General - Baldus Study Binder

    No. 85-588

3tt tljr §û trrmr (llmtrt of %  llnttrii
October Term, 1985

The University of Tennessee, et al., petitioners

v.
Robert B. Elliott

ON A WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF FOR THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 

AS AMICUS CURIAE SUPPORTING RESPONDENT

Charles Fried 
Solicitor General

Carolyn B. Kuhl 
Deputy Solicitor General

Jeffrey P. Minear
Assistant to the Solicitor General 
Department of Justice 
Washington, D.C. 20530 
(202) 633-2217

Johnny J. Butler
General Counsel (Acting)

Gwendolyn Y oung Reams 
Associate General Counsel (Acting)

Vella M. Fink 
Assistant General Counsel

Mark S. Flynn
Attorney
Equal Employment Opportunity Commission 
Washington, D.C. 20507



QUESTION PRESENTED

This brief will address the following question:
Whether a federal court adjudicating a Title VII 

action must give preclusive effect to a judicially un­
reviewed decision of a state administrative agency 
finding no employment discrimination.

(i)





TABLE OF CONTENTS
Page

Interest Of The Equal Employment Opportunity Com­
mission ...................... ................-........................................  1

Statement ................ ..............................................................  2
Summary of argument .......................................................  5
Argument:

A  federal court adjudicating a Title VII action 
should not give res judicata effect to a judicially 
unreviewed decision of a state administrative 
agency.......................................................................... . 8
I. The full faith and credit statute does not require

federal courts to give judicially unreviewed 
state administrative decisions res judicata ef­
fect ...........................................      8

II. A judicially fashioned rule giving res judicata
effect to state administrative decisions would be 
inconsistent with Title VII.....................................  18

III. This Court has previously denied res judicata
effect to non-judicial decisions in Title VII ac­
tions ......................................................      22

IV. Petitioners’ suggested policy rationale for pre­
clusion should not be substituted for Title VIPs
own requirements and policies....... ....................    25

Conclusion ...............................................................   29

TABLE OF AUTHORITIES
Cases:

Alexander V. Gardner-Denver Co., 415 U.S. 36....7,19, 23,
24, 25, 26, 27

American Tobacco Co. V. Patterson, 456 U.S. 63.... 11
Batiste V. Furnco Construction Corp., 503 F.2d

447, cert, denied, 420 U.S. 928 .......... ................... 15, 21
Board of Governors v. Dimension Financial Corp.,

No. 84-1274 (Jan. 22, 1986) ........ ........................  11
(ill)



IV
PageCases—Continued:

Bottini V. Sadore Management Corp., 764 F.2d
116 .............................................................................  15

Bowen V. United States, 570 F.2d 1311.................... 18
Buckhalter V. Pepsi-Cola General Bottlers, Inc.,

768 F.2d 842, petition for cert, pending, No. 85-
6094 (filed Dec. 23, 1985) ................................ 12,16, 21

Burney V. Polk Community College, 728 F.2d 1374.. 12,15,
21

Chandler V. Roudebush, 425 U.S. 840....7,19, 22, 23, 25, 27 
Chatelain V. Mount Sinai Hospital, 580 F. Supp.

1414 ........................................................... - ........... 12
Clinton v. Georgia Ports Authority, 37 Fair. Empl.

Prac. Cas. (BNA) 593 ............................................. 15-16
Cooper V. Philip Morris, Inc., 464 F.2d 9 ------------- 15, 21
Davis v. Davis, 305 U.S. 3 2 ........................ ................  0
Delamater V. Schweiker, 721 F.2d 50...... ................  18
Gargiul v. Tompkins, 704 F.2d 661...........................  12
Garner v. Giarrusso, 571 F.2d 1330 ..................... 15, 20, 21
Gulf Oil Corp. V. FPC, 563 F.2d 588, cert, denied,

434 U.S. 1062.............    18
Heath v. John Morrell & Co., 768 F.2d 245 .......... . 15, 21
Holley V. Seminole County School District, 763

F.2d 399 .............................     12
King v. City of Pagedale, 573 F. Supp. 309 ............ 12
Kremer V. Chemical Construction Corp., 456 U.S.

461 ...............................................................................passim
Magnolia Petroleum Co. v. Hunt, 320 U.S. 430.......  11,12
McCulloch Interstate Gas Corp. V. FPC, 536 F.2d

9 10 .................................................................. ............ 18
McDonald V. City of West Branch, 466 U.S. 284..9,11,13 
McDonnell Douglas Corp. v. Green, 411 U.S. 792.... 7, 24 
Migra v. Warren City School District Board of

Education, 465 U.S. 75......................................... -  4, 9
Mills v. Duryee, 11 U.S. (7 Cranch) 481................  9
Mitchell V. Bendix Corp., 603 F. Supp. 920 ...........  15
Mitchell V. National Broadcasting Co., 553 F.2d

265 .............................................................................. 12
Mohasco Corp. V. Silver, 447 U.S. 807 ...................  14
Moore v. Bonner, 695 F.2d 799 ............................ 12,16, 26
New York Gaslight Club, Inc. v. Carey, 447 U.S.

54 ................................................................................ 26



O’Hara v. Board of Education, 590 F. Supp. 698,
aff’d mem., 760 F.2d 259..................................... . 12

Pacific Seafarers, Inc. V. Pacific Far East Line,
Inc., 404 F.2d 804, cert, denied, 393 U.S. 1093.... 18

Painters District Council No. 38 V. Edgewood Con­
tracting Co., 416 F.2d 1081............................  18

Parker V. Danville Metal Stamping Co., 603 F.
Supp. 182...................................................................  15

Parker V. National Corporation for Homing Part­
nerships, 619 F. Supp. 1061, appeal docketed, No.
85-5985 (D.C. Cir. Oct. 4, 1985) __________ __ _ 12,16

Parsons Steel Co. V. First Alabama Bank, No. 84-
1616 (Jan. 27, 1986) ........    9

Pettus v. American Airlines, Inc., 587 F.2d 627,
cert, denied, 444 U.S. 883 ....... ................. .............  19

Pizzuto v. Perdue, Inc., 623 F. Supp. 1167............. 15
Reedy v. State of Florida, Dep’t of Education, 605

F. Supp. 172 ....................... ............ .......... ............... 15
Rosenfeld v. Department of Army, 769 F.2d 237.... 19
Ross v. Communications Satellite Corp., 759 F.2d

355 ...................................................    21
Thomas V. Washington Gas Light Co., 448 U.S.

261 ................................. ............'.......................... ...... 12
United Farm Workers v. Arizona Agricultural 

Employment Relations Board, 669 F.2d 1249.... 19
United States v. Karlen, 645 F.2d 635 ................. 18
United States v. Locke, No. 83-1394 (Apr. 1,

1985) ..............         11
United States v. Utah Construction & Mining Co.,

384 U.S. 394 ____________ _____ .....4-5,16, 17,18,19, 20
Voutsis v. Union Carbide Corp., 452 F,2d 889, cert.

denied, 406 U.S. 918 .....................................’.........  15
Zanghi V. Incorporated Village of Old Brookville,

752 F.2d 4 2 ....................................   12
Zywicki V. Moxness Products, Inc., 37 Fair Empl.

Prac Cas. (BNA) 710 ..................................... . 16

Constitution, statutes and regulations:
U.S. Const. Art. IV, § 1 (Full Faith and Credit

Clause) ..... ............................................................... . 8, 9
Act of May 26, 1790, ch. XI, 1 Stat. 122 et seq........ 11

V
Cases—Continued: Page



VI

Constitution, statutes and regulations— Continued: Page
Act of Mar. 27, 1804, ch. 56, 2 Stat. 298 et seq......  11
Act of June 25, 1948, ch. 646, § 1738, 62 Stat. 947.. 11
Civil Rights Act of 1964, Tit. VII, 42 U.S.C. 2000e

et seq................................................. -.........................  1, 2
§ 706 (b ) , 42 U.S.C. 2000e-5 ( b ) .................-1 , 6,13, 20
§ 706 (c ) , 42 U.S.C. 2000e-5 ( c ) .........................6,10,13
§ 706 ( f ), 42 U.S.C. 2000e-5 ( f ) .............    13
§ 709 (b ) , 42 U.S.C. 2000e-8 (b) .......................... 26

Tucker Act, 28 U.S.C. (1964 ed.) 1346(2) .............  16
Wunderlich Act, 41 U.S.C. 321 .................................  16,17
28 U.S.C. 1738................................................5, 6, 9,10,11,12
42 U.S.C. 1981.......... .............................................. ....... 2,5
42 U.S.C. 1983..............................................................2,15,16
42 U.S.C. 1985 ......................................................... ...... 2,5
42 U.S.C. 1986................................................................  2,5
42 U.S.C. 1988 ........................................................... . 2, 5
Tennessee Uniform Administrative Procedures

Act, Tenn. Code Ann. §§ 4-5-101 et seq. (1985).. 2
§ 4-5-301.................................................................  3
§ 4-5-315...............................................................  3
§ 4-5-322...............................................................   3

29 C.F.R.:
Section 1601.13......................................................  26
Section 1601.21 (e) ............................................  13
Section 1601.76...................................................   13
Section 1601.77...................................................... 13
Section 1601.80........................................    26

Miscellaneous:
Atwood, State Court Judgments in Federal Litiga­

tion: Mapping the Contours of Full Faith &
Credit, 58 Ind. L.J. 59 (1982)............................   11

Catania, Access to the Federal Courts for Title 
VII Claimants in the Post-Kremer Era: Keep­
ing the Doors Open, 16 Loy. L.J. 209 (1985).... 19-20

110 Cong. Rec. (1964) :
p. 7205 ...................................................................  27
p. 7214.......................................     27



VII

Miscellaneous— Continued: Page

4 K. Davis, Administrative Law Treatise (1983)- 11,19
E.E.O.C. Compl. Man. (CCH) (May 1985) ..... ...... 26
E.E.O.C. Dec. No. 86-4 (Dec. 6, 1985) .................... 16
H.R. Rep. 92-238, 92d Cong., 1st Sess. (1971)____ 23,24
Note, Res Judicata Effects of State Agency Deci­

sions in Title VII Actions, 70 Cornell L. Rev.
695 (1985) ........................     20

Restatement (Second) of Judgments (1982)......  19
S. Rep. 92-415, 92d Cong., 1st Sess. (1971) .........  23, 27
Symposium, Tennessee Administrative Law, 13 

Mem. St. U.L. Rev. 461 (1983) ....... .................... 2



3n %  i ’tqimttr (tort of %  Imfrfr States
October  T e r m , 1985

No. 85-588
T h e  U n iv e r sity  of T e n n e sse e , et a l ., pe titio n e rs

v.
R obert B. E llio tt

ON A WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF FOR THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 

AS AMICUS CURIAE SUPPORTING RESPONDENT

INTEREST OF THE EQUAL EMPLOYMENT 
OPPORTUNITY COMMISSION

The Equal Employment Opportunity Commission 
(EEOC) is the federal agency primarily responsible 
for administering federal fair employment statutes, 
including Title VII of the Civil Rights Act of 1964, 
42 U.S.C. 2000e et seq. Among other responsibilities, 
it reviews employment discrimination determinations 
by state fair employment practice (FEP) agencies in 
accordance with Section 706(b) of Title VII. 42 
U.S.C. 2000e-5(b). The EEOC believes that peti­
tioners’ position in this case— urging that in adjudi­
cating Title VII actions federal courts must give res 
judicata effect to judicially unreviewed state agency

(1)



2

decisions— is inconsistent with Title VII, could under­
mine private enforcement, and would interfere with 
the EEOC’s exercise of its statutory responsibilities.1

STATEMENT
1. On December 18, 1981, petitioner University of 

Tennessee notified respondent, a black employee of 
the University’s Agricultural Extension Service, that 
he would be discharged for inadequate job perform­
ance and misconduct. Respondent filed an appeal of 
the termination decision under the Tennessee Uni­
form Administrative Procedures Act, Tenn. Code 
Ann. §§4-5-101 et seq. (1985), which provides a 
public employee with an administrative review of 
his proposed discharge. Shortly thereafter, respond­
ent filed suit against petitioners in the United States 
District Court for the Western District of Tennessee, 
alleging that the proposed termination was racially 
motivated and therefore violated Title VII of the 
Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. 
Respondent also raised federal civil rights claims 
under 42 U.S.C. 1981, 1983, 1985, 1986 and 1988. 
The district court stayed the federal action pending 
completion of respondent’s state administrative chal­
lenge to the dismissal. See Pet. App. A1-A4.

An administrative law judge (ALJ) conducted the 
state administrative proceeding.2 The ALJ dis­

1 The EEOC takes no position on the preclusive effect of 
state administrative agency decision in suits brought under 
42 U.S.C. 1981, 1983, 1985, 1986 and 1988.

2 The state administrative review process is described by 
the court of appeals (Pet. App. A4-A5). See generally Sym­
posium, Tennessee Administrative Law, 13 Mem. St. U. L. 
Rev. 461 (1983). It provides the basic elements of an ad­
judicative procedure, including right to counsel, right to 
request issuance of subpoenas and the right to examine and



8

claimed jurisdiction to adjudicate respondent’s affirm­
ative claim for violation of his civil rights. However, 
the ALJ concluded that he could consider respondent’s 
allegations of employment discrimination as an af­
firmative defense to the University’s charges of in­
adequate job performance and misconduct (Pet. App. 
A44-A45). After a lengthy hearing, the ALJ sus­
tained four of the University’s eight claims of im­
proper and inadequate performance (id. at A166- 
A170), ruling further that respondent “ failed in his 
burden of proof to the claim of racial discrimination 
as a defense to the charges against him” (id. at 
A177). The ALJ concluded, however, that respond­
ent should be transferred rather than discharged (id. 
at A177-A182).

Respondent, in accordance with Tennessee law, re­
quested review of the ALJ decision by the appropri­
ate University of Tennessee official. See Tenn. Code 
Ann. § 4-5-315 (1985). That official, the Vice Presi­
dent for Agriculture, sustained the ALJ’s ruling 
(Pet. App. A33-A35). Neither petitioners nor re­
spondent exercised their statutory right under Tenn. 
Code Ann. § 4-5-322 (1985) to seek state court re­
view (Pet. App. A6).

2. Following the state administrative decision, re­
spondent renewed his federal court action. Petition­
ers then moved for summary judgment, arguing, inter 
alia, that under res judicata principles the state ad­
ministrative finding of no discrimination precluded 
respondent’s Title VII claims. The district court 
granted petitioners’ motion, concluding that the ad-

eross-examine witnesses on the record. Under Tennessee law, 
the ALJ must be an employee of either the affected state 
agency or the secretary of state. See Tenn. Code Ann. § 4-5- 
301 ( 1985) .



4

ministrative finding should be given preclusive effect 
(Pet. App. A26-A32).3

The court of appeals reversed, holding that res 
judicata principles did not bar respondent’s Title 
VII action. It relied upon this Court’s decision in 
Kremer v. Chemical Construction Corp., 456 U.S. 
461 (1982), which “ drew a sharp distinction between 
state court judgments, which are entitled to defer­
ence under the res judicata principles of [28 U.S.C.] 
1738, and unreviewed state administrative determi­
nations which are not.” Pet. App. A ll .  The court 
of appeals rejected petitioners’ contention that Krem- 
er’s statements concerning the nonpreclusive effect 
of state administrative decisions applied only to 
agencies with investigative, rather than adjudica­
tive, authority, noting that Kremer’s statements were 
accompanied by citations to decisions involving state 
adjudicative agencies (id. at A12).

The court of appeals also rejected petitioners’ con­
tention that Kremer, by citing United States v. Utah

8 The preclusive effects of former adjudication “are referred 
to collectively by most commentators as the doctrine of ‘res 
judicata,’ ”  which itself is often analyzed by reference to two 
concepts: claim preclusion and issue preclusion. Migra V. 
Warren City School District Board of Education, 465 U.S. 75, 
77 n.l (1984). “ Claim preclusion refers to the effect of a 
judgment in foreclosing litigation of a matter that never has 
been litigated, because of a determination that it should have 
been advanced in an earlier suit.”  Ibid. “ Issue preclusion 
refers to the effect of a judgment in foreclosing relitigation 
of a matter that has been litigated and decided.” Ibid. In this 
case, petitioners urge that issue preclusion should result from 
the agency’s finding of no discrimination. Pet. Br. 26-27 n .ll. 
In arguing that judicially unreviewed state administrative de­
cisions should have no preclusive effect in Title VII actions, 
we use the more general terms “preclusive effect” and “ res 
judicata”  throughout this brief.



5

Construction & Mining Co., 384 U.S. 394 (1966), 
implicitly recognized that res judicata principles 
should be applied to administrative agencies. The 
court observed that Kremer’s sole reference to that 
case occurred in the course of examining the ade­
quacy, for due process purposes, of New York’s ju­
dicial review procedures (Pet. App. A12-A13). The 
court stated that “ [t]he district court’s holding that 
[respondent’s] Title VII claim is barred by res ju­
dicata must fall in light of the unambiguous prin­
ciple enunciated in Kremer”  (id. at A13) .4

SUMMARY OF ARGUMENT

This Court held in Kremer v. Chemical Construc­
tion Corp., 456 U.S. 461 (1982), that the full faith 
and credit statute, 28 U.S.C. 1738, requires that a 
federal court adjudicating a Title VII action give 
preclusive effect to a state court judgment affirming 
a state administrative agency’s rejection o f an em­
ployment discrimination claim. However, the Court 
also stated that federal court resolution of a Title 
VII claim is not precluded by unreviewed adminis­
trative decisions “even if such a decision were to be

4 The court of appeals also held that the administrative 
decision should not preclude respondent’s claims under 42 
U.S.C. 1983, and by analogy, his claims under Sections 1981, 
1985, 1986, and 1988. The court concluded that the full faith 
and credit statute, 28 U.S.C. 1738, applies only to state court 
judgments (Pet. App. A16) and that, therefore, the appropri­
ate inquiry in this case was whether the federal courts should 
create a federal common law rule according preclusive effect to 
unreviewed administrative determinations when adjudicating 
Section 1983 actions (Pet. App. A17). The court held that the 
underlying policies of Section 1983 counselled against giv­
ing state administrative determinations preclusive effect (id. 
A19-A22).



6

accorded preclusive effect in a State’s own courts” 
(456 U.S. at 470 n.7). Kremer’s reasoning controls 
the present case. The federal courts may consider 
respondent’s Title VII claim, notwithstanding a prior 
state administrative determination, unreviewed by 
the state courts, that petitioner did not engage in 
employment discrimination.

Under Kremer, a federal court adjudicating a 
Title VII claim must give the same preclusive effect 
to a state court determination of employment dis­
crimination that the determination would receive in 
the state’s own courts. But as Kremer implicitly 
recognized, the full faith and credit statute governs 
only the res judicata effect of “ judicial proceedings 
of any court” (28 U.S.C. 1738). It does not con­
trol the res judicata effect of a state administrative 
decision that received no review from the state’s 
judiciary.

As Kremer also recognized, Title VII, in both its 
structure and purpose, cannot be squared with a rule 
giving preclusive effect to state administrative de­
terminations. Section 706(c) of Title VII clearly 
contemplates that the EEOC will often defer its ex­
amination of a Title VII claim pending the state’s 
fair employment practice (FEP) agency considera­
tion of the dispute. See 42 U.S.C. 2000e-5(c). And 
Section 706(b) specifies that EEOC shall accord 
substantial weight”— not preclusive effect—to the 

FEP agency decision. 42 U.S.C. 2000e-5(b). “ EEOC 
review of discrimination charges previously rejected 
by state agencies would be pointless if the federal 
courts were bound by such agency decisions.”  
Kremer, 456 U.S, at 470 n.7.

Petitioners concede that state FEP agency deter­
minations may be nonpreclusive, but suggest that



7

preclusive effect should nevertheless be given to de­
terminations by other state agencies that, in the 
course of their administrative proceedings, address 
employment discrimination claims. However, Kremer 
drew no such distinction. The opinion specifically 
cites court o f appeals decisions involving both FEP 
and non-FEP agencies to illustrate the nonpreelusive 
effect of state administrative determinations. Cer­
tainly, Congress did not intend that the federal 
courts, in implementing the important national pol­
icy of non-discrimination, would be bound by findings 
of various state non-FEP agencies with little or no 
expertise in employment discrimination matters.

Indeed, this Court’s decisions have repeatedly rec­
ognized that federal courts may give de novo con­
sideration to Title VII claims notwithstanding prior 
non-judicial decisions rejecting discrimination claims. 
See Chandler v. Roudehush, 425 U.S. 840 (1976); 
Alexander v. Gardner-Denver Co., 415 U.S. 36 
(1974); McDonnell Douglas Corp. v. Green, 411 U.S. 
792 (1973). For example, the Court held in Chan­
dler that a federal court may adjudicate a federal 
employee’s Title VII claim, notwithstanding the em­
ploying agency’s prior administrative decision reject­
ing the employee’s discrimination claim. Similar 
principles should control the Title VII claims of non- 
federal employees, including state and local employ­
ees who contest their discharge through state ad­
ministrative procedures that result in incidental ad­
judication of employment discrimination claims.

Policy considerations also argue against applica­
tion of “ administrative res judicata” in the Title 
VII context. If state agency determinations of em­
ployment discrimination are given preclusive effect, 
claimants may choose to forego altogether state ad­



8

ministrative procedures protecting important rights. 
This result would weaken state administrative sys­
tems, diminish state participation in employment dis­
crimination issues, and harm the federal-state coop­
eration achieved by worksharing agreements between 
EEOC and FEP agencies. Furthermore, it would in­
crease the workload of the federal courts and the 
EEOC. The potential inefficiencies in nonpreclusion 
are easily exaggerated. Claimants who have lost 
their discrimination claims after a full hearing be­
fore a state agency are likely to be circumspect in 
seeking a full-scale federal adjudication. Further­
more, federal review, when it does occur, should be 
able to be conducted more expeditiously after an ad­
ministrative proceeding. The issues generally have 
been narrowed, the need for discovery should be less­
ened, and the administrative record may be admitted 
as evidence entitled to appropriate weight.

ARGUMENT

A FEDERAL COURT ADJUDICATING A TITLE VII
ACTION SHOULD NOT GIVE RES JUDICATA EF­
FECT TO A JUDICIALLY UNREVIEWED DECISION
OF A STATE ADMINISTRATIVE AGENCY

I. The Full Faith and Credit Statute Does Not Require 
Federal Courts to Give Judicially Unreviewed State 
Administrative Decisions Res Judicata Effect

The Full Faith and Credit Clause empowers Con­
gress to determine whether federal courts shall be 
bound by state judicial proceedings.® Congress., in *

* The Full Faith and Credit Clause provides:
Full Faith and Credit shall be given in each State to the 
public Acts, Records, and judicial Proceedings of every 
other State. And the Congress may by general Laws



9

turn, has enacted the full faith and credit statute, 
28 U.S.C. 1738, which entitles the “ judicial proceed­
ings of any court of any such State” to “ full faith 
and credit” in the federal courts.® Section 1738 re­
quires “ federal courts to give the same preclusive 
effect to a state-court judgment as would the courts 
of the State rendering the judgment.”  McDonald v. 
City of West Branch, 466 U.S. 284, 287 (1984). 
Congress, through the full faith and credit statute, 
has thus expressed a general federal respect for 
state court decisions.* 6 7

This Court concluded in Kremer v. Chemical Con­
struction Cory., 456 U.S. 461 (1982), that Congress

prescribe the Manner in which such Acts, Records and 
Proceeding’s shall be proved, and the Effect thereof.

U. S. Const. Art. IV, § 1. Congress, of course, is under 
no obligation to give state proceedings binding effect in the 
federal courts. See Kremer V. Chemical Construction Corp., 
456 U.S. 461, 483 n.24 (1982) ; Davis v. Davis, 305 U.S. 32, 40 
(1938).

6 Section 1738 provides in pertinent part:
The records and judicial proceedings of any court of 

any such State, Territory or Possession * * * shall be 
proved or admitted in other courts within the United 
States and its Territories and Possessions [upon proper 
authentication].

Such * * * records and judicial proceedings * * * shall 
have the same full faith and credit in every court within 
the United States and its Territories and Possessions as 
they have by law or usage in the courts of such State, 
Territory or Possession from which they are taken.

7 See, e.g., Parsons Steel Co. V. First Alabama Bank, No. 84- 
1616 (Jan. 27, 1986), slip op. 5; Migra V. Warren City School 
District Board of Education, 465 U.S. 75, 81 (1984) ; Kremer
V. Chemical Construction Corp., 456 U.S. 461, 462-463, 466 n.6 
(1982) ; Davis V. Davis, 305 U.S. 32, 40 (1938) ; Mills v. 
Duryee, 11 U.S. (7 Crunch) 481 (1813).



10

intended that federal courts adjudicating Title VII 
actions would give preclusive effect to state court 
judgments affirming state administrative agency de­
terminations o f employment discrimination claims.8 
The Court determined that Title VII did not contain 
an express or implied repeal of Section 1738’s re­
quirement that “ all United States courts afford the 
same full faith and credit to state court judgments 
that would apply in the State’s own courts.” Kremer, 
456 U.S. at 462-463. It found no “manifest incom­
patibility between Title VII and § 1738” that would 
demonstrate Congress’s intention “to override the 
historic respect that federal courts accord state court 
judgments.”  456 U.S. at 470-472.

The issue in the present case is whether federal 
courts adjudicating Title VII actions must give pre­
clusive effect to judicially unreviewed state admin­
istrative determinations of employment discrimina­
tion claims. The full faith and credit statute has no 
application in this context. Section 1738, by its 
express terms, applies only to the “ judicial proceed­
ings of any court.”  28 U.S. 1738. Congress, by its 
plain language, has given preclusive effect only to

8 The petitioner in Kremer had filed a religious discrimina­
tion charge with the New York State Division of Human 
Rights, a recognized state FEP agency entitled to deferral 
under Section 706(c), 42 U.S.C. 2000e-5(c). The agency de­
termined that there was no probable cause to believe that the 
petitioner’s employer had engaged in religious discrimination 
in violation of New York’s employment discrimination statute. 
456 U.S. at 464. The petitioner then sought judicial review, 
and the New York state courts affirmed the state agency’s 
decision. Ibid. This Court concluded that the state court’s 
affirmance of the state agency’s decision precluded petitioner 
from raising an identical Title VII claim of religious dis­
crimination.



11

state court judgments; Section 1738 does not extend 
that effect to state administrative decisions.

The reference to “ any court” is express and un­
ambiguous; there is little need to peer behind those 
words and into the legislative history. See United 
States v. Locke, No. 83-1394 (Apr. 1, 1985), slip op. 
11; American Tobacco Co. v. Patterson, 456 U.S. 63 
(1982). In all events, the legislative history con­
firms that the term “ any court” refers to traditional 
courts rather than administrative bodies.9 This Court 
has never held that Section 1738 requires that fed­
eral courts give res judicata effect to state admin­
istrative determinations.10 Moreover, the lower fed-

9 The full faith and credit statute was first enacted in 1790. 
See Act of May 26, 1790, ch. XI, 1 Stat. 122 et seq., and the 
subsequent amendments have been minor; see Act of Mar. 
27, 1804, ch. 56, 2 Stat. 298 et seq.-, Act of June 25, 1948, ch. 
646, § 1738, 62 Stat. 947. See generally Atwood, State Court 
Judgments in Federal Litigation: Mapping the Contours of 
Full Faith & Credit, 58 Ind. L.J. 59, 66 n.36 (1982). Notably, 
Congress chose the operative words “ any court” nearly 200 
years ago, long before the appearance of administrative 
agencies and notions of administrative res judicata. See 4 
K. Davis, Administrative Law Treatise §21.2 (1983). It is, 
of course, immaterial that there are now state administrative 
bodies that conduct quasi-judicial activities; the scope of Sec­
tion 1738 is controlled by the intent of Congress at the time 
of the statute’s enactment. See Board of Governors v. Dimen­
sion Financial Corp., No. 84-1274 (Jan. 22, 1986).

10 This Court has held that Section 1738 does not apply to 
collective bargaining arbitration because that dispute resolu­
tion mechanism “ is not a ‘judicial proceeding.’ ”  McDonald, 
466 U.S. at 288. Petitioners suggest (Pet. Br. 23-24) that 
Section 1738 should apply to state administrative proceedings, 
quoting dicta from the plurality in Magnolia Petroleum Co. V. 
Hunt, 32:0 U.S. 430, 443 (1943). The quoted statement, an 
ambiguous passage from a subsequently criticized decision



12

era! courts generally have agreed that Section 1738 
does not confer preclusive effect on state adminis­
trative decisions.11

Thus, it is clear that the full faith and credit stat­
ute, which held controlling importance in Kremer, has 
no application in this case.

concerning the obligation among the states to give full faith 
and credit to state workmen’s compensation programs, has no 
controlling force in this case. See Thomas v. Washington Gas 
Light Co., 448 U.S. 261, 280-286 (1980) (plurality opinion) 
(suggesting that Magnolia Petroleum should be overruled).

111 Although the Sixth Circuit and the Seventh Circuit dis­
agree whether federal courts adjudicating Title VII actions 
should give preclusive effect to judicially unreviewed admin­
istrative decisions, they do agree that Section 1738 cannot 
resolve the issue. See Pet. App. A16 ; Buckhalter v. Pepsi-Cola 
General Bottlers, Inc., 768 F.2d 842, 849 (7th Cir. 1985), 
petition for cert, pending, No. 85-6094 (filed Dec. 23, 1985). 
Other courts have either suggested or concluded that Section 
1738 does not apply to administrative determinations. See, e.g., 
Holley v. Seminole County School District, 763 F.2d 399, 400 
(11th Cir. 1985) ; Burney v. Polk Community College, 728 
F.2d 1374, 1380 (11th Cir. 1984) ; Gargiul V. Tompkins, 704 
F.2d 661, 666-667 (2d Cir. 1983) ; Moore V. Bonner, 695 F.2d 
799, 800-801 (4th Cir. 1982) ; Mitchell V. National Broadcast­
ing Co., 553 F.2d 265, 276 (2d Cir. 1977) ; Parker v. National 
Corporation for Housing Partnerships, 619 F. Supp. 1061, 
1064-1065 (D.D.C. 1985), appeal docketed, No. 85-5985 (D.C. 
Cir. Oct. 4, 1985) ; Chatelain v. Mount Sinai Hospital, 580 
F. Supp. 1414, 1417 (S.D.N.Y. 1984) ; King v. City of Page- 
dale, 573 F. Supp. 309, 313 (E.D. Mo. 1983). Although several 
courts have reached a contrary conclusion, their analysis of 
Section 1738 is summary and does not withstand close scru­
tiny. See Zanghi V. Incorporated Village of Old Brookville, 
752 F.2d 42, 46 (2d Cir. 1985) ; O’Hara v. Board of Education, 
590 F. Supp, 696, 701 (D.N.J. 1984), aff’d mem., 760 F.2d 259 
(3d Cir. 1985).



13

II. A Judicially Fashioned Rule Giving Res Judicata 
Effect to State Administrative Decisions Would Be 
Inconsistent With Title VII

Since Congress has not required federal courts to 
give full faith and credit to state administrative deci­
sions, “ any rule of preclusion would necessarily be 
judicially fashioned.” McDonald, 466 U.S. at 288. 
But judicial creation of such a rule in Title VII cases 
would conflict with the language and structure of 
Title VII and would be inconsistent with this Court’s 
past interpretation of that statute.

Title VII plainly contemplates that state adminis­
trative proceedings will be used both as an initial en­
forcement mechanism and as a means of achieving 
non-judicial conciliation of Title VII disputes. Sec­
tion 706(c) of Title VII gives states and localities 
that have enacted equal employment legislation a pe­
riod of up to 60 days to attempt resolution of dis­
crimination claims arising within their boundaries. 
42 U.S.C. 2000e-5(c). Section 706(b) provides that 
if the employee is dissatisfied with the state FEP 
agency’s resolution of his claim, he may request the 
EEOC to make an independent reasonable cause de­
termination. 42 U.S.C. 2000e-5(b). Section 706(b) 
further specifies that EEOC shall accord “ substantial 
weight”—-not preclusive effect— to the FEP agency 
decision. Ibid. ; see also 29 C.F.R. 1601.21(e), 1601.76 
and 1601.77.12 And Section 706(f) provides that once 
these proceedings have been invoked and have failed 
to resolve the dispute, the claimant may seek a judi­
cial remedy. See 42 U.S.C. 2000e-5(f). Title VII 
thus “give[s] state agencies an opportunity to redress 
the evil at which the federal legislation was aimed,

12 Similarly, the EEOC does not give preclusive effect to any 
administrative decisions of non-FEP state agencies.



14

and to avoid federal intervention unless its need [is] 
demonstrated.”  Mohasco Corp. v. Silver, 447 U.S. 
807, 821 (1980) (footnote omitted). It plainly con­
templates that the state agency may have the first 
opportunity to address employment discrimination 
claims. However, the statute’s provisions for further 
federal review following a state agency’s decision 
demonstrate that the agency’s decision is not entitled 
to preclusive effect.

Kremer s analysis of the structure and purposes of 
Title VII provides powerful support for this conclu­
sion. Although the Court did not speak unanimously 
in applying res judicata principles to state court 
judgments, the full Court did agree that state ad­
ministrative decisions are not entitled to preclusive 
effect.13 The majority and dissenting opinions each 
recognized that according res judicata effect to un­
reviewed state administrative decisions would be 
antithetical to Title VII’s statutory scheme and pur­
poses. See 456 U.S. at 469-470; id. at 487 (Black- 
mun, J., dissenting); id. at 511 (Stevens, J., dissent­
ing).

The Court observed that the “congressional direc­
tive that the EEOC should give ‘substantial weight’ 
to findings made in state proceedings” (456 U.S. at 
470) could not be squared with a rule giving those 
same findings judicially preclusive effect, stating that 
“ EEOC review of discrimination charges previously 
rejected by state agencies would be pointless if the 
federal courts were bound by such agency decisions.”

18 See 456 U.S. at 470 n.7; id. at 487 (Blackmun, J., dissent­
ing) (“ a state agency determination does not preclude a trial 
de novo in federal district court) (emphasis in original) ; id. 
at 508-509 (Stevens, J., dissenting) ( “ state agency proceed­
ings will not bar a federal claim under Title VII” )-



15

456 U.S. at 470 n.7. The Court concluded that it is 
not “plausible to suggest that Congress intended fed­
eral courts to be bound further by state administra­
tive decisions than by decisions of the EEOC” {ibid.), 
stating further:

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

Ibid.14 Most lower courts, like the court below, have 
read Kremer as providing a bright-line distinction. 
They have generally concluded that state court judg­
ments resolving employment discrimination claims 
are entitled to res judicata effect in accordance with 
state law, while unreviewed state agency determina­
tions will not preclude Title VII claims.15 16 This inter­
pretation is both sensible and correct.

14 The Court cited a series of court of appeals decisions in 
support of its conclusion. Gamer V. Giarrusso, 571 F.2d 1330
(5th Cir. 1978) ; Batiste V. Furnco• Construction Corp., 503 
F.2d 447, 450 n.l (7th Cir. 1974), cert, 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).

16 See, e.g., Heath V. John Morrell & Co., 768 F.2d 245, 248 
(8th Cir. 1985) ; Bottini V. Sadore Management Corp., 764 
F.2d 116, 120 (2d Cir. 1985) ; Burney V. Polk Community 
College, 728 F.2d 1374, 1379-1380 (11th Cir. 1984) ; Pizzuto 
V. Perdue Inc., 623 F. Supp. 1167, 1174 (D. Del. 1985) ; Reedy 
V. State of Florida, Dep’t of Education, 605 F. Supp. 172, 
173-174 (N.D. Fla. 1985) ; Mitchell V. Bendix Corp., 603 
F. Supp. 920, 922 (N.D. Ind. 1985) ; Parker V. Danville Metal 
Stamping Co., 603 F. Supp. 182, 188 (C.D. 111. 1985) ; Clinton



16

Petitioners largely ignore Kremer’s specific discus­
sion of the non-preclusive effect of unreviewed admin­
istrative determinations in Title VII adjudications. 
Instead, they rely on general principles of “ admin­
istrative res judicata.” They maintain (Pet. Br. 25- 
27) that res judicata principles generally require that 
federal courts give preclusive effect to all state ad­
ministrative adj udications.

This Court addressed the concept o f administrative 
res judicata in United States v. Utah Construction & 
Mining Co., 384 U.S. 394 (1966). That case involved 
the interpretation of a federal government contract’s 
dispute resolution provisions. The Court held that the 
contract’s “ disputes clause,” which provided for 
administrative resolution of contract controversies 
through a federal agency’s board of contract appeals, 
did not provide the exclusive means for resolving all 
contract disputes; instead, the contractor could seek 
judicial relief, as permitted by the Tucker Act and 
Wunderlich Act, in certain circumstances (384 U.S. 
at 403-418).16 The Court concluded, however, that

V. Georgia Ports Authority, 37 Fair Empl. Prae. Cas. (BNA) 
593, 594 (S.D. Ga. 1985) ; see also Moore V. Bonner, 695 F.2d 
799, 801 (4th Cir. 1982) (interpreting Kremer in a Section 
1983 action) ; E.E.O.C. Dec. No. 86-4, at 5 (Dec. 6, 1985). But 
see Buckhalter V. Pepsi-Cola General Bottlers, Inc., supra; 
Parker V. National Corporation for Housing Partnerships, 
supra; Zywicki V. Moxness Products, Inc., 37 Fair Empl. 
Prac. Cas. (BNA) 710, 711 (E.D. Wis. 1985).

is The Tucker Act, at that time, gave the Court of Claims 
jurisdiction over breach of contract actions. See 28 U.S.C. 
(1964 ed.) 1346(2). The Wunderlich Act accords finality to 
an agency decision “ in a dispute involving a question aris­
ing under [a government] contract” unless the decision “ is 
fraudulent [sic] or capricious or arbitrary or so grossly 
erroneous as necessarily to imply bad faith, or is not sup­
ported by substantial evidence.” 41 U.S.C. 321.



17

“'[b]oth the disputes clause and the Wunderlich Act 
categorically state that administrative findings on 
factual issues relevant to questions arising under the 
contract shall be final and conclusive on the parties” 
(384 U.S, at 419 (footnote omitted)). The Court 
added (id. at 420):

[W]hen the Board of Contract Appeals has 
made findings relevant to a dispute properly be­
fore it and which the parties have agreed shall 
be final and conclusive, these findings cannot be 
disregarded and the factual issues tried de novo 
in the Court of Claims when the contractor sues 
for relief which the board was not empowered to 
give.

Petitioners suggest (Pet. Br. 25-26) that Utah 
Construction establishes a general rule requiring that 
federal courts give res judicata effect to all state ad­
ministrative determinations. Plainly, they read far 
too much into that decision. Utah Construction ad­
dressed the res judicata implications of a specific fed­
eral agency’s factual determinations under a partic­
ular statutory regime. While the Court noted that its 
decision “ is harmonious with general principles of 
collateral estoppel,”  it specifically stated that “ the 
decision here rests upon the agreement of the parties 
as modified by the Wunderlich Act,” 384 U.S. at 421 
(footnote omitted). The Court quite correctly gave 
the board of contract appeals’ findings preclusive ef­
fect in light of the parties’ contractual agreement to 
resolve disputes through that agency and the specific 
command of Congress— through the Wunderlich Act, 
41 U.S.C. 321— that the agency’s findings would be 
final.

Utah Construction indicates that in some circum­
stances the federal court should give preclusive effect



18

to federal administrative determinations, see 384 U.S. 
at 422, but it says nothing about application of ad­
ministrative res judicata to state agency determina­
tions.17 Furthermore, it indicates that the congres­

17 The decision whether administrative res judicata is war­
ranted necessarily depends upon the circumstances presented. 
While petitioners cite (Pet. Br. 26 n.10) a series of cases 
recognizing the principle of administrative res judicata, none 
of those decisions support application of that principle in this 
case. Most of these cases involve questions pertaining to the 
preclusive effect of federal administrative decisions. Delamater 
V. Schweiker, 721 F.2d 50, 53-54 (2d Cir. 1983) (administra­
tive decision to award social security benefits was not binding 
in subsequent agency adjudication) ; United States V. Karlen, 
645 F.2d 635, 638 (8th Cir. 1981) (agency determination 
that an Indian lessee breached lease could have issue preclu­
sive effect in subsequent federal suit seeking damages for 
lease breach) ; Bowen V. United States, 570 F.2d 1311 (7th Cir. 
1978) (federal court adjudicating a federal tort claim must 
give preclusive effect, as a matter of state law, to a federal 
agency finding that plaintiff violated federal aviation rules) ; 
Gulf Oil Corp. V. FPC, 563 F.2d 588, 603 & n.17 (3d Cir. 
1977), cert, denied, 434 U.S. 1062 (1978) (declining to decide 
whether an agency must give collateral estoppel effect to its 
own prior determinations) ; McCulloch Interstate Gas Corp. 
V. FPC, 536 F.2d 910, 913 (10th Cir. 1976) (agency factual 
determinations are binding in a subsequent agency proceed­
ing) ; Painters District Council No. 38 v. Edgewood Contract­
ing Co., 416 F.2d 1081, 1083-1084 (5th Cir. 1969) (agency 
decision holding that union violated one section of a federal 
labor relations statute is binding in federal court action seek­
ing damages under another section of the statute) ; Pacific 
Seafarers, Inc. V. Pacific Far East Line, Inc., 404 F.2d 804, 
810 (D.C. Cir. 1968), cert, denied, 393 U.S. 1093 (1969) 
(agency determination plaintiffs were not engaged in “ foreign 
commerce” under one statute did not bar a federal court from 
inquiring whether plaintiffs engaged in “ foreign commerce” 
under another statute). The other decisions involved the 
preclusive effect that state and District of Columbia adminis-



19

sional intent underlying the particular federal statu­
tory regime at issue is central to the res judicata in­
quiry. Id. at 421 n.18.18 In Utah Construction, the 
Wunderlich Act supported an inference that preclu­
sion was appropriate in the context of government 
contract disputes. As Kremer demonstrates, the 
structure and purposes of Title VII support an op­
posite inference in the context of employment dis­
crimination disputes. 456 U.S. at 469-470; id. at 487- 
489 (Blaekmun, J., dissenting); id. at 511 (Stevens, 
J., dissenting) ,19

trative bodies must accord the decision of another state ad­
ministrative body. United Farm Workers V. Arizona Agricul­
tural Employment Relations Board, 669 F.2d 1249, 1255 (9th 
Cir. 1982) (declining to determine whether a state labor 
agency’s decision is a “ judgment”  entitled to full faith and 
credit by another state) ; Pettus V. American Airlines, Inc., 
587 F.2d 627 (4th Cir. 1978), cert, denied, 444 U.S. 883 
(1979) (holding that a state workmen’s compensation agen­
cy’s determination that employee was unjustified in refusing 
medical treatment was binding upon a District of Columbia 
workmen compensation board).

118 See also, e.g., Chandler V. Roudebush, 425 U.S. 840, 861- 
862 (1976); Restatement (Second) of Judgments §83(3) 
and (4) (1982) (administrative res judicata is inappropriate 
where “the scheme of remedies permits assertion of the 
second claim notwithstanding the adjudication of the first 
claim” or where application “ would be incompatible with a 
legislative policy” ) ; 4 K. Davis, Administrative Law Treatise 
§21.5 (1983).

19 See also, e.g., Chandler V. Roudebush, 425 U.S. 840, 844- 
861 (1976) ; Alexander V. Gardner-Denver Co., 415 U.S. 36, 
47-54 (1974) ; Rosenfeld v. Department of Army, 769 F.2d 
237, 240 (4th Cir. 1985) ; 4 K. Davis, supra, § 21.5, at 62 ( “ The 
best example [of a statute embodying a policy against admin­
istrative res judicata] may be Title VII.” ) ; Catania, Access 
to the Federal Courts for Title VII Claimants in the Post-



20

Petitioners acknowledge (Pet, Br. 33-34) that Sec­
tion 706(b) of Title VII instructs the EEOC to give 
“ substantial weight” to final findings and orders of 
state FEP agencies when reviewing employment dis­
crimination claims, 42 U.S.C. 200Qe-5(b). They 
grudgingly concede (Pet, Br, 34) that Title VII 
“ could be construed” to permit federal de novo review 
of state administrative decisions. However, they sug­
gest (ibid.) that federal courts should nevertheless be 
required to give preclusive effect to decisions by non- 
PE P agencies.

Petitioners’ position, which finds no support in Ti­
tle VII precedent, is untenable. This Court, recogniz­
ing in Kremer that unreviewed state agency decisions 
are non-preclusive, did not distinguish between FEP 
and non-FEP agencies. Indeed, the Court supported 
its conclusion by citing, among other cases, Garner v. 
Giarrusso, 571 F.2d 1330 (5th Cir. 1978), a decision 
denying preclusive effect to a non-FEP agency.20
------- i-------------- j—

Kremer Era: Keeping the Doors Open, 16 Loy. L,J. 209 
(1985) ; Note, Res Judicata Effects of State Agency Decisions 
in Title VII Actions, 70 Cornell L. Rev. 695 (1985). Notably, 
while Kremer cited Utah Construction for the proposition that 
New York courts could, consistent with due process, give 
deference to administrative fact-finding, 456 U.S. at 484 n.26, 
it nowhere suggested that federal courts would be bound by 
unreviewed state administrative determinations.

00 The facts in Garner are very similar to those in the in­
stant case. The plaintiff, a city employee, had raised charges 
of racial discrimination before the New Orleans Civil Service 
Commission. That agency conducted an administrative hear­
ing to assure that the plaintiff “ had in fact breached police 
department regulations and had been dismissed for that rea­
son and not because of racial discrimination.” 571 F.2d at 
1336. The court, following a careful analysis of administra­
tive res judicata, concluded that the administrative decision 
was not entitled to preclusive effect. See id. at 1335-1338.



21

Since Kremer, other courts of appeals have refused 
to draw that distinction.121

Furthermore, petitioners’ position is inconsistent 
with Title VII’s statutory scheme. It would lead to 
the perverse result that federal courts must give pre­
clusive effect to decisions by non-FEP agencies— which 
likely have little expertise in employment discrimina­
tion matters* 22— while according only “ substantial 
weight”  to decisions by the states’ expert FEP agen­
cies. Certainly Congress, did not intend that the fed­
eral courts, in implementing the important national

81 See Heath v. John Morrell & Co., 768 F.2d at 248; Burney 
V. Polk Community College, 728 F.2d at 1379-1380. Notably, 
the lone court of appeals in conflict with the decision below, 
Buckhalter V. Pepsi-Cola General Bottlers, Inc., supra, relied 
on a different theory— apparently abandoned by petitioners— 
to give preclusive effect to a state agency determination. The 
court reasoned that administrative res judicata was appropri­
ate because the state agency in that case acted in an “ adjudica­
tive,”  rather than an “ investigative”  capacity (768 F.2d at 
854). That theory, like petitioners’ theory, is infirm. It fails 
to recognize the important policy interests supporting federal 
de novo review in Title VII actions. In addition, Kremer’s 
statements on the non-preclusive effect of state agency deter­
minations were accompanied by citations to three cases—  
Garner, Batiste V. Furnco Construction Corp., 503 F.2d 447 
(7th Cir. 1974), cert, denied, 420 U.S. 928 (1975), and 
Cooper V. Philip Morris, Inc., 464 F.2d 9 (6th Cir. 1972) —  
that refused to provide preclusive effect to the decisions of 
adjudicatory agencies.

22 In this case the non-FEP agency was a state educational 
institution that was authorized by statute to conduct a hear­
ing in response to a public employee’s claim of wrongful dis­
charge. Other non-FEP agencies likely to address employ­
ment discrimination claims include state and local civil service 
commissions (see, e.g., Gamer V. Giarrusso, supra) and state 
unemployment compensation agencies (see, e.g., Ross V. Com­
munications Satellite Corp., 759 F.2d 355 (4th Cir. 1985)).



22

policy of nondiscrimination, would be bound by find­
ings of the various state non-FEP agencies with little 
or no expertise in employment discrimination mat­
ters.
III. This Court Has Previously Denied Res Judicata Effect 

to Non-Judicial Decisions in Title VII Actions

This Court, recognizing the special role of the fed­
eral courts in adjudicating Title VII claims, has re­
peatedly refused to give res judicata effect to employ­
ment discrimination determinations by non-judicial 
entities. There is no reason to depart from those 
precedents in this case.

This Court’s decision in Chandler v. Roudehush, 
425 U.S. 840 (1976), is particularly relevant. The 
Court concluded that a federal court must provide a 
de novo adjudication of a federal employee’s Title VII 
claim, notwithstanding the decisions of the Civil Serv­
ice Commission and the employing agency rejecting 
the employee’s charges.23 The Court stated (id. at 
848):

The legislative history of the 1972 amendments 
[to Title VII] reinforces the plain meaning of 
the statute and confirms that Congress intended 
to accord federal employees the same right to 
a trial de novo as is enjoyed by private-sector 
employees and employees of state governments 
and political subdivisions under the amended 
Civil Rights Act of 1964.

28 In Chandler, a Veterans Administration employee alleg­
ing sex and race discrimination received a hearing before the 
agency’s complaints examiner, followed by review within the 
agency and subsequent review by the Civil Service Commis­
sion. 425 U.S. at 842. The hearing was conducted as an 
adversarial adjudication. See id. at 863; see also 74-1599 Pet. 
App. la-17a; 74-1599 J.A. 15-44.



23

As this passage suggests, Congress intended that all 
employees, whether federal, state, or private-sector, 
would be entitled to a trial de novo in federal court 
despite their exercise of other federal and state ad­
ministrative remedies. That symmetry, recognized in 
Chandler, should be respected here. Congress plainly 
did not intend that a federal employee would be en­
titled to a trial de novo following an unsuccessful 
administrative adjudication before his employing 
agency, but a state employee, such as respondent, 
should be denied a trial de novo based on the res 
judicata effect of an analogous administrative ad­
judication before his employing agency.24

This Court’s decision in Alexander v. Gardner- 
Denver Co., 415 U.S. 36 (1974), reflects a similar 
principle. The Court concluded that a federal court 
adjudicating a union employee’s Title VII claim 
should not give preclusive effect to a prior arbitral 
decision rejecting the discrimination charge.25 The 
Court rejected the notion that the employee’s pursuit 
of his collective bargaining agreement remedy rep­
resented an election of remedies and waiver of his 
Title VII claim, noting that “ [tjhere is no suggestion

24 Notably, Congress perceived that the “  ‘entrenched dis­
crimination in the Federal Service’ ”  (Chandler, 425 U.S. at 
841, quoting, H.R. Rep. 92-238, 92d Cong., 1st Sess. 24 
(1971)) also existed in the state and local civil service. See 
H.R. Rep. 92-238, suq>ra, at 17-18; S. Rep. 92-415, 92d Cong., 
1st Sess. 9-11 (1971).

35 The employee had filed a grievance under the collective 
bargaining agreement alleging that he was improperly dis­
charged (415 U.S. at 39), ultimately claiming that his termi­
nation was racially motivated (id. at 42). The grievance pro­
ceeded to arbitration. The arbitrator ruled that the discharge 
was for “ just cause,” making no reference to the claim of 
racial discrimination (ibid.).



24

in the statutory scheme that a prior arbitral decision 
either forecloses an individual’s right to sue or di­
vests federal courts of jurisdiction.”  415 U.S. at 47. 
The Court stated that “ in general, submission of a 
claim to one forum does not preclude a later submis­
sion to another” (id. at 47-48 (footnote omitted)), spe­
cifically observing that “ [f]o r  example, Commission 
action is not barred by the ‘findings and orders’ of 
state or local agencies”  (id. at 48 n.8). The parallels 
between Alexander and the present case are apparent. 
It would be incongruous if a union employee is en­
titled to pursue his Title VII remedy in federal court 
despite an adverse decision under the arbitration pro­
visions of his collective bargaining agreement, but a 
state employee is precluded from pursuing his Title 
VII remedy by an adverse decision under state ad­
ministrative proceedings governing review of dis­
charge decisions. See also McDonnell Douglas Corp. 
v. Green, 411 U.S. 792, 798-799 (1973) (holding that 
an EEOC finding of no reasonable cause does not pre­
clude federal de novo review of a discrimination 
claim).26

In short, this Court has recognized that “ Title VII 
manifests a congressional intent to allow an individ­
ual to pursue independently his rights under both 
Title VII and other applicable state and federal stat-

26 Notably, petitioners rely on arguments similar to the 
“ election of remedies” argument rejected in Alexander, sug­
gesting (Pet. Br. 33) that respondent can preserve his Title 
VII remedy by foregoing his state administrative remedies. 
As Alexander explains, 415 U.S. at 47-54, an employee should 
not be forced to make that choice. “ Title VII was envisioned 
as an independent statutory authority meant to provide an 
aggrieved individual with an additional remedy to redress 
employment discrimination.” H.R. Rep. 92-238, 92d Cong., 
1st Sess. 18-19 (1971).



25

utes.” Alexander, 415 U.S. at 48 (footnote omitted). 
That principle is applicable in the present case. Re­
spondent, a state employee, should be free to pursue 
his state law remedies in the state administrative 
forum without foreclosing his independent Title VII 
remedy.

IV. Petitioners’ Suggested Policy Rationale for Preclusion 
Should Not Be Substituted for Title VIPs Own Re­
quirements and Policies

Petitioners suggest (Pet. Br. 41-42) various policy 
considerations favoring application of res judicata to 
the state administrative determination in this case. 
However, those considerations, even if valid, are ir­
relevant. Congress has determined that federal courts 
adjudicating Title VII claims should not give pre­
clusive effect to judicially unreviewed state admin­
istrative decisions. That determination controls the 
present case. Furthermore, even if the weighing of 
policy interests were appropriate, they would counsel 
against giving preclusive effect to judicially unre- 
viewed administrative decisions.

Petitioners suggest that preclusion is necessary to 
protect the “ integrity of the adjudicatory process 
which the State of Tennessee has provided for the 
purpose of protecting Fourteenth Amendment inter­
ests affected by agency action” (Pet. Br. 41). How­
ever, this Court rejected similar arguments made with 
respect to federal administrative processes (see 
Chandler, 425 U.S. at 863-864) and collective bar­
gaining agreements (see Alexander, 415 U.S. at 55- 
60). Indeed, petitioners’ position quite likely would 
actually hamper the effectiveness of state administra­
tive mechanisms for resolving employment disputes. 
Claimants, faced with the prospect that an adverse



2 6

decision from a state administrative agency would 
preclude a Title VII claim, might frequently choose to 
avoid or abandon state proceedings. That result 
“would undermine Congress’ intent to encourage full 
use of state remedies.”  New York Gaslight Club, Inc. 
v. Carey, 447 U.S. 54, 65, 66 n.6 (1980); see Alex­
ander v. Gardner-Denver Co., 415 U.S. at 59; cf. 
Moore v. Bonner, 695 F.2d 799, 802 (4th Cir. 1982). 
That result, in addition, would likely increase the 
workload of the federal courts and the EEOC, since 
they would be required to review discrimination 
claims without the benefit of the prior state agency 
examination. It also could upset the division of labor 
between the EEOC and state FEP agencies currently 
achieved through worksharing arrangements.27

Petitioners suggest that nonpreclusion will “bur­
den the federal court with needlessly relitigating an 
issue already fully litigated” (Pet. Br. 41). How­
ever, the legislative history of Title VII suggests 
that Congress favored judicial resolution of discrim­
ination claims. For example, when Congress amended

27 The Commission has entered into worksharing agree­
ments, pursuant to Section 709(b) of Title VII, 42 U.S.C. 
2000e-8(b), with many of the state FEP agencies that en­
force state and local laws. See E.E.O.C. Compl. Man. (CCH) 
HIT 281, 282 (May 1985) ; 29 C.F.R. 1601.13, 1601.80 (listing 
certified deferral agencies). Under these agreements, certain 
categories of discrimination charges are processed by state 
authorities; with respect to other categories, the state FEP 
agency often waives its right under the statute to initiate re­
view and EEOC processes the charge from the outset. When 
the state agency processes the charges under this arrange­
ment, EEOC generally takes no action “ until the [FEP 
agency] issues its final findings and orders or otherwise 
terminates its proceedings.”  E.E.O.C. Compl. Man. (CCH) 
][ 284 (May 1985).



27

Title VII in 1972, congressmen suggested that ju­
dicial resolution of employment discrimination claims 
might be preferable to EEOC adjudicatory deter­
minations because it would promote public confi­
dence that fair employment laws were being enforced 
in an independent and even-handed manner. See S. 
Rep. 92-415, supra, at 85 (views of Sen. Dominick); 
see also Kremer, 456 U.S. at 474 n.15.28 And as the 
court below noted (Pet. App. A21), “ there are sig­
nificant differences between the state judicial and 
administrative forums that counsel against federal 
court deference to the decisions of the latter even 
though Congress has required deference to the deci­
sions of the former.”

In all events, the potential inefficiencies in nonpre­
clusion are easily exaggerated. Claimants who have 
lost their discrimination claims after a full hearing 
are likely to be circumspect in seeking a full-scale 
federal readjudication. Furthermore, federal court 
litigation following administrative adjudication gen­
erally should be able to be foreshortened. The prior 
proceedings have typically narrowed the issues, less 
discovery is likely to be needed, and the federal court 
is able to consider the administrative record as evi­
dence entitled to appropriate weight. See Chandler, 
425 U.S. at 863 n.39; cf. Alexander, 415 U.S. at 60 
n.21.

Finally, we note that Kremer’s distinction between 
state courts and state agencies for purposes of Title 
VII res judicata is straightforward and easy to apply.

28 Indeed, when Congress first enacted Title VII, congress­
men expressed concern regarding the adequacy and effective­
ness of state remedies and procedures. See 110 Cong. Rec. 
7205 (1964) (Sen. Clark) ; id. at 7214 (Clark-Case interpre­
tive memorandum).



28

By contrast, any attempt to apply res judicata prin­
ciples based on the identity or character of the agency 
will inevitably generate confusion.2® Difficult ques­
tions will arise as to whether a state agency in a 
given case has acted in an adjudicatory capacity 
within the meaning of “administrative res judicata” 
and whether it has applied standards, in reaching its 
finding, consistent with Title VII. Furthermore, un­
wary claimants may not receive judicial de novo 
consideration because they were unaware that entry 
into an adjudicatory phase of a state system could 
lead to a; binding administrative decision.

In sum, Kremer’s bright line distinction between 
the preclusive effect of state court judgments and the 
nonpreclusive effect of judicially unreviewed admin­
istrative determinations is both legally sound and 
practicable. The court of appeals correctly deter­
mined that the state’s administrative determination 
rejecting respondent’s claim of employment discrim­
ination did not preclude respondent’s Title VII action.

529 The confusion will be particularly pronounced where 
federal-state worksharing agreements are in effect. Many 
claimants’ charges are processed to completion by state agen­
cies, rather than the EEOC, simply because the charges were 
administratively allocated to the state FEP agency by the 
worksharing agreement.



29

CONCLUSION

The judgment of the court of appeals, insofar as it 
declines to accord preclusive effect in respondent’s 
Title VII action to a judicially unreviewed state ad­
ministrative determination, should be affirmed.

Respectfully submitted.

Charles Fried 
Solicitor General

Carolyn B. Kuhl 
Deputy Solicitor General 

Jeffrey P. Minear 
Assistant to the Solicitor General

Johnny J. Butler
General Counsel (Acting)

Gwendolyn Y oung Reams 
Associate General Counsel (Acting)

Vella M. Fink 
Assistant General Counsel

Mark S. Flynn  
Attorney
Equal Employment Opportunity Commission 

March 1986

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