University of Tennessee v. Elliott Brief for Respondent

    No. 85-588

I n  THE

gnxpnm? (&nmt nl %  lutiil Bltxtes
O ctober T eem , 3985

T h e  TTnivebsity  op T ennessee, et al.,
Petitioners,

■ v s .

R obert B.  E lliott,
Respondent.

ON W EIT OP CERTIORARI TO TH E UNITED STATES 

COURT OP APPEALS POE TH E SIXTH CIRCUIT

BRIEF FOR RESPONDENT

J u liu s  L eV onnb  C hambers 
R onald L. E llis*
E ric  S ch napper  
J udith R eed

99 Hudson Street 
16th Floor
New York, New York 10013 
(212) 219-1900

A von N. W illiams, Jr.
R ichard H. D inkins 
R ussell T. P erkins 

Williams & Dinkins 
203 Second Avenue, North 
Nashville, Tennessee 37201

Attorneys for Respondent

* Counsel of Record



QOESTIONS PRESENTED

1. whether issue preclusion should be 

applied where a state agency did not 
afford an employee a full and fair 
opportunity to litigate and failed to 

decide most of the issues and claims 

in his federal civil rights action?

2. Whether unreviewed administrative 
determinations of state agencies 
should preclude a trial de novo in 
federal court under Title VII or the 
Reconstruction Civil Rights Stat­

utes?

i



TABLE OF CONTENTS

QUESTIONS PRESENTED ..............  i
TABEL OF CONTENTS ................  ii
TABLE OF AUTHORITIES ............. ii
STATEMENT OF THE CASE ............ 1

The Charge Letter ............. 2
Respondent's Federal Action .... 3
A. The Complaint Allega­

tions .....................  4
(1 ) Class Claims ........  4
(2) Retaliation Claims ... 6
(3) Individual Employment

Claims ...............  7
B. The Defendants Named in

Complaint .................  7
C. Relief Sought in The

Complaint .................  9
D. District Court's Orders

Denying Injunctive Re­
lief ......................  9

The Administrative Proceed­
ings .......................  11

Page

- ii -



A. The Hearing .................  13
(1) The Hearing Examiner ... 13

(2) The Partipants .......   14

(3) The Charges ...........  14
B. The Scope of the Hearing .... 15

C. Excluded Evidence ..........  19
The Administrative Decision .....  28

A. The Charges .................  28
B. The Scope of the Hearing .... 30

The Final Agency Decision .......  31
Respondent's Return to Federal

Court ........................   31
Appeal to the Sixth Circuit .....  35

SUMMARY OF ARGUMENT ................  36

ARGUMENT .........   39
I. THE PARTICULAR AGENCY DE­

CISION IN THIS CASE IS NOT 
ENTITLED TO PRECLUSION 
UNDER TRADITIONAL
PRINCIPLES ....................  39

A. Opportunity to Litigate ....  44

Page

- iii -



Page

B. The Decision of the Hearing
Examiner ..................  50

C. The Tennessee UAPA
Process .................. , 57

II. THE PULL' FAITH AND CREDIT
STATUTE, 28 U.S.C. §1738, IS 
NOT APPLICABLE TO THE UNRE­
VIEWED DECISIONS OF ADMINIS­
TRATIVE AGENCIES ..........  77

III. TITLE VII GUARANTEES A PLAIN­
TIFF A RIGHT TO A JUDICIAL 
DETERMINATION OF HIS CLAIMS 
REGARDLESS OF ANY ADMINIS­
TRATIVE PROCEEDINGS ......... 83

IV. PRIOR STATE AGENCY DETER­
MINATIONS HAVE NO PRECLUSIVE 
EFFECT IN SECTION 1983
ACTIONS .....................  96

A. Prior Decisions of This
Court ......................  96

B. Application in Tennessee .. 99
CONCLUSION .........................  106
APPENDIX: Transcript Excerpts

iv -



TABLE OF AUTHORITIES
Cases Page
Alexander v. Gardner-Denver Co.,

415 U.S. 36 ( 1974) ......  61 ,62,87,
90,91,95

Allen v. McCurry, 449 U.S.
90 (1980) .............. 35,36,40,

80,82,106

Barrentine v. Arkansas-Best
Freight System, Inc., 450
U.S. 728 ( 1981) .......... 61,62

Batiste v. Furnco Constr. Corp.,
503 F .2d 447 (7th Cir.
1979) cert, denied, 420
U.S. 928 ( 1975)     85,86

Buckhalter v. Pepsi-Cola
General Bottlers, 768 F.2d
842 (7th Cir. 1985) ......   81,82

Elliott v. University of Tenn­
essee, 766 F.2d 982 (6th 
Cir. 1985)   81

Chamberlain v. Brown, 223 Tenn.
25, 442 S .W.2d 248
(1969) ...................  101,104

Chandler v. Roudebush, 425 U.S.
840 ( 1976) ...............  87,89

- v



Page
» %Cooper v. Philip Morris, Inc.,

464 F.2d 9 (6th Cir.
( 1972) .....................

\ \
DePriest v. Puett, 669 S.W.2d

669 (Tenn. App. 1984) ... 10
Fair Assessment in Real Estate 

v. McNary, 454 U.S. 100 
(1981) .....................

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

Garner v. Giarusso, 571 F.2d
1330 (5th Cir. 1978) ......

King v. Brooks, 562 S.W.2d 422
(1978) .....................

Kremer v. Chemical Construction 
Corp., 456 U.S. 461 
( 1982) .................... .

McDonald v. Santa Fe Trail 
Transp. Co., 427 U.S.
273 (1976) .................

McDonald v. City of West Branch, 
466 U.S. 284 (1984) ......

McDonnell Douglas Corp. v. Green, 
411 U.S. 792 ( 1973) --- ....

McNeese v. Board of Education,
373 U.S. 668 91963) .......

86

1 ,102,103

38,97,98

101

85,86

100

passim

65

61,62,80, 
83,99

64

106

vi



Page
Migra v. Warren City School 

District, 465 U.S. 75

Monroe v. Pape, 365 U.S. 167
(1961) ..........--- - 105

Montana v. United States, 440
U.S. 147 (1979) ............. 57,58

Moore v. Bonner, 695 F.2d 799
(4th Cir. 1982) ..........  81

Moore v. East Cleveland, 431
U.S. 494 ( 1977) ............  96,99

Parker v. Fort Sanders Regional
Medical Center, 677 S,W.2d 
455 (Tenn. App. 1983) ......  105

Parker v. National Corporation for 
Housing Partnerships, 619 
F. Supp. 1061 (D.D.C.
1985) ........................  81

Parklane Hosiery Co. v. Shore,
439 U.S. 322 ( 1 979) ....... 57,58,59

Patsy v. Florida Board of Regents,
457 U.S. 496 (1982) ........ 38,97

Polsky v. Atkins, 197 Tenn. 201,
270 S. W . 2d 497 (1954) ......  100

Purcell Enterprises, Inc. v.
State, 631 S.W.2d 401 (Tenn.
App. 1981) ..................  101

- vii



Page
Ross v. Communications Satellite

Corp., 759 F .2d 355 (4th
Cir. 1985)   81

Scales v. Scales, 564 S.W.2d
557 (1978) .......   100

Shelley v. Gibson, 400 S.W.2d
709 ( 1966) ...............   100

Sunshine Coal Co. v. Adkins,
310 U.S. 381 ( 1940) ...........  71

Texas Department of Community 
Affairs v. Burdine, 450 
U.S. 248 ( 1981 ) ............  64

Thomas v. Washington Gas Light Co.,
448 U.s. 261 ( 1980) ......... 70

Turney v. Ohio, 273 U.S. 510
(1927) ...................  74,75,76

United States v. Utah Construction 
& Mining Co., 384 U.S. 394 
(1966)   59,61,70,85,86,87

Voutsis v. Union Carbide Corp.,
452 F .2d 889 (2d Cir. 1971 ) ,
cert, denied, 406 U.S. 918
( 1972) ......................  86

Whitfield v. City of Knoxville,
756 F.2d 455 (6th Cir.
1985) ........................ 105

~ viii



Page

FEDERAL STATUTES
28 U.S.C. § 1738 (1982) ....  36,62,77,78

The Reconstruction Civil Rights
Statutes, 42 U.S.C. §§ 1981,
1983, 1985, 1986, 1989 
( 1982) ............ .........  passim

Title VII of the Civil Rights 
Act of 1964, 42 U.S.C.
§§ 2000e et seg (1982) .. passim

STATE STATUTES
Tenn. Code Ann. § 4-5-301

(1985) ................. . 12,71 ,73

Tenn. Code Ann. § 4-5-308
(1985) ...................  12

Tenn. Code Ann. § 4-5-311 .... 12

Tenn. Code Ann. (TCA) § 4-5-
322(h)(2) (1985)     69

Tenn. Code Ann. § 8-3227 ....  102
Tenn. Code Ann. § 9-80-207 .... 101

Tenn. Code Supp. § 6648.17
( 1950)   77

- ix-



Page
OTHER AUTHORITIES
U.S. Const., art. IV, § 1 ......  77
H.R. Rep. 92-238 ( 1971 ) ........ 94
S. Rep. NO. 92-415 ( 1971 ) .....  92,94
110 Cong. Rec. ( 1964) .......... 91
Restatement (Second) of judgments

(1981 ) ....................  45,70
18 C.Wright, A. Miller, & E.

Cooper, Federal Practice
& Procedure, Jurisdiction,
ch. 13 § 4475 ( 1981 ) .....  70

2 K.Davis, Administrative Law
Treatise (1972) ........... 60

x -



STATEMENT OF THE CASE

This is an action challenging racial 

discrimination in employment and in the 

operation of the programs of the Uni­
versity of Tennessee ("the University") 
and its Institute of Agriculture's 
Agricultural Extension Service ("AES"). 
The University, one of the petitioners, is 

a land grant university that administers 
AES through its Institute of Agriculture. 

PA 45. AES utilizes federal funds to

 ̂ The following abbreviations are used 
throughout this brief to cite to the 
record: "PA" (Appendix to the petition
for writ of certiorari); "JA" (Joint 
Appendix filed with the brief for peti­
tioner); "Pet. Br. A" (Appendix contained 
in petitioner's brief); "App. 6th Cir. " 
( the appendix filed with the Sixth 
Circuit); "Dkt. Nr." (the number assigned 
to documents filed in the district court 
and listed in the docket); "Tr." (tran­
script of the hearing before the adminis­
trative agency). Excerpts from the 
hearing transcript appear in an appendix 
to this brief (Res. Br. a ).



2

provide assistance and information to the 
state's farmers. Id_; Tenn. Code Ann. § 

49-50-101, 102. It also administers 
educational programs in agricultural 

production and marketing, home economics, 

and community development, as well as 4-H 

youth programs. PA 48.
The respondent, Robert B. Elliottt, 

is a black male employed by AES, and 
therefore the University, as an Agricul­

tural Extension Agent. PA 37, 45.

The Charge Letter
In December, 1981, respondent 

received a letter from his immediate 
supervisor proposing to terminate his 

employment. JA 21. The letter advised 
respondent that he could request a hearing 
to contest charges of inadequate job 
performance and improper behavior, and



3

that a failure to request a hearing within 
five days would result in the termination 
of his employment. JA 21-22.

Under the University's procedures, 

respondent could contest the charges by 
way of either the University's informal, 
internal hearing procedure, or he could 
request a hearing under the contested case 
provisions of the Tennessee Uniform 

Administrative Procedures Act. Id. Respon­

dent chose the latter means of protesting 
his proposed termination.

Respondent's Federal Action
Prior to the commencement of adminis­

trative proceedings and believing that the 
actions being taken against him were part 
of a pattern and practice of racial 
discrimination by his employer, respondent 
initiated this action by filing a com­
plaint in the Western District of Ten- 
nesssee, on January 14, 1982.



4

A. The Complaint Allegations
Respondent's complaint alleged that 

the University, AES and the other named 
defendants were engaged in a substantial 
number of unlawful actions that fell into 

three distinct categories: classwide 
racially discriminatory practices, actions 

taken in retaliation against respondent 
because of his civil rights activities, 
and actions specifically directed against 

respondent because of his race. Respon­
dent alleged that the defendants' actions 

violated the First, Thirteenth, and 
Fourteenth Amendments to the United States 

Constitution, as well as 42 U.S.C. §§ 

1981, 1983, 1985, 1986, and 2000d and e 
("Title VII").

( 1) Class Claims. Many of the 
alleged classwide discriminatory practices 
were of the sort which, if present, would 

have had an immediate and direct adverse



- 5 -

impact on respondent. Respondent as-

serted , for example, that it was the

general practice of petitioners to

discriminate against black employees in 
compensation, assignments, promotion and 

training. JA 7, 10, 11. Respondent also 
contended that petitioners deliberately 
and systematically operated AES programs 
in a manner that discriminated against and 
segregated black members of the public; 
respondent objected that, as an AES 
employee, he was thus required to partici­
pate in unconstitutional and illegal 
action. JA 7, 8, 10. The complaint also 
alleged the existence of other discrimi­
natory practices, such as intentional 
discrimination in the selection of the 

supervisory officials to whom respondent 

was subordinate. JA 10, 11.



6

(2) Retaliation Claims. The com­
plaint alleged that a number of specific 
actions had been taken against respondent 
in retaliation for his civil rights 
activities, retaliation that respondent 
asserted violated both the First and 
Fourteenth Amendments. The complaint 
spelled out those civil rights activities 
in detail, noting several instances in 
which respondent had formally complained 
about racial discrimination within AES 
itself. JA 11-12. Respondent set forth a 
number of specific actions that he claimed 
were taken for retaliatory purposes, 
including harassment, false allegations of 
improper or inadequate behavior, and the 
attempt to bring about his dismissal. JA 
7, 14, 15. Respondent attributed these 
actions to two different conspiracies 
among the defendants: one precipitated by 
his action in objecting to the use of the



7

phrase "nigger" by an official at an 
extension service fair, and one involving 
efforts by the white members of the 
Madison County Agricultural extension 

Service Committee to persuade AES to fire 
respondent. JA 12-14.

(3) Individual Employment Claims. 
Third, the complaint alleged that on a 

number of occasions adverse personnel 

actions had been taken against respondent 
because of his race. The actions attrib­
uted to such a specific racial motive 
included reassignments, harassment, the 
filing of false charges of incompetence or 

misbehavior, and the commencement of 
dismissal proceedings. JA 7, 11, 14, 15.
B. The Defendants Named in Complaint

The complaint named fourteen distinct 
defendants, whose identity is important to 
an understanding of the scope of the 

administrative decision. Two of the



defendants are state agencies, the 

University and AES, and five of the 

defendants are employees of those agencies 

-- Edward Boling, Willis W. Armistead, M. 
Lloyd Downen, Haywood Luck and Curtis 

Shearon. Also named as defendants were 
five individuals who were not AES em­
ployees, but who served as members of the 

Madison County Agricultural Extension 

Service Committee —  Billy Donnell, Arthur 
Johnson, Mrs. Neil Smith, Jimmy Hopper and 
Mrs. Robert Cathey. Respondent worked in 

Madison County, and it was these individ­
uals who were alleged to have initiated 

the action seeking respondent's dismissal. 
Finally, the complaint named as defendants 
Murray Truck Lines, Inc., a company 

operating in Madison County, and its 

manager Tom Korwin,as well as Tommy Coley.



9

It was actions taken by these two indi­

viduals that allegedly prompted the 
retaliation described above. JA 5-6.

C. Relief Sought in The Complaint
Respondent sought preliminary and 

permanent injunctive relief, for himself 

individually and for members of a class 
sought to be certified, as well as 
individual and class-wide monetary 
damages. The complaint also sought a 
temporary restraining order to prevent the 
University from taking any adverse 
employment action against respondent. JA 

17-18.
D. District Court's Orders Denying

Injunctive Relief

The district court issued a temporary 
restraining order, pending an answer to 

the complaint and an opportunity for the



- 10

court to hold a limited hearing during the 

month of February. Order, Jan. 19, 1982, 
Dkt. Nr. 4.

The University moved to dissolve the
restraining order, arguing, inter al ia,

that the action was not ripe for judicial
review because respondent had not yet been

dismissed from his employment and that

"judicial review should be postponed"
until the conclusion of the administrative 

2
hearing. The court thereupon withdrew the 
restraining order "without in any fashion, 
adjudicating the merits of this contro­

versy," based on the pendency of the 
hearing. Order, Feb. 23, 1982, Dkt. Nr.

App. 6th Cir. pp. 38-39. The University 
also argued that respondent had not met 
the prerequisites for injunctive relief 
and that the court did not have juris­
diction over certain defendants and did 
not have jurisdiction to hear the Title 
VII claims because no right-to-sue leter 
had been issued. App. 6th Cir. 48-52. A 
right-to-sue letter was issued November 
19, 1982.



12 (App. 6th Cir, p. 165). One month

later, The district court declined to 

grant any preliminary relief, finding that 
while affidavits filed with the court 
indicated "sharp conflict with regard to 

the issues in this case on the merits," 
respondent had not shown irreparable harm 
and that any relief must await a "hearing 
and trial on the merits." Order, Mar. 29, 

1982, Dkt. Nr. 14 (App. 6th Cir. p. 167). 
The Administrative Proceedings

Shortly thereafter the administrative 
proceedings began. Respondent's adminis­

trative hearing was governed by the 
contested case provisions of the Tennessee 

Uniform Administrative Procedures Act 
("UAPA") , Tenn. Code Ann. §§ 4-5-301, et 
seq. (Pet. Br. A6-36). Under those
provisions, the hearing may be conducted 
by a requisite number of members of the 

agency involved, as well as an adminis-



12

trative judge or hearing officer. Alter­
natively, the hearing may be conducted by 
an administrative judge or hearing officer 
sitting alone. Tenn. Code Ann. § 4-5-
301(b) (Br. App. A7). The statute
provides for discovery, the filing of 
briefs, and for the admission of evidence
in parity with the civil rules of evi- 

3
dence. There is no de novo review of 
claims presented during the hearing, 
rather, review of the agency's final 
decision is limited to a review of the 
record to determine whether substantial 
evidence exists to support the decision. 
Tenn. Code Ann. § 4-5-322 (h) (Pet. Br.
A32-35).

Tenn. Code Ann. §§ 4-5-308, 4-5-311, § 
4-5-313(1) (Pet. Br. A14, 17-22). The 
statute permits the agency to rely on 
evidence not otherwise admissible if it is 
... "of a type commonly relied on by 
reasonably prudent men in the conduct of 
their affairs." Id.



13

A. The Hearing
(1) The Hearing Examiner. Respon­

dent's administrative hearing was con­
ducted by a hearing examiner sitting 

alone, between April and October 1982. 
Ignoring respondent's request that the 

hearing be conducted by someone entirely

unconnected with either the University or 
4

AES, the University's Vice-President for

Agriculture, W.W. Armistead ,one of the
individuals named as a defendant in the

federal court litigation, assigned his
Assistant Vice-President for Agriculture,

5
B. H. Pentecost, to hear the case. P.A. 

182; Tr. I, 3.

See App. 6th Cir. p.63 (letter dated 
January 5, 1982, attached as exhibit B to 
initial Motion to Dismiss, Dkt. Nr. 6).
The statute provides for cases to be heard 
by one employed by the Secretary of 
State, upon agency request. Tenn. Code 
Ann . § 4-5-301(d )



14

(2) The Participants. Two parties
participated in the hearing: respondent

and the University. Both were represented

by counsel. None of the other parties
named as defendants in the complaint
particpated, except that some of these

persons appeared as witnesses for the
University. None of the non-University
defendants was represented or participated

6
in the examination of witnesses.

(3) The Charges. The University
claimed that respondent's dismissal was

justified by ten charges. These charges

ranged from insubordination to playing

golf and conducting personal business on 
7

working hours.

See, generally, hearing transcript.

The specific charges, as outlined in the 
hearing examiner's opinion, included the 
following: (1 ) playing golf during working 
hours on one occasion in 1976, one 
occasion in 1981 and on one occasion in 
1982; (2) engaging in non-University
business during working hours on several



15

B. The Scope of the Hearing

At the outset of the hearing respon­
dent sought to file a statement of 
" counter-issues" asserting that the 
charges had been filed "because of racial 
prejudice ... and/or because of his
complaints against racial discrimina- 

8
tion..." Petitioners promptly and

occasions in 1980; (3) making or allowing 
to be made harassing telephone calls to a 
private citizen; (4) improper job behavior 
in the use of abusive language and 
trespassing on one occasion; (5) improper 
job behavior in the use, on one occasion, 
of profane language" in public; (6) 
certain instances of leaving work prior to 
the end of a work day; (7) charging 
long-distance telephone calls to the 
University; (8) being insubordinate, and 
thereby violating a University work rule, 
by failing to complete certain work 
assignments; (9) failing to complete 
assignments, thereby performing his job 
inadequately; and (10) violation of a 
University work rule by the use of 
profane language on two occasions. PA 
39-43.

8 PA 43-44.



16

successfully objected to this proposed 
statement:

We would respectfully submit ... that 
the statement of counter-issues are 
completely improper, and we would 
point out to the Hearing Examiner 
that a civil proceeding ... is 
presently under way, in the United 
States District Court ... wherein the 
Employee . . . has sued the University 
Agricultural Extension Service and 
many of the University officials for 
the exact charges that have been 
raised in the counter-charges by 
counsel at this time; and that those 
issues are not before this proceed­
ing, but are in fact before^ the 
Federal Court in another matter.

Transcript of Administrative Hearing 
volume i, pp. 33-34 (Res. Br. a1-2) 
(hereinafter cited as Tr.). In its 
Proposed Findings of Fact and Conclusions 
of Law submitted in the administrative 
hearing, the University urged;

[T]here is no jurisdiction in this 
... case to try counter charges of 
the employee that the University's 
proposed action violates 42 U. S.C. §§
1981 , 1982 , 1983, 1985 or 1986___
[N]o jurisdiction exists in this 
forum to try a race discrimination 
case under Title VII.... [I]f 
jurisdiction exists over these civil 
rights actions, it exists in the 
federal district court and not in 
this administrative hearing.

pp. 4-5.



17

The hearing examiner sustained that

objection, holding that the administrative

proceeding was "not a proper forum to hear
10

these particular issues", and expressly

basing that decision on "the understanding
that these counter issues will be afforded
ample opportunity [for a hearing] in a 

1 1
proper Court."

Counsel for the University continued 

throughout the administrative hearing to 
assert that the discrimination issues 

belonged in federal court alone, stating 

that it was improper

Id. at 40.
1 1 Id. at 36-37.



18

to have to try a Title VII discrimi­
nation lawsuit here at this forum, 
and there is no jurisdiction in this 
forum for such a case,... I will 
continue to object to all efforts to 
try ... a Federal lawsuit here, in 
this hearing.

The hearing examiner reiterated with equal

consistency his understanding that the
discrimination issues could and would be
resolved in the federal action:

I cannot, by the authority granted me 
under this Administrative Procedure 
Act, make determinations relative to 
discrimination... I believe that 
you are going to have your day in 
court, as I stated earlier in this 
hearing, there is another forum for 
certain aspects of the racial issues, 
and I absolutely have no authority to 
rule on them.

Tr. xix, p. 129. See also Tr. xxiii, p. 
92 ("There has been an Employment Equal 
Opportunity Commission [sic] charge filed, 
by Mr. Elliott, against the Agricultural 
Extension Service for alleged racial 
discrimination in the Madison County 
Office. This is not the place to try that 
or to investigate it.")

13 Tr. v. xxiii, p. 97.



19

The hearing examiner made clear he would 
consider, at most, only the claim that the 

university officials had acted for 
discriminatory purposes when they filed 

the particular charges at issue in the 
administrative proceeding.

C. Excluded Evidence
Throughout the administrative pro­

ceeding counsel for the University 
consistently and with almost complete 
success objected to evidence of discrimi­
nation on the ground that it belonged only 
in the federal action, and had no rele­
vance to the issues in that administrative 
action.

Respondent repeatedly, sought to 
introduce evidence that AES had never 

disciplined whites for the sort of minor 
infractions with which he was charged; 

counsel for the university successfully 
objected to that evidence on the ground



20

that discrimination in discipline was a 

matter which only the federal court could 
consider:

We are here to find if the charge 
[against ' respondent] is to be 
sustained or not. This is not a 
Title VII race discrimination case. 
The kind of testimony that is asked 
to be elicited ... relates to that 
and would relate in that case and the 
jurisdiction of that case is the 
United States District Court ... and 
this hearing has no jurisdiction over 
those matters.... And also there is 
an EEOC complaint, and the EEOC will 
investigate this. For it to be 
brought out here and no is wrong. 
It's wrong because it's irrelevant 
and it's immaterial. This adminis­
trative proceedings [sic] doesn't 
have .jurisdiction over those mat­
ters.

The hearing examiner consistently excluded 
evidence that whites had not been dis-

Tr. xxvii, pp. 27-28. Other instances in 
which the University successfully objected 
to evidence of racial discrimination in 
discipline are to be found at i, pp. 149, 
1 52-53; ix, pp. 111-125; ix, pp. 132, 
136-37; xi, pp. 29, 33-34; xii, p. 156; 
xiii, pp. 12-14; xvi, p. 32 (Res. Br. 
a4-6; 9-19).



21

ciplined for conduct similar to that with
which respondent was charged, explaining
"You have another forum, I believe that
you are already in court, to bring this 

1 5
91• • •

Other evidence was excluded for the
same reason. When respondent sought to
prove that his work assignments had been
changed because of a policy of segregating
4-H Clubs, and of assigning only white
employees to clubs with white members, the
university objected that such evidence
"doesn't have anything to do with the
charges in this case. It may have
something to do with [respondent's]
lawsuit, which he has brought, his class

16
action against the Extension Service."

15 Tr. ii, p. 152.
16 Tr. xxiii, p. 30. Similar successful 

objections to evidence regarding dis­
crimination in the operation of the 4-H 
clubs can be found at Tr. xxix, p. 26 
("[T )]here's other proceedings already



22

The hearing examiner repeatedly refused to 

consider such evidence regarding dis­

crimination in the operation or staffing 

of 4-H clubs, explaining "I am not getting 

further into the issue which I know is 

going to come before a Federal Judge, who

is competent and has the authority to
17

listen to his ..." When respondent sought 
to introduce an EEOC study of employment 

practices within the Extension Service,

under way for that to be investigated."), 
107 ("I object to going further in the 
matter of complaints about the 4-H Club. 
It is a different matter and a different 
lawsuit and different place."); xxxiiii, 
p. 133 ("This isn't the place. We have a 
lawsuit in which those issues are pre­
sent."); xliv, pp. 23-26 ("It's irrelevant 
to this proceeding. There's another 
proceeding that it'd be relevant to ... 
The case that's in Federal Court, I don't 
think we should go into here... The point 
is, Mr. Hearing examiner, that well, 
very well, may be an issue regarding this 
class action, that has been brought 
against the university. But this is not 
the place to try this class action.").

17 Tr. xxix, p. 109.



23

the University objected that such evidence

related only to the "Title VII lawsuit
that has been filed [against the

18
Defendants]... in Federal Court" and the
hearing examiner held that the evidence
was irrelevant in light of his decision

the first day of the hearing that the
respondent could not litigate his federal
discrimination claims in the administra-

19
tive proceeding. When counsel for 
respondent sought to ask questions about 

disparities in the salaries of black and 
white employees, counsel for the Uni­
versity objected that a complaint about 

salary discrimination should be raised
with "the proper authorities... This is

20
not the place to look at it." and the

Tr. xix, p. 124. 
Tr. xix, p. 128. 
Tr. xxxiii, p. 4.



24

hearing examiner held that "[tjhis is not

... the proper forum for this to be 
21

asked."
Excluded summary manner was evidence

of obvious relevance to respondent's

federal claims, such as proof of racial
22

discrimination in promotions and evidence
that retaliatory action may have been
taken against respondent because of his

23
civil rights activities.

Throughout the trial the university 

continued to successfully object on this 
ground to evidence of discrimination,

21 Id.
22 Tr. xix, PP- 144--45.
23 Tr. i, p., 76, v . iii f p« 422* See also

Tr. xxvi, pp. 153 -55 (excluding ev idence
of statewide discriminatory practices); 
xxviii, p. 210 (excluding evidence 
regarding what types of discrimination 
might have been apparent in respondent's 
office); xlv, pp. 33-34 (excluding 
evidence regarding discrimination in the 
selection of county committee members.)



25

which it insisted was only relevant to the

federal claims. When respondent sought to

prove the existence of discrimination in

the operation of AES programs, the
University argued that such evidence

should be considered only in the "civil
rights action brought by the employee in
the United States District Court ... since
the employee, by his own choice, has
chosen that forum in which to bring a[n]

24
action of racial discrimination." 

Respondent attempted to adduce evidence 
that during extension service meetings 

blacks were referred to by their first 
names, while whites were referred to as 
Mr. and Mrs.; the University successfully 

objected on the ground that "this is not 

the place to try the race discrimination

Tr. iv, p. 484. See also xd_. at 486 
( " [T]he case against the University in 
Federal Court, should not be tried through 
this witness here.")



26

case against the Agricultural Extension 
25

Service." Similarly, counsel for the 

University prevented respondent from 

asking questions about racial discrimi­

nation in employee ratings, arguing "You 
can go into that in the Federal Court case

if it's part of the pattern o[r] practice,
26

but it doesn't relate here." Efforts to 

show that respondent's immediate super­
visor had a practice of giving gifts to 
white but not black workers was also 
thwarted, the University contending that 
"[i]t doesn't relate to these proceedings" 

although" [ i] t may relate to some claim of
race discrimination that is a Title VII

27
case pending in Federal Court...." The 
hearing examiner sustained a similar

25

26 
27

Tr. 
Tr. 

Tr.

xxxiii, p. 227. 

xliv, p. 36. 

xxii, p. 16.



27

obj ect ion to evidence designed to show

that the low income farmers to whom

respondent had been assigned were 
28

pre-

dominantly black.

During the administrative proceeding
the university successfully argued that

the hearing examiner should disregard
evidence regarding the motives of any of
the seven federal defendants who were not

extension service employees, arguing that

the motives of such non-employees was
irrelevant and not material and not 
pertinent to this hearing. Plus 
there is a lawsuit that is separate 
from this in which those matters may 
be pertinent and it is not proper for 
us to go in Jiere what is in that 
other lawsuit.

Tr. xix, p. 147 ("It is not relevant to 
this proceeding... This isn't the place 
to try such a case as the overall.")
Tr. xxiv, p. 178. In its Proposed 
Findings of Fact and Conclusions of Law in 
the administrative proceeding the Uni­
versity urged that the hearing examiner's 
responsibility was not to "determine 
whether Madison County acted properly in 
its recommendation [that Elliott be dis­
missed] , but to determine the propriety of



28

The hearing examiner agreed, explaining "I

do not have the authority, as I perceive
it, to try or to make rulings relating to

racial discrimination in this administra­
te) -

tive hearing."

The Administrative Decision 

A. The Charges

In a decision issued on April 4,
1983, the hearing examiner found that only
three of the ten charges brought by the
University were supported by the evidence,
and he concluded that they did not justify

31
respondent's termination. Nevertheless,

Tr. xxiv, p. 176; see also Tr. xxiii, pp. 
129, 131.
PA 178. Specifically, the hearing 
examiner found support for the Univer­
sity's contention that (1) respondent had 
played golf on one occasion in 1981 during 
work hours, but that even if he had played 
golf in earlier years any charges relating 
to those earlier instances would be stale;
(2) that although respondent reimbursed 
the University, he made long distance 
personal calls from the office in vio­
lation of the University rule, and (3) 
that the employee was guilty of using



29

the hearing examiner was of the view that 
a deteriorating personal relationship 
between his supervisor and him required 

respondent's reassignment. PA 180. Despite 
the exclusion of relevant evidence, the 

hearing examiner also concluded that "the 
employee has failed in his defense ... 

that the charges against him were a 
pretext or cover up for racial discrimi­
nation...." P .A. 178.

personal calls from the office in vio­
lation of the University rule, and (3) 
that the employee was guilty of using 
profane languae in public on one occasion. 
However, the hearing examiner found that 
the University had failed to prove that 
Elliott engaged in personal business 
during working hours or that he was 
insubordinate or guilty of inadequate work 
performance. The hearing examiner de­
clined to rule on one of the charges. PA 
1 7 8.



30

B. The Scope of the Hearing
The hearing examiner's decision made 

clear that he accepted the University's 

position that he did not have the juris­
diction to consider claims of racial 

discrimination:
However, it is the hearing 

examiner's opinion that this was not 
the appropriate forum and that he has 
no jurisdiction under the UAPA 
contested case provisions, supra to 
try civil rights actions on the 
merits as proposed in employee's 
counter charges. If an action lies, 
it lies not in state proceedings such 
as this hearing. Such an action has 
been filed by employee in United 
States District Court in Jackson, 
Tennessee, Robert B. Elliott v. The 
University of Tennessee, et al. (C.A. 
No. 82-1014, W.D. Tenn. E. Div.) 
therefore, this hearing examiner 
concludes that if jurisdiction exists 
over the counter issues raised by 
employee, it exists in that Federal 
District Court and that employee may 
not try his civil rights action in 
this forum.

PA 44-45.



31

The Final Agency Decision
The hearing examiner's order was

appealed to the University. That appeal
32

was heard by Mr. Armistead, who affirmed 

the initial order in a two-page letter 
that indicated he concurred with the 
conclusions and that the order was thereby 

adopted as the agency decision. PA 33-35. 
The final order was not appealed to state 
court by either petitioner or respondent. 
Respondent's Return To Federal Court

Instead, respondent filed a motion 
for a TRO and stay of the agency order 
pending a hearing in court. Dkt Nr. 26 

(6th Cir. App. 169).
The motion asserted several new claims 

which had not been set forth in the 
original complaint. The motion and 
accompanying memorandum alleged that the

32 See supra p. 13.



32

defendants had adopted a number of new 

practices which not only were discrimina­

tory in purpose but which also violated 

the order issued by the hearing examiner. 

These practices included placing on 

respondent burdens different and greater 

than those imposed on whites, establishing 
evaluation criteria calculated to facili­
tate yet another effort to dismiss 

respondent, and a failure to establish 
clear and objective job responsibilities 
for respondent. The motion and memorandum 
also directly attacked as unconstitutional 
the decision of the hearing examiner to 
order respondent's transfer to another 
county; respondent complained, inter alia, 

that the hearing examiner was biased and 
that the transfer constituted double 

punishment for alleged misconduct for 
which he had already been sanctioned years



33

earlier. The University opposed this 

motion and filed a motion for summary 
judgment, asserting, inter alia, that the 
district court lacked jurisdiction to 

review the agency findings that could be 
reviewed only by a state court. For the 

first time, and totally contrary to the 

position taken before the hearing ex­

aminer, the University argued that the

final agency decision was res judicata as
34

to all claims raised in the complaint. 
Respondent sought an extension of time in 
which to respond to this motion, so that

33

Motion for a Temporary Restraining Order 
and/or a Temporary Stay, October 24, 1983; 
Memorandum in Support of Plaintiff's 
Motion for a Temporary Restraining Order 
and/or a Temporary Stay, October 24, 1983. 
App. 6th Cir. pp. 169-175; 294-303.
Response of the University of Tennessee 
Defendants to Plaintiff's Motion for TRO, 
November 3, 1983. App. 6th Cir. pp. 
311-320.



34

he could obtain a transcript of the
35

administrative hearing.
The district court, without and 

having before it the administrative record 
and despite the lack of any findings 
regarding non-University defendants in the 
administrative decision, granted the 

motion for summary judgment and dismissed 
the action as to all defendants. Respon­
dent filed a motion pursuant to Rule 

59(e), Fed. R. Civ. P . , and he amended
that motion, to file a copy of the hearing 

36
transcript. The University sought to 

prevent the district court from examining 
the transcript by moving that the tran­
script be stricken from the record; the 
district court declined to grant that 

motion. Dkt Nr. 52, 54. The Rule 59

35 Dkt Nr. 32.
36 App. 6th Cir. p. 380; see, entry following 

Dkt Nr. 51.



35

motions were denied, and respondent 

appealed the district court's grant of 

summary judgment.

Appeal to the Sixth Circuit
The Court of Appeals reversed the 

judgment of the district court. Relying 
on this Court's decision in Kremer v. 
Chemical Construction Co., 456 U.S. 461 
( 1982), it held that respondent's Title 

VII claims were not barred by res judi­
cata, because there had been no state 

court review or judgment. PA 11-13.
The Court or Appeals further held 

that the district court had also erred in 

dismissing the claims asserted under 42 

U.S.C. § 1981, 1983, 1985, 1986 and 1988. 
PA 13. The Court first looked to the 

principles announced in Allen v. McCurry, 

449 U.S. 90 (1980) and Migra v. Warren
City School District Board of Education, 
465 U.S. 75 (1984) and found that Section



36 -

1738 (28 U.S.C. § 1738) did not require
federal courts to defer to unreviewed 

agency findings. PA 15-16. Finally, its

analysis of common law preclusion princi-
# ■ ■ *

pies led the Court to hold that according 

preclusive effect to unreviewed state 
agency determinations would deprive a 
plaintiff of a federal remedy. PA 20-22.

SUMMARY OF ARGUMENT 
Petitioners seek issue preclusion on 

an issue, i.e . , racial discrimination in 

employment, that has not been "litigated 
and decided." Migra v. Warren City School 
District, 464 U.S. 75 ( 1984). Respondent 
has not had "a full and fair opportunity" 

to litigate this issue. Allen v. McCurry, 
449 U.S.90 (1980). The hearing examiner, 
an employee of the University petitioner, 
restricted testimony and excluded evidence 
concerning discrimination by the Uni­
versity and its agents.



-  37

Issue preclusion is simply not 

applicable to most of the claims in 
respondent's federal complaint since there 

has been no decision on those issues.
Traditional principles, as embodied 

in 28 U.S.C. § 1738, are not applicable to 
the instant case since that statute, by 

its terms, only applies to the decisions 
of "courts" and the agency here does not 

qualify as a court.
Even if § 1738 generally could be 

interpreted to apply to administrative 

agencies, there is "an express or implied 
partial repeal" of the statute with 
respect to prior agency decisions when a 
plaintiff asserts a cause of action under 
Title VII of the Civil Rights Act of 1964, 

42 U.S.C. §§ 2000e et seq. Kremer v. 
Chemical Construction Corp., 456 U.S. 461,
468 (1982). The legislative history of



- 38

that Act makes clear that this repeal 

exists whether or not the agency is part 

of the statutory scheme of Title VII.

This Court has indicated that resort 
to administrative agencies will not 
prevent an individual from asserting 
rights under 42 U.S.C. § 1983. See, e,g., 

Patsy v. Florida Board of Regents, 457 
U.S. 496 (1982); Fair Assessment in Real 

Estate v. McNary, 454 U.S. 100 (1981).
Whether this case is evaluated on its 

particular facts or on express and implied 

limitations on the doctrines of preclu­
sion, the decision of the court of appeals 
should be affirmed.



39

ARGUMENT
I. THE PARTICULAR AGENCY DECISION IN 

THIS CASE IS NOT ENTITLED TO PRE­
CLUSION UNDER TRADITIONAL PRINCIPLES

Petitioners seek issue preclusion, or

collateral estoppel, on the "issue of

racial discrimination" and ask this Court

to apply traditional principles of full
faith and credit to achieve that end. Pet. 

37
Br. 26-27. Petitioners begin their
analysis by asserting conclusorily that

this issue was fully litigated. Pet.Br.
38

at 20. Respondent does not agree that the 
Court should apply traditional principles

Petitioners acknowledge that claim 
preclusion or res judicata is not avail­
able since the hearing examiner lacked 
jurisdiction. Id. at n.11.
As discussed below, different principles 
apply when the prior determination has 
been made by an agency and when the 
subsequent proceeding is a federal action 
under Title VII, 42 U.S.C. § 20G0e et seq 
or one of the 1871 Civil Rights statutes,
42 U.S.C. §§ 1981, 1983, 1985, 1986, 1988.



40

of preclusion, but submit that, if such 
principles were applicable, the analysis 

should begin by examining, in fact, what 

was litigated and decided in the agency 
and how fully those issues and claims were 
presented to and considered by that 

agency. This analysis shows that tradi­

tional principles mandate that preclusion 
should not apply to this case. It is a 

well-settled principle that

[C] ollateral estoppel cannot 
apply when the party against whom the 
earlier decision is asserted did not 
have a 'full and fair opportunity' to 
litigate that issue in the earlier 
case. Montana v. United States, [440 
U . S . IT77 153 (“1979)] ; Blonder-
Tongue Laboratories, Inc, v. Uni­
versity of Illinois Foundation, [402 
U."S'.''313,''"328-329 '(“1971')'] .

Allen v. McCurry, 449 U.S. 90, 95 ( 1980). 
Moreover, it applies only to matters that 

have been both "litigated and decided". 
Migra v. Warren City School District, 465

U.S. 75,77 n. 1 ( 1984). While the peti­



41

tioners would like the Court to accept

their assurance that the issue of racial

discrimination was fully litigated, they
fail to even confront the second element.

Nowhere in petitioners' brief will the
Court find an assertion that the issues
raised by respondent's federal complaint

were actually decided by the hearing
examiner. Instead, petitioners assert, in
a carefully chosen phrase repeated some 20

times in their brief, only that the issues

in the federal complaint were "fully and
fairly litigated" in the administrative

39
proceeding. (Emphasis added). If an issue 

were only litigated in, but never actually

Pet. Br. i, iii, 12, 13, 15, 16, 20, 27, 
31, 37, 38, 39, 41. Consistent with this 
carefully chosen language, the questions 
presented proposed by petitioners concern 
whether full faitfr and credit apply to 
"issues fully and fairly litigated before 
a state agency" not whether full faith and 
credit apply to issues litigated before 
and decided by a state agency.



42

resolved by, the administrative process,
then issue preclusion would of course be
improper; there can be no collateral
estoppel if the matter in question was
never actually adjudicated.

This striking omission is far from
40

inadvertent. In the district court and in
41

the court of appeals respondent repeatedly
and expressly asserted that the hearing
examiner had refused to decide the issues
presented in his federal complaint.
Although petitioners themselves appear to
understand that issue preclusion is
inappropriate for issues that were not

42
actually adjudicated, petitioners in the

Plaintiff's Memorandum in Support of 
Motion for TRO, p. 21; Plaintiff's 
Response to Defendant's Amended Motion for 
Summary Judgment, p. 3; Memorandum in 
Support of Plaintiff's Motion for New 
Trial, pp. 1, 2, 4.
Brief for Appellant, p. 2.
Pet. Br. 35, 38, 42.



43

court of appeals, as here, carefully and

consistently declined to assert that the
hearing examiner had in fact decided all
or most of the questions raised by the

43
federal complaint.

As we set out in detail below, there 

are two distinct reasons for the appar­

ently curious phrasing of petitioners* 
brief. First, the respondent was pre­

vented from having a full and fair 
opportunity to litigate. Second, the 
hearing examiner in the administrative 
proceeding clearly did not decide almost 
any of the issues raised by the federal

Brief for Defendants-Appellees, pp. 6 
(plaintiff "raised" his discrimination 
claims in the administrative hearing), 17 
(discrimination issues "litigated" in 
administrative hearing), 18 (plaintiff 
"raised" his claims in the administrative 
hearing), 19 (discrimination claims 
"litigated" in the administrative pro­
cess) .



44

complaint; on the contrary, the examiner

was quite explicit in refusing to decide 
44

those issues. 4] A  

A. Opportunity to Litigate
Throughout the administrative hearing 

counsel for petitioners repeatedly and 

successfully argued that only the federal 
court should decide the discrimination 
issues, and that the hearing examiner for 

that reason should not admit evidence 
regarding or undertake to resolve those 

issues. Although petitioners in this Court 
insist that respondent was entitled to 
litigate his discrimination claims in 

the administrative hearing, petitioners

The district court opinion on which 
petitioners rely did not hold or suggest 
that the issues raised by the federal 
complaint had actually been decided in the 
administrative hearing. Rather, the 
district court observed only that dis­
crimination issues had been "litigated in 
the UAPA proceeding". PA 32.



45

successfully argued precisely the opposite 

when they were before the hearing ex­

aminer. Under these circumstances the

application of issue preclusion is clearly 
45

inappropriate.
Many of the issues raised by respon­

dent's federal claims were "litigated” in 
the administrative hearing only in the 

sense that, despite the hearing examiner's 

repeatedly expressed refusal to admit or 
consider most evidence of discrimination, 
respondent's counsel persisted in making 

systematic and generally unsuccessful

Issue preclusion is not appropriate 
"because the party sought to be precluded, 
as a result of the conduct of his ad­
versary ... did not have an adequate 
opportunity ... to obtain a full and fair 
adjudication in the initial action. 
Restatement (Second) of Judgment (1980 § 
28(5). Having acted to deprive Mr. 
Elliott of a full and fair opportunity to 
litigate the issue of discrimination, the 
University should not be permitted to rely 
on the preclusive effect of the agency 
determination.



46

offers of proof. Petitioners' assertion 
with regard to the administrative hearing 
that the discrimination issues "hardly 

could have been litigated more fully" 

(Pet. B r . 20) is somewhat difficult to 

reconcile with what actually occurred in 

that proceeding.

The petitioners claim of issue 

preclusion is based merely on two circum­
stances: (1) The length of the adminis­
trative proceeding and (2) the Administra­
tive Law Judge's assertion that he 

addressed the issue of "racial discrimi­
nation." Neither of these circumstances 
are analytically supportive of preclusion. 
The length of the proceeding might be of 

some relevance if the issue before the 
hearing examiner was racial discrimination 

in employment. Here, however, the focus of 

the hearing and of the examiner was the 
work performance and job behavior of



47

respondent. Almost of the testimony was 

directed toward these issues and respon­

dent defended himself specifically against
47

charges in this area. The petitioners 

would like to give the impression that the 
extent of the record herein conclusively 

shows that respondent had a full and fair 

opportunity to litigate the issue of 
racial discrimination. Pet. Br. 29-21.

This simply ignores the fact that very 

little of the testimony or the hearing

46

"The purpose of this hearing was to 
determine whether or not the employment of 
Madison County Associate Agricultural 
Extension Agent, Robert B. Elliott ... 
should be terminated for alleged inade­
quate work performance and inadequate 
and/or improper job behavior." PA 37.

^  "Employee produced some 90 witnesses who 
testified relative to the services he had 
performed for small farmers and others in 
Madison County from time he first came to 
the county up to and including the date of 
their testimony during the hearing." PA 
114.



48

examiner's order even addressed the
48

question of racial discrimination.

More importantly, the hearing ex­
aminer agreed with the petitioners that he 
had no jurisdiction over the issue of 

racial discrimination and that a pro­
ceeding under the UAPA contested cases 
provisions was an improper forum to raise 
such issues. PA 44. It was this view 
which led him to restrict testimony and 
exclude evidence of racial discrimination.

A full and fair opportunity to 

litigate embodies two components: pro­
cedural fairness and substantive adequacy. 

The hearing conducted by the agency here 

falls short in both areas. The peti­
tioners attempt to avoid these deficien-

For example, while the Initial Order 
comprises almost 150 pages in the ap­
pendix, fewer than seven pages (PA 
171-177) comprise the hearing examiner's 
views on the racial discrimination issue.



49

cies by reference to the outer trimmings 

of the hearing, knowing full well that the 
actual conduct of the hearing belies their 
assertion. For example, the petitioners 

point out the trial-type rights provided 

by the UAPA, but fail to bring to this 
Court's attention (1) the University's 

repeated successful attempts to restrict 

evidence on racial discrimination during 

the hearing and (2) its subsequent 
attempts to keep the hearing transcript 

(and thus the inadequacy of the hearing on 
the issue of discrimination) from the 

district court. The UAPA may have provided 
procedural rights but the University 
succeeded in preventing those theoretical 

rights from being translated into a full 

and fair opportunity to litigate.



50

B. The Decision of the Hearing Examiner
The actual decision of the hearing 

examiner generally adhered to the view 

successfully advanced by the university 
during the hearing itself regarding the 
irrelevance of discrimination issues. The 
hearing examiner expressly refused to 

decide discrimination issues "unrelated to 

the proposed termination of Elliott", 

explaining that he did not have "juris­

diction in this proceeding to try a civil 
rights case on the merits" and that the 
"proper forum" for such claims was "the 
federal court in which Elliott has filed 
his federal lawsuit." (PA 171). The only 
discrimination issue which the examiner 
did deem relevant to the administrative 
proceeding was whether "the employer's 
action in bringing charges against the 

employee ... were based on ... racial 
discrimination." (PA 177).



51

The examiner's decision circumspectly 
avoids deciding, or even addressing, 
almost all the discrimination and retali­
ation issues raised by respondent's 
federal complaint. First, the examiner 

expressly refused to issue any ruling 

regarding actions or motives of the seven 
federal defendants who were not AES 
employees, noting that such matters were 

"outside the parameters of this hearing." 
(PA 174). Second the examiner's opinion 

is devoid of any reference to respondent's 

allegations that the extension service 
engaged in systematic discriminatory 

practices, such as servicewide discrimi­
nation in hiring, compensation, assign­
ments, promotions, training, appointment 

of supervisors, or program administration.
Third, the examiner's opinion, with one

49
narrow exception, contains no discussion

49 The hearing examiner concluded that



52

whatever of respondent's claims that 

extension service officials had retaliated 

against him because of his civil rights 

activities; indeed, the opinion does not 

expressly address the issue of whether the 
charges filed against respondent had been 
the result of retaliation, as distin­
guished from racial prejudice. Fourth, 
the examiner's opinion does not, of 
course, address any of petitioner's 

subsequent claims that the defendants 
engaged in new discriminatory practices 

after the issuance of that opinion.
The one issue that the hearing 

examiner's opinion does attempt to address 

is whether AES officials actually believed

Shearon's order prohibiting Elliott from 
visiting golf courses during working 
hours was not issued in retaliation for 
Elliott's efforts to integrate all-white 
golf courses. (PA 172). The examiner's 
opinion does not address the question of 
whether other actions by Elliott's 
supervisors might have been so motivated.



53

respondent had violated the service's 
rules and standards, or had knowingly 

filed false charges for racial reasons. 

The hearing examiner concluded that the 
extension service defendants acted on the 

basis of what they "perceived as improper 

and/or inadequate behavior.” (PA 177). 

The federal complaint alleged, however, 

that the proposal to dismiss respondent 

was initiated, not by AES employees, but 
by the white members of the Madison County 

Agricultural Extension Service Committee, 
allegedly in collusion with the private 

defendants Korwin and Murray Truck Lines. 
Thus the hearing examiner's opinion is not 
dispositive of the federal claim that the 
dismissal action was tainted by a dis­

criminatory purpose, but merely exonerates 
some but not all of the federal defendants 
of one aspect of that charge.



54

Although the hearing examiner 

repeatedly states that he cannot resolve 
any discrimination issue other than 
whether there was a racial purpose behind 
the University's charges, the examiner's 

opinion inexplicably contains several 
pages discussing allegations of discrimi­
nation in incidents that were not the 

subject of those charges (PA 172-77). This 
apparent inconsistency has a simple 

explanation. Following the conclusion of 
the administrative hearing, the University 
submitted Proposed Findings of Fact and 

Conclusions of Law which asserted that the 
examiner had no jurisdiction over dis­
crimination claims regarding incidents 
other than those leading to the particular 
charges against respondent. The Univer­

sity, however, also included in that 
pleading proposed findings regarding a 
dozen incidents, most of which were not



55

although expressly noting with regard to

at least one of them that the claim was
"unrelated to the disciplinary charges in 

50
this case." The portions of the hearing
examiner's opinion dealing with such
unrelated incidents are taken directly
from the university's proposed findings;

the hearing examiner discusses exactly the
same issues, in virtually the same order,
often using language or sentences lifted

51
verbatim from the university's draft.

This portion of the hearing ex­

aminer's opinion raises several issues 

that were not addressed below. First, if, 
as both the examiner and the university at 

times maintained, resolution of these 
separate discrimination claims was

50 Proposed Findings of Fact and Conclusions 
of Law, p. 79.

51 Compare, id. at 70-79 with PA 172-77.

the subject of the pending charges,



56

irrelevant to the charges actually before

the examiner, then any adjudication of

those claims would be gratuitous and not

binding in a subsequent proceeding.
Second , in a number of instances the
opinion recites there is "no evidence" of

discrimination as to a claim which the
examiner had dismissed as irrelevant

during the hearing itself, and regarding
which the examiner had thus refused to

52
admit evidence. Clearly, respondent did 
not have a full and fair opportunity to 

litigate such issues. Third, it is clear 

that the legal standards applied by the 
hearing examiner in rejecting what he 
characterized as respondent's "affirmative 
defense" were not the same as the stan­
dards that would be applied in a Title VII

Compare PA 173 (no evidence of salary 
discrimination) with Tr. xxxiii p. 3 
(evidence of salary discrimination 
excluded as irrelevant).

52



57

or Section 1983 case. If the adminis­

trative preclusion were to be accorded 
effect in a Title VII or Section 1983 
action, the lower courts would have to 

determine on remand whether the narrow 
issues that were actually resolved by the 
hearing examiner should be given such an 
effect in light of the peculiar history of 

the administrative proceeding.
C. The Tennessee UAPA Process

The concepts of res judicata and 
collateral estoppel rest on notions of 
finality, that issues and claims, once 

fully litigated and properly decided, 
should not be subject to further adjudi­
cation. Montana v. United States, 440 U.S. 
147, 154 (1979); Parklane Hosiery Co. v. 
Shore, 439 U.S. 322, 327 n.5 ( 1979).
Neither doctrine is rigid and each may be



58

shaped to assure fairness. See e,g., 

Montana, supra, 440 U.S. at 164 n.11 

(" Rede termination of issues is warranted 
if there is reason to doubt the quality, 
extensiveness or fairness of procedures 
followed in prior litigation"); Parklane 
Hosiery, supra, 439 U.S. at 330-31 . This 

concern for fairness is most often 
expressed in the phrase "full and fair 
opportunity to litigate." Courts of 
necessity have sought to define this 

phrase by asking more specific questions. 
In Parklane Hosiery, for example, this 

Court suggested, inter alia, the following 
inquiries: (1) the monetary incentive of 

the party in the prior litigation; (2) the 

existence of prior inconsistent judgments;
(3) the availability of procedural 
safeguards in the prior proceeding. The 
Court concluded that trial courts should 
exercise "broad discretion" in applying



59

preclusion. 439 U.S. at 331. Decisions by 

administrative agencies pose a special 

problem. Until recently, administrative 

agency decisions have not been accorded 

preclusive effect. Not until 1966 did this 

Court squarely hold that decisions by 
administrative agencies could in appro­
priate circumstances preclude judicial 
litigation of the same issues. United 

States v. Utah Construction & Mining Co., 

384 U.S. 394, 421-22 (1966). Because of 
the enormous variations in the expertise, 
independence, authority, procedures and 
responsibilities of administrative 
agencies, and of the issues that come 
before them, the appropriateness of 
preclusion, and the degree of deference

53 | ' ' . .While the decision in Parklane Hosiery 
involved the application of offensive 
collateral estoppel, the Court noted that 
there was "no intrinsic difference" 
between of fens ive and defensive collateral 
estoppel. 439 U.S. at 331 n.16.

53



60

that may be warranted to a particular
agency determination, necessarily depends
on the circumstances of each case:

The reasons behind the doctrine [of 
res judicata] as developed in the 
court system are fully applicable to 
some administrative proceedings, 
partially applicable to some, and not 
at all applicable to others. As a 
matter of principle, therefore, the 
doctrine should be applied to some 
administrative proceedings, modified 
for some, and rejected for others.... 
[T] he choice is not between taking 
all or none of the traditional 
doctrine of res judicata; the 
doctrine may be relaxed or qualified 
in any desired degree.... In a great 
many cases the courts have applied a 
relaxed doctrine of res judicata to 
administrative action.

2 K. Davis, Administrative Law Treatise 
§ 18.10 (1972). In deciding whether to 

apply preclusion to a particular agency, 
or kind of agency, a court should look to 
how well the attributes of that agency 
serve the interests of fairness.



61

Although this Court has not had 

occasion since Utah Construction to 

consider the appropriateness of applying 
res judicata to particular agency determi­

nations, the Court has repeatedly ad­
dressed the closely related question of 
whether prior arbitration decisions should 

preclude litigation in federal court of 
the very issues resolved by the arbitra­
tor. McDonald v. City of West Branch, 466 
U.S. 284 (1984); Barrentine v. Arkansas- 

Best Freight System, Inc., 450 U.S. 728 
(1981); Alexander v. Gardner-Denver Co., 

415 U.S. 36 (1974). In deciding whether 
to give res j ud icata effect to such 
arbitration decisions, the Court weighed 
the importance that Congress attached to 
judicial enforcement of the claims at 
issue, and the adequacy of arbitration as 
a substitute for j ud icial proceedings. 
McDonald, 466 U.S. at 289-90. The



62

particular criteria applied in McDonald,

Barrent ine, and Alexander, we urge, are

among the appropriate factors for deciding

whether to give preclusion effect to a
54

state agency determination. When applied
to the UAPA proceeding in this case, these
factors dictate a non-application of the
preclusion rules.

1. Lack of Expertise

First, the administrative law judge
did not have the required expertise in

55
employment law. Because the UAPA pro-

54 McDonald discusses these factors in the 
context of creating a preclusion doctrine 
outside of § 1738. Respondent submits 
that § 1738 does not apply to agency
decisions (see pp. 77-83), but believe 
that these criteria would also be relevant 
to a determination of the extent of 
deference which the full faith and credit 
statute would require.

55 As with arbitration, there is no require­
ment that the hearing examiner be a 
lawyer. See McDonald, 466 U.S. at 290 
n . 9 . A claim may "T5e heard by either a 
"hearing officer" or an "administrative 
law judge." Tenn. Code Ann. 4-5-301. Only 
the administrative law judges are required



63

cedure are external to the state PEP 
scheme, there is not the appreciation or 
affinity for the issues that would be 
raised in either state or federal causes 

of action alleging discrimination in 

employment. Allowing federal rights to be 

adjudicated in agency proceedings, 

particularly those outside the FEP 

framework, creates a serious risk that 

these rights will be inadequately pro­
tected. A clear example of how a lack of 
expertise can adversely effect one's 
rights is the hearing examiner's handling 
of respondent's charges of racial dis­

crimination .
The petitioners contend that the 

hearing examiner properly considered Mr. 
Elliott's charges of race discrimination

to be attorneys. In the instant case, the 
hearing examiner was in fact a member of 
the bar.



64

as a pretext under Texas Department of 

Community Affairs v. Burdine/ 450 U.S. 248 
(1981) and McDonnell Douglas Corp., v. 
Green, 411 U.S. 792 (1973) when he
purported to analyze them as an affirma­
tive defense to the UAPA charges. See, 
e ,g . , Pet. Br . 40-41. This contention is 

simply wrong and shows clearly why courts 

and Congress have traditionally been 
reluctant to give preclusive effect to 

determinations by administrative agencies. 
Because the hearing examiner lacked the 

expertise to apply federal law, he never 
formulated or analyzed the issues as a 
federal court would have. McDonnell 

Douglas discusses the application of 
pretext to claims of discrimination. In 

that case the plaintiff had made out a 
prima facie of racial discrimination and 
the defendant had articulated a reason for 
its treatment of the plaintiff, namely



65

that the plaintiff had engaged in unlawful 
and disruptive acts against it. This 

Court held that "the inquiry must not end 

there" and that a reason is not acceptable 
unless it "is applied alike to members of 

all races." 411 U.S. at 804. "Especially 
relevant to such a showing would be 
evidence that white employees involved in 

acts against [the employer] of comparable 
seriousness ... were nevertheless re­
tained." Id. See also, McDonald v. Santa 

Fe Trail Transp. Co., 427 U.S. 273 (1976). 
Not only did the hearing examiner fail to 

apply this rule of law, he specifically 
excluded comparative treatment evidence. 

The analysis of two charges is particu­
larly instructive here. Mr. Elliott was 

charged with violating work rule #22 
because he charged [though later paid for]



66

personal telephone calls to the office.
The examiner found that it was common for

employees to use University telephones for

personal calls but held that actions of

other employees was not relevant to issues

before him, but might be considered in
56

evaluating disciplines. PA 95. The

examiner therefore found that, as a matter
of fact, Mr. Elliott had used University
telephones for personal calls and had

57
consequently violated the rule.

Similarly, the University charged Mr. 

Elliott with violating work rule #13 in

The examiner restricted the presentation 
of evidence on the practice with respect 
to personal telephone calls.

57 The hearing examiner apparently inter­
preted pretext to mean that the University 
had accused Mr. Elliott of violating 
University rules when he, in fact, had not 
done any thing contrary to the rules. 
Since he found that Mr. Elliott had 
violated the rules, the charges were not 
pretextual.



67

that he used abusive language while

working. PA 160. Again the examiner found
that proof of the rule's non-application

to other agents was irrelevant:
"It was undenied that other extension 
agents have used profanity while 
working with or among extension 
service clientele without reprimand."

PA 165-66). The only relevant inquiry to 

the hearing examiner was whether Mr. 
Elliott could be said to have violated the 

rule and, the circumstances notwith­
standing, the examiner felt compelled to
find that Mr. Elliott, in fact, had used 

58
profanity. PA 166.

In addition to excluding comparative 

treatment evidence on these specific 
charges, the examiner also excluded

Specifically, Mr. Elliott was found to 
have said "wait a goddamn minute, wait a 
goddamn minute, wait a goddamn minute" in 
response to Mr. Coley's referring to a 
black 4-H member as "nigger." A 85, A 
165.



68

evidence of the University's approach to

allegations of discrimination and its

policies and practices with respect to
minority employment. A full and fair
opportunity to demonstrate pretext
requires that a plaintiff be allowed to

present evidence of this kind:
Other evidence that may be relevant 
to any showing of pretext includes 
facts as to the petitioner's treat­
ment of respondent during his prior 
term of employment; petitioner's 
reaction, if any, to respondent's 
legitimate civil rights activities; 
and petitioner's general policy and 
practice with respect to minorities 
in employment.

McDonnell Douglas, 411 U.S. at 804-805. 
The hearing examiner excluded such 
evidence as irrelevant to the issues 

before him.
The findings on racial discrimina­

tion, even if this had been an appropriate



69

forum, would therefore not be entitled to 

credit because the hearing examiner 

applied an erroneous view of the law. The 

district court should therefore have 

disregarded the conclusions drawn by the 

hearing examiner and conducted its own 

inquiry into the issue.

2. Lack of Authority
The hearing provided here also falls 

short on the second McDonald factor since 
the examiner had no authority to enforce 
Title VII or §1 983 or to decide issues 
pertaining to those statutes. The examiner 
continued to admit his lack of jurisdic­
tion. Indeed it is grounds for reversal 
that a decision is made "[i]n excess of
the statutory authority of the agency."

59
Tenn. Code Ann. §4-5-322(h)(2) .

^  In general, issue preclusion should not be 
available where an agency acts beyond its 
statutory authority:

If an agency nonetheless presumes to



70

Proper jurisdiction is a necessary

element in the application of preclusion

to the decisions of agencies. In Utah
Construction, supra, this Court made clear

that issue preclusion might be available
only when an agency decided issues

60
"properly before it." 384 U.S. at 422.

decide an issue beyond its jurisdic­
tion, courts are likely to apply 
vigorously the general principle that 
preclusion is defeated when strong 
policies underlie the lines that 
limit the authority of the tribunal 
that made a prior decision.

18 C. Wright, A. Miller & Cooper, Federal 
Practice and Procedure, Jurisdiction^ ch 
13 §4475 at 768 (1981 ); see also Re­
statement (Second) of Judgments, § 83, 
comment d (1981).
As the Court observed in Thomas v Wash­
ington Gas Light Co:

[T] he critical differences between a 
court of general jurisdiction and an 
administrative agency with limited 
statutory authority forecloses the 
conclusion that constitutional rules 
applicable to court judgments are 
necessarily applicable to workmen's 
compensation awards.

(448 U.S. 261, 281-82)(plurality opinion



71

See e„g., Sunshine Coal Co. v. Adkins, 310 
U.S. 381 (1940) ("[Hjere the authority of 
the Commission is clear. There can be no 
question that it was authorized to make 
the determination.")

3. Lack of Objectivity
The third factor is even more 

compelling here than in an arbitration 
proceeding. In arbitration, a third party, 

the union, has control over how a griev­
ance is presented. Here the adverse 

agency has total control over how the 
hearing is conducted. Tenn. Code Ann. 

§ 4-5-301. The agency selects the person 
who hears the case and retains the right

of Stevens, J.). The Court proceeded to 
hold that "full faith and credit need not 
be given to determinations that [an 
agency] had no power to make." Id. at 
283. Thus the District of Columbia was 
not required to give full faith and credit 
to a determination by the Virginia 
Workers' Compensation Commission.



72

to accept, reject or modify the findings 

made by that person. This exercise of 

power and control by the agency severely 

jeopardizes an employee's opportunity to 

obtain remedy for the deprivation of his 

federal constitutional and statutory 

rights.
The Court in McDonald was concerned 

that the union had control over the 

"manner and extent to which an individual 
grievance is presented" and that its 

interests might not be identical to, or 
compatible with, the interests of the 
employee. How much more incompatible is 
the interest of the employee here and the 
agency. The very entity charged with 

improper behavior, actshere as the final 

arbiter.
The University did nothing to temper 

the effect of the process. Under Tenn. 
Code Ann. § 4-5-301 (d) it could have



73

requested that the case be heard by an 

independent administrative law judge from 
the office of the Secretary of State. 
Instead defendant Armistead named his 

assistant, Mr. Pentecost, the hearing 

examiner. Armistead advised Pentecost in 

advance that the defendant agency did not 

intend to be bound by Pentecost's de­
cision, but would itself make the final
decision regarding the dispute between the

61
University and the respondent. This

Letter of W.W. Armistead to B.H. Pente­
cost, March 5, 1982, p. 2:

"When you have arrived at a decision, 
you will reduce your findings to 
writing. These findings shall be in 
the form of a proposed decision... 
You shall forward the original of the 
proposed decision to my office along 
with the file in this matter.... I 
shall then review your proposed 
decision along with the record as a 
whole before I render the final 
decision for tHe agency."

(Emphasis added).



74

procedure violated a fundamental tenet of 
due process that no one be made judge of 

his own case. Turney v. Ohio, 273 U.S. 510 

(1927).
4. Lack of Procedural Safeguards

As shown above, the procedural rights 
provided for in the Tennessee UAPA can 

also be illusory. The hearing examiner, 
because of the limits of his authority and 

expertise may, as here, exclude evidence 
as outside his jurisdiction or irrelevant 
to the inquiry before him.

In addition, the bias in the process 
raised serious due process questions. 
Petitioners contend that the "state 
proceedings were conducted in virtually
the same manner as a trial in • • • federal



-  75

court" (Pet. Br. 15) is not entirely 

correct. In a federal court proceeding 

none of the defendants could have sat as 

the judge, or would have been permitted to 
designate as a hearing officer an indi­
vidual who was either an employee of the 

defendant University or an immediate 

subordinate of one of the individual 
defendants. Neither res judicata nor full 
faith and credit can be invoked against a 
party who did not receive due process at 
the earlier proceeding. Whatever disputes 
may exist regarding the requirements of 
the due process clause, it certainly 
precludes a party from sitting as a judge 
in a case in which it has a significant 
interest. Turney v. Ohio, 273 U .S. 510 
(1927). Turney held that the conviction of 
a defendant by a judge who was to receive 
part of the fine violated due process 
because the judge has "a direct, personal,



76

substantial pecuniary interest in reaching 
a conclusion against [Turney]." 273 O.S. 

at 523. The judge in Turney was entitled 

to only $12 from Turney's fine; in the 

instant case the defendants, including 

Armistead and the University, faced a 

potential judgment of $1,000,000 if 
respondent's discrimination claims were 
sustained. Although Pentecost was not 

himself a named defendant in the federal 
action, the likelihood that he would be 

influenced by the very substantial 
financial interest of both his employer 
and his immediate supervisor was suf­
ficiently great as to violate due process

as well



77

II. THE POLL FAITH AND CREDIT STATUTE, 28 
U.S.C. §1738, IS NOT APPLICABLE TO 
THE UNREVIEWED DECISIONS OF ADMINIS­
TRATIVE AGENCIES

In arguing that full faith and credit 

applies, the petitioners fail to distin­
guish between the coverage of the full 

faith and credit clause of the Constitu­

tion, article IV §1, and the federal full 
faith and credit statute, 28 U.S.C. §1738. 

While the former applies to the "Judicial 
proceedings of every other state," the 
latter applies only to the "judicial 
proceedings of any court of any State." 
(emphasis added). The statute by its 
plain and unambiguous terms does not 
require federal courts to give preclusive 
effect to unreviewed agency determina­

tions .



78

The literal reading of section 1738 
is strongly supported by past decisions of 
this Court. In Kremer v. Chemical

Construction Corp., 456 U.S. 461 (1982),
the Court continually emphasized this 

dividing line for the statute's applica­
tion. First, in describing the critical 
issue in that case the Court held:

No provision of Title VII requires 
claimants to pursue in state court an 
unfavorable state administrative 
action.... While we have interpreted 
the "civil action" authorized to 
follow consideration by federal and 
state administrative agencies to be a 
"trial de novo," Chandler v. Roude- 
bush, 425 U.S. 840 (1976),
neither the statute nor our decisions 
indicate that the final judgment of a 
state court is subject to redetermi­
nation at such a trial.

Id. at 469-70 (emphasis in original). This

emphasis on the word "court" was expanded
on in a footnote accompanying the text:

Nor is it plausible to suggest that 
Congress intended federal courts to 
be bound further by state administra­
tive decisions than by decisions of 
the EEOC. Since it is settled that



79

decisions by the EEOC do not preclude 
trial de novo in federal court, it is 
clear that unreviewed administrative 
determinations by state agencies also 
should not preclude such review even 
if such a decision were to be 
afforded preclusive effect in a 
state's own courts.

62
Id. at 470 n.7, This distinction drawn by 
the Court is consistent with the limita­
tion of 28 U.S.C. §1738, which, by its 
express terms only "requires federal 
courts to give the same preclusive effect 
to state court judgments that those 
judgments would be given in the courts of 
the State from which the judgments 
emerged." (emphasis added). Id. at 466. 
See also cases cited in n.6 accompanying 

text; id. at 487 (Blackmun, J. with 
Brennan & Marshall, JJ., dissenting) 
(recognizing distinction made by major-

See also n.8 where the Court emphasizes 
that the deferral provisions of Section 
706(c) of Title VII, 42 U.S.C. §2000e-5(c) 
refers to "agencies.".



80

ity); _id. at 508-09 (Stevens, J., dis­
senting) (same). See also Allen v. 

McCurry, 449 U.S. 90, 104 (1980) (legis­
lative history of Section 1983 does not 
preclude giving "binding effect to a 

state-court judgment") (emphasis added); 

Migra v. Warren City School District, 465 

U.S. 75,84 ( 1 984) ["P]etitioner's state-

court proceeding in this litigation has 

... preclusive effect) (emphasis added).
Similarly, the Court in McDonald v. 

City of West Branch, 466 U.S. 284 ( 1984), 
summarily rejected a suggestion that
section 1738 had any application to an
arbitration proceeding conducted by a
mun ic ipality, noting that "the plain
language" of the statute was limited to 
actions of state legislatures and state 

courts. _Id. at 288 n.7. None of the 
lower court decisions relied on by 

petitioners suggest that section 1738



81

could somehow be applied to the actions of
an administrative agency," on the contrary,
those opinions which actually reach that

63
issue hold precisely the opposite.

The petitioners nevertheless provide 

the Court with no clearly articulated 
justification for deviating from this 
"plain language of §1738." McDonald, 
supra, 466 U.S. at 287. Indeed the

petitioners seek to obscure the difference 
between the Constitutional clause and the 

statute. Both are spoken of together and 
the petitioners fail to note the distinct 
language of the statute. See, e ,g., Pet. 
Br. 23. The omission by the petitioners
-----------------

Buckhalter v. Pepsi-Cola General Bottlers, 
768 F .2d 842, 849 n.4 (7th Cir. 1985); 
Parker v. National Corporation for Housing 
Partnerships, 619 F. Supp. 1061, 1064
(D.D.C. 1985). Accord, Elliott v.
University of Tennessee, 766 F. 2d 982, 992 
(6th Cir. T^85); Ross v. Communications 
Satellite Corp., _7~59 F . 2d 355 , 361 n. 6 
(4th Cir. 1985); Moore v . Bonner, 695 F. 2d 
799, 801 (4th Cir. 1982")".



82

is particularly informative since it

ignores the distinction made in the

Court's recent decisions in Kremer, Migra

and Allen, all of which involve state

court action. Moreover, the opinion of
the Sixth Circuit specifically relied on

this plain language in holding § 1738
inapplicable to respondent's section 1983

claim and the same dividing line was
recognized by the court in Buckhalter v.
Pepsi-Cola General Bottlers, supra, 768 

64
F .2d at 849.

Although the federal courts are not 

required either by the constitution or by 

statute to give res judicata or collateral 
estoppel effect to decisions of state 

agencies, the courts may at times apply a

64 The petitioners had originally asserted 
that this case supported their position 
(Pet. for Certiorari at 8-9} but now fail 
to reconition that court's reading of § 
1738 with their present position.



83

judicially fashioned rule of preclusion. 

McDonald, supra, 466 U.S. at 288. The
appropriateness of such a rule depends, at 

least in part, on the nature and basis of 
the federal claim involved. Accordingly, 
we discuss separately in the sections 
which follow the appropriateness of such a 
judicial preclusion rule under Title VII 

and under section 1983.

III. TITLE VII GUARANTEES A PLAINTIFF A 
RIGHT TO A JUDICAL DETERMINATION OF 
HIS CLAIMS REGARDLESS OF ANY 
ADMINISTRATIVE DECISIONS REGARDING 
THOSE CLAIMS _______ _

The Court has already held in Kremer 

v. Chemical Construction Corp., that the 
prior determination of a section 706(c) 

deferral agency will not preclude either 
party from obtaining de novo judicial



84

determinations in federal court. Peti­
tioners do not challenge this holding, but 
rather acknowledge that the language of 
section 706 of Title VII can be considered 
"an implied repeal of the full faith and 
credit statute." Pet. Br. 34. The 
petitioners nevertheless seek to avoid the 
holding in Kremer by contending 1) that 
Kremer was not meant to apply to agencies 
acting in a "judicial capacity" and (2) 
that since the University of Tennessee is 
not a deferral agency, the implied repeal 
does not apply. Neither of these as­
sertions withstands analysis.

The first contention simply ignores 
the Court's unequivocal statement in 
Kremer that "unreviewed administrative 
determinations by state agencies" should

65

65 Section 706(c) requires the EEOC to give 
limited deferral to adequate state 
agencies.



85

not be given preclusive effect. 456 U.S. 

at 470 n . 7. No restriction or qualifi­

cation is placed on this rule. The 
petitioners' reliance on footnote 26 in 
Kremer is misplaced. They assert that the 
reference to United States v. Utah 
Construction & Mining Co., 384 U.S. 394 

( 1 9 66) , supports their position since the 
Court there stated that principles of res 
judicata may apply to the decisions of 
administrative agencies acting in a 
"judicial capacity." Jd. at 422. A 
careful reading of Kremer, however, 
demonstrates that the petitioners read too 

much into this footnote. First of all, in 
holding that unreviewed state determi­
nations were not entitled to preclusion, 
the Court cited four lower court deci­
sions. Garner v. Giarusso, 571 F.2d 1330 

(5th Cir. 1978); Batiste v. Furnco Constr.

Corp., 503 F.2d 447 (7th Cir. 1974), cert



86

denied, 420 U.S. 928 (1975); Cooper v. 

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

1972); Voutsis v. Union Carbide Corp., 452 

F.2d 889 (2d Cir. 1971), cert. denied, 406 

U.S. 918 (1972). In three of these cases 

(Garner, Batiste and Cooper), the lower 
court held that preclusion was not 

appropriate even though the agency had 
full enforcement authority and provided 
for adjudicative procedures.

Secondly, the Court's discussion of 
Utah Construction occurs in the section 

concerning due process requirements of 
reviewed agency determinations. Thus the 
adjudicative capacity of the agency is 
discussed in an entirely different context 

from the Court's discussion of the 

non-preclusive effect of agency decisions.

Third, the petitioners also ignore 
the context of the statement quoted from 
Utah Construction. In Part II of that



87

opinion, this Court clearly states that no

deference is due an agency wlhich does not
have jurisdiction to decide an issue:

Of course, if the findings made by 
the Board are not relevant to a 
dispute over which it has j uris-
d ict ion , such "findings would have no 
finality whatsoever.

384 U.S. at 419 n. 15 (emphasis added). 
Since the Title VII issues were not 

"properly before" the hearing examiner, 
preclusion principles do not apply to his 
findings.

Finally, the petitioners ignore this 
Court's decisions in Alexander and
Chandler which establish the right to
trial de novo for Title VII causes of
action. It is impossible to reconcile
this right with the rule of preclusion
urged by petitioners.



88

The petitioners argument with respect

to the preclusive effect of non-deferral
66

agency decisions is similarly flawed. The 
argument is based on 706(b)'s requirement 

that the EEOC give "substantial weight" to 
deferral agencies. The petitioners contend 

that the failure to indicate what weight 
should be given to non-deferral agencies 
indicates Congress' intent to give 
preclusive effect to such agencies. 

Rather than requiring greater deference, 

the unreviewed decisions of agencies 

outside of the Title VII scheme are 

entitled to less, if any, weight.

Both the language and reasoning of 
Kremer apply with even greater force to 

agencies acting outside of the Title VII 
enforcement scheme as they do to deferral

^  Petitioners expressly limit their argument 
to the effect of decisions by non-deferral 
agencies "acting .. outside the Title VII 
enforcement scheme." Pet. Br. II, 31.



89

agencies. Kremer holds broadly "the 

'civil action' authorized to follow 

consideration by federal and state 

agencies to be 'trial de novo'" (quoting 

Chandler v. Roudebush, 425 U.S. at 

844-45). 456 U.S. at 469. As the Court 
noted, the "substantial weight require­
ment" was added to Title VII in 1972, not 
because the EEOC was giving too much 

weight to deferral agency decisions, but 
because it was affording them too little 

significance. 456 U.S. at 470 n.8.
It was the intent of Congress that 

the deferral provision would insure that 

EEOC and federal courts would give proper 
deference to proceedings necessarily 
invoked through Title VII. It resulted 

from a careful balancing of the de novo 
requirement in Title VII and the important 
role played by state and local FEP 
agencies in the implementation of Title



90

VII. At the same time there was "a 

Congressional intent to allow an indi­

vidual to pursue independently his rights 

under both Title VII and other applicable 
state and federal statutes." Alexander v. 

Gardner-Denver Co., 415 U.S. 36, 48 
(1974). The legislative history of both 

the 1964 Act and the 1972 amendments shows 

that Congress was concerned with the 

effect of Title VII on state fair employ­
ment statutes. While there was disagree­
ment on the weight to be given to state 
proceedings, there was general agreement 

that the federal scheme should only defer 
to "adequate" state systems. Senator 
Humphrey, one of the drafters of the 1964 
deferral provision, recognized that 
adequate state fair employment agencies 
were an important element in enforcement 

and stated that "[t]he most important 

changes give greater recognition to the



91

role of state and local action against

discrimination." 110 Cong. Rec. 12,707 
67

(1964). Senator Clark underscored the
68

limits of this deference. In contrast, 

Title VII was not intended and did not 
apply to rights and obligations pursued 
under other federal and state statutes. 
Alexander v. Gardner-Denver, 415 U.S. at 

48-49 and n.9.

See, also, 110 Cong. Rec. 7205 (1964) 
(remarks of Sen. Case); _id. at 2728 
(amendment proposed by Rep. McClory) ; id. 
at 7214 (interpretive memorandum of 
Senators Case and Clark); icU at 10,520 
(remarks of Sen. Carlson).
"It is important to note that Title VII is 
so drafted that the States and the Federal 
Government can work together.... [T]he 
State and the municipal agencies will 
continue to operate, and State laws will 
continue to in force, except where they 
are inconsistent with Title VII ... 
[T] itle VII meshes nicely logically, and 
coherently with the state and city 
legislation already in existence ... [b] ut 
where there is no state or local law, a 
Federal law is essential."
110 Cong. Rec. 7205 (1964).



92

The 1972 amendments similarly were

addressed only to giving proper deference

to adequate state fair employment agen- 
69

cies. Congress again stated its intent 
that Title VII claims should be determined 
by courts and that its provisions not 
"affect existing rights granted under 

other laws." S. Rep. No. 92-415, p. 24 
(1971).

In adopting the 1972 amendments to 
Title VII Congress considered at length 

proposals to give the EEOC power to issue 
cease-and-desist orders, subject to 

substantial evidence review in federal 

courts. Although these proposals would 
have given EEOC determinations far less

Section 706(b) provides that EEOC should 
give "substantial weight" to findings and 
orders "in proceedings commenced under 
State or local law pursuant to [the 
deferral provision] . Deferral under 
Section 706(c) only occurs if there is an 
adequate state agency as determined by 
EEOC.



93

weight than petitioners now urge for 
certain state agency decisions, Congress 
ultimately refused to impose such a 

limitation on judicial consideration of 

Title VII claims.
The concerns that led Congress to 

refuse to limit judicial reconsideration 

of EEOC determinations are fully applic­
able to any proposed limitation of 

judicial resolution of claims previously 
considered by state agencies. Senator 

Dominick, the leading opponent of cease- 
and-desist authority for EEOC, argued that 
the final resolution of Title VII claims 
was a sensitive matter that belonged in 
the courts rather than any agency:

Determination of employment civil 
rights deserves and requires non­
partisan judgment. This judgment is 
best afforded by Federal court judges 
who, shielded from political influ 
ence by life tenure, are more likely 
to withstand political pressures and 
render decisions in a climate



94

tempered by judicial reflection and 
supported byQ historical judicial 
independence.

If, as petitioners urge, the de­
cisions of non-deferral agencies are 
binding on federal courts, then actions of 

such non-deferral agencies would be of far 

greater importance than actions of section 
706(c) deferral agencies or of the EEOC 

itself. Kremer emphasized that it was not 

"plausible to suggest that Congress 
intended federal courts to be bound 

further by state administrative decisions 
than by decisions of the EEOC", noting 
that even EEOC determinations "do not 
preclude a trial de novo in federal 

court..." 456 U.S. at 470 n.7. It is 
even more implausible to suggest that

S. Rep. 92-415, p. 85 (1971). Similar 
concerns were expressed in the minority 
views appended to the House Report. H.R. 
Rep. 92-238, pp. 58-63 (1971).

TO



95

Congress, having specifically delineated 
the particular state agencies to which the 

EEOC should initially refer complaints and 
having refused to extend the powers of 

EEOC, intended to attach greater signifi­
cance to the determinations of those state 
agencies whose lesser expertise or 

remedial authority made deferral inappro­
priate. The hearing under Tennessee's 

UAPA, being outside the enforcement scheme 

of Title VII, is thus not intended to 
affect or be affected by the provisions of 
Title VII. Analytically such a proceeding 

should be treated the same as the arbitra­
tion proceeding in Alexander v. Gardner-
Denver Co, 415 U.S. 36 (1974), for

71
preclusion purposes.

7T The Court in Kremer noted that one of the 
important differences between an arbitra­
tion and state fair employment proceedings 
is that the former is not part of Title 
VII1s system:

[Ujnlike arbitration hearings under



96

IV. PRIOR STATE AGENCY DETERMINATIONS
HAVE NO PRECLUSIVE EFFECT IN SECTION 
1983 ACTIONS

A. Prior Decisions of This Court

Six members of this Court have
already expressed the view that state
agency determinations should not be
treated as preclusion in section 1983

72
cases. In Moore v. East Cleveland, 431 

U.S. 494 (1977), the Chief Justice 
asserted that exhaustion of state adminis-

collective-bargaining agreements, 
state fair employment practice laws 
are explicitly made part of the Title 
VII enforcement scheme. Our decision 
in Gardner-Denver explicitly recog­
nized the 'distinctly separate 
nature of these contractual and 
statutory rights.'

Kremer, supra, 456 U.S. at 477.
72 The complaint in this action raised claims 

under several different reconstruction era 
civil rights statutes. Petitioners 
apparently assume, as do we, that the 
preclusive effect of a prior state agency 
determination is the same under all of 
these statutes.



97

trative remedies would not preclude a de 

novo consideration of constitutional 
claims in federal court

because state administrative agency 
determinations do not create res 
judicata or collateral estoppel 
effects. The exhaustion of state 
administrative remedies postpones 
rather than precludes the assertion 
of federal jurisdiction.

431 U.S. at 524 n.2 (dissenting opinion). 

In Patsy v. Florida Board of Regents, 457 

U.S. 496 (1982), Justice Powell in an 
opinion joined by the Chief Justice, also 

expressed the view that exhaustion of 
state administrative remedies "does not 

defeat federal-court jurisdiction, it 

merely defers it." 457 U.S. at 532. 
(dissenting opinion). In Fair Assessment 
in Real Estate v. McNary, 4 54 U.S. 100 
(1981), four members of the Court express­
ed the view that the petitioners in that 
case would not have forfeited their right



98

to bring a federal action by first 

pursuing the available administrative 
procedures, since such action would have 
resulted not in "the displacement of the 

section 1983 remedy, but [in] the deferral 
of federal court consideration pending 

exhaustion of the state administrative 
process." 454 U.S. at 136 (concurring 

opinion of Justices Brennan, Marshall, 
Stevens and O'Connor) (emphasis in 

orig inal).

Although each of these decisions was

concerned with the propriety of requiring

exhaustion of state administrative
remedies, the passages quoted above are
not limited to the case of involuntary 

73
exhaustion. It is the nature of such

"73 r "The Chief Justice in Moore described a 
number of advantages that might follow if 
a potential federal plaintiff were first 
to utilize available state administrative 
remedies, including application of any 
specialized experience the agency might 
have, compilation of a record which could



99

administrative proceedings which negates 

any binding effect.
Even if section 1983 does not prevent 

in all cases giving preclusive effect to 
state administrative determinations, it 

does not follow that the application of 
res judicata or collateral estoppel is 
appropriate in all or even most cases. The 
Court should determine whether this is the 

type of agency to which preclusion 

principles should apply. McDonald v. City 
of West Branch. See supra, pp. 57-76.

B. Application in Tennessee
The petitioners summarily state that 

"an adjudication by a state agency acting 
in a judicial capacity is entitled to 
preclusive effect in Tennessee Courts."

be used by the federal courts, and 
resolution of the controversy short of 
federal litigation. 431 U.S. at 524-25. 
Voluntary utilization of state administra­
tive remedies is equally likely to entail 
such benefits.



100

Pet. Br. 20. This bare assertion does not 
describe the Tennessee law on preclusion 

nor conclusively show what preclusive 
effect, if any, Tennessee courts would 

accord the decision in this case. First, 

collateral estoppel will not be applied by

Tennessee courts unless the issue de-

termined in the first proceeding was

necessary to the j udgment. Scales v .

Scales, 564 S.W.2d 667, 670 ( 1978); King
v. Brooks, 562 S.W.2d 422, 424 ( 1978);
Shelley v. Gibson, 400 S.W.2d 709, 714
(1966). In addition, the body making the 
first determination must have jurisdiction 
to decide the issue. The three cases 
cited by the petitioners illustrate this 
point. In Polsky v. Atkins, 197 Tenn. 

201, 270 S .W.2d 497 (1954), the Commis­
sioner of Finance and Taxation had 
specific statutory authority under Tenn. 

Code Supp. 6648.17 (1950) to decide the



101

issue —  the fitness to hold a liquor 

license. Similarly, in Purcell Enter­

prises, Inc, v. State, 631 S.W. 2d 401 
(Tenn. App. 1981), the issue in a contract 

action had been previously determined by 
the Board of Claims which had jurisdiction 
pursuant to Tenn. Code. Ann. § 9-80-207 et 
seq. See also Fourakre v. Perry, 667 

S.W.2d 483, 488 (Tenn. App. 1983) ("The 
plaintiff submitted the issue of negli­

gence ... to a tribunal having full 

authority to decide that issue").
While the Tennessee courts have not 

definitively answered the question of 
which bodies have jurisdiction to adjudi­
cate employment discrimination issues, the 
decisions strongly suggest that such 

authority vests either in the Tennessee 
Human Rights Commission or not within the 
state system. DePriest v, Puett, 669 
S.W.2d 669 (Tenn. App. 1984); Chamberlain



102

v. Brown, 223 Tenn. 25, 442 S.W. 2d 248 
(1969). In DePriest a discharged employee 

raised the issue of religious discrimi­
nation in her appeal from a decision by 

the Civil Service Commission upholding her 
dismissal from state employment. Her 
appeal urged, inter alia, that the 

standards of "reasonable accommodation" 

under 42 U.S.C. §2000e et seq., applied to 

the statute governing the dismissal and/or 

demotion of an employee, Tenn. Code Ann. 

§ 8-3227, as well as to the rules applic­

able to the Tennessee Human Rights 
Commission. She claimed that the statutes 

governing the Human Rights Commission and 
the Civil Service Commission should be 
read together or construed iri pari materia 

so as to afford her the benefit of the 
more demanding standard under the Human 

Rights statute. The court rejected this
claim:



103

The courts of this state have often 
said that statutes relating to the 
same subject matter should be 
contrued together.... The two 
statutes here, however, do not relate 
to the same subject matter .... 
[0] ne deals with discrimination in 
the work place while the other is 
concerned with establishing and 
maintaining a merit system for state 
employees....
The intent [of the legislature] is 
clear enough from the plain reading 
of the statutes. The enforcement of 
claims pursuant to T.C.A. §4-21-101 
et seq. must be brought before the 
Human Rights Commission.

74
669 S.W.2d at 676. (Emphasis added).

While the Tennessee Supreme Court has 
indicated that the Human Rights Commission 
has general jurisdiction over employment 

discrimination claims within the state, it 
is doubtful whether this encompasses 

rights asserted under 42 U.S.C. Section

74 • .The court saw nothing wrong in allowing
the plaintiff to nseparat[e] her avenues 
of relief" since the statutes concerned 
different subject matter. Id .



- 104

1983. In Chamberlain v. Brown, supra, the 

court held that Tennessee state courts did 

not have jurisdiction to hear such claims:

[A]fter considering the Congressional 
Records pertinent to this legislation 
... we are firmly convinced that 
these statutes creating this action 
were directed to the federal trial 
forum, not the respective states. In 
any event no policy of this state can 
be found in its history, judicial or 
otherwise, that would require the 
judicial branch of the government of 
Tennessee to entertain such action. 
Id. at 250, 251, 223 Tenn. at 31.

223 Tenn. at 31 , 442 S.W.2d at 250-51 .
Having been divested of jurisdiction by 
the state supreme court, it is unlikely 
that a lower state court would hold that 
an administrative agency had jurisdiction 

to consider such claims in the absence of



105

positive state legislation or that an 

individual would be precluded from raising 
the claims in a subsequent federal suit. 
See Whitfield v. City of Knoxville, 756 

F . 2d 455 (6th Cir. 1985) (Plaintiffs 
unable to raise ADEA claims in Tennessee 

state action not estopped from raising 

such claims in federal court). If, 
despite Tennessee's position with respect 

to section 1983 claims, the state courts 
would apply preclusion to an agency's 

decision, it would be inappropriate for 
the federal court to do so:

75

[T]he federal courts could step in 
where the state courts were unable or 
unwilling to protect federal rights. 
[Monroe v. Pape, 365 U.S. 167, 176, 
1 73-74 ] . tHTs understanding of §1983 
might well support an exception to 
res judicata and collateral estoppel

Compare Parker v. Fort Sanders Regional 
Medical-Center, 677 S.W .2d 4 55 (Tenn. App. 
1983) (state court has jurisdiction for 
federal claims under ADEA, in part, 
because Tennessee had enacted an age 
discrimination statute in 1981).



106

where state law did not provide fair 
procedures for the litigation of 
constitutional claims, or where a 
state court failed to even acknow­
ledge the existence of the consti­
tutional principle on which a 
litigant based his claim.

Allen v. McCurry, supra, 449 U.S. at 101. 
See also McNeese v. Board of Education, 
373 U.S. 668 (1963) (exhaustion of state 
administrative remedy not necessary under 
section 1983 where such remedy not 

adequate).
CONCLUSION

For the foregoing reasons, the 
judgment of the court of appeals should be 
affirmed.

Respectfully submitted,

JULIUS LeVONNE CHAMBERS 
RONALD L. ELLIS*
ERIC SCHNAPPER 
JUDITH REED

99 Hudson Street 
16th Floor
New York, New York 10013 
(212) 219-1900



107

AVON N. WILLIAMS, JR.
RICHARD H. DINKINS 
RUSSELL T. PERKINS 

Williams & Dinkins 
203 Second Avenue, North 
Nashville, Tennessee 37201

Attorneys for Respondent
*Counsel of Record



A P P E N D I X



TRANSCRIPT EXCERPTS

MR. PARKER; Thank you sir. We would 
respectfully submit to the Hearing 
Examiner, that the statement of counter­
issues are completely improper, and we 
would point out to the Hearing examiner 
that a civil proceeding, such as is 
presently underway, in the United States 
District Court, for the Western District 
of Tennessee, the Jackson Division, 
wherein the Employee, through his distin­
guished counsel has sued the University 
Agricultural Extension Service and many of 
the University's officials for the exact 
charges that have been raised in the 
counter-charges by counsel at this time; 
and that those issues are not before this 
proceeding, but are in fact before the 
Federal Court in another matter; and we 
will also point out that part of the 
reason why this proceeding has been 
delayed unto this day, is because of the 
Agricultural Extension Service was under a 
Federal Court Order, not to do anything 
regarding the employee and his employment 
relationship, but to leave that relation­
ship intact as the University had done so, 
so, that the Employee's rights would in no 
way be prejudiced or in any way touched.

The University has no intention 
whatsoever of touching the employee's 
rights until, if at such time, there is 
proof adduced and proof sustained that 
there is grounds for his employment to be 
terminated with the University; and 
matters that are raised in the counter­
issues by distinguished counsel are before 
another court, and not before this 
Hearing.



- a2

This Hearing is for one sole purpose, 
that was pointed out by the Vice-President 
from the University, when he instituted 
this proceeding, and that is to determine 
if there are grounds to terminate Mr. 
Elliott from his employment with the 
University of Tennessee Agricultural 
Extension Service and the University 
respectfully, completely and totally 
submits that Mr. Elliott's race is not an 
issue in this matter; and there has been 
no charge by the University that he is 
unable to do his job because of his race, 
nor would the University ever make such a 
charge, because such charge is abhorrent 
and is false and is not true, nor does the 
University even charge the employee with 
inability to do his job.

The University has only charged that 
for some reason did not do his job.

i, 33-35
*  *  *

HEARING EXAMINER; All right, gentle­
men, and I am referring to counsel for the 
respondent and complainant, now, up to 
this point, we have had, I think, very 
wide discussion, and the Hearing Officer 
has tried to be as receptive and as
lenient as possible, which I have the 
authority to do , I believe under the A. 
P. A.

i, p.36
* * *

MR. WILLIAMS: ... [W] e asked in
Interrogatory number seven, to, in regard 
to the alleged charge that the Defendant 
violated work rule number twenty-four, to 
identify and describe the exact standard



a3

used or applied in determining unaccepta­
bility to the University and the response, 
and they are bound by this, was as 
follows: "The Standard to use of un­
acceptability by the University is that 
behavior which is determined by the 
University supervisors of the Agricultural 
Extension Service to be unacceptable, and 
is a question of fact for the Hearing 
Examiner in this case."

Now, how can anyone have any advance 
notice of that? The University might 
determine that Mr. Elliott's conduct, of 
employing a rather controversial lawyer, 
by the name of Mr. Avon Williams as his 
counsel, was unacceptable as I am sure 
that it is unacceptable to the University, 
but it is not a ground for depriving him 
of his job there; and they could not do 
so.

In response to unacceptable, unaccep­
tability to the community, they say see 
the answer to interrogatory number seven 
(b). So, they are saying that the 
University also determines what is 
acceptable or unacceptable to the commu­
nity.

I respectfully submit, let's actual­
ly, when we get into this matter, in 
Federal Court, as we will ultimately, uh, 
what we are going to show is that we have 
got some Ku Klux Klan white, type white 
persons, up in Gibson County, and maybe a 
few in Madison County here too, who didn't 
want Mr. Elliott to play golf at the 
Country Club which was open for access to 
all white persons, virtually all, but not 
to blacks; and that as a result of efforts 
by the NAACP to secure admission of Blacks 
to the golf course of the Gibson Country



a4

Club, that a gentlemen by the name of Jack 
Barnett, who used the word "nigger" and 
admitted he did it under oath --

HEARING EXAMINER: Excuse me, can I
interject here?

MR. WILLIAMS: Well I am just, that
is exactly why —

HEARING EXAMINER: I believe that you
are expanding. You do as, you go right 
ahead, but I believe that you are ela­
borating on some things that are not 
relevant here.

i, p.76,77

Q. (By Mr. Williams) And uh, they 
had this work rule twenty-four at that 
time, didn't they, about the behavior 
unacceptable to the University and the 
community?

A. Yes.

Q. And so you made a determination 
for being fined for public drunkenness, 
was not behavior unacceptable to the 
flagship University of the Great State of 
Tennessee, is that right?

MR. PARKER: Your Honor, we would
like, first of all to object to the —  the 
charges that have been made in this case 
arise out of Madison County under its 
present extension leader, and how charges 
have been handled in other counties, 
involving other employees, are other 
matters; that are not pertinent to this 
matter.

i, p.149



a5

MR. PARKER; Mr. Hearing examiner, if 
this line of questioning [relating to the 
treatment of other employees] is allowed, 
we think that it would be first necessary 
for distinguished Mr. Williams to esta­
blish when this work rule was created and 
whether the incident that he is trying to 
ask the witness about, occurred after the 
work rule was in place; but we still would 
object because this employee was disci­
plined by his extension leader in Madison 
County, not by some other person, some 
other place.

ii, p.151
HEARING EXAMINER: Let me make a 

comment, if I may in response to, both the 
objection and your comment, Mr. Williams.

Again, I would relate to my charge 
here, and it relates specifically to 
trying to determine based on the evidence 
that is presented here, as to whether or 
not Mr. Elliott, the respondent here, 
actually did violate certain work rules.

This 
I think, 
subject. You 
believe that you 
bring this, and

line of questioning 
away from this

sustain this objection as 
that it is relevant to 
factual issue.

to me gets, 
particular 

have another forum, I 
are already in court, to 
therefore, I am going to

I don't believe 
this particular

MR. WILLIAMS: Then I take it, the 
Hearing ' Examiner is going to determine 
subjectively, in his own mind, and without 
regard to actual interpretations by the 
University, of this work rule —



ai

HEARING EXAMINER: I am going to
listen to it and I am going to allow broad 
evidence to be presented , even though it 
might be even sometimes a little bit 
broader than what, even counsel, would 
want to have admitted.

I am trying to allow sufficient 
information here, so that I can determine 
whether or not, or make recommendations as 
to whether or not this incident occurred . 
Now, I cannot in this particular forum 
determine whether or not there was 
discrimination or segregation. I don't 
see this as my charge. I will allow you 
to proceed with this line of questioning, 
but I cannot allow you to bring in other 
employees and other people who, I would 
certainly, sustain Mr. Parker's objection 
to that. Other people have rights that 
would be violated also here.

We want to be as lenient as we can, 
and will allow you to proceed , and would 
like for you to keep it if you can related 
to the issues.

i, p.152-153
*  *  *

MR. WILLIAMS; Well, I would respect­
fully submit, and I urge, as a matter of 
the record, that anything pertaining to 
Jack Barnett, and his motivation and the 
proof that there are here seeking to 
establish, the phone calls, which he 
alleges that the, Mr. Elliott made, and 
anyting pertaining to their motivation is 
relevant in reference to any allegation by 
the University that it is involving itself 
in this affair by saying that that it is 
unacceptabl behavior to the University.



a7

That was the only part that I was trying 
to make, Mr. Hearing Examiner, and I will 
try to abide by the ruling.

HEARING EXAMINER: Proceed.

MR. WILLIAMS; Yes sir.
Q. Now, sir, as a native of 

Clarksville, Mississippi, would you not 
say that you are familiar with the phrase 
male black?

A. Yes sir, I am familiar with it.

Q. And would you not say that you 
have seen and known about segregated 
country clubs?

MR. PARKER: Again, Your Honor, I am
going to object again. The witness' 
background, whether he is from Mississippi 
or from New York City is irrelevant to 
this hearing. I object to all of this 
line of questioning. I think that we have 
gone too far. This is not going to 
impeach this witness. He can ask him how 
he knew the knowledge that was here, about 
the M/B designation on this report; and 
what it meant, who made it, what he did 
with it, and all of that, or whether he 
refused to do anything with it, or whether 
he recommended prosecution, because of it; 
or whether he refused to recommend 
prosecution from it; and all of that. 
But, to go to where the man's background 
is completely irrelevant, and I strongly 
object; and I have a personal objection to 
it also.

Let the record reflect that I am from 
Mississippi, and I strongly object to any 
inference that somebody from Mississippi 
can't be objective.



a8

HEARING EXAMINER: Sustained.

Q. All right, I will now hand you 
Exhibit Fourteen and will ask you to read 
that last line on the last page, on the 
third page, Exhibit Fourteen?

A. "8-30-79, info referred to 
Humboldt Police, Lt. Espy, 855-1121 for 
prosecution. Subject is male black trying 
to join the country club."

iii, p . 4 2 1 - 4 2 3

MR. PARKER: Let me just say that he 
is not understand ing my objection. I 
think that certainly he can ask the 
witness about his bias, however, I think 
that it is wrong to ask Senator, this 
witness about the bias of the University. 
I think that he should ask this witness 
about his bias, not the University's bias. 
That is what I am talking about. That is 
the reason that the case against the 
University that is in Federal Court, 
should not be tried through this witness
here. This witness 
his bias, and that is

could testify 
my objection.

as to

iv, p.486

*  *  *

MR. PARKER: Just a minute, Your
Honor. I would like to interpose, if 
there is some purpose relating to this 
hearing by bringing the evaluations in for 
other employees, I think it ought to be 
shown what that purpose is. Other



- a9 -

employees are not on trial here. I don't 
think it is proper that their evaluations 
be paraded before this public hearing 
unless there is a purpose to be shown. 
The issue here is not whether other 
employee did their work, but whether Mr. 
Elliott did his work and I am not going to 
let the hearing become a trial of other 
employees.

ix, p.Ill
MR. WILLIAMS: Mr. Hearing Examiner,

I doriT t understand this matter, in order 
to protect other employees. Public 
employees have no rights of protection of 
rating and evaluations that are given 
them. We certainly have a right to have 
them received as evidence and cross 
examine this gentleman on them. These are 
not formal ratings. There are in effect 
recommendations he said that he made to 
the district supervisor. They are his 
recommendations with regard to these 
employees and if those recommendations 
tend to show a racial pattern, we are 
entitled to show that.

They do show a racial pattern.
MR. PARKER; They do not. Mr. Butler 

has been rated low right here too. Mr. 
Elliott is getting all the due process 
that the law gives him, and it is wrong to 
prejudice their rights without due process 
to them, as their ratings may go up and 
down. This is the other male agent, and 
his ratings have been low too.

HEARING EXAMINER: They may be
s im i 1 ar a lmo s t , but T ~ wouldn't call them 
patterns.

ix, p.124,125



a1Q

MR, WILLIAMS: Well, didn't they
raise the specific question that anybody 
knew Mrs. Pipkin, a sweet little old 
elderly white lady was totally incompe­
tent, she was the talk of the town and yet 
you did nothing about it?

MR. PARKER: I am going to object
again, because the --

HEARING EXAMINER: Sustained.
MR. WILLIAMS; Well, why, Mr. Hearing 

Examiner. I respectfully submit that if, 
that anything that related to an issue 
involving Mr. Elliott, this was raised at 
the Ag Committee meeting in reference to 
his, the effort to attempt to discharge 
Mr. Elliott. Now just because Mrs. Pipkin 
is white, she is not sacrosanct if Your 
Honor please and this gentleman is 
entitled to have uh, this uh, Honorable 
Court to know what actually went on.

ix, p.132

MR. PARKER: Your Honor, first of
all, I strongly object to the, my distin­
guished counsels statement that I am 
trying to destroy his client or that he 
Dean of Agriculture Extension Service is 
trying to destroy his client. The purpose 
of this hearing is simply to find out if 
there are facts that would support a 
recommendation to terminate by this 
Hearing examiner or that would not. That 
is all it is for. The University does not 
want to destroy Mr. Elliott, but the lives 
of other people and their ratings do not, 
do not show whether or not Mr. Elliott did 
or did not do his job. They are a 
completely separate issue and there is 
absolutely no reason for this hearing to



a 1 1

look into the background of a woman who is 
dead, who, there is no way to take any 
punitive action against her if she, if 
such should be taken, it serves no purpose 
at all, and it shouldn't be looked into. 
We object to it. Again, there is a 
pattern here of trying to try this case by 
trying other people and that is wrong. 
This is a case to try to find out whether 
or not there are grounds either not or to 
recommend termination of Mr. Elliott.

HEARING EXAMINER; Would you read the 
question again so that I can determine 
whether or not I want to make a retraction 
or sustain the objection.

COURT REPORTER: Everybody knew that
Mrs. Pipkin, is that the right name? Was 
totally incompetent and the talk of the 
town and yet you did nothing about it?

HEARING EXAMINER; Objection sus­
tained

Q. (By Mr. Williams) Were you 
asked by members of the County Agriculture 
Committee to investigate the question of 
the compenency of Mrs. Pipkin to do her 
job?

A. I was talked to by members of 
the Agriculture Committee about Mrs. 
Pipkin.

Q. All right, which members talked 
to you?

A. Mr. Donnell and Mr. uh, Arthur 
Johnson.

Q. Did Mr. Boone talk to you?
A. No sir.



a1 2

Q. Mr. Wallace Ivy?

A. Mr. Ivy did not. Mr. Boone may 
have mentioned it to me. Mr. Boone 
brought it up in a committee meeting.

Q. What did Mr. Boone say about it 
in the Committee meeting?

A. Just asked a question about it?
Q. What question?
A. I do not recall.

Q. Well, what were you asked by Mr. 
Bonnell and Mr. Johnson about it? What 
did they say?

A. Senator, I believe the uh,
things that have past and the things that 
are concerning Mrs. Pipkin —

~Q • What did they say about it
please sir?

A. They asked me about the fact of 
Mrs. Pipkin's competence and whether or 
not she was doing an outstanding job.

Q. They questioned some of the 
things that they had heard concerning Mrs. 
Pipkin and I looked into it, I dealt with 
them, I —

Q. Did they tell you that people 
were talking about her? Excuse me, I 
shouldn't have said that, go on.

MR. PARKER: Well, going back again, 
just "what we objected to , Again, I am 
trying to be just a cooperative as I can



a13

be, but, it has already been ruled not to 
go back into Mrs. Pipkin in a personal way 
and I object to it.

MR. WILLIAMS; If the Court please, I 
am asking about official proceedings of 
the very committee which is uh, which uh 
dealth with Mr. Elliott and he said that, 
uh that uh they asked him uh, uh, uh about 
her competency and now my next question is 
going to be what did he do about that.

MR. PARKER; Your Honor, if I could 
make one statement. This hearing is not a 
catharsis to lay out the dirty laundry of 
the Agricultural Extension Service. This 
hearing is, this hearing regards Mr Robert 
Elliott. If there are other matters of 
which people may have information, they 
should bring it to the university and let 
the university investigate it. This not a 
grand jury, this is not the place to 
accuse other people who have privacy 
rights that they may have done something 
wrong or did do something wrong. Those 
people have rights and we have responsibi­
lities as university officials to see that 
those rights are protected. If people 
have information about other people doing 
something wrong, they can bring it to the 
Dean of the Agricultural Extension Service 
and he will investigate it. And it is 
wrong to do it this way. it is very 
wrong.

MR. WILLIAMS: I will respectfully 
submit — -

HEARING EXAMINER; If you please, let 
me speak then and you may speak. This has 
come up, I say at least, well it came up 
when we were here before and it has come 
up several times today. I have tried to 
relate what I think my job is, what I see



a14

be, but, it has already been ruled not to 
go back into Mrs. Pipkin in a personal way 
and I object to it.

MR. WILLIAMS: If the Court please, I 
am asking about official proceedings of 
the very committee which is uh, which uh 
dealth with Mr. Elliott and he said that, 
uh that uh they asked him uh, uh, uh about 
her competency and now my next question is 
going to be what did he do about that.

MR. PARKER; Your Honor, if I could 
make one statement. This hearing is not a 
catharsis to lay out the dirty laundry of 
the Agricultural Extension Service. This 
hearing is, this hearing regards Mr Robert 
Elliott. If there are other matters of 
which people may have information, they 
should bring it to the university and let 
the university investigate it. This not a 
grand jury, this is not the place to 
accuse other people who have privacy 
rights that they may have done something 
wrong or did do something wrong. Those 
people have rights and we have responsibi­
lities as university officials to see that 
those rights are protected. If people 
have information about other people doing 
something wrong, they can bring it to the 
Dean of the Agricultural Extension Service 
and he will investigate it. And it is 
wrong to do it this way. it is very 
wrong.

MR. WILLIAMS; I will respectfully 
submit —

HEARING EXAMINER; If you please, let 
me speak then and you may speak. This has 
come up, I say at least, well it came up 
when we were here before and it has come 
up several times today. I have tried to 
relate what I think my job is, what I see



a1 5

my job to be, and I have been as lenient 
and I use the word lenient I guess a dozen 
times here, uh, I don't see any point in 
continuing to bring these things up, and I 
think Mr. Parker is absolutely correct in 
the lives of other people. They are not 
on trial here. I see what your line of 
questioning relates to, whether or not I 
think I know what it relates to, uh, I 
cannot permit you to continue to bring in 
uh competence or incompetence or whether 
it is racial slurs or whatever it might be 
relative to other people. I don't. I, 
let's try to get, the fact remains that as 
Hearing Officer, sooner or later I am 
going to have to try to determine whether 
or not these charges are true, and I will 
do my best to use what discretion that I 
have relative to this whole line of 
questioning. Now you can take that for 
whatever it is worth Mr. Williams. I will 
do the best I can, but I am going to have 
to sustain this objection and I believe I 
am totally right in doing it and I believe 
if I am unfair —

MR. WILLIAMS: It doesn't do any good 
to permit me to be heard if you sustain 
the objection before I speak.

HEARING EXAMINER: I am talking about 
the object ion that I just sustained 
relative to this lady. I understand your 
implication there also, but you are 
incorrect. I will advise you of that.

ix, p.134-138

* * *



a1 6

Q. (By Mr. Williams) Why are Miss 
Judy Cloud's records not in the file over 
there?

A. Miss Judy Cloud's records were 
in the file, the ones that I had asked 
for. They are only required to be kept 
for a period of three years. One year is 
in the one file and then the past two 
years are in our files.

Q. Now they had records in the file 
all the way back to 1971 prior to this 
proceeding against Mr. Elliott, didn't 
they?

A. Some agents have them that far 
back, and some throw them away when the 
three-year period is past.

* * * xi, p.29

MR. WILLIAMS; I am requesting, Mr. 
Hearing Examiner, that those records which 
this witness says he examined of all the 
other employees for that year and that he 
says were in good form be furnished and 
made an exhibit in this case.

MR. PARKER: Object as being irrele­
vant and immaterial to the charges against 
Mr. Elliott.

HEARING EXAMINER: I believe we have
been over this before. Sustained.

* * * xi, p.33,34

MR. WILLIAMS: Well, turn to the next
page, sirj arid look down at August 11th 
where it is encircled there, it says at 
9:45 one of your personnel left for the 
grocery store and lunch and arrived back 
at 1:00 p.m., and is signed, "Judy." That 
is Judy Cloud again, isn't it?



a17

A. That' s right.

Q.
grocery

Do you know what she did 
store?

at the

A. No, sir.

Q. Do you know which grocery store?
A. No, sir, I do not.

Q.
record

How would anyone looking at this 
have been able to determine where

she was?

MR. PARKER: Object to that question.
Miss Cloud is not on trial. She is a home 
demonstration agent. She makes demonstra­
tions. She has to go to the grocery 
store. Without her being here to explain, 
it is improper to have someone else 
explain what she thought. I object to it.

MR. WILLIAMS: The witness has said —
HEARING EXAMINER; The objection is 

sustaTnecf.

xii, p.156,157
HEARING EXAMINER; Read that, if you 

would-! Spec £TTcalTy which one are we
referring to?

A. (By the Witness) Rule 22, 
"Using University telephones for personal 
calls without permission except in an 
emergency or charging personal calls to 
the University."

Q. (By Mr. Williams) This is 
prohibited under that work rule, isn't it?



a18

A. What's what it says.
Q. Why haven't you enforced that as 

to local personal calls in your office?
A. I don't know how much difference 

it makes, but the telephones in my office 
are not University telephones. They are 
Madison County phones. This would
certainly not be something that I would 
ask each employee, including Mr. Elliott, 
to come to me and ask me each time he 
wanted to make a phone call. I have not 
had any problem with this being a persis­
tent problem, and I have not felt I need 
to deal with it.

Q. As a matter of fact, you know 
that Miss Judy Cloud would sit for hours 
and talk to her boyfriend on the phone 
over there?

MR. PARKER: Object, Your Honor.

HEARING EXAMINER Sustained.
Q. (By Mr. Williams) But you never 

investigated the extent to which any of 
your white employees were talking on the 
phone to their families or their boy­
friends on any kind of personal business 
here in the City of Jackson, did you?

MR. PARKER; Object, Your Honor.
HEARING EXAMINER: Objection sustain­

ed .
xiii, p.12-14

*  *  *



a19

Q. (By Mr. Williams) And I take it 
at this time that you all vol unteered to 
help Mr. Shearon, was in December of 1981, 
that was when Miss Pipkins passed away?

A. Yes.
Q. And you were aware about the 

scandal about her performance too, weren't 
you?

MR. PARKER: Your Honor, I object to 
this questioning about Miss Pipkin.

MR. WILLIAMS: I would respectfully 
call to the attention of the Hearing 
Examiner, that we filed a counter state­
ment of counter issues in this case, and 
the issues of racial discrimination is an 
issue in this case and they are in 
Exhibits two and three. I would respect­
fully request that the Hearing examiner 
reconsider inasmuch as we have raised very 
grave constitutional questions in those 
statements and counter issues and as the 
Hearing Examiner for the University of 
Tennessee, it is a denial of the univer­
sity under those constitutional statutory 
constitutional provisions for the Hearing 
Examiner to absolutely refuse to hear 
testimony regarding, with regard to uh the 
treatment of the university officials for 
other persons who were white in respect to 
matters of which there were complaints. 
They have a right to —

HEARING EXAMINER: I believe we have 
heard a substantial amount of testimony as 
it relates to this particular objection. 
It is sustained.

xvi, p.32
* * *



a20

(HEARING EXAMINER): I think that we
spent quite aTbit of time discussing the 
counter-issues on the first morning, the 
first day of the hearing; and, perhaps we 
dispense with those to your satisfaction, 
but I have, I believe I have since allowed 
a great deal of testimony relating to the

perhaps trying to get to 
motives behind it and so 
also indicated that there 

are certain factual issues relating to his 
job performance, the question of whether 
or not there were violation of University 
work rules, and these are something I have 
to deal with, and I am going to try to 
take everyting into consideration in this 
hearing, that is within my prerogative, as 
Hearing Officer, within the confines of 
this Administrative Procedures Act.

racial issues, 
the underlying 
forth. I have

Now, as it relates to this particular 
document, I am of the opinion that if the 
audit were complete, and had been finally, 
if this was a final document, I am of the 
opinion that it would not be admissible, 
if it were, but as it is, as an incomplete 
document, I certainly feel that until and 
there may be some questions that have been 
already brought in here, that are incom­
plete that ought to be considered j ust as 
well, Mr. Williams, and I will assure you 
that this Hearing Officer will do these 
things.

So, but I am going to sustain this 
obj ection.

* * * x i x ,  p . 128

MR. PARKER: I would like to state a
continuing objection for the record. The 
University is being placed in a position 
to where it is going ot have to try a



a21

Title VII discrimination lawsuit here at 
this forum, and there is no jurisdiction 
in this forum for such a case. The 
charges have been stated, for this 
hearing, and it is —  I cont inue, I will 
continue to object to all efforts to try 
to force the University to try a Federal 
lawsuit here, in this hearing.

I know that Senator Williams is not 
going to be willing to bind himself to 
whatever proof that he puts in relative to 
pretext here, in his Federal lawsuit; and 
if he is willing to bind himself, so that 
no further proof would be piaced in that 
case, then I would be willing to discuss 
that. But, I know that he is not going to 
do do that, and it is improper to make the 
University try that case twice, and it 
should not be placed in that position, and 
that is my continuing objection.

* * * xix p.129
Q. (By Mr. Williams) : Mr. , Dr. 

Downen, did you know that when an Exten­
sion Agent went and applied for Extension 
Leader in one of the West Tennessee 
counties, he was not even interviewed? 
Black Extension Agent?

MR. PARKER: Your Honor, again, what 
another person has in another county, did 
regarding their interview, I object. It 
has no relevance here.

HEARING EXAMINER: Alright, your 
objection is sustained.

Q. (By Mr. Williams): Alright, sir, 
I will ask you once more. Did you know 
that the Extension Agent, a white Exten-



a22

sion Agent in Shelby was made acting 
Extension Leader over Mr. Braswell in 
1982, with less time in service?

MR. PARKER; I object.
Q. Over the --

HEARING EXAMINER: Sustained.
Q. Over the black Agent rather, not 

over Mr. Braswell?

MR. PARKER; I object to the rele­
vance of the question.

HEARING EXAMINER; I have ruled. 
Proceed.

xix p.144-45
Q. (By Mr. Williams) Alright, 

well, in any event, there were not any 
substantial number of white agents who 
were reassigned following school desegre­
gation were there?

MR. PARKER: Your Honor, again, I am
not going to sit here. I, at some point, 
I can't sit here, because this is not a 
class action suit, and this question 
doesn't relate to whether or not there has 
been any racial discrimination against Mr. 
Elliott as a person by the supervisor, 
that is supervising him now or the 
District Supervisor that is supervising 
him now or his Dean, and this question 
doesn't have anything to do with the 
charges in this case.

It may have something to do with the 
Senator's lawsuit, which he has brought, 
his class action against the Extension 
Service, but I have made continuing 
objections to this hearing being a place



a23

for discovery 
just marking 
This question 
like it, don't
the charges in this 
for us to spend days 
this. We will never

in that lawsuit, and I am 
my continuing objection, 
and all of the questions 
have any thing to do with

case. ' It is improper 
going through all of 
finish it.

MR. WILLIAMS: It has to do with the
statement, Mr 
do with the 
Forty-three, 
adversary has

Hearing examiner, it has to 
statement in this Exhibit 
which my distinguished 

introduced.

MR. PARKER: It does not,

HEARING EXAMINER: Gentlemen, I am
going to sustain this objection, and I 
believe this is the same thing as, the 
same context again and I would like for us 
to move on and we seem to be doing pretty 
good here relative to issues and let's try 
to move in that light if we can.

xxiii, p.30
*  *  *

HEARING EXAMINER: Let me ask you a
question”, Mr. will Tam’s, and maybe you can 
help my memory, but have you not asked 
that question very specfically, that 
almost identical question before? If I 
haven't heard that question before, then I 
guess that, many times really, honestly I 
believe I can, there's nobody else going 
to read this transcript and make a 
recommendation but me. I am at a loss to 
know really what else I can draw from this 
as a Hearing Officer. Therefore, I am 
going to sustain this objection.

xxiii, p .131



a24

MR. PARKER: Your Honor, I am trying 
to let things proceed, but Mr. Colley 
[sic], whether he should be a judge is 
not on trial here. This, this letter 
speaks for itself as to what it say, but 
going into whether he should or should not 
be a judge, that is not the issue in 
regard to Mr.- Elliot. Now I think it is 
wrong here in this public forum to be 
trying Mr. Colley [sic] as well as all 
these others in Madison County, whatever 
their records, whatever their background. 
They are just private citizens.

xxiii, p.129
MR. PARKER: I strongly object to 

that, Your Honor. That doesn't relate to 
this hearing. If he's got some allegation 
to make against Mr Shearon —  I'm tired of 
Mr. Shearon, Mr. Coley, Mr. Sanford Smith, 
all of these people who are citizens of 
this county being paraded through this 
hearing as though there is something wrong 
with them. If there are charges to be 
brought against them, there's the Attorney 
General of this county and there's the 
Agricultural Extension Dean who can be 
contacted apart from this hearing. I'm 
tired of these people's reputations being 
paraded through this hearing and I don't 
think that we should go any further with 
it. I object and I ask for a ruling on 
it.

MR. WILLIAMS: Mr. Hearing examiner, 
I'm not concerned about what distinguished 
adversary counsel is tired of and there's 
been just too much of what he's tired of 
and what he thinks is right. He should 
state an objection and state a reasonable 
ground of objection and he has stated 
none. The question in this case was 
designed to elicit whether or not the Dean



a25

is aware of and has apprehended and/or has 
investigated racial attitudes on the part 
of Mr. Curtis Shearon as an individual who 
in reference to his charges of inadequate 
job performance and other alleged miscon­
duct —  job misbehavior on the part of Mr. 
Elliott. Dr. Downen has said that he 
credits his testimony absolutely and has 
made a finding that he harbors no racial 
discrimination or racial attitudes toward 
Mr. Elliott and that the conflicting 
testimony given between him and Mr Elliott 
-- as to that testimony the Dean has 
selected Mr. Shearon's testimony to 
believe and not Mr. Elliott's despite
racial circumstances, 
on that score to ask 
about whether 
attitudes being 
the same time 
determinations 
office towards others. That' 
and the second point is, as

Now, I'm entitled 
him the question 

he is aware of racial 
expressed and expressed at 
that he was making these 
by Mr. Shearon in his 

s point one 
to the white

secretary and her refusal to perform work 
for Mr. Elliott, I'm certainly entitled ot 
ask him about that because that is racial 
discrimination against Mr. Elliott himself 
going on in an office where he says that 
Mr. Elliott is still an employee and is 
being attacked only and solely on account 
of his professional performance and onto 
on account of his race.

HEARING EXAMINER; Hold on a moment, 
Mr Parker. I said I~wouldn't repeat this 
any more and I think I've said this a 
couple of times during the hearing, but I 
do not have the authority, as I perceive 
it, to try or to make rulings relating ot 
racial discrimination in this administra­
tive hearing.



a26

HEARING EXAMINER: Let's continue, 
gentlemen. I've sustained your objection 
and already made comments about the other 
forum for hearing this particular evidence 
related to the racial issue. Let's 
proceed.

xxiv, p.175-178

*  *  *

HEARING EXAMINER: Objection sustain­
ed .

Q. (By Mr. Williams) What, if 
anything, did you observe with regard to 
gifts by Mr. Shearon to office personnel?

MR. PARKER; I object to that 
question" It's irrelevant to the --

MR. WILLIAMS: It's relevant on the
issue of the attitude, the racial atti­
tudes, of Mr. Shearon as bearing on the 
treatment of Mr. Elliott in this case.

MR. PARKER: It is not. It may
relate to some claim of race discrimina­
tion that is a Title VII case pending in 
Federal Court, or the claim of race 
discrimination in the Equal Employment 
Opportunity Commission office in Memphis, 
it doesn't relate to these proceedings, 
and I'm going to object to it now and in 
the future.



a27

ed,
HEARING EXAMINER: Objection sustain-

xxvii, p.15

MR. PARKER; What is said in this 
hearing about people who are before the 
hearing is proper, but it's not —  this 
hearing is not going into matters that is 
not before the hearing, and the officers 
of the court are not supposed to go into 
matters that are not before the hearing. 
We are supposed to stay on the matters; 
that's all we’re supposed to do. We are 
here to find if the charge is to be 
sustained or not. This is not a Title VII 
race discrimination case. The kind of 
testimony [the treatment of other employ­
ees] that is asked to be elicited from 
this witness relates to that and would 
relate in that case and jurisdiction of 
that case in the United States District 
Court, the Western District of Tennessee, 
and we have filed responses in that case, 
and this hearing has no jurisdiction over 
those matters. This hearing is to 
determine whether or not the charges 
should be sustained or not. That's the 
reason that these matters are irrelevant. 
They should not be tried here. And also 
there is an EEOC complaint, and the EEOC 
will investigate this. For it to be 
brought out here and now is wrong. It's 
wrong because it's irrelevant and it's 
immaterial. This administrative proceed­
ings doesn't have jurisdiction over those 
matters, and if I'm going to have to stand 
here and fight from now on about what the 
issues are, then maybe we are going to 
have to stop and get clarification from 
the Vice President as to what the issues 
are because — - unless we have your ruling



a28

as to what the issues are —  because I am 
not here and I am not prepared, and I -- 
and it will take me some time to prepare 
cases that are going to be brought against 
all the agents in this county or in other 
counties or against the whole University 
or in a class action against the Univer­
sity. I did not now that this was the 
case I was coming to try. If it is, I 
demand that there be a recess for such 
time that I can have time to prepare for 
that.

MR. WILLIAMS: May I be heard just
briefly further?

HEARING EXAMINER; Make it as brief 
as you can.

MR. WILLIAMS; He keeps bringing up 
the Federal Court case. The federal Court 
case has nothing ot do with it. We will 
undoubtedly be met at the threshold of 
that case by an argument which you will 
then make in Federal Court that they 
exhausted their administrative remedies 
down there, and that will determine the -- 
if this should be determined adversely to 
us. It’s already been adjudicated by 
administrative quasi-judicial officer that 
Mr. Elliott was guilty of these viola­
tions, and therefore, there is nothing 
that needs to be decided in the Federal 
Court. Counsel has not addressed to the 
points I made earlier. The last statement 
that he made about coming here to try 
cases against other employees is not 
relevant because we are not trying cases 
against other employees. We are showing 
standards of conduct and standards of 
treatment that this young lady observed on 
the part of the agent of the University of 
Tennessee operating its Madison County 
office down here, and we are entitled to



a29

show that that —  if that conduct involved 
anybody, it if involved the mayor of 
Jackson. We feel entitled to show it in 
this proceeding.

HEARING EXAMINER: Okay, gentlemen. 
I believe both of you have had your 
arguments sufficiently. I've allowed your 
arguments on both sides for one purpose 
specifically, and that is so that this can 
be in the record for counsel for both 
sides. I distinctly remember that this 
very issue was brought up in cross-exami­
nation of one or more other witnesses. 
There was an objection, and I believe 
there was a ruling by this Hearing 
officer, and I believe, if I remember 
correctly, it related specifically to this 
very incident in question.

Now, this is in the record, both 
arguments are in the record, and now the 
ruling again will be sustained. You may 
proceed. If I am wrong, then there will 
be a later review I'm sure, and that will 
be determined at that time whether or not 
I am right or wrong. For the time now, my 
ruling is again I will sustain this. 
Proceed. Now you will not allow any 
further lengthy —  you will have an 
opportunity to argue, but we are going to 
keep it more brief than that in the past. 
Let's proceed.

* * * xxvii, p.25-30
Q. (By Mr. Williams) Have you 

observed any evidence of racial discrimi­
nation in the office?

MR. PARKER: I object to that.
HEARING EXAMINER: Sustained.



a30

Proceed with the questions relating 
to job performance and job behavior.

Objection sustained.
xxviii, p.210

*  *  *

MR. PARKER: Mr Hearing examiner,
there, I don't want to believe, really 
that there are certain things, there is a 
lawsuit of a class action brought in the 
United States District Court for the 
Western District of Tennessee, Jackson 
Division, in which that class action 
allegation that the 4-H program for 
Mercer, Tennessee has been handled on 
racial lines. This is not the place for 
testimony to be brought in concerning 
that. Mr. Elliott's job assignment for 
the period in which he, for which he is, 
the charges have been made against him, 
have nothing to do with any primary 
assignment in 4-H or that he's been 
assigned to either small farms agents for 
the University of Tennessee. There's 
already been all kind of testimony about 
how, he came to become small farm agent, 
which occurred long before Mr. Shearon 
ever came to this county and those matters 
don't relate to the issues here. They may 
relate to that lawsuit that's pending in 
United States District Court, but again, 
I, I'm not prepared here to fight that 
class action. There's been no justifica­
tion yet that that class action can ever 
be maintained and to start here having 
proof under oath here, where, where we 
have to counter that proof. Again, I, I 
submit is improper. It is, it is expand­
ing the scope of this proceeding and



a31

that’s the reason I continue, I have a 
continuing objection to this line of 
question.

xxix, p.27
*  *  *

HEARING EXAMINER: I am not getting
any further into the issue which I know is 
going to come before a Federal Judge, who 
is competent and has the authority to 
listen to this, and I am sure, if I were 
in the same position, that I would want to 
proceed in this manner, if I felt that 
way, that your client feels, but I am not 
in a position to hear this any further, 
Mr. Williams. Please respect my position 
as Hearing examiner under the Administra­
tive Procedure Act, and let's proceed with 
this hearing.

xxix, p.109
*  *  *

Q. (By Mr. Williams) Mr. Winston, 
I believe when we recessed you were 
talking about the disparities in salaries 
between white and black agents.

A. Well, there was an audit in the 
late 70's about this and I saw a report 
about this and the black agents —

MR. PARKER; Your Honor, before he 
goes further I 'm going to object to his 
continuing to testify about this matter at 
this hearing. If he has a complaint, the 
place that he can file it is with the 
University or the proper authorities, and 
then they can look at it there. This is 
not the place to look at it and I object 
to going into this.



a32

HEARING EXAMINER: This objection is
sustained. rKat is not, in my opinion, 
the proper forum for this to be asked. 
Proceed with your next question, Mr.
Williams.

xxxiii, p.3
*  *  *

Q. Did you have difficulty in
winning any prizes for an integrated
affair?

MR. PARKER: Your Honor, I object to
that. Those issues - we recognize that 
this young man was outstanding in his 4-H 
activities and I object going into the 
background. This isn't the place. We 
have a lawsuit in which those issues are 
present.

HEARING EXAMINER: That is sustained.
Proceed.

xxxiiii, p.133
* * *

Q. Can you identify Exhibits
seventy-■two and seventy-three?

A. Yes sir.

Q- Identify them please?
A. There are sign-out sheets that I

had xeroxed to show that, well, it was 
said that I had signed out, rather 
loosely, and I wanted to show that this 
was the normal trend of signing out. 
Going to the grocery store or wherever and 
I wanted to show that everybody else, why



a33

repr imand me for it when this was the 
common trend. And, after I found out that 
these, it was a secret about these that I 
could not get them, I started making my 
own copies early in the year.

Q. All right, sir.
A. One other thing I'd like to say 

about it, if I might, about that rating 
form. I noticed on the rating form, Miss 
Mary Blakemore, after this, this deal 
started here, after this hearing started, 
Miss Mary Blakemore has been receiving
excellent ratings —

MR. PARKER: Your Honor, I object
before —

A. But she has gone down to a four
also.

MR. PARKER: I object and ask that
that be stricken. Her ratings —

HEARING EXAMINER: Objection sustain­
ed . It's irrelevant.-

MR. WILLIAMS: Well, I, —

MR. PARKER: You can go into that in 
the Federal Court case if it’s a part of 
the pattern of practice, but it doesn't 
relate here.

MR. WILLIAMS: I would respectfully 
submit, Mr. Hearing Officer, that it is, 
it is incorrect to state that there is no 
issue of racial discrimination involved in 
this matter. Not only have we submitted 
an issue in that regard, but the issue is 
implicit in everything that has happened



a34

in this case and, a pattern of racial 
discrimination because, against another 
black employee is certainly relevant.

HEARING EXAMINER: The objection is 
sustained. This can remain in the record 
for record purposes.

MR. WILLIAMS: All right.
Q. You have also, pick up Exhibit 

seventy-four. I believe you've also 
testified with regard to that one, the Ku
Klux Klan 
to add in

document? Do you have 
regard to that one?

anything

A. No sir.

Q. All right, now, Mr. Elliott, 
pick up Exhibit seventy-five, please and, 
state whether or not you can identify 
that?

’ A. Yes sir, I can.

Q. What is it?
A.

I put in
This is a complaint by 
the, the Civil Rights

me, that 
file and

sent a copy to Dr. Ferrell. This was 
written on January 23, 1981 —

Q. Now, was it actually '81?
A. 1982, no it was * 00 0 1 1

Q. It say it was —
A.

about
This was written 
the year of 1980.

in 181 , but it

Q. Well, read it Mr . , look at the
second paragraph Mr., where was the 
mistake made, the second paragraph or at



a35

the top of it? You couldn't write 
something in January of 1981 that related 
to events occurring in October 1981 —

HEARING EXAMINER: Objection sustain­
ed . xliv, p.35-38

*  *  *

HEARING EXAMINER; Very well. Proceed.
Q. (By Mr. Williams) All right now, 

Mr., Mr. Elliott, what about the, the 
agriculture, Madison County Agriculture 
Committees across the state. What is 
their racial composition?

MR. PARKER: What, what, I, I —
A. Madison County is —
MR. PARKER: Wait a minute —
HEARING EXAMINER: Mr. Elliott,

what’s, let's clarify that question?
MR. WILLIAMS: What is the racial

composition of the Agricultural, Madison, 
of the, UT Extension Service Agricultural 
Committee across the state?

MR. PARKER: Your Honor, I object to
that question. It doesn't have anything 
to do with this, with, with, this hearing, 
plus they are not UT Agricultural Commit­
tees across the state. They are county 
agricultural committees and that doesn't 
have anything to do with the University of 
Tennessee as far as appointing those 
committees. Those committees are appoint­
ed by county governments. Just as the one 
here is.



a36

MR. WILLIAMS; They are utilized —
MR. PARKER: I object. It’s irrele­

vant, it * s incompetent, it’s immaterial 
to, to these charges.

MR. WILLIAMS:, They're organized and 
utilized by the University of Tennessee 
Agricultural Extension Service.

MR. PARKER: Your Honor, they're 
organized and utilized pursuant to 
legislation passed by the General Assembly

HEARING EXAMINER: Well —

MR. PARKER: Of the State of Tennes­
see .

HEARING EXAMINER: Genlemen, these
committees, you could have a different, 
situation in East Tennessee, Middle 
Tennessee, West Tennessee. I don't see 
what relevance the composition of an 
agriculture committee, for example, in a 
county in, Shelby County or Sullivan 
County, or wherever, would really have on 
this. I'm going to sustain that objec­
tion, Mr. Williams.

xlv, pp.33,34



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