# Amicus Curiae Brief — Universityof Tennessee v. Elliott

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0452%3A10

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1986
- **Citation:** 478 U.S. 788

## Text

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 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 « 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0452%3A10. Public record. Not legal advice.