Amicus Brief — Kremer v. Chemical Constr. Corp.

No. 80-6045 AUG 26 1981

In the Supreme Court of the United States

OCTOBER TERM, 1980

RUBIN KREN UR, PETITIONER

*.

CHEMICAL CONSTRUCTION CORP.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES AND THE

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

AS AMICI CURIAE

Rex E. LEE

Solicitor General

WM. BRADFORD REYNOLDS

Assistant Attorney General

LAWRENCE G, WALLACE

Deputy Solicitor General

JOSHUA I, SCHWARTZ

Assistant to the Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

CONSTANCE L. DUPRE

Acting General Counsel

PHILIP B. SKLOVER

Acting Associate General Counsel

VINCENT BLACKWOOD

Assistant General Counsel

SANDRA G. BRYAN

MARK S. FLYNN

Attorneys

Equal Employment Opportunity

Commission

Washington, D.C. 20506

QUESTION PRESENTED

Whether a state agency’s dismissal, upheld by a re-

viewing state appellate court under a sharply limited

form of review, of an employment discrimination claim

arising under the state law, has any preclusive effect in

federal court adjudication of a Title VII employment

discrimination claim based upon the same incident.

(1)

TABLE OF CONTENTS

Page

Interest of the United States 1

Statement 1

Proceedings on the state claim 2

Proceedings on the federal claim 3

Summary of argument 5

Argument:

Petitioner is entitled to de novo federal court ad-

judication of his claim of employment discrimina-

n 6

A. Title VII allows an aggrieved individual to

pursue rights under other state and federal

laws without sacrificing his right to adjudica-

tion of his Title VII claim in federal court........ 6

B. Neither general principles of preclusion nor

28 U.S.C. 1738 bars adjudication of petitioner’s

ö 18

Conclusion „„ 24

TABLE OF AUTHORITIES

Cases:

Alexander v. Gardner-Denver Co., 415 U.S. 36....6-7, 8, 9,

11, 18, 15, 16, 20, 21, 22, 23

Allen v. McCurry, No. 79-935 (Dec. 9, 1980) . 13, 15, 19,

20, 22, 23

Batiste v. Furnco Construction Corp., 508 F.2d

447, cert. denied, 420 U.S, 9288 12

Brown v. Felsen, 442 U.S. 127. . . . 20

Brown v. General Services Administration, 425

i SAN eee 8 18

Chandler v. Roudebush, 425 U.S. 840. 9. 15, 18, 20, 21, 22

Cooper v. Philip Morris, Inc., 464 F.2d 9 ................ 12

Garner v. Giarrusso, 571 F.2d 1830 10, 12

Griggs v. Duke Power Co., 401 U.S, 424 21

an)

IV

Cases—Continued Page

Gunther v. Iowa State Men's Reformatory, 612

F.2d 1079, cert. denied, 446 U.S. 966 .......... 11-12, 14, 19

Johnson v. Railway Express Agency, 421 U.S. 454..6, 9, 22

Love v. Pullman Co., 404 U.S. 52ĩ22 2,7

Mayo v. Hopeman Lumber & Mfg. Co., 33 A.D.2d

ee 15, 16

McDonnell Douglas Corp. v. Green, 411 U.S. 792. 5, 8,

15, 20

Minnick v. California Department of Corrections,

No. 79-1218 (June 1, 1981) 19

Mitchell v. National Broadcasting Co., 558 F. 2d

. eek ctndidiienesanssenesinsctes 3, 4, 12, 14, 15, 16, 19, 21

Montana v. United States, 440 U.S. 147 19, 20, 21

New York Gaslight Club, Inc. v. Carey, 447 U.S.

e 6, 10, 12-13, 14, 22, 23

Norman v. Missouri Pacific R. R., 414 F.2d 73 ........ 9

Oscar Mayer & Co. v. Evans, 441 U.S. 750 22

Sinicropi v. Nassau County, 601 F.2d 60, cert. de-

,. od 8, 4, 12, 19

Smouse v. General Electric Co., 626 F.2d 333......11, 14, 17

State Division of Human Rights ex rel. Speller v.

New York State Drug Abuse Control Commis-

sion, 59 A.D.2d 332, 399 N.Y.S.2d 541 ............ 10, 15, 16

Taylor v. Armco Steel Corp., 429 F.2d 499 10

Thomas v. Washington Gas Light Co., 448 U.S.

...... ere 22

Tipler v. E.I, duPont de Nemours & Co., 443 F.2d

c 10

Unger v. Consolidated Foods Corp., Nos. 80-2792

& 80-2844 (7th Cir. Aug. 14, 198177 14

Un ed States v. Utah Construction & Mining Co.,

D ... A APS SR 23

Whiie v. Dallas Independent School District, 581

. 12

Statutes, regulations and rules:

Civil Rights Act of 1964, Title VII, 42 U.S.C. (&

Supp. ä passin

r MURR 2

e ccercccccctectccconscscsnontes 3, 5, 7,11, 13

ge FE ae 2,7, 12, 13

Vv

Statutes, regulations and rules—Continued Page

. 13

e 12

I CED cccececcsecctnnnsbcnctentossenenios 8, 10

CT EL 18

National Labor Relations Act, 29 U.S.C. 151 et

seq. 9-10

J i _A, 5, 15, 18, 19, 20, 22

42 U.S.C. 1981 .. 3,9

42 U.S. C. (& Supp. 1 6

N.Y. Civ. Prac. Law (McKinney 1981):

Art. 78 BS Seas ee AEE 2,17

§ 7803 . ne 17

,,,. Pra ASA 17

r ME es > Pe 17

N.Y. Exec. Law (McKinney 1972 & Supp. 1972-

1980):

ern class bnshcchnbnlesinantentoninanten 19

err 2

Zee 15

. ̃ ——— eS Dae, oe 15

D 18

D Sa PTR UPS ESE RR A WoeeN 16

,,, Bee ge Soe 16

/ saci SS aaa Oe Sa 2,17

1 eee eee 18

29 C. F. R. (1976):

e css, -contnesonseebionsiachooeuns 2

Z / 2

een ee 3

29 C. F. R. (1980):

. Re 2

, 2

Zr 3

29 C. F. R. 1601.3 (a) (4) (i), and (a) (5) (45 Fed.

J IIIT D .ichsensccstsdvssssnbocessecgntnbnaibecaénente 2

Fed. R. Civ. P.:

Rule 12 (bo) . ED es Mer 3

Rule 56 a 3

In the Supreme Court of the United States

OCTOBER TERM, 1980

No. 80-6045

RUBIN KREMER, PETITIONER

V.

CHEMICAL CONSTRUCTION Cokv.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES AND THE

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

AS AMICI CURIAE

INTEREST OF THE UNITED STATES

This brief is submitted in response to the Court’s

invitation to the Solicitor General, at the petition stage,

to file a brief expressing the views of the United States.

STATEMENT

Petitioner, a Jew who immigrated to this country from

Poland in 1970, was employed in New York as an en-

gineer by respondent, an international engineering and

construction firm (Pet. 2; Br. in Opp. 2). He claims

that he was discharged and was not rehired by respond-

ent because of his religion and national origin (J.A. 55).

Acting pro se,’ petitioner filed a charge of discrimina-

tion with the Equal Employment Opportunity Commis-

1 Petitioner apparently acted pro se throughout the state and

federal proceedings until he reached the court of appeals for the

Second Circuit.

(1)

sion (“EEOC”), asserting that respondent had discrimi-

nated against him in violation of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. 2000e-2(a). As required

by Title VII and its regulations,“ the EEOC referred

the charge to the appropriate state administrative

agency, the New York State Division of Human Rights

(“NYSHRD”), to consider whether respondent’s actions

violated the State’s Human Rights Law, N.Y. Exec. Law

§ 296 (McKinney 1972 & Supp. 1972-1980) (J. A. 44,

55, 69).

Proceedings on the State Claim

The NYSHRD determined, after an investigation, that

there was no probable cause to believe that respondent

had violated the New York statute, embodying this con-

clusion in a cursory order (J. A. 18).’ Petitioner pur-

sued an administrative appeal to the State Human Rights

Appeal Board, which concluded, on review of the record,

that the NYSHRD’s determination was “not arbitrary,

capricious or an abuse of discretion” (J. A. 15). Attached

to the order of the Appeal Board was a notice stating

that petitioner could obtain judicial review by filing a

petition in the appropriate Appellate Division of the New

York Supreme Court (J.A. 17). Petitioner sought to

have the Appellate Division of the New York Supreme

Court set aside the order of the Appeal Board pursuant

to N.Y. Exec. Law § 298 (McKinney Supp. 1972-1980)

and N.Y. Civ. Prac. Law art. 78 (McKinney 1981).

After a review of the administrative record, the Appellate

Division “confirmed” the order of the Appeal Board with-

out opinion (J. A. 25-26).

2 42 U.S.C, 2000e-5(c) ; 29 C. F. R. 1601.12 (a) and (b) (1) (1976);

29 C. F. R. 1601.13 (e) and (d) (1980); 29 C. F. R. 1601.13 (a) (4)

(i) and (a) (5), at 45 Fed. Reg. 81040 (1980) (interim rule). See

Love v. Pullman Co., 404 U.S. 522 (1972).

The NYSHRD apparently conducted no hearing, did not other-

wise take testimony (Br. in Opp. 4-5), and entered only skeletal

and incomplete findings in support of its decision to terminate pro-

ceedings on petitioner’s claim at the threshold (see J. A. 18).

Proceedings on the Federal Claim

As required by statute and regulation,“ the EEOC

accorded “substantial weight” to the findings of the

NYSHRD when they became final upon confirmation by

the Appellate Division.“ Based on the NYSHRD’s find-

ings and the record, the District Director of the EEOC

determined that there was no reasonable cause to believe

that Title VII had been violated (J.A. 27). The District

Director issued petitioner a right-to-sue letter, inform-

ing petitioner that he was entitled to bring his Title VII

claim in federal court (J. A. 29-33).

Petitioner then filed this action in the United States

District Court for the Southern District of New York,

asserting a claim under Title VII (J.A. 36-38). Re-

spondent moved to dismiss the complaint under Fed. R.

Civ. P. 12(b) or, alternatively, for summary judgment

under Fed. R. Civ. P. 56 on the ground of res judicata.

The district court denied the motion (J. A. 43-52).

Thereafter, in an unrelated case, Sinicropi v. Nassau

County, 601 F.2d 60, 62, cert. denied, 444 U.S. 983

(1979), the United States Court of Appeals for the

Second Circuit held that the doctrine of res judicata bars

adjudication of a Title VII claim in federal court follow-

ing adjudication of a state discrimination claim by a

state administrative agency and review of the adminis-

trative record by a state appellate court.“ Following the

* 42 U.S.C, 2000e-5(b) ; 29 C. F. R. 1601.21(e) (1978 & 1980).

5 Petitioner had, on at least one occasion, sought to renew EEOC

proceedings prior to the decision of the Appellate Division (J.A.

18-22).

The court of appeals’ brief per curiam opinion in Sinicropi

relied solely upon Mitchell v. National Broadcasting Co., 553 F.2d

265 (2d Cir. 1977), an employment discrimination case arising

under 42 U.S.C. 1981. In Mitchell, the court of appeals reasoned

that the issue raised by the Section 1981 claim was identical to that

presented to the NYSHRD (553 F.2d at 269-270), and that the

state agency proceeding afforded an “adjudicatory process com-

4

decision in Sinicropi, respondent renewed its motion to

dismiss petitioner’s complaint. This time the district

court reluctantly granted respondent’s motion, observing

that “Sinicropi permits no choice but to dismiss plain-

tiff’s complaint * * * on grounds of res judicata” (J.A.

59), but set forth at length (id. at 60-67) its view that

S, api was inconsistent with the policy of Title VII

and this Court's decisions thereunder and had been

wrongly decided.

The court of appeals affirmed, without discussing the

merits of the Sinicropi rule, deeming itself unauthorized

to reconsider Sinicropi without sitting en bane (J.A. 71-

78) and holding that Sinicropi was to be applied retro-

actively to the instant case.“ A petition for rehearing,

with a suggestion for en banc consideration, was denied

with two judges dissenting (J.A. 79-80).

parable” to federal court adjudication. The court concluded that

the NYSHRD’s probable cause determination was analogous to

the summary judgment procedure in federal courts, based upon the

belief that the NYSHRD was required to resolve all factual ques-

tions in favor of the complainant at this juncture (id. at 270-271).

The court concluded further that, under 28 U.S.C, 1738, the affirm-

ance of the NYSHRD’s decision adverse to the claimant by the

New York Appellate Division created a res judicata bar to the

federal court action, notwithstanding the limited scope of judicial

review exercised. 553 F.2d at 271-277. The Mitchell panel dis-

claimed any view on whether preclusion would be required in a

Title VII case (id. at 275 n.18) in response to Judge Feinberg's

dissent (id. at 277-280) stressing the inconsistency he perceived

between the result and the policy of Title VII. The Sinicropi

panel, however, could “see no reason to distinguish between sec-

tion 1981 and Title VII for res judicata purposes.” 601 F.2d at

62. Judge Feinberg, a member of the Sinicropi panel as well,

joined the panel's opinion, noting that he would reach the opposite

result “if the slate were clean.” /bid.

This Court excluded from the grant of certiorari the question

whether retroactive application of Sinicropi was proper. Certiorari

had been denied in Sinicropi itself prior to the emergence of a clear

conflict among the circuits as to the preclusive effect of a state

court affirmance of an adverse state agency ruling in a subsequent

Title VII action in federal court.

SUMMARY OF ARGUMENT

In enacting Title VII of the Civil Rights Act of 1964,

Congress deliberately secured the right of adjudication

in federal court to individuals claiming to be aggrieved

by unlawful employment discrimination. This Court has

repeutedly concluded that this right is neither forfeited

nor diminished by an aggrieved individual’s resort to

alternative remedies and forums empowered under state

or federal law, or under private agreements, to redress

employment discrimination. The decision of the court of

appeals accordingly creates a unique exception to the

protection afforded by Title VII.

In Title VII Congress defined the relationship between

state proceedings and Title VII proceedings, by provid-

ing that the findings of state fair employment authori-

ties must be given substantial—but no greater—weight

by the EEOC. 42 U.S.C. 2000e-5(b). And this Court

has held that Congress declined to bind the federal dis-

trict courts with the conclusions reached by the EEOC

under this standard, affirming, instead, that adjudication

in federal court is to be de novo. McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 799 (1973). Accordingly,

the court of appeals erred in giving preclusive effect to

the decision of state authorities, applying state law, in

this case.

The fact that petitioner sought judicial review of the

state agency decision in state court should not alter the

outcome here. The special proceeding initiated by peti-

tioner was an integral part of the state remedial proce-

dure. Moreover, although petitioner’s resort to state court

review was not required by Title VII, it was fully con-

sistent with the policy of Title VII, favoring full use of

available state remedies. No principled distinction can

be drawn between the circumstances of this case, and

cases in which an employer initiates judicial review of

a state agency decision.

Neither 28 U.S.C. 1738 nor any judge-made preclusion

doctrine justifies the result reached by the court of ap-

peals. Two of the well-established exceptions to the pre-

clusion doctrines are applicable here. First, the exceed-

ingly limited state proceed'ngs, in which conflicting fac-

tual contentions were resolved adversely to petitioner

although no hearing had been held, do not constitute a

full or fair adjudication of petitioner’s rights. Second,

the unique policy adopted by Congress in Title VII, pro-

viding for parallel and overlapping remedies, bars appli-

cation of preclusion doctrines. The interests of federal-

state comity would not be advanced by the rule adopted

by the court of appeals. Under that rule any well-advised

claimant would limit resort to state proceedings to the

bare minimum required by law. Individuals who are not

so advised will, in ignorance, forfeit their rights under

federal law. Thus, unless Congress should decide to alter

the carefully crafted enforcement scheme of Title VII,

petitioner is entitled to full adjudication of his Title VII

claim in federal court.

ARGUMENT

PETITIONER IS ENTITLED TO DE NOVO FEDERAL

COURT ADJUDICATION OF HIS CLAIM OF Eu-

PLOYMENT DISCRIMINATION UNDER TITLE VII

A. Title VII Allows an Aggrieved Individual to Pursue

Rights Under Other State and Federal Laws With-

out Sacrificing His Right to Adjudication of His Title

VII Claim in Federal Court

1. In enacting Title VII of the Civil Rights Act of

1964, 42 U.S.C. (& Supp. III) 2000e et seg., Congress not

only created a statutory right to be free of invidious dis-

crimination in employment, but also created a comprehen-

sive scheme for the vindication of that right. New York

Gaslight Club, Inc. v. Carey, 447 U.S. 54, 63 (1980);

Johnson v. Railway Express Agency, 421 U.S. 454, 457-

459 (1975). [Designed to supplement, rather than sup-

plant, existing laws and institutions relating to employ-

ment discrimination,” Alexander v. Gardner-Denver Co.,

7

415 U.S. 36, 48-49 (1974), Title VII “provides for consid-

eration of employment-discrimination claims in several

forums”: state and federal, administrative and judicial.

Id. at 47.

Under the scheme created by Congress, whenever an

incident of alleged employment discrimination occurs in

a state or locality which by law prohibits such discrimi-

nation and which has established an “authority to grant

or seek relief from such [discrimination] or to institute

criminal proceedings with respect thereto,” no charge

of discrimination may be actively processed by the EEOC

until the local remedy has been invoked and at least

60 days have passed thereafter, or the local proceed-

ings have terminated, whichever comes sooner. 42 U.S.C.

2000e-5 (e).“ After providing the appropriate state

agency an opportunity to resolve the complaint, an ag-

grieved individual may press his complaint before the

EEOC (see note 8, supra). The Commission conducts

an investigation to determine whether there is reason-

able cause to believe that the charge of employment dis-

crimination is true. 42 U.S.C. 2000e-5(b). In this in-

vestigation the Commission is required to “accord sub-

stantial weight to final findings and orders made by

State or local authorities in proceedings commenced

under State or local law” pursuant to the deferral re-

quirement of 42 U.S.C. 2000e-5(c) and 2000e-5(b),

but is not bound by such findings. Alexander v. Gardner-

Denver Co., supra, 415 U.S. at 48 n.8. If the EEOC

finds reasonable cause to believe that unlawful discrimi-

nation has occurred, it undertakes conciliation efforts to

eliminate the unlawful practice. 42 U.S.C. 2000e-5(b).

If these efforts fail, the Commission may elect to bring

a civil action to enforce the Act. If the Commission de-

clines to do so, or if the Commission finds no reasonable

The EEOC may accept employment discrimination charges

prior to this time, referring them to the appropriate state author-

ity, if any, on behalf of the complainant, and deferring further

action to allow the state authority an opportunity to resolve the

dispute. Love v. Pullman Co., 404 U.S. 522 (1972).

cause to believe that a violation has occurred, it must

issue a “right to sue” letter alerting the aggrieved party

to his right to commence a civil action to obtain an

adjudication of his rights. 42 U.S.C. 2000e-5(f) (1).

Thus, it is only after state authorities, acting under any

pertinent state law, and the EEOC have had an oppor-

tunity to investigate and act upon a claim of employ-

ment discrimination that a civil action under Title VII

may be commenced in district court.

2. In a series of decisions this Court has considered

the relationship between various kinds of proceedings,

which may provide redress for employment discrimina-

tion, and the civil action in federal court which is the

ultimate remedy established by Title VII. The Court

has invariably concluded that “submission of a claim to

one forum does not preclude a later submission to an-

other.” Alexander v. Gardner-Denver Co., supra, 415

U.S. at 47-48 & n.8. Under the rationale of these deci-

sions, we submit, the holding of the court of appeals in

the instant case is irreconcilable with the fundamental

purpose and design of Title VII.

In McDonnell Douglas Corp. v. Green, 411 U.S. 792,

798-799 (1973), the Court specified that neither the

EEOC’s failure to find reasonable cause supporting a

complaint nor an EEOC finding of no reasonable cause

bars a civil action in federal court. In reaching this

conclusion, the Court stressed that EEOC procedures do

not match those in adversarial judicial proceedings, and

that Congress intended civil actions under Title VII to

be de novo proceedings. Ibid. Similarly, the Court has

concluded that the right to de novo adjudication of a

Title VII claim is not foreclosed by submission of a claim

on the complainant’s behalf to final arbitration under the

anti-discrimination provision of a collective bargaining

agreement, noting that Congress intended to allow “par-

allel or overlapping remedies against discrimination

.“ Alexander v. Gardner-Denver Co., supra, 415

U.S. at 47. And the Court there specifically rejected

the application of any doctrine of preclusion as a bar

to de novo adjudication in federal court, stating (id. at

49 n.10):

The policy reasons for rejecting the doctrines of

election of remedies and waiver in the context of

Title VII are equally applicable to the doctrines of

res judicata and collateral estoppel.

Moreover, notwithstanding the fact that the right estab-

lished by the collective bargaining agreement in issue

was “facially similar” to that secured by Title VII, the

Court concluded the disparity between the informal pro-

cedures available in arbitration and those available in

federal court under Title VII made any form of defer-

ence to the arbitrator’s decision unwarranted. Id. at

56-59.

These principles have been applied in a variety of

settings. The Court underscored that Title VII provides

a remedy independent of other avenues for redressing

employment discrimination, notwithstanding any dupli-

cation created by this arrangement, in holding that the

filing of a timely complaint with the EEOC under Title

VII does not toll the statute of limitations on a racial

discrimination in employment claim filed under 42 U.S.C.

1981. Johnson v. Railway Express Agency, supra, 421

U.S. at 459-461. In Chandler v. Roudebush, 425 U.S. 840

(1976), the Court concluded that aggrieved federal em-

ployees have a right to trial de novo in federal court

upon their claims of employment discrimination under

Title VII, notwithstanding any prior administrative pro-

ceeding, rejecting the contention that judicial review of

the administrative record could satisfy the mandate of

Title VII.“

* Similarly, it has been held that the right to a trial de novo

on Title VII claims is not foreclosed by a prior judgment under

the Railway Labor Act, Norman v. Missouri Pacific R.R., 414

F.2d 73, 75 n.2, 84 (8th Cir. 1969), cited with approval in Chandler

v. Roudebush, supra, 425 U.S. at 845, or under the National Labor

10

Finally, only last Term, this Court reiterated that “the

‘ultimate authority’ to secure compliance with Title VII

resides in the federal courts.” New York Gaslight Club,

Inc. v. Carey, supra, 447 U.S. at 64. The New York pro-

cedure employed by petitioner in the instant case was also

employed by the complainant in Carey. Carey had filed a

charge with the EEOC, which was referred to the New

York State Division of Human Rights. The NYSHRD

found for Carey, however, and ordered back pay and in-

junctive relief. The New York Gaslight Club appealed to

the state’s Human Rights Appeal Board, which confirmed

the Division’s decision; the Club then brought a special

proceeding for review of the Division’s decision in the

Appellate Division of the New York Supreme Court, which

in turn “confirmed” the Division’s decision. State Di-

vision of Human Rights ex rel. Speller v. New York State

Drug Abuse Control Commission, 59 A.D. 2d 852, 399

N.Y.S.2d 158 (1977). By the time Carey’s Title VII

claim was vonsidered by the district court, she had been

awarded all of the relief she had claimed, through the

state proceedings, except for attorney’s fees. The Court

held that Title VII authorizes a federal court to award

attorney’s fees for legal representation in the state ad-

ministrative and judicial proceedings, observing that

(447 U.S. at 67-68; emphasis added) :

Title VII explicitly leaves the States free, and in-

deed encourages them, to exercise their regulatory

power over discriminatory employment practices.

Title VII merely provides a supplemental right to

sue in federal court if satisfactory relief is not ob-

tained in state forums. § 706 (f) (1) [42 U.S.C.

2000e-5(f) (1) J. One aspect of complete relief is an

award of attorney’s fees, which Congress considered

Relations Act, 29 U.S.C. 151 et seq., Taylor v. Armco Steel Corp.,

429 F.2d 498, 499 (5th Cir. 1970). Likewise, decisions of adminis-

trative agencies under other statutes do not preclude de novo judi-

cial consideration of Title VII claims. E. g., Tipler v. E. I. dul’ont

deNemours & Co., 443 F.2d 125, 128-130 (6th Cir. 1971) (decision

by the NLRB) ; Garner v. Giarrusso, 571 F.2d 1330, 1336-1338 (5th

Cir. 1978) (decision by a local Civil Service Commission).

11

necessary for the fulfillment of federal goals. Provi-

sion of a federal award of attorney's fees is not

different from any other aspect of the ultimate au-

thority of federal courts to enforce Title VII. For

example, if state proceedings result in an injunction

in favor of the complainant, but no award for back-

pay because state law does not authorize it, the

complainant may proceed in federal court to “sup-

plement” the state remedy.

3. In the foregoing cases the Court has examined the

relationship between a civil action under Title VII and

almost all of the conceivable forms of proceedings to re-

dress employment discrimination, including both those

specifically contemplated by Title VII and those which

are entirely independent of Title VII. In each instance, the

Court has concluded that the ultimate right to trial of

employment discrimination claims in federal court afforded

by Title VII is unimpaired by resort to any prior pro-

ceeding or alternate remedy. The decision below thus

creates a unique gap in the remedy conferred by Title VII,

in contravention of the carefully crafted enforcement

scheme and the congressional policy embodied therein.

By providing in 42 U.S.C. 2000e-5(b) that the EEOC

must give substantial weight—but not preclusive effect

(see Alexander v. Gardner-Denver Co., supra, 415 U.S.

at 48 n.8) —to final findings by a state authority to which

a discrimination complaint has been submitted, Congress

necessarily indicated that a final determination in state

employment discrimination proceedings, even if upheld

upon judicial review, cannot bar the right to full adju-

dication in federal court of an aggrieved individual’s

Title VII claim. For, as the courts of appeals have gen-

erally recognized, it would be anomalous to hold that

federal courts, endowed with “ultimate authority” to en-

force Title VII, id. at 45, through de novo review of all

claims, must bow to state determinations, while the EEOC

need not do so, See Smouse v. General Electric Co., 626

F.2d 333, 335 (3d Cir. 1980); Gunther v. Iowa State

12

Men’s Reformatory, 612 F.2d 1079, 1084 n.6 (8th Cir.),

cert. denied, 446 U.S. 966 (1980); see also Garner v.

Giarrusso, 571 F.2d 1330, 1337 (5th Cir. 1978) ; Batiste

v. Furneo Construction Corp., 503 F.2d 447, 450 & n.1

(7th Cir. 1974), cert. denied, 420 U.S. 928 (1975);

Cooper v. Philip Morris, Inc., 464 F.2d 9, 12 (6th Cir.

1972). Such a requirement for deference by the federal

courts would also render Section 706(f) of the Act, 42

U.S.C. 2000e-5 (f), providing for investigation and concil-

iation efforts by the EEOC, meaningless in such cases—

for the EEOC has no enforcement powers and would be

unable to resolve a complaint rejected by state authorities

through conciliation if the respondent knew that no rem-

edy was available in federal court. See Batiste v. Furnco

Construction Corp., supra, 503 F.2d at 450 n.1.

4. The court of appeals deemed the considerations

outlined above inapplicable here, as in Sinicropi, supra,

601 F.2d at 62, on the ground that the petitioner here

sought judicial review of the decision of the NYSHRD.

This distinction was predicated upon the court’s view that

Title VII, 42 U.S.C. 2000e-5(c), requires only deferral

to state administrative proceedings.“ But the fact that

Title VII does not necessarily require resort to state

judicial proceedings“ is immaterial for, although Con-

gress mandated only a 60-day deferral to state proceed-

ings, it intended “to encourage full use of state remedies.”

New York Gaslight Club, Inc. v. Carey, supra, 447 U.S.

10 The court stated in Mitchell v. National Broadcasting Co.,

supra (see note 6, supra), 553 F.2d at 275-276, that [the

deferral requirements of Title VII do not contemplate resort to

state judicial review.” But see pages 13-14 and note 13, infra.

11 While the New York State fair employment procedures would

permit a complainant to satisfy deferral requirements without

resort to a judicial forum, this is not always the case. See, e.g.,

White v. Dallas Independent School District, 581 F.2d 556, 559,

561 (5th Cir. 1978) (en banc), holding that Title VII requires

deferral to local prosecutors authorized under Texas law to in-

stitute criminal proceedings.

13

at 66 n.6 (emphasis added). Thus, the fact that a com-

plainant may be able to satisfy Title VII's deferral re-

quirement without going into state court does not mean

that Congress’ intent that Title VII “supplement, rather

than supplant, existing laws and institutions relating

to employment discrimination,” Alexander v. Gardner-

Denver Co., supra, 415 U.S. at 48-49, would be served by

a rule requiring a complainant to forgo all review of the

dismissal of his state claim lest he foreclose opportunity

to secure trial of his Title VII claim in federal court.

Compare Allen v. McCurry, No. 79-935 (Dec. 9, 1980),

slip op. 14 n.23. Indeed, Title VII itself makes no distine-

tion between state administrative and state judicial

proceedings—either in its provisions requiring deferral to

“a State or local authority [authorized] to grant or seek

relief from such practice or to institute criminal proceed-

ings with respect thereto” (42 U.S.C 2000e-5(c) and (d)),

or in its provision that “the Commission shall accord sub-

stantial weight to final findings and orders made by State

or local authorities in proceedings commenced under State

or local law pursuant to the requirements of subsections

(e) and (d) of this section” (42 U.S.C. 2000e-5(b)). And,

as previously noted (pages 7 and 11, supra), the latter

provision requires the Commission to afford substantial

weight—but not preclusive effect—to the state tribunal’s

findings.

Moreover, the limited judicial review petitioner se-

cured in state court in this case is an integral part of

the remedial scheme established by New York to address

claims of employment discrimination. Thus, in New York

Gaslight Club, Inc. v. Carey, supra, 447 U.S. at 68 (em-

phasis added), the Court explained that “[t]he New York

state procedure, to which respondent’s charge was referred,

provides for adversary quasi-judicial hearings leading

to findings of fact,“ administrative appeals, and judicial

1 No such hearing was afforded to petitioner, however. See

page 2 note 3, supra, and page 15, infra.

14

review.” n Stressing “the statute’s structure of coopera-

tion between federal and state enforcement authorities,”

the Court refused to distinguish, for the purpose of fee

awards, between administrative and judicial proceedings

or between state and federal proceedings (id. at 61-62),

remarking, without qualification, that “Congress viewed

proceedings before the EEOC and in federal court as sup-

plements to available state remedies for employment dis-

crimination.” Id. at 65.

Indeed, if the petitioner had prevailed in the state

administrative proceedings, as did the complainant in

Carey, petitioner would have had compelling reason to

defend that result had the employer sought state court

review, again as in Carey, lest the administrative findings

be set aside upon his default. To give preclusive effect in

federal court to the state court judgment in such eireum-

stances would, obviously, eviscerate Title VII. Although

the Court of Appeals for the Second Circuit has reserved

judgment on whether the outcome of state judicial review

initiated by the adverse party should be given preclusive

effect in subsequent Title VII proceedings in federal

court, Mitchell v. National Broadcasting Co., supra, 553

F.2d at 275 n.13, other courts which have considered the

question regard such a distinction as untenable, see

Unger v. Consolidated Foods Corp., Nos. 80-2792 & 80-

2844 (7th Cir. Aug. 14, 1981), slip op. 7; Smouse v.

General Electric Co., supra, 626 F.2d at 336; Gunther

v. Iowa Men's Reformatory, supra, 612 F.2d at 1084 n.6,

and it is without support in the structure or language

of Title VII. Cf. New York Gaslight Club, Inc. v. Carey,

supra, 447 U.S. at 61-62. Moreover, it is doubtful that

the preclusion doctrines or 28 U. SC. 1738 would permit

18 The Court characterized the question presented in New York

Gaslight Club, Inc., supra, 447 U.S. at 56 (second emphasis added),

as

whether, under Title VII of the Civil Rights Act of 1964, a

federal court may allow the prevailing party attorney’s fees

for legal services performed in prosecuting an employment

discrimination claim in State administrative and judicial pro-

ceedings that Title VII requires federal claimants to invoke.

15

such a distinction. See Allen v. McCurry, supra, slip

op. 14.

5. The court of appeals’ decision has the impermissible

effect of depriving petitioner of his right to adjudicate his

Title VII claim in federal court by assigning “primary

adjudicative responsibility” to an administrative agency

subject only to limited judicial review—the very result re-

jected in Chandler v. Roudebush, supra, 425 U.S. at 853,

863, and in McDonnell Douglas Corp. v. Green, supra, 411

U.S. at 798-799. As the district court noted (J.A. 60-61),

petitioner has never had an adjudication of his claim in

any way comparable to the trial of Title VII claims af-

forded by the federal district courts. The NYSHRD con-

ducted no hearing and took no testimony. Under New

York law neither was required prior to entry of a deter-

mination of whether there was probable cause to believe

that a violation had occurred. N.Y. Exec. Law § 297(2)

and 297(4)(a) (McKinney Supp. 1972-1980). The

Division of Human Rights was nonetheless empowered to

resolve the factual dispute between petitioner and re-

spondent (compare Pet. 2 with Br. in Opp. 2) adversely

to petitioner, State Division of Human Rights ex rel.

Speller v. New York State Drug Abuse Control Commis-

sion, 59 A.D.2d 332, 335-338, 399 N.Y.S.2d 541, 543-545

(1977) % and did so. Nor did the Division of Human

4 Even if a hearing had been held, compliance with the rules

of evidence would not have been required. N.Y. Exec. Law

§ 297(4)(a) (McKinney Supp. 1972-1980); compare Alezander

v. Gardner-Denver Co., supra, 415 U.S. at 57.

15In Mitchell v. National Broadcasting Co., supra, 553 F.2d at

270-271, the Second Circuit considered the procedures employed by

the NYSHRD adequate, citing Mcyo v. Hopeman Lumber & Mfg.

Co., 83 A.D.2d 310, 313, 307 N.Y.S.2d 691, 695 (1970), for the

proposition that “[blefore the State Division may dismiss a

complaint of discrimination for lack of probable cause, “it must

appear virtually that as a matter of law the complaint lacks

merit,““ and concluding that the “adjudication of no probable

cause * * * represents a finding that, assuming the allegations

of the complaint to be true, nonetheless as a matter of law the

16

Rights enter specific finding of fact and conclusions of

law (see J. A. 18). Thus, as the district court observed

(J. A. 60-61), the court of appeals’ analogy (see note 6,

supra) between the proceedings of the NYSHRD and

summary judgment procedures in federal court is funda-

mentally flawed. Like arbitration, the New York admin-

istrative procedure is “an efficient, inexpensive, and ex-

peditious means for dispute resolution,” Alexander v.

Gardner-Denver Co., supra, 415 U.S. at 58; these very

characteristics make it a “less appropriate forum for

final resolution of Title VII issues than the federal

courts” (ibid.; footnote omitted).

None of the shortcomings of the administrative process

was reniedied by the administrative appeal taken by peti-

tioner. The Human Rights Appeal Board held no eviden-

tiary hearing and took no evidence. Rather, the Board

simply reviewed the record compiled by the Division of

Human Rights and, reciting the words of the pertinent

statute, upheld the Division’s order as not “arbitrary, ca-

pricious or an abuse of discretion” (J. A. 15; see N.Y.

Exec. Law § 297-4 (7) (e) (McKinney 1972). No more

searching review is permitted by the governing statute.

See N.Y. Exec. Law § 297-a(7) (McKinney 1972).

Finally, contrary to the view expressed by the court of

appeals,"* judicial review of the NYSHRD’s decision by the

Appellate Division of the Supreme Court does not complete

a full adjudication of petitioner’s rights. Like the Human

Rights Appeal Board, the Appellate Division merely re-

views the record. As in any appellate proceeding, conten-

discharge * * * did not amount to a discriminatory act.” However,

the Appellate Division's subsequent decision in Speller, supra, 59

A.D.2d at 335-838, 399 N.Y.S.2d at 548-545, clarified the New York

procedure, retreating from the broad sweep of Mayo, and making

it clear that factual disputes may be resolved adversely to the com-

plainant without holding a hearing.

1% See Mitchell v. National Broadcasting Co., supra, 588 F.2d at

272.

17

tions not pressed below ordinarily may not be raised. The

scope of review is strictly limited. N.Y. Exec. Law § 298

(McKinney Supp. 1972-1980) ; N.Y. Civ. Prac. Law § 7803

(McKinney 1981)."* The Appellate Division did not enter

and could not enter any findings or conclusions or other-

wise resolve the conflicting contentions of the parties,

nor did the court conclude that material facts were not

in dispute. As the Court of Appeals for the Third Circuit

observed with respect to Pennsylvania procedures for con-

sideration of employment discrimination claims, analogous

in pertinent respect to the New York procedure:

Because of this narrow scope of review and because

many of the procedural limitations of the Plenn-

Sylvania]! H[{uman] R[elations) C[ommission] are

imposed by the legislature and the courts, the pro-

cedural difficulties we have noted will not be cor-

rected by appellate review.

Smouse v. General Electric Co., supra, 626 F.2d at 336.“

The state determination to which the court of appeals

gave preclusive effect thus failed to provide petitioner

with any of the basic elements of the adjudication af-

forded by Title VII. No evidentiary hearing has ever

been held, and the only findings and conclusions ever

entered are the conclusory comments entered by the

NYSHRD (J.A. 18). Petitioner has not even had the

17 Under Article 78, the only relevant issue that could be raised

was whether the NYSHRD’s decision was arbitrary, capricious, an

abuse of discretion or procedurally defective. N.Y. Civ. Prac. Law

§ 7808(8) (McKinney 1981). Substantial evidence review was not

authorized because no hearing was held, or required to be held, by

the NYSHRD. N.Y. Civ. Prac. Law § 7803 (4) (McKinney 1981).

Under § 298 of the New York Executive Law, “[t]he findings of

facts on which * * * [ibe NYSHRD’s] order is based shall be

conclusive if supported by sufficient evidence on the record con-

sidered as a whole.”

18 The state procedures afforded to the complainant in Smouse

appear to have been fuller than those afforded to petitioner in the

instant case, and included a hearing. 626 F.2d at 334.

18

full “agency adjudication” subject to “review on a sub-

stantial evidence basis” in an appellate court which this

Court held insufficient to satisfy the requirements of

Title VII in Chandler v. Roudebush, supra, 425 U.S. at

853, 864. Indeed, in Chandler the administrative deter-

mination was of the Title VII claim itself, under a sys-

tem providing substantially greater procedural safeguards

than petitioner enjoyed here. Yet this Court held the

complainant entitled to a trial de novo in federal court,

primarily on the ground that Congress intended federal

employees to have the same right as other Title VII com-

plainants to an adjudication in federal court. 425 U.S.

at 853, 863. To hold petitioner entitled to less would

thus be inconsistent with Chandler and the congressional

intent it reflects (since a federal employee who, like

petitioner, sought to invoke his Title VII remedy would

not be required to initiate state processes at all; see 42

U.S.C. 2000e-16 (d); see also Brown v. General Services

Administration, 425 U.S. 820 (1976)).

The decision of the court of appeals is accordingly in-

consistent with the provisions of Title VII, as interpreted

by this Court.

B. Neither General Principles of Preclusion Nor 28

U.S.C, 1738 Bars Adjudication of Petitioner’s Title

VII Claim

The court of appeals reasoned that, inasmuch as the

Appellate Division’s disposition of petitioner’s state law

action is treated as final under New York law,“ the

19 A final decision in proceedings under New Vork's Human Rights

Law purportedly precludes “any other action, civil or criminal,

based upon the same grievance of the individual concerned.” N.Y.

Exec. Law § 300 (McKinney 1972). Under the New York law, an

aggrieved individual must choose between recourse to the adminis-

trative procedure established and ancillary judicial review thereof

on the one hand, and a plenary civil action on his state law claims,

on the other, N.Y. Exec. Law §§ 297(9) and 300 (McKinney 1972

& Supp. 1972-1980).

19

state court judgment must likewise be honored by a

federal district court hearing a Title VII claim, pursu-

ant to common law preclusion principles and 28 U.S.C.

1738. J. A. 70-73; Mitchell v. National Broadcasting Co.,

supra, 553 F. 2d at 274-277; Sinicropi v. Nassau County,

supra, 601 F.2d at 61-62. This conclusion overlooks well

established limitations on the preclusion doctrines and

28 U.S.C. 1738.”

20 The preclusion doctrines include both res judicata (claim pre-

clusion or bar“ and “merger”) and collateral estoppel (issue pre-

clusion). The term res judicata, however, is sometimes used to

denote both forms of preclusion. Alen v. McCurry, supra, slip op.

4 & n.5. Although the court of appeals and the district court

referred exclusively to “res judicata,” application of that doctrine

in its more precise sense would be especially inappropriate here.

Res judicata traditionally bars litigation of an issue that was or

could have been litigated as part of a previously determined cause

of action. Ibid.; Montana v. United States, 440 U.S. 147, 153

(1979). Here petitioner’s Title VII claim was not before the

NYSHRD (see J. A. 9, 13) nor could it have been. The NYSHRD

is empowered only to investigate and pass on complaints alleging

violations of the New York Human Rights Law, see N.Y. Exec.

Law § 295(6) (McKinney 1972), which, as it happens, considerably

antedates enactment of Title VII. (Authorities in other states, like

the NYSHRD, commonly have jurisdiction only over claims resting

on state law. Cf. Gunther v. Iowa State Men's Reformatory, supra,

612 F.2d at 1084 n.5). The Human Rights Appeal Board and the

Appellate Division sat only to review the NYSHRD's determination

and therefore were equally unauthorized to consider petitioner's

Title VII claim. Even if the state agency or the Appellate Division

had been vested with jurisdiction to consider petitioner’s Pe VII

claim under state law, as explained in our brief as amicus curiae

(at 11-15) in Minnick v. California Department of Corrections,

No. 79-1218 (June 1, 1981), previously provided to the parties

in this case, Title VII itself limits jurisdiction to the federal courts.

The Court dismissed the writ of certiorari and accordingly did not

decide this question in Minnick.

If we assume that res judicata in its narrow sense cannot apply

in this case, the question remains whether findings entered in a

state adjudication have any collateral estoppel effect on a Title VII

claim in federal court. For the reasons stated in the text we submit

that collateral estoppel may not be applied in the circumstances of

this case.

20

28 U.S.C. 1738 provides, in relevant part:

The * * * judicial proceedings of any court of any

such State * * * shall have the same full faith and

credit in every court within the United States * * *

as they have by law or usage in the courts of such

oe

This provision requires federal courts to give effect to

the judgments of state courts. However, the Court has

regarded Section 1738 as invoking the common law pre-

clusion doctrines, subject to the full panoply of estab-

lished exceptions thereto, rather than establishing any

“more stringent” doctrine. Alien v. McCurry, supra,

slip op. 3 n.2, 5 n.7, 6, 15 & n.25. The Court has recog-

nized that, notwithstanding the preclusion doctrines,

“Trjedetermination of issues is warranted if there is

reason to doubt the quality, extensiveness, or fairness of

procedures followed in prior litigation,” Montana v.

United States, supra, 440 U.S. at 164 n.11; Allen v. Me-

Curry, supra, slip op. 5, and that special circumstances,

including countervailing statutory policies, may also war-

rant an exception to the normal rules of preclusion.

Montana v. United States, supra, 440 U.S. at 155; Brown

v. Felsen, 442 U.S. 127, 189 n.10 (1979) ; compare Allen

v. McCurry, supra, slip op. 7-11. Both of these excep-

tions to the preclusion doctrines are fully applicable to

this case.

As is described above, pages 2 note 3 and 15, petitioner

was not allowed a full and fair opportunity to liti-

gate his Title VII claim. The procedures afforded to

petitioner simply bear no resemblance to those which

Congress deemed appropriate and necessary for the en-

forcement of Title VII. See Alexander v. Gardner-

Denver Co., supra, 415 U.S. at 57-59; McDonnell Doug-

las Corp. v. Green, supra, 411 U.S. at 798-799; see also

Chandler v. Roudebush, supra, 425 U.S. at 853, 863. This

observation reflects no discredit upon the remedy pro-

vided by New York, but rests upon the fact that the

procedures provided by New York were not designed,

21

and are not adequate, to provide a final determination

of federal rights under Title VII.“ Compare Alexander

v. Gardner-Denver Co., supra, 415 U.S. at 58. For essen-

tially the same reasons, the Court in Gardner-Denver Co.

squarely rejected application of “the doctrines of res

judicata and collateral estoppel” in the context o7 Title

VII. Id. at 49 n.10. That conclusion controls tais case.

We acknowledge, of course, that the decision of the

NYSHRD may be admitted in evidence in federal court

proceedings and given appropriate weight, Alexander v.

Gardner-Denver Co., swpra, 415 U.S. at 60 & n.21;

Chandler v. Roudebush, supra, 425 U.S. at 863 n.39. But

given the extraordinarily sparse statement of the con-

clusions of the NYSHRD, and the limited procedures

upon which they are based, little weight could be as-

signed to the state administrative decision as evidence.

Alexander v. Gardner-Denver Co., supra, 415 U.S. at 60

n.21. In these circumstances, it would be an anomaly to

hold that these same bare conclusions deprive petitioner

of all right to a federal court adjudication.”

Moreover, the unique policy of Title VII, which, as

explained above, conferred a right to de novo adjudica-

tion in federal court notwithstanding prior proceedings,

constitutes a congressional directive which overrides the

general rules of res judicata and collateral estoppel.

21 Title VII and state law may, of course, differ substantively

as well as procedurally. See, e. g., Griggs v. Duke Power Co., 401

U.S. 424 (1971).

22 In contrast to this Court’s decision in Montana v. United States,

supra, 440 U.S. at 164 n.11, the Second Circuit has treated the

adequacy of state procedures afforded to a complainant in a par-

ticular proceeding as irrelevant to the applicability of the preclu-

sion doctrines, explaining that the “doctrine of res judicata does

not depend on whether the prior judgment was free from error.“

Mitchell v. National Broadcasting Co., supra, 553 F.2d at 271-272

(citations omitted). But examination of the adequacy of the

state procedures on which the prior decision rests to determine

whether further litigation is permissible does not amount to recon-

sideration of the merits of the claim.

Title VII is, in this respect, to be distinguished from 42

U.S.C. (& Supp. III) 1983. In Allen v. McCurry, supra,

slip op. 10, the Court concluded that in enacting Section

1983 “Congress was acting in a way thoroughly con-

sistent with the doctrines of preclusion.” Title VII, on

the other hand, has repeatedly been held to embody a

special policy permitting trial de novo, even where the

issues have been considered in another forum. New York

Gaslight Club, Inc. v. Carey, supra, 447 U.S. at 64-65,

68; Chandler v. Roudebush, supra; Alexander v.

Gardner-Denver Co., supra, 415 U.S. at 45, 47-49 & n.10;

see also Johnson v. Railway Express Agency, supra, 421

U.S. at 459; Oscar Mayer & Co. v. Evans, 441 U.S. 750,

764 (1979).

The purposes of 28 U.S.C. 1738 would not be frus-

trated by permitting petitioner to have a trial de novo

in federal district court on his Title VII claims. The

state’s interest in the conclusive resolution of disputes

within its jurisdiction is served by according full faith

and credit to the state court's final determination of

petitioner’s state law claims without precluding litigation —

of hig Title VII claim in federal court. The state’s re-

«quirement that petitioner make an election of forums

(see note 19, supra) is not disturbed by allowing peti-

tioner to litigate his Title VII claim in federal district

court. And the only issues that could be raised in the

Appellate Division’s proceedings—whether the NYSHRD’s

decision was arbitrary or capricious or unsupported by

sufficient evidence—are not in issue in federal court under

Title VII at all.“ Thus, the state court’s decision that the

28 This case may accordingly be viewed as not implicating the

question whether preclusive effect need be given to state court

determinations at all. Cf. Thomas v. Washington Gas Light Co.,

448 U.S. 261, 281-282 (1980) (opinion of Stevens, J.). To invoke the

preclusion doctrine in the circumstances of this case is, in reality,

to give effect to a decision of the state administrative agency,

which, in conformity with the New York statute, made the only

factual determination in the state proceedings. 28 U.S.C. 1738

state agency’s action was not improper, is not collaterally

attacked by petitioner’s litigation in federal district court

on the merits of his federal claims. Alexander v. Gardner-

Denver Co., supra, 415 U.S. at 54.

Nor would the interests of comity between state and

federal courts be furthered by a holding that a judgment of

a state appellate court, reviewing a state agency’s action

on petitioner’s state law claims, may have preclusive effect

on petitioner’s litigation of his federal claims in federal

court. The predictable result of such a holding would

be that any reasonably informed complainant would for-

go his right to limited judicial review of the state agency’s

action on state law claims in order to ensure a trial de

novo in federal court on his Title VII claims. See New

York Gaslight Club, Inc. v. Carey, supra, 447 U.S. at 66

n.6; Alexander v. Gardner-Denver Co., supra, 415 U.S. at

59; compare Allen v. McCurry, supra, slip op. 14 n.23.

Furthermore, Title VII complainants might withdraw

from state agency proceedings altogether, after the statu-

tory 60-day period, in order to avoid an agency deter-

mination in their favor which could then be appealed to

the state courts. These consequences would frustrate

Congress’ intent that discrimination claims be resolved,

where possible, on the state or local level. New York Gas-

light Club, Inc. v. Carey, supra, 447 U.S. at 65, 66 n.6.

does not require that preclusive effect be given to state agency

decisions, however. While an administrative agency adjudication

may, in proper circumstances, be given preclusive effect under

the judicial doctrines of preclusion, United States v. Utah Con-

struction & Mining Co., 384 U.S. 394, 421-422 (1966), such cir-

cumstances are not present here, for the reasons we have discussed.

24

CONCLUSION

The judgment of the court of appeals should be re-

versed.

Respectfully submitted.

Rex E. LEE

Solicitor General

WX. BRADFORD REYNOLDS

Assistant Attorney General

LAWRENCE G. WALLACE

Deputy Solicitor General

JOSHUA I. SCHWARTZ

Assistant to the Solicitor General

CONSTANCE L. DUPRE

Acting General Counsel

PHILIP B. SKLOVER

Acting Associate General Couneel

VINCENT BLACKWOOD

Assistant General Counsel

SANDRA G. BRYAN

MaRK S. FLYNN

Attorneys

Equal Employment Opportunity

Commission

AucusT 1981

r . 6. covennuant pamtine orice; 1901