Amicus Curiae Brief — Universityof Tennessee v. Elliott

N 0. 85-588

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

THE UNIVERSITY OF TENNESSEE, et ad..

Pe titione rs.

{OBERT B. ELLIOTT.

Responde nt.

On Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit

BRIEF AMICUS CURIAE OF THE

EQUAL EMPLOYMENT ADVISORY COUNCIL

IN SUPPORT OF THE UNIVERSITY OF TENNESSEE

ROBERT E. WILLIAMS

DOUGLAS S. MCDOWELL *

KATHRYN SCULLY

MCGUINESS & WILLIAMS

1015 Fifteenth Street, N.W.

Suite 1200

Washington, D.C. 20005

(202) 789-8600

Attorneys for Amicus Curiae

Equal E'mployme nt

Advisory Council

* Counsel of Record

WILSON - EPES PRINTING Co Inc 789-( 9 WASHINGTON. D.C. 20001

TABLE OF CONTENTS

STATEMENT OF THE CASE ....00000000000000..... liindaiaaied

SUMMARY OF ARGUMENT

IE seetericesaecissccinneennnc atm

I. TRADITIONAL PRINCIPLES OF RES JU-

II.

DICATA AND COLLATERAL ESTOPPEL

APPLY TO ADMINISTRATIVE PROCEED-

PINK <seiitnrecrpitenngGneasechacticaus eet ee ee

THE DISTRICT COURT PROPERLY DIS.

MISSED THE FEDERAL CAUSE OF AC-

TION, HOLDING THAT IT WAS PRE-

CLUDED BY PRINCIPLES OF RES JUDI-

CATA FROM REVIEWING ISSUES FULLY

LITIGATED IN THE STATE ADMINISTRA-

TIVE HEARING 0.

A. This Court’s Decision in Kremer v. Chemical

Construction Corp. Supports The Applica-

tion of Res Judicata Principles To The

Final Decision Of The Administrative

Judge

1. Title VII Does Not Supersede The Judi-

cial Doctrine Of Res Judicata, As Codi-

fied In 28 U.S.C. § 173!

to

:

Kremer Does Not Preclude Application

of Res Judicata Principles To An Un-

reviewed Decision Of An Administrative

Agency Acting In A Judicial Capacity.

~]

1]

1]

11

ii

TABLE OF CONTENTS—Continued

Page

B. Because The Administrative Judge Was Act-

ing In A Judicial Capacity When He Con-

ducted the Due Process Hearing Which Re-

solved Disputed Issues Of Fact Properly Be-

fore Him And The Parties Had An Adequate

Opportunity To Litigate Those Issues, Prin-

ciples Of Res Judicata Bar A Subsequent

Suit In Federal Court ....000000000..... ALE era 17

1. The Decision of the Administrative

Judge Should Be Given Collateral Es-

toppel Effect ............................... LLL 17

to

.

The Administrative Judge Was Acting

In A Judicial Capacity When He Con-

ducted The Administrative Hearing And

Issued The Final Decision In This Case. 18

3. Factfindings Of The Administrative

Judge Are Entitled To Preclusive Ef-

cn in PER EE AA AN 20

4. The Record Clearly Shows That The Re-

spondent Had A Full and Fair Oppor-

tunity To Litigate the Issue of Race Dis-

crimination Before The Administrative

BOERS SE ae 21

5. Tennessee Courts Would Give Preclusive

Effect To The Final Administrative De-

SEE ana ea ee os Sk See 22

C. Principles Of Res Judicata Must Be Applied

To Encourage Judicial Finality And To

Avoid Multiple Litigation 20000000, 24

ag ieaeaes 26

iii

TABLE OF AUTHORITIES

Cases: Page

Allen ve. MeCurry, 419 U.S. 90 (1980) 7-8, 23, 25-26

Aponte v. National Steel Service Center, 500 F.

Supp. 198 (N.D. TH. 1980) a 25

Arizona Governing Committee v. Norris, 163 U.S.

Re —— 2

Baldwin v. Traveling Men's Association, 283 U.S.

> 8) | ) 8

Barnes v. Oody, 511 F. Supp. 23 (E.D. Tenn.

Ta cascestapeiiemeuvounotacnestare 24

Brown v. Felsen, 442 U.S. 127 (1979) __ a | 8-9

Buckhalter v. Pepsi-Cola General Bottlers, Inec.,

768 F.2d 842 (7th Cir. 1985), petition for cert.

filed, —— U.S.L.W. —— (US. ) (No. 85-

ss cntppunepensereuvovensvanes passim

Cantrell v. Burnett & Henderson Co., 187 Tenn.

952, 216 S.W.2d 307 (1948) 23

Chicago, R. lL & P. Ry. Co. v. Schendel, 270 VU. S.

Gin €iSS6) ................ DP seclelrentsnetibtbinebmnaaauvenaennesoaes 20

Commissioner v. Sunnen, 333 U.S. 591 (1948). 8

Elliot? v. University of chosen 766 F.2d 982

(6th Cir. 1985) I i scaniimisiaanmasebasbeevebouesewanees 9,14

EZ Loader Boat Trailers, Ince. v. Car Trailers.

Inc., 716 F.2d 375 (7th Cir. 1981) _ — 18

pemeenve v. Perry, 667 S.W.2d 483 (Tenn. App.

Frrneo “o.aimiain Co. . Waters, A438 U.S. 567

Pc v. Kawasaki eters Corp.. USA, 541 F.

Supp. 1000 (W.D. Okla. 1972) - _ 18

Hayfield Northern Railroad Co. v. Chicago & North

Western Transportation Co., U.S.

101 S. Ct. 2610 (1984) 9-10

International Brotherhood of Foemstere vr U nited

States, 431 U.S. 324 (1977) 3

l.U.E. pone 790 v. Robbins & Myers, Ine., 129

U.S. 229 (1976) _......... oo 3

Kremer v. Chemical Construction Corp.. 156 U.S.

461 (1982) ............ sitet eaedeetdimasicinesieresnesebeatetineeentves passim

Lee v. Peoria, 685 F.2d 196 (7th Cir. 1982). 18

iv

TABLE OF AUTHORITIES—Continued

Page

O'Connor v. Mazzullo, 536 F. Supp. 641 (S.D.N-Y.

DIS ss teccaiatinttnaphete stick Rc ha eee ee hen ae, 20

O'Hara v. Board of Education of Vocational

School, 590 F. Supp. 696 (D.N.J. 1984), aff'd

mem., 760 F.2d 259 (3d Cir. 1985) ...... 12-13, 17, 18, 23

Painters District Council No, 28 v. Edgewood Con-

tracting Co., 116 F.2d 1081 (5th Cir. 1969)... 24

Parklane Hosiery Co. v. Shore, 139 U.S. 322

RESELL SIAN NV NAIA Ate kone scesirae 5,8

Polsky v. Atkins, 197 Tenn. 201, 270 S.W.2d 497

BIE ‘acct ceantdeastoecssuttesat enn ema neaa ora 23

Purcell Enterprises, Ine. v. State, 631 S.W.2d 101

PI FU UD oeked nk iccnivedemicntwicevesaceesseniona siete 23

Texas Department of Commimitu Affairs v. Bur-

dine, 450 U.S. 248 (CAGBL) ......2.ccccc.cccccc..ccc-ccecceece. 2-3

Thomas v. Washington Gas Liaht Co., 118 US.

UU SN eager a cn Cee ee 10, 20

United inter-Mowntain Telephone Co. v. Publie

Service Commission, 555 S.W.2d 389 (Tenn.

8g 5 PERERA Deena Wine Rese in eer Tera 4

United States v. Utah Construction & Mining Co.,

Se eR UE) IID cs ceacticcantcacepvinonseegsaingssescoecienee’ passim

Zanghi v. Incorporated Village of Old Brookvi ‘lle,

752 F.2d 42 (2d Cir. 1965) ......................... eros 10

Statutes:

Title VIT of the Civil Rights Act of 19614, 42 U.S.C.

ape Oc ae passim

RUS S$ 1981, 1983, 1985, 1986, 1988 . 2,3,4

42? nae g 1983 .... Re Peat e nee le oD Pie PE 10

Se re OD dice airoees heiek a etetdeartiaes aes 5,11, 13

Tenn. Code Ann. §§ 1-5-2301 to 929 Sn RAC PEI re 22

Tenn. Code Ann. § 4-5-3010 ooo 3, 19

Tenn. Code Ann. § 4-5-5001 (b) oe. 19

Tenn. Code Ann. £§ 1-5-3205 to -312 00000 19

Tenn. Code Ann. § 1-5-311(@) 000000. 19

Tenn. Code Ann. § 4-5-5322 000 4,19

Other Sources:

1B Moore’s Federal Practice © 0.405[1] 00000... 8

1B Moore’s Federal Practice © 0.44172] 9,18

IN THE

Supreme Court of the Waited States

OCTOBER TERM, 1985

No. 85-588

THE UNIVERSITY OF TENNESSEE, ef a/.,

~ Petitioners,

RoBERT B. ELLIorr,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit

BRIEF AMICUS CURIAE OF THE

EQUAL EMPLOYMENT ADVISORY COUNCIL

IN SUPPORT OF THE UNIVERSITY OF TENNESSEE

The Equal Employment Advisory Council respect-

fully submits this brief amicus curiae on behalf of

the University of Tennessee, seeking reversal of the

decision below. The parties’ written consents to file

this brief have been filed with the Clerk of the Court.

INTEREST OF THE AMICUS CURIAE

The Equal Employment Advisory Council (HK EAC

or Council) is a voluntary nonprofit association or-

ganized to promote the common interest of employers

and the general public in sound government policies,

»

procedures and requirements pertaining to nondis-

criminatory employment practices. Its membership

comprises a broad segment of the employer commu-

nity in the United States, including both individual

employers and trade and industry associations. Its

governing body is a Board of Directors composed

primarily of experts and specialists in the field of

equal employment opportunity. Their combined ex-

perience gives the Council a unique depth of under-

standing of the practical and legal considerations rel-

evant to the proper interpretation and application of

equal employment policies and requirements. EEAC’s

members are firmly committed to the principles of

nondiscrimination and equal employment opportunity.

Substantially all of EEAC’s-members, or their con-

stituents, are employers subject to various federal and

state equal employment laws, including Title VII of

the Civil Rights Act of 1964, as amended, 42 U.S.C.

§$ 2000e, ef seq. Thus, KEAC has a direct interest in

the issue presented for the Court’s consideration in

the instant case, 7.e., whether a final decision by a

state administrative agency acting in a judicial ca-

pacity, finding no merit to claims of discrimination,

bars a subsequent federal court action under Title

VII and 42 U.S.C. $$ 1981, 1983, 1985, 1986, and

1988, which raises the same issues of employment

discrimination.

Because of its interest in the res judicata effect of

prior state court and administrative decisions, EEAC

filed an amicus brief in Kremer v. Chemical Construc-

tion Corp., 456 U.S. 461 (1982). In addition, EEAC

has filed briefs as amicus curiae on numerous other

occasions in this Court. See, e.g.. Arizona Governing

Committee v. Norris, 463 U.S. 1073 (1983): Texas

3

Department of Community Affairs v. Burdine, 450

U.S. 248 (1981); Furnco Construction Corp. v. Wa-

fers, 438 U.S. 567 (1978); International Brotherhood

of Teamsters v. United States, 431 U.S. 324 (1977),

and 1.U.b. Local 790 v. Robbins & Myers, Inc., 429

U.S. 229 (1976).

STATEMENT OF THE CASE

On December 18, 1981, plaintiff Robert Elliott, a

minority employee of the University of Tennessee

Agricultural Extension Service, was advised by the

University that he was to be terminated from his job

because of inadequate job performance and behavior

and incidents of gross misconduct. On December 22,

1981, Elliott filed an administrative appeal under the

Tennessee Uniform Administrative Procedures Act.

On January 5, 1982, he filed a federal complaint un-

der Title VII and 42 U.S.C. $$ 1981, 1983, 1985,

1986 and 1988.

Pursuant to the state administrative appeal proce-

dure, set forth in the Contested Case Provisions of

the Tennessee Uniform Administrative Procedures

Act (UAPA), Tenn. Code Ann. § 4-5-301, an admin-

istrative judge conducted a lengthy due process hear-

ing into Elliott’s charges, during which the parties

were accorded complete trial rights. Elliott’s counsel

examined nearly 100 witnesses at the hearing and

insisted that evidence of alleged racial discrimination

be admitted. The administrative judge found that

the University’s action was based on inadequate job

performance and behavior rather than racial dis- -

crimination.

Elliott appealed these findings to the University of

Tennessee Vice President for Agriculture, who con-

4

cluded that the actions of the University were not

racially motivated and rejected the appeal. Elliott

failed to file a petition for review of the administra-

tive judge’s decision in the state courts within sixty

days of the order, a right provided in the state statute.

Instead, eighty-four days after the final administra-

tive order, Elliott renewed his federal complaint and

requested a temporary restraining order, claiming

that the final administrative order was arbitrary, re-

taliatory, wrongful, illegal, harassing, unnecessary

and damaging to his reputation. The University op-

posed this motion and filed a motion for summary

judgment.

The district court granted the University’s motion

for summary judgment, holding that it was precluded

by principles of res judicata from reviewing the is-

sues fully litigated in the administrative hearing.

The court noted that exclusive jurisdiction to judici-

ally review the merits of a final order entered in a

UAPA contested case is vested in the Tennessee chan-

cery courts under Tenn. Code Ann. § 4-5-322. United

Inter-Mountain Telephone Co. v. Public Service Com-

mission, 555 S.W.2d 389 (Tenn. 1977). Elliott, how-

ever, did not seek judicial review of the final admin-

istrative decision in the Tennessee chancery courts, but

instead renewed his action in federal court. The dis-

trict court found that Elliott could not utilize the

federal civil rights statutes to relitigate what he had

litigated over « five-month period during the admin-

istrative hearing.

The United States Court of Appeals for the Sixth

Circuit reversed, holding that unreviewed state ad-

ministrative judgments are not entitled to preclusive

effect in subsequent federal court actions under Title

VII or sections 1981, 1983, 1985, 1986 and 1988.

5

SUMMARY OF ARGUMENT

The doctrine of res judicata mandates that a final,

valid judgment, conclusive as to all matters of fact

and law, acts as an absolute bar to a subsequent ac-

tion between the same parties upon the same claim or

demand. The related doctrine of collateral estoppel

precludes relitigation of identical issues which ave

raised in subsequent suits involving the same parties

or their privies. Parklane Hosiery Co. v. Shore, 432

U.S. 322, 327 (1979). These preclusion doctrines

apply to administrative, as well as to judicial pro-

ceedings. As this Court stated in Kremer v. Cheinical

Construction Corp., 456 U.S. 461, 184 n.26 (1982):

Certainly, the administrative nature of the fact-

finding process is not dispositive. In United

States v. Utah Construction & Mining Co., 384

U.S. 394... (1966), we held that, so long as

opposing parties had an adequate opportunity to

litigate disputed issues of fact, res judicata is

properly applied to decisions of an administra-

tive agency acting in a “judicial capacity.” Jd.

at 422. ...

Based on the principles enunciated by this Court in

Kremer, the final administrative decision at issue in

this case is entitled to preclusive effect. In Kremer,

the Court held that full faith and eredit principles,

as codified in 28 U.S.C. § 1738, bar a Title VII law-

suit in federal court when the claim previously has

been adjudicated by a state administrative agency

and affirmed on appeal by a state court. The Court

reasoned that the opportunity for judicial review, to

ensure that the administrative decision was not arbi-

trary and capricious and that the claimant was not

denied any procedural rights to which he was en-

_.

6

titled, provided the necessary due process, thus justi-

fying the application of fu'l faith and credit.

In the instant case, the administrative and judicial

procedures available to the plaintiff met the Aremer

due process requirements. See Buckhalter v. Pepsi-

Cola General Bottlers, Inc., 768 F.2d 842, 852 (7th

Cir. 1985), petition for cert. filed, U.S.L.W.

(U.S. ) (No. 85-6094). The parties

had ample opportunity to gather and present evidence

and were accorded full trial rights. Most importantly,

Elliott had an opportunity to appeal the findings of

the administrative judge in state court, although he

declined to avail himself of this opportunity.

In addition, these administrative proceedings met

the requirements set forth in United States v. Utah

Construction d& Mining Co., 384 U.S. 394, 422 (1966),

i.e., the parties had an adequate opportunity to liti-

gate disputed issues of fact before the administrative

judge, who was acting in a judicial capacity. There-

fore, the decision of the administrative judge, finding

that Elliott did not meet his burden of proving dis-

crimination, is entitled to preclusive effect. Accord-

ingly, Elliott should be barred from litigating the

same issues of race discrimination in a subsequent

suit in federal court. |

Finally, the decision of the administrative judge

should be given preclusive effect to promote judicial

finality and prevent needless litigation. Absent such

a finding, parties would be unable to rely on prior

adjudications, and litigation of the same claims and

issues would continue ad infinitum.

7

ARGUMENT

I. TRADITIONAL PRINCIPLES OF RES JUDICATA

AND COLLATERAL ESTOPPEL APPLY TO AD-

MINISTRATIVE PROCEEDINGS.

In this case, an administrative judge acting in a

judicial capacity presided over a lengthy hearing in

which over 100 witnesses testified and over 150 ex-

hibits were entered into evidence. At this hearing,

Elliott had ample opportunity to defend agains:

charges brought by the University of Tennessee. As

a defense against these charges, he introduced evi-

dence of alleged race discrimination. All of this evi-

dence was considered by the administrative judge in

reaching his decision that the actions of the Univer-

sity were not based on race discrimination. Moreover.

this decision was reviewed thoroughly by the Vice

President for Agriculture at the University, who

adopted the initial order of the administrative judge

and determined, not only that the proposed termina-

tion of Elliott by the University was not based on

race but also that Elliott had been afforded ample

opportunity to defend himself against the charges

brought by the University. Elliott now seeks to re-

litigate the same issues of employment discrimina-

tion in federal court. Clearly, res judicata principles

should apply in this case to preclude such relitiga-

tion.

The judicial doctrine of res judicata mandates that

a final, valid judgment on the merits of an action pre-

cludes the parties or their privies from relitigating

the same claims or demands that were or could have

been raised in the first action. Allen v. McCurry, 449

8

U.S. 90, 94 (1980)... 1B Moore’s Federal Practice

€ (.405[1]. The related doctrine of collateral estoppel,

“has the dual purpose of protecting litigants from the

burden of relitigating an identical issue with the

same party or his privy and of promoting judicial

economy by preventing needless litigation.” * Park-

lane Hosiery Co. v. Shore, 439 U.S. 322, 526 (1979)

(case citation omitted). See also Commissioner v.

Sunnen, 333 U.S. 591, 599 (1948) (Collateral estop-

pel “is designed to prevent repetitious lawsuits over

matters which have once been decided and which have

remained substantially static, factually and legally.’’).

“TC]ollateral estoppel treats as final only those ques-

tions actually and necessarily decided in a prior suit.”

' The doctrine of res judicata has evelved primarily because

of a recognition by the courts that “[p]ublie policy dictates

that there be an end of litigation; that those who have con-

tested an issue shall be bound by the result of the contest, and

that matters once tried shal! be considered forever settled as

between the parties.” Baldwin v. Traveling Men’s Association,

283 U.S. 522, 525 (1931).

2In Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n.5

(1979) (citations omitted), the Court distinguished between

the doctrines of res judicata and collateral estoppel, stating as

follows:

Under the doctrine of res judicata, a judgment on the

merits in a prior suit bars a second suit involving the

same parties or their privies based on the same cause of

action. Under the doctrine of collateral estoppel, on the

other hand, the second action is upon a different cause of

action and the judgment in the prior suit precludes

relitigation of issues actually litigated and necessary to

the outcome of the first action.

In this brief, when we refer to “principles of res judicata,”

we are referring generally to the doctrine of judicial preclu-

sion, including collateral estoppel.

9

Brown v. Felsen, 442 U.S. 127, 139 n.10 (1979) (case

citations omitted). Unlike the doctrine of res ju-

dicata, application of collateral estoppel does not

require identical causes of action. 1B Moore’s Fed-

eral Practice £ 0.441[2].

These preciusion doctrines are applicable to admin-

istrative determinations. In United States v. Utah

Construction d} Mining Co., 384 U.S. 394, 423 (1966),

this Court found that the Court of Claims had failed

to give finality to factual findings made by the Board

of Contract Appeals, when the Board was acting in a

judicial capacity. Reversing this portion of the Court

of Claims decision, the Court noted that:

[T]he result we reach is harmonious with gen-

eral principles of collateral estoppel. Occasion-

ally courts have used language to the effect that

res judicata principles do not apply to adminis-

trative proceedings, but such language is cer-

tainly too broad. When an administrative agency

is acting in a judicial capacity and resolves dis-

puted issues of fact properly before it which the

parties have had an adequate opportunity to liti-

gate, the courts have not hesitated to apply res

judicata to enforce repose.

Id, at 421-22 (footnotes & case citations omitted &

emphasis added).* See, e.g., Hayfield Northern Rail-

*In refusing to apply res judicata principles to the admin-

istrative findings in this case, the Sixth Circuit stated that

Utah Construction applies only to federal adminisirative deci-

sions. Elliott v. University of Tennessee, 766 F.2d 982, 989

(6th Cir. 1985). According to the Sixth Circuit, “[t]he Court

[in Utah Construction] did not address the deference that

federal courts should give to the unreviewed findings of state

administrative agencies in subsequent federal civil rights ac-

10

road Co. v. Chicago & North Western Transportation

Co., US. , 104 8S. Ct. 2610, 2619 n.15

(1984); Kremer v. Chemical Construction Corp.,

456 U.S. 461, 484 n.26 (1982); Thomas v. Washing-

ton Gas Light Co., 448 U.S. 261, 281 (1980) (“[T]he

factfindings of state administrative tribunals are en-

titled to the same res judicata effect in the second

State as findings by a court.’’).

Accordingly, this Court must determine whether

the specific administrative decision at issue in this

case is entitled to preclusive effect. Based on this

Court’s decision in Kremer, we argue below that the

administrative determination should be given preclu-

sive effect, and thus should bar Elliott from relitigat-

ing the same issue of employment discrimination in

federal court.

tions.” Id. (footnote omitted). This interpretation of Utah

Construction is unduly narrow. As indicated above, the Court

did not refer to state or federal administrative agencies, but

simply to “an administrative agency.” United States v. Utah

Construction & Mining Co., 384 U.S. 394, 422 (1966). More-

over, many courts have applied Utah Construction to state ad-

ministrative decisions. See, e.g., Buckhalter v. Pepsi-Cola

General Bottlers, Inc., 768 F.2d 842, 849-53 (7th Cir. 1985),

petition for cert. filed, U.S.L.W. (U.S. )

(No. 85-6094) ; Zanghi v. Incorporated Village of Old Brook-

ville, 752 F.2d 42, 46 (2d Cir. 1985) (applying Utah Con-

struction, Second Circuit held thet state administrative hear-

ing and appeal must be given preclusive effect in subsequent

42 U.S.C. § 1983 action).

ll

Il. THE DISTRICT COURT PROPERLY DISMISSED

THE FEDERAL CAUSE OF ACTION, HOLDING

THAT IT WAS PRECLUDED BY PRINCIPLES OF

RES JUDICATA FROM REVIEWING ISSUES

FULLY LITIGATED IN THE STATE ADMINIS-

TRATIVE HEARING.

A. This Court’s Decision In Aremer v. Chemical Con-

struction Corp. Supports The Application of Res

Judicata Principles To The Final Decision Of The

Administrative Judge.

1. Title VII Does Not Supersede The Judicial Doc-

trine of Res Judicata, As Codified In 28 U.S.C.

§ 1738.

In Kremer v. Chemical Construction Corp., 456

U.S. 461, 463 (1982), this Court was faced with the

question of “whether Congress intended Title VII

to supersede the principles of comity and repose em-

bodied in $ 1788.” In holding that Title VII does not

supersede section 1738,‘ the Court reasoned that

granting full faith and credit to a state court pro-

ceeding in no way hinders the enforcement of Title

VII. The Court stressed that:

Nothing in the legislative history of the 1964

Act suggests that Congress considered it neces-

sary or desirable to provide an absolute right to

relitigate in federal court an issue resolved by a

state court. While striving to craft an optimal

niche for the States in the overall enforcement

*28 U.S.C. §$ 1738 provides, in pertinent part, that:

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 and its Territories

and Possessions as they have by law or usage in the

courts of such State, Territory or Possession from which

they are taken.

12

scheme, the legislators did not envision full liti-

gation of a single claim in both state and federal

forums.

Id. at 478-74.

Furthermore, the Court found that:

In our system of jurisprudence the usual rule is

that. merits of a legal claim once decided in a

court of competent jurisdiction are not subject to

redetermination in another forum... . Because

there is no “affirmative showing” of a “clear and

manifest” legislative purpose in Title VII to

deny res judicata or collateral estoppel effect to

a state court judgment affirming that a claim of

employment discrimination is unproved, and be-

cause the procedures provided in New York for

the determination of such claims offer a full and

fair opportunity to litigate the merits, [the plain-

tiff will be prohibited from relitigating his claim

in federal courtj.”

Id. at 485.

Although the Court in Kremer had before it the

specific question of whether a decision of an admin-

istrative agency which was affirmed by a state court

would preclude a subsequent suit in federal court,

the Court in no way found it dispositive that the

agency decision was actually reviewed by a state

court. Instead, the Court based its decision on the

fact that judicial review was available to the plaintiff.

Id. at 484. See O'Hara v. Board of Education of Vo-

cational School, 590 F. Supp. 696, 701 (D.N.J. 1984),

aff'd mem., 760 F.2d 259 (3d Cir. 1985) (“The im-

portant due process criterion is the opportunity to

present one’s evidence, and it is irrelevant that the

party declined to take advantage of that opportu-

13

nity.” (emphasis in original & case citations omit-

ted) ).

The Court stressed that in determining whether to

apply full faith and credit in any given situation, all

of the procedures provided by state law must be taken

into consideration. The Court specifically pointed out

that “this panoply of procedures, complemented by

administrative as we! as judicial review, is sufficient

under the Due Process Clause” and that “[c]ertainly,

the administrative nature of the factfinding process

is not dispositive.” Kremer, 456 U.S. at 484 & n.26

(footnote & case citation omitted).

We maintain that section 1738 should apply in this

case to preclude relitigation of the factfindings of the

state administrative agency acting in its judicial ca-

pacity. However, even if section 1738 did not apply,

as the Seventh Circuit noted in Buckhalter v. Pepsi-

Cola General Bottlers, Inc., 768 F.2d 842, 849 (7th

Cir. 1985), petition for cert. filed, —— U.S.L.W.

(U.S. ) (No. 85-6094) :

[T]he inapplicability of section 1738 does not

end our res judicata analysis. In footnote 26 of

the Aremer opinion the Supreme Court acknowl-

edged the doctrine of “administrative res judi-

cata,” stating that “so long as opposing parties

had an adequate opportunity to litigate disputed

issues of fact, res judicata is properly applied to

decisions of an administrative agency acting in

a ‘judicial capacity.”” 456 U.S. at 485 [sic]

n.26....

(citation omitted).

The Kremer opinion clearly mandates that the

total state procedure provided to a plaintiff be con-

sidered in determining whether a state court or ad-

14

ministrative decision should be granted preclusive ef-

fect. 456 U.S. at 483-85. Therefore, in the instant

case, the paramount question is whether Elliott was

denied any of the procedural rights to which he was

entitled, including the right of judicial review to as-

sure that the administrative decision was not arbi-

trary and capricious. As discussed below in Part B,

Elliott was not denied any of the procedural rights to

which he was entitled. Although he was enti «<( to

judicial review, he opted not to pursue it. His fe .ure

to avail himself of such review, however, does not

render the state’s procedures inadequate and there-

fore incapable of supporting an application of res

judicata. Jd. at 485.

2. Kremer Does Not Preclude Application Of Res

Judicata Principles To An Unreviewed Decision

Of An Administrative Agency Acting In A Ju-

dicial Capacity.

In holding that the decision of the administrative

judge was not entitled to preclusive effect, the Sixth

Circuit indicated that the decision in Kremer stands

for the proposition that unreviewed state administra-

tive determinations are not entitled to deference un-

der res judicata principles. Elliott v. University of

Tennessee, 766 F.2d 982, 988 (6th Cir. 1985). The

Sixth Circuit stated as follows:

[T]he Kremer Court itself made plain in foot-

note 7 that its rule of non-preclusion with re-

spect to unreviewed state administrative deci-

sions applies to the decisions of those agencies

that have full enforcement authority and provide

full adjudicative procedures as well as to the de-

cisions of agencies that lack those attributes.

Id. This interpretation does not comport with the

holding in Kremer, nor with established principles of

res judicata.

15

Footnote seven reads as follows:

EEOC review of discrimination charges previ-

ously rejected by state agencies would be point-

less if the federal courts were bound by such

agency decisions .... Nor is it plausible to sug-

gest that Congress intended federal courts to be

bound further by state administrative decisions

than by decisions of the EEOC. Since it is set-

tled that decisions by the EEOC do not preclude

a trial de novo in federal court, it is clear that

unreviewed administrative determinations by

state agencies also should not preclude such re-

view even if such a decision were to be afforded

preclusive effect in a State’s own courts.

456 U.S. at 470 (citations omitted & emphasis

added). It is clear, when this footnote is read in con-

text with the remainder of the Kremer decision, that

the Supreme Court did not hold that state admin-

istrative determinations may not be given preclusive

effect. Rather, as the Seventh Circuit explained in

Buckhalter, 768 F.2d at 854:

In footnote 7, the Supreme Court was clearly

referring to the state administrative agency in

its investigatory capacity as it analogized the

state agency to the EEOC, a Federal agency that

is authorized to act only in an investigatory ca-

pacity. The import of footnote 7 is that neither

an investigatory determination of the EEOC nor

an investigatory determination of a state admin-

istrative agency precludes a trial de novo in Fed-

eral court. The Supreme Court made clear, how-

ever, in footnote 26 of the Avemer opinion, that

when the state administrative agency acts in a

judicial capacity, its ruling on the claim of em-

ployment discrimination is entitled to preclusive

ee

16

effect in the Federal court under the doctrine of

“administrative res judicata.”

The Seventh Circuit’s interpretation is clearly cor-

rect. In commenting on the preclusive effect to be

given to administrative decisions, footnote seven in

Kremer was addressing the situation of state agen-

cies exercising limited functions like those given the

EEOC, and not state agencies acting in judicial ca-

pacities. The EEOC is empowered only to investigate

complaints and decide whether to press charges based

upon its investigations. Title VII does not give the

EEOC any powers to adjudicate claims and render

decisions regarding the guilt or innocence of Title VII

defendants. State agencies, on the other hand, often

have both investigatory and court-like enforcement

authority and consequently can both press charges

and adjudicate cases, thus establishing the existence

or non-existence of a violation of the state’s anti-

discrimination laws. Such state agencies, therefore,

are capable of making two very distinct types of de-

cisions which should not be casually lumped vogether

to support the argument that federal courts must

grant de novo trials to plaintiffs whose claims have

been adjudicated and dismissed at the state admin-

istrative level.

It is clear that decisions of the EEOC do not pre-

clude de novo trials in federal courts, and it is like-

wise true that administrative decisions of state agen-

cies Which are similar to those of the EEOC, i.e.,

decisions pertaining to whether to press charges, also

should not be given preclusive effect in federal court.

Decisions by state agencies acting in their judicial

capacity, however, do not fall within the scope of this

footnote. Because the administrative judge in this

case was clearly acting in a judicial capacity, see dis-

17

cussion in Part B, and had full enforcement authority

and adjudicative powers, his decision is entitled to

res judicata effect. :

5. Because The Administrative Judge Was Acting In

A Judicial Capacity When He Conducted The Due

Process Hearing Which Resolved Disputed Issues

Of Fact Properly Before Him And The Parties Had

An Adequate Opportunity To Litigate Those Issues,

Principles Of Res Judicata Bar A Subsequent Suit

In Federal Court.

. The Decision Of The Administrative Judge

Should Be Given Collateral Estoppel Effect.

In order for a federal court to give collateral estop-

pel effect to a state administrative determination, the

following requirements must be satisfied :

(1)

(2)

O'Hara

School, 590 F. Supp. at 701. As shown below, each

The administrative judge must have acted

in a judicial capacity ;

The administrative judge must have re-

solved disputed issues of fact properly be-

fore him;

The parties must have had a full and fair

opportunity to litigate; and

The state courts would hold that the state

administrative decision should be given pre-

clusive effect.

v. Board of Education of the Vocational

of these requirements has been met in this case. Ac-

cordingly, this Court should find that the decision of

the state administrative agency that the actions taken

by the University against Elliott were not based on

race discrimination, is entitled to collateral estoppel

effect.

18

We note that, in this case, the application of col-

lateral estoppel will operate as a complete bar to the

federal action because the administrative judge’s find-

ing that the University’s actions were not based on

race discrimination is determinative of the contro-

versy in the second suit. Jd. (court held that finding

of administrative law judge, affirmed by Commis-

sioner of Education, that plaintiff’s discharge was

warranted, was entitled to collateral estoppel effect,

and thus barred Title VII action); see 1B Moore’s

Federal Practice 0.441[2].

2. The Administrative Judge Was Acting In A

Judicial Capacity When He Conducted The Ad-

ministrative Hearing And Issued The Final Deci-

sion In This Case.

“TT]t [is] clear that issues of fact determined by

an administrative agency acting in a judicial capac-

ity may collaterally estop future relitigation of ad-

ministratively determined issues.” Lee v. City of

Peoria, 685 F.2d 196, 198 (7th Cir. 1982) (emphasis

added) (citing Utah Construction, 384 U.S. at 422).

Courts nave found administrative agencies to be act-

ing in a judicial capacity where the proceeding was

adversarial and the parties were represented by coun-

sel, presented evidence and arguments, submitted

briefs, and had an opportunity to seek judicial re-

view. See, e.g., Buckhalter, 768 F.2d at 851-52 (Hu-

man Rights Commission found to be acting in judicial

capacity where proceeding conducted just as a trial

in Illinois state court); EZ Loader Doat Trailers,

Inc. v. Cow Trailers, Inc., 746 F.2d 375, 378 (7th Cir.

1984); Groom v. Kawasaki Motors Corp., USA, 344

F. Supp. 1000, 1002 (W.D. Okla. 1972).

19

To determine whether the administrative judge was

acting in a judicial capacity in this case, it is neces-

sary to examine the Tennessee Uniform Administra-

tive Procedures Act (UAPA) and the actual admin-

istrative proceeding. Section 4-5-301 of the UAPA

sets forth the procedures to be followed in hearing a

contested case. Pursuant to these administrative pro-

cedures, parties are afforded complete tria. rights, in-

cluding the right to be represented bv counsel, to

receive notice of the hearing, to file pleadings, mo-

tions, briefs, and proposed findings of fact and con-

clusions of law, to request the administrative judge

to issue subpoenas, and to examine and cross-examine

witnesses. Tenn. Code Ann. §§ 4-5-305 to -312. The

parties in this case were afforded these rights.

In addition, the administrative judge presided at

the hearing, ruled on questions of the admissibility

of evidence and swore witnesses. Jd. at § 4-5-301(b).

The parties had ample opportunity, not only to liti-

gate the disputed issues of fact, but also to seek state

court review of the final administrative decision. /d.

at § 4-5-5322. Elliott presented more than ninety wit-

nesses and cross-examined some of the agency’s wit-

nesses for more than thirty hours each. Appendix to

Petition for a Writ of Certiorari to the United States

Court of Appeals for the Sixth Cireuit (Appendix to

Petition at A831. The initial order of the admin-

istrative judge was a ninety-six page document

and contained extensive findings of fact and conclu-

sions of law, as required under Tenn. Code Ann. § 4-

5-314(c). Jd. It is clear that the administrative

judge was acting in a judicial capacity when he con-

ducted the hearing and issued the decision in this

case.

20

3. Factfindings Of The Administrative Judge Are

Entitled To Preclusive Effect.

“(T jhe factfindings of state administrative tribu-

nals are entitled to the same res judicata effect in

the second State as findings by a court.” Thomas v.

Washingtor Gas Light Co., 448 U.S. 261, 281 (1980)

(citing Chicago, R. I. & P. Ry. Co. v. Schendel, 270

U.S. 611 (1926) (Iowa state compensation award

based on factual finding that employee engaged in

intrastate commerce precluded subsequent claim un-

der Federal Employer’s Liability Act brought in

Minnesota state courts which would have required

finding that employee engaged in interstate com-

merce) ). Factfindings by state administrative tribu-

nals are entitled to the same res judicata effect in

federal court. O'Connor v. Mazzullo, 536 F. Supp.

641, 643-44 (S.D.N.Y. 1982) (factual determinations

of motive by state agency entitled to collateral estop-

pel effect in later suit in federal court).

Accordingly, the factual findings of tl.> administra-

tive judge in this case, 7.e., that the actions taken by

the University were not based on racial discrimina-

tion,” are entitled to preclusive effect in the federal

court action.

‘The administrative judge made the following factual

determination:

An overall and thorough review of the entire evidence of

record leads me to believe that employer's action in bring-

ing charges against employee, resulting in these proceed-

ings were based on what. it, through its administrative

officers and supervisors perceived as improper and ‘or

inadequate behavior and inadequate job performance

rather than racial discrimination. I therefore conclude

that employee has failed in his burden of proof to the

21

4. The Record Clearly Shows That The Respondent

Had A Full And Fair Opportunity To Litigate

The Issue Of Race Discrimination Before The

Administrative Judge.

In order for a final administrative decision to be

given preclusive effect, the parties must have had a

full and fair opportunity to litigate. See Kremer, 456

U.S. at 481-82 & cases cited therein. “[N]o single

model of procedural fairness, let alone a particular

form of procedure, is dictated by the Due Process

Clause.” Jd. at 483 (case citations omitted). Admin-

istrative proceedings which provide for an oppor-

tunity informally to present charges against an em-

ployer on the record, including submitting exhibits,

testimony, and rebuttal evidence, with access to at-

torney assistance and compulsory process, meet the

requirements of due process when judicial review is

available to determine that no procedural rights were

denied and that the agency decision was not arbitrary

and capricious. Jd. at 483-84; Buckhalter, 768 F.2d

at 852.

The proceedings under the Tennessee Uniform Ad-

ministrative Procedures Act satisfy due process re-

quirements. As discussed above, the UAPA provides

parties with notice, opportunity to be heard, repre-

sentation at a party’s own expense by counsel, full

opportunity to file pleadings, motions, objections and

offers of settlement, as well as briefs, proposed find-

ings of fact and conclusions of law, and proposed

initial or final orders. At the request of any party,

claim of racial discrimination as a defense to the charges

against him.

Appendix to Petition For a Writ of Certiorari to the United

Staces Court of Appeals for the Sixth Circuit at A177.

22

the administrative judge also shall issue subpoenas

and effect discovery. Further, at the hearing, the

parties are afforded the opportunity to respond, pre-

sent evidence and argument, cross-examine witi.esses

and submit rebuttal evidence. At the conclusion of

the hearing, the administrative judge must render an

initial order, which becomes final unless reviewed by

the agency. Finally, a person aggrieved by the final

order is entitled to judicial review in chancery court.

Tenn. Code Ann. §§ 4-5-8301 to -522.

In this case, “a UAPA hearing was convened in

Jackson, Tennessee, on April 26, 1982. It continued

with various recesses until its conclusion five months

later on September 29, 1982. The administrative rec-

ord consists of 55 volumes of transcript containing

over 5,000 pages of the testimony of over 100 wit-

nesses and 153 exhibits.” Appendix to Petition at

A27. Initial review of the administrative judge’s

order was conducted by the agency. Although Elliott

failed to avail himself of state court review, “{t]he

fact that [he] failed to avail himself of the full pro-

cedures provided by state law does not constitute a

sien of their inadequacy.” Aremer, 456 U.S. at 485.

Because Elliott had a full and fair opportunity to

litigate the issue of race discrimination in the admin-

istrative proceedings, his due process rights have been

satisfied and the final administrative decision should

be given preclusive effect.

5. Tennessee Courts Would Give Preclusive Effect

To The Final Administrative Decision.

In determining whether to grant preclusive effect

to the administrative decision in this case, a federal

court should examine the rules of res judicata chosen

23

by the state of Tennessee. O'Hara v. Board of Edu-

cation of the Vocational School, 590 F. Supp at 701;

Kremer, 456 U.S. at 485; cf. Allen v. McCurry, 449

U.S. at 96 (“Congress has specifically required all

federal courts to give preclusive effect to state-court

judgments whenever the courts of the State from

which the judgments emerged would do so... .”).

The doctrine of res judicata applies to final orders

of administrative agencies in Tennessee. Purcell En-

terprises, Inc. v. State, 631 S.W.2d 401, 407 (Tenn.

App. 1981) (citing Polsky. v. Atkins, 197 Tenn. 201,

206, 270 S.W.2d 497, 499 (1954)). See also Four-

akre v. Perry, 667 S.W.2d 483, 486 (Tenn. App. 1983)

(“Appellee concedes in his brief that a final decision

of an administrative agency creates estoppel under

the doctrine c* Res Judicata.”’).

As the Tennessee Supreme Court observed in Can-

trell v. Burnett & Henderson Co., 187 Tenn. 552, 216

S.W.2d 307, 309 (1948) (quoting 30 Am. Jur. at pp.

920-21):

It is a fundamental principle of jurisprudence

that material facts or questions, which were in

issue in a former action, and were there admitted

or judicially determined, are conclusively set-

tled by a judgment rendered therein, and that

such facts or questions become res judicata and

may not again be litigated in a subsequent ac-

tion between the same parties or their privies

. whether the subsequent action involves the

same or a different form or proceedings, or

whether the second action is upon the same or a

different cause of action, subject matter, claim,

or demand, as the earlier action.

In the instant case, because the administrative

judge determined that Elliott’s allegations of race dis-

24

crimination were without merit and Tennessee courts

would consider this issue conclusively settled, the fed-

eral action based on the same allegations of discrim-

ination also is barred by principles of res judicata."

C. Principles Of Res Judicata Must Be Applied To

Encourage Judicial Finality And To Avoid Multi-

ple Litigation.

“The policy considerations which underlie res ju-

dicata—tfinality to litigation, prevention of needless

litigation, avoidance of unnecessary burdens of time

and expense—are as relevant to the administrative

process as to the judicial.” Painters District Council

No. 38 v. Edgewood Coiulracting Co., 416 F.2d 1081,

1084 (Sth Cir. 1969) (cases citations omitted). As

this Court pointed out in Aremer, the opportunity to

litigate a claim one time fully and fairly is all that

is required by Title VII. 456 U.S. at 473-74. If this

Court were to uphold the decision of the Sixth Cir-

cuit, it would drastically weaken the foundation of

the Areier opinion, because it would allow plaintiffs

to litigate their claims of discrimination fully in state

administrative forums and then, if they are not sat-

isfied with the results, to go inte feceral court and

hegin litigation anew. Such a decision would, in prac-

tical terms, preclude employers from winning at the

state level, because they could only win the opportu-

nity to start defending all over again in federal court.

* See Barnes v. Oody, 514 F. Supp. 23, 25 (E.D. Tenn. 1981)

(district court held that where truth of charges of sexual

harassment established by administrative tribunals, subse-

quent action for defamation barred; collateral estoppel pre-

vented relitigation of whether plaintiffs guilty of sexual

harassment).

25

In Aponte v. National Steel Service Center, 500

F’. Supp. 198, 204 (N.D. Ill. 1980), the United States

District Court for the Northern District of Illinois

commented on this problem, stating that:

The tangled relationship between one employee

and his employer, relating solely to the continued

employment relationship, has been the subject of

an arbitration, an FEPC proceeding carried

through the administrative process to settlement,

an EEOC proceeding carried through the admin-

istrative process to settlement, subsequent ad-

ministrative proceedings which led to the con-

clusion that the claims did not have a reasonable

basis, the filing of a federal court action, appoint-

ment of counsel, and the filing of amended plead-

ings resting upon Title VII, $1981 of the Civil

Rights Acts, age discrimination legislation and

Illinois law.

And, years later, we have only resolved the plead-

ing questions.

We have created an administrative, legislative

and judicial labyrinth which serves no one well.

* * * The aggrieved employee has multiple ave-

nues to pursue, all strewn with technical ob-

stacles and all of which may postpone any possi-

ble relief into the indefinite future. The result is

a festering sense of injustice. The employer set-

tles one claim and finds itself faced with a vari-

ety of others, all requiring it to employ profes-

sional help to guide it through, and to preserve

its rights, in the various proceedings in which it

finds itself a target.

Clearly, in these situations, principles of res ju-

dicata are properly invoked to “relieve parties of the

cost and vexation of multiple lawsuits. conserve ju-

26

dicial resources, and, by preventing inconsistent deci-

sions, encourage reliance on adjudication.” Allen v.

McCurry, 449 U.S. at 94 (case citation omitted).

This Court should reiterate that litigation ad in-

finitum benefits no one. A party who has had an

opportunity to litigate an issue of race discrimination

fully and fairly to a final decision should be required

to live with that decision. Another opportunity to

litigate the same issue is not required by Title VII

and certainly should not be created by this Court.

CONCLUSION

For the foregoing reasons, EEAC respectfully

submits that the judgment of the Sixth Circuit should

be reversed.

Respectfully submitted,

ROBERT E. WILLIAMS

DOUGLAS S. MCDOWELL *

KATHRYN SCULLY

McCGUINESS & WILLIAMS

1015 Fifteenth Street, N.W.

Suite 1200

Washington, D.C. 20005 = -

(202) 789-8600

Attorneys for Amicus Curiae

Equal Employment

Advisory Council

* Counsel of Record

January 24, 1986