# Amicus Brief — Kremer v. Chemical Constr. Corp.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Brief
- **Published:** January 1, 1982
- **Citation:** 456 U.S. 461

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2395%3A11. Public record. Not legal advice.