a full administrative hearing which he
feels he has been unfairly denied. He is not seeking nor
can be obtain de novo review in the state court and the
court can only decide whether the NYHRD determination
accords with the result of its investigation no matter how
inadequate that investigation may be. Nor can the state court
give any relief other than a remand to the NYHRD for further
proceedings. Thus the appeal is merely part of the administrative
process rather than the de novo review Congress intended.
The Mitchell panel's reliance on perceived similarities
between the procedure followed by the NYHRD when it dismisses
a complaint for lack of probable cause and the summary judgment
procedures in federal courts misses the point. However
@13<
A.61
7/
similar the standards may be, there will always be a
critical difference, since, in the state proceedings, the
decision to dismiss is made by employees of a state agency
and not by federal judges whom Congress intended to have
the ultimate authority in Title VII cases.
The fact that the final determination under the state
procedure was rendered by a court therefore does not mandate
a different result in this case than would be reached ina
case involving arbitration or administrative determinations.
4. Sinicropi does a disservice to the state anti-
discrimination procedures by encouraging complainants to
foresake tneir rights to seek state review of adverse decisions
of tne NYHRD. The state legislature specifically included
limited judicial review as part of the procedure it devised to
remedy employment discrimination. Such appellate review plays
an important role in any adjudicative scheme by providing a
3./ There is consideraple doubt that New York courts consis-
tently apply the standard articulated in Mayo v. Hopeman
Lumber & Manufacturin Co., 33 A.D. 2d 310, 307 N.Y.S.
2d 691 (1979), aS tne Mitchell panel assumed. Other
New York courts have indicated that dismissals for
want of probable cause will not be reversed solely
because material facts are in dispute. See discussion
in Kremer v. Chemical Construction Corp., 477 F.Supp. at
592 n.?. In this case a dismissa Or no probable cause
was confirmed by the Appellate Division dispite the fact
that numerous, material factual disputes are apparent in
the record.
“14--
A.62
mecnanism for establishing uniform standards and for controlling
agency excesses.
After Sinicropi, it seems unlikely that any reasonable,
informed complainant will forego his right to a trial de novo
in federal court in favor of a limited review of an adverse
agency determination before a state court which could, at
best, remand his claim to the agency for futher proceedings.
Thus, the Sinicropi rule will serve only as a trap for unwary
complainants and a strong deterrent to informed complainants'
seeking review of state agency ‘sitianblaiiede.”
Respectfully submitted,
LEROY D. CLARK
General Counsel
JOSEPH T. EDDINS
Associate General Counsel
LUTZ aa cog
VINCENT K D
Attorneys
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
2401 E Street, N.W.
Washington, D.C. 20506
(202)634-6230
4/ Mr. Kremer also argues that the areas rule should not
be applied to his case, because he applied for review to the
state court more than a year before Sinicropi was decided.
We agree with Mr. Kremer's position. e panel's holding
that the result in Sinicropi was foreshadowed by the earlier
decision in Mitchell v. National Broadcasting Co., supra,
is unconvincing because, as appellant points Out, a
number of courts, including the district court in
this case had held that Mitchell did not apply to Title VII
cases. a.
~1Se
A. 63
CERTIFICATE OF SERVICE
I hereby certify that copies of the foregoing brief
were today mailed , first-class postage prepaid, to the
following counsel of record:
David A. Barrett
Cravath, Swaine & Moore
One Chase Manhattan Plaza
New York, N.Y. 10005
Robest Layton
Layton and Sherman
50 Rockefeller Plaza
New York, N.Y. 10020
July ll, 1980
et
NT BLACKWOOD
Attorney
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.