University of Tennessee v. Elliott Reply Brief

    No. 85-588

In T he

(Hmtrt nf thr HnttTii & M ?b
October Term , 1985

T he University of Tennessee, et al.,
Petitioners,v.

Robert B. Elliott,
Respondent.

On Writ of Certiorari to the United States 
Court of Appeals for the Sixth Circuit

REPLY BRIEF

Of Counsel
W . J. M ich ael  Cody
Attorney General & Reporter 
State of Tennessee 
450 James Robertson Parkway 
Nashville, Tennessee 37219
Jo h n  L. Sobieski, Jr . 
Professor of Law 
The University of Tennessee 
1505 W. Cumberland Avenue 
Knoxville, Tennessee 37996

March 1986

Beau ch am p  E. B rogan * 
General Counsel 
A l a n  M. P arker *
Associate General Counsel 
Cath erin e  S. M izell 
Associate General Counsel 
The University of Tennessee 
810 Andy Holt Tower 
Knoxville, Tennessee 37996 
(615) 974-3245
G. R ay  B ratton  *
1620 First Tenn. Bank Bldg. 
165 Madison Avenue 
Memphis, Tennessee 38103
N. R ichard  Gl a ssm a n  * 
Jo h n  B arry B urgess *
26 N. Second Street 
Memphis, Tennessee 38103 

Attorneys for Petitioners 
* Counsel of Record

T o m m y  Coley 
532 Smith Lane 
Jackson, Tennessee 38301 

Pro Se Petitioner

W i l s o n  - E p e s  P r i n t i n g  C o . ,  I n c . - 7 8 9 - 0 0 9 6  - W a s h i n g t o n , D . C .  2 0 0 0 1



TABLE OF CONTENTS
Page

TABLE OF AUTHORITIES......................... ....................  ii

ARGUMENT

I. RESPONDENT’S ARGUMENT THAT THE 
PARTICULAR AGENCY ADJUDICATION IN 
THIS CASE SHOULD BE DENIED FULL 
FAITH AND CREDIT IS NOT RESPONSIVE
TO THE ISSUES BEFORE THIS COURT........  1

II. RESPONDENT’S ARGUMENT THAT AD­
MINISTRATIVE ADJUDICATIONS ARE NOT 
ENTITLED TO FULL FAITH AND CREDIT 
IS CONTRARY TO THE PURPOSE OF THE 
FULL FAITH AND CREDIT CLAUSE AND 
IS NOT SUPPORTED BY DECISIONS OF 
THIS COURT ......................- ............... ..................  6

III. RESPONDENT HAS FAILED TO DEMON­
STRATE THAT THE RECONSTRUCTION 
STATUTES IMPLIEDLY REPEAL THE FULL 
FAITH AND CREDIT DUE A STATE 
AGENCY ADJUDICATION ...................... ........ 12

IV. RESPONDENT HAS FAILED TO DEMON­
STRATE THAT TITLE VII IMPLIEDLY RE­
PEALS THE FULL FAITH AND CREDIT 
DUE A STATE AGENCY ADJUDICATION 
VOLUNTARILY INVOKED BY RESPOND­
ENT OUTSIDE THE TITLE VII ENFORCE­
MENT SCHEM E................. .................. ................  13

CONCLUSION .................- ..................................................  19



11

TABLE OF AUTHORITIES
CASES Page

Alexander v. Gardner-Denver Co., 415 U.S. 36
(1974) _________       16

Allen v. McCurry, 449 U.S. 90 (1980)...... ................ 11,12
Bradford Electric Co. v. Clapper, 286 U.S. 145

(1932) ..... .........       10
Chandler v. Roudebush, 425 U.S. 840 (1976) . 16
Chicago R.I. & P. Ry. v. Schendel, 270 U.S. 611

(1926) ___           8
Fair Assessment in Real Estate Ass’n v. McNary,

454 U.S. 100 (1981) ........ ..................................... . 12
Kremer v. Chemical Construction Corp., 456 U.S.

461 (1982) .................................................................. passim
Magnolia Petroleum Co. v. Hunt, 320 U.S. 430

(1943)____________ __ _____________________ ___  8, 10
Marrese v. American Academy of Orthopaedic Sur­

geons, ------ U.S. — —, 105 S. Ct. 1327 (1985)..... 2, 6,
11,18

McDonald v. City of West Branch, 446 U.S. 284
(1984) ....................     11

McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973) _________________      16

Migra v. Warren City School District, 465 U.S.
75 (1984) ................................................ .................  11,12

Milwaukee County v. M. E. White Co., 296 U.S. 268
(1935) ................................. .......... ........................... . 6

Moore v. City of East Cleveland, 431 U.S. 494
(1977) ...... ............... ......................................... ......... 12

Parsons Steel, Inc. v. First Alabama Bank, ------
U .S .------ , 106 S.Ct. 768 (1986).... .............. ........2,11, 12

Patsy v. Board of Regents, 457 U.S. 496 (1982).... 12
Riley v. New York Trust Co., 315 U.S. 343 (1942).. 7
Thomas v. Washington Gas Light Co., 448 U.S.

261 (1980) ..... ............................. ............................ passim
United States v. Utah Construction & Mining Co.,

384 U.S. 394 (1966)..................................... .......... 7

FEDERAL STATUTES
28 U.S.C. § 1738 (1982).............................................. passim



I l l

TABLE OF AUTHORITIES— Continued
Page

The Reconstruction Civil Rights Statutes, 42 U.S.C.
§§ 1981, 1983, 1985, 1986, 1988 (1982)................ passim

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

STATE STATUTES
Tenn. Code Ann. §§ 4-5-301 through -323 (1985)..... 3
Tenn. Code Ann. § 4-5-302 (1985)..............................  3
Tenn. Code Ann. § 4-5-322 (h) (1) (1985)...............6,16,18

MISCELLANEOUS
Restatement (Second) of Conflict of Laws (1971).. 
Restatement (Second) of Judgments (1982)....... . os

 -
3



In T he

BupmM (Emtrt uf lit? Hntteb BtatVB
October Term , 1985

No. 85-588

T he University of Tennessee, et a l,
Petitioners,v.

R obert B. E lliott,
Respondent.

On Writ of Certiorari to the United States 
Court of Appeals for the Sixth Circuit

REPLY BRIEF

ARGUMENT

I. RESPONDENT’S ARGUMENT THAT THE PAR­
TICULAR AGENCY ADJUDICATION IN THIS 
CASE SHOULD BE DENIED FULL FAITH AND 
CREDIT IS NOT RESPONSIVE TO THE ISSUES 
BEFORE THIS COURT.

The question upon which this Court granted review is 
simply this: whether traditional principles of preclusion 
apply in actions under the Reconstruction statutes and 
Title VII to issues fully and fairly litigated before a state 
agency acting in a judicial capacity. Instead of address­
ing this question, the principal portion of respondent’s 
brief is devoted to the argument that full faith and credit 
should not extend to the particular agency adjudication 
in this case because respondent was denied a full and fair



2

opportunity to litigate all of his allegations of race dis­
crimination and therefore all of his claims under the Re­
construction statutes and Title VII were not decided by 
the agency. That question, which respondent did not raise 
at any time in the proceedings below, relates exclusively 
to the scope of preclusion to which the agency adjudica­
tion in this case is entitled under Tennessee law.

The Sixth Circuit did not review the proceedings before 
the state agency; nor did it give any consideration to 
the preclusive effect to which the agency adjudication is 
entitled under Tennessee law. Rather, wholly without re­
gard to the scope and fairness of the agency adjudication 
in this particular case, the Sixth Circuit held that, in the 
absence of state court review, no adjudication of issues 
by a state agency is ever entitled to full faith and credit 
in a subsequent employment discrimination action.1 That 
holding alone is the subject of review in this Court. Only 
after the question presented in this Court is resolved in 
favor of full faith and credit is there any need to re­
solve the further question of the extent to which the 
agency adjudication is entitled to preclusive effect in Ten­
nessee courts. As this Court has recognized in Marrese v.
American Academy of Orthopaedic Surgeons, ------- U.S.
-------, 105 S. Ct. 1327 (1985), and Parsons Steel, Inc. v.
First Alabama Bank, ------- U.S. -------, 106 S. Ct. 768
(1986), the issue raised by respondent— namely, the pre­
clusive effect to which the agency adjudication is entitled 
under Tennessee law— is best left to the district court for 
its determination.2

1 Under the Sixth Circuit’s holding, the agency adjudication would 
be entitled to no preclusive effect even if respondent had been com­
pletely successful in his efforts to admit evidence of race discrimi­
nation unrelated to his proposed termination and in his efforts to 
have the agency try his claims under the Reconstruction statutes 
and Title VII.

2 Respondent supports his argument that the particular agency 
adjudication in this case should be denied full faith and credit by



3

Despite the contrary impression respondent now seeks 
to create, the issue of alleged racial motivation for re­
spondent’s proposed termination was fully and fairly liti­
gated and decided in the agency adjudication.3 Respond­

relying heavily on selective excerpts from the 5000-page transcript 
of the agency proceedings. The transcript was never entered into 
the record in the district court or the Sixth Circuit, however, and 
it is not properly before this Court. Respondent’s, ex parte augmen­
tation of the record raises serious questions of procedural fairness 
of which respondent is otherwise so solicitous.

Respondent also supports his argument with allegations of in­
herent bias in the contested case provisions o f the Tennessee Uni­
form Administrative Procedures Act, Tenn. Code Ann. ■§■§ 4-5-301 
through -323 (1985), and bias on the part of the Administrative 
Law Judge. The agency proceedings were conducted, however, pre­
cisely in accordance with the governing statutory provisions which 
respondent freely and purposefully invoked. At no point in the 
proceedings themselves, in the district court, or in the Sixth Circuit 
did respondent ever allege that the proceedings were conducted in 
violation of the statutory provisions. Nor did he ever challenge 
the objectivity of the Administrative Law Judge. Respondent’s 
request, prior to the appointment of the Administrative Law Judge, 
for appointment of an individual with no relationship to the Uni­
versity certainly cannot be construed as a challenge to the objectiv­
ity of the individual who later was appointed. I f  the Administrative 
Law Judge had evidenced bias during the course o f the agency 
proceedings, respondent could have petitioned for his disqualifica­
tion pursuant to Tenn. Code Ann. § 4-5-302 (1985). Failing that, 
he could have raised any due process concern either in a petition for 
review in state chancery court or in his post-hearing motions in 
district court. Respondent did neither.

3 Under well-accepted principles of issue preclusion—which is 
what petitioners seek in this case—an issue is conclusive in a 
subsequent action between the parties, whether on the same or a 
different claim, if the issue was litigated and determined and if  the 
determination was essential to the prior judgment. See generally 
Restatement (Second) of Judgments § 27 (1982). Despite respond­
ent’s accusation to the contrary, petitioners’ brief plainly argues 
that issues of individual discrimination raised by respondent’s fed­
eral complaint were fully and fairly litigated and decided by the 
state agency. The requirement of a “ full and fair opportunity to 
litigate” finds its source in numerous decisions of this Court and



4

ent concedes that the Administrative Law Judge only re­
fused to decide discrimination issues “unrelated to the 
proposed termination of Elliott.”  (P.A. 171) Respondent 
likewise concedes that the Administrative Law Judge did 
decide the question of whether “ employer’s action in 
bringing charges against employee . . .  [was] based on . . . 
racial discrimination.”  (P.A. 177)

In the district court, respondent openly admitted that 
he had litigated the issue of alleged discriminatory intent 
as an affirmative defense and that the Administrative 
Law Judge had decided the issue against him. (J.A. 27) 
Indeed, there is an abiding irony in respondent’s elaborate 
argument that he was denied a full and fair opportunity 
to litigate race discrimination issues in the agency pro­
ceeding. For upon his return to federal court, respondent 
did not contend that he was unable to introduce proof of 
discrimination. Rather, respondent argued that his proof 
of race discrimination was so overwhelming that the con­
trary finding by the Administrative Law Judge was un­
supported by substantial evidence. (J.A. 28, 30; Dist. Ct. 
Nr. 27, filed Oct. 24, 1983, at 1, 3, 8-9) Respondent did 
not seek de novo review of the issue of race discrimina­
tion in the district court; he simply sought review of the 
merits of the agency judgment on the basis of the record 
of the agency proceedings. (J.A. 24-30)

Respondent never challenged the adequacy or fairness 
of the procedures under which his due process hearing 
was conducted at any point in the proceedings below. In 
fact, the district court specifically found that respondent 
had received full procedural protection in the agency ad­
judication :

Plaintiff makes no claim of denial of procedural 
due process. Nor can he in light of the long exhaus­

cannot fairly be characterized— as it has been by respondent— as a 
“carefully chosen phrase”  designed to create a false impression in 
this Court. (Eesp. Br. at 41)



5

tive evidentiary hearing in which plaintiff presented 
more than ninety witnesses, and cross-examined some 
of the agency’s witnesses for more than thirty hours 
each. Plaintiff clearly has received full protection 
in this due process hearing, as required in Board of 
Regents v. Roth, 408 U.S. 564 (1972), and Perry v. 
Sindermann, 408 U.S. 593 (1972).

(P.A. 31) As this Court explained in Kremer v. Chemical 
Construction Corp., 456 U.S. 461 (1982), the concept of a 
full and fair opportunity to litigate acts simply, but im­
portantly, as a federal restraint to ensure that a party 
against whom preclusion is asserted was afforded the 
minimum procedural requirements of due process. That 
the agency adjudication in this case satisfied the mini­
mum requirements of procedural due process cannot seri­
ously be disputed.

In their initial brief before this Court, petitioners ac­
knowledged that the University successfully objected to 
respondent’s attempt to file countercharges of race dis­
crimination on the first day of the agency proceedings on 
the ground that the proceedings were not established for 
the purpose of prosecuting civil rights claims. (P.A. 44- 
45) Petitioners also acknowledge that the University 
successfully objected to some, but not all, of respondent’s 
efforts to admit evidence of classwide discrimination and 
other allegations of discrimination unrelated to his pro­
posed termination. Respondent’s argument that the ex­
clusion of evidence unrelated to his proposed termination 
somehow means, however, that the agency adjudication 
is entitled to no preclusive effect demonstrates his per­
sistent confusion of issue preclusion with claim preclu­
sion. Petitioners have never argued that claim preclu­
sion applies to the agency adjudication. Rather, petition­
ers have plainly stated that they seek preclusion only of 
those issues actually adjudicated in the state agency pro­
ceedings, including respondent’s affirmative defense that 
his proposed termination was racially motivated.



6

Respondent’s repeated references to the agency’s lack 
of jurisdiction to determine his civil rights claims under 
the Reconstruction statutes and Title VII is a curious 
reversal of his repeated attempts to try those claims be­
fore the agency. In any event, the agency’s lack of juris­
diction over respondent’s civil rights claims does not de­
feat the preclusive effect of the agency’s adjudication of 
the issue of whether respondent’s proposed termination 
was racially motivated— an issue undeniably within the 
scope of the agency’s authority. See Tenn. Code Ann. 
§ 4-5-322 (h) (1) (1985). As this Court specifically held 
in Marrese v. American Academy of Orthopaedic Sur­
geons, ------- U.S. ------- , 105 S. Ct. 1327 (1985), a case
which respondent does not even cite, a prior state adjudi­
cation of an issue is entitled to full faith and credit even 
if it involves a claim within the exclusive jurisdiction of 
the federal courts.

II. RESPONDENT’S ARGUMENT THAT ADMINIS­
TRATIVE ADJUDICATIONS ARE NOT ENTITLED 
TO FULL FAITH AND CREDIT IS CONTRARY TO 
THE PURPOSE OF THE FULL FAITH AND 
CREDIT CLAUSE AND IS NOT SUPPORTED BY 
DECISIONS OF THIS COURT.

To avoid the mandate of full faith and credit in this 
case, respondent relies on what he concedes is simply a 
“ literal reading” o f the full faith and credit statute, 28 
U.S.C. § 1738 (1982). Respondent’s literal reading of 
§ 1738 ignores the consistent holdings of this Court and 
the very purpose of the full faith and credit clause.

The purpose of the full faith and credit clause is “ to 
alter the status of the several states as independent for­
eign sovereignties, each free to ignore obligations created 
under the laws or by the judicial proceedings of the oth­
ers, and to make them integral parts of a single nation 
throughout which a remedy upon a just obligation might 
be demanded as of right, irrespective of the state of its 
origin.”  Milwaukee County v. M. E. White Co., 296 U.S.



7

268, 276-77 (1935) ; see Thomas v. Washington Gas Light 
Co., 448 U.S. 261, 272 (1980). By virtue of the constitu­
tional provision and its implementing statute, state poli­
cies with respect to the effect of judgments rendered 
within a state are made a part of national jurisprudence. 
See Riley v. New York Trust Co., 315 U.S. 343, 349 
(1942). The purpose of full faith and credit unquestion­
ably cannot be accomplished, therefore, unless every ju ­
dicial proceeding which is entitled to preclusive effect in 
the rendering state is afforded full faith and credit by 
every other state and federal tribunal. Respondent’s ar­
gument for an artificial distinction between types of ju­
dicial proceedings is in complete derogation of the very 
purpose of full faith and credit.

In addition to contradicting the notions of comity em­
bodied in the full faith and credit clause, an artificial 
distinction between agency and court adjudications would 
intrude deeply into the sovereignty properly reserved to 
each state under fundamental principles of federalism. 
Under our federal scheme of government, each state is 
free to exercise its judicial power through its courts, or 
if it sees fit, through its executive and administrative 
agencies. See generally Restatement (Second) of Con­
flict of Laws |i§ 24, 92 (1971). Under respondent’s inter­
pretation of full faith and credit, however, a state’s exer­
cise of its judicial power through its agencies would be 
impeded by the fact that the judgments of its agencies, 
unlike those of its courts, would not be entitled to full 
faith and credit. Respondent’s reading of full faith and 
credit would also mean that state agency adjudications 
would be entitled to no preclusive effect even though fed­
eral agency adjudications undeniably are entitled to pre­
clusive effect under this Court’s holding in United States 
v. Utah Construction & Mining Co., 384 U.S. 394 (1966). 
There are no critical differences between state and fed­
eral agency adjudications which justify affording pre­
clusive effect to one but not the other.



8

Because administrative agencies did not exist when 
the full faith and credit statute was first enacted, the 
absence of any express reference to agencies is in no way 
indicative of a congressional intention to exclude agen­
cies from the operation of the full faith and credit stat­
ute. The nonsensical results produced by a literal read­
ing of § 1738 further belie any such congressional in­
tention. For, not only would state agency adjudications 
be entitled to no full faith and credit in state and federal 
court proceedings, but also state and federal court ad­
judications would be entitled to no full faith and credit 
in state and federal agency proceedings. These irrational 
results demonstrate the critical importance of applying 
principles of full faith and credit in a manner which 
accomplishes the constitutional purpose. That purpose 
can be accomplished only by affording full faith and 
credit to the judicial proceedings of every state tribunal 
empowered by state law to adjudicate disputes and en­
titled by state law to preclusion effect in the state’s own 
courts.

The irrational meaning of full faith and credit pro­
duced by the literal reading of § 1738 urged by respond­
ent and his amicus, the Equal Employment Opportunity 
Commission (EEOC), no doubt accounts for this Court’s 
repeated pronouncement that issues adjudicated by a 
state agency are entitled to full faith and credit. In 
Thomas v. Washington Gas Light Co., 448 U.S. 261 
(1980), Magnolia Petroleum Co. v. Hunt, 320 U.S. 430 
(1943), and Chicago R.I. & P. Ry. v. Schendel, 270 U.S. 
611 (1926), this Court rightly refused to adopt the arti­
ficial distinction which respondent and the EEOC now 
urge this Court to draw between agency adjudications 
and court adjudications for full faith and credit pur­
poses. Speaking for the plurality in Thomas and citing 
Schendel, Justice Stevens unequivocally acknowledged 
that the issues adjudicated by a state agency are entitled 
to full faith and credit: “ To be sure, . . .  the factfind­



ings of state administrative tribunals are entitled to the 
same res judicata effect in the second state as findings 
by a court.”  448 U.S. at 281.

Ignoring this statement and its supporting authority, 
respondent cites Justice Stevens’ immediately subsequent 
reference to “ the critical differences between a court of 
general jurisdiction and an administrative agency with 
limited statutory authority.”  Id. at 281-82. What re­
spondent fails to recognize, however, is that the “critical 
differences”  referred to by the plurality in Thomas had 
nothing at all to do with issue preclusion, but were re­
lied upon instead to fashion the position that an agency 
adjudication will not preclude the subsequent assertion 
of a claim the agency was not empowered to adjudicate:

Full faith and credit must be given to the determi­
nation that the Virginia Commission had the au­
thority to make; but by a parity of reasoning, full 
faith and credit need not be given to determinations 
that it had no power to make.

Id. at 282-83.

More importantly, however, the five concurring and 
dissenting members of this Court in Thomas expressly 
refused to embrace the plurality’s distinction between 
courts of general jurisdiction and administrative agencies 
even for claim preclusion purposes. Speaking for the con­
curring justices, Justice White said, “ I do not see any 
overriding differences between workmen’s compensation 
awards and court judgments that justify different treat­
ment for the two.” Id. at 289. Speaking for the dissent­
ers, Justice Rehnquist also eschewed the plurality’s de­
nial of claim preclusion effect to the administrative adju­
dication, noting that the claimant “was free to choose 
the applicable law simply by choosing the forum in which 
he filed his initial claim.” Id. at 294. The disagreement 
among members of this Court over the claim preclusion 
effect of worker compensation awards does not detract 
in the least from the unanimous agreement among mem­



10

bers of this Court that full faith and credit is due a state 
agency’s adjudication of issues within the scope of its 
authority.

Implicit in the argument of respondent and the EEOC 
that § 1738 only requires federal courts to afford full 
faith and credit to state court judgments is the sugges­
tion that Congress intended a limited application of full 
faith and credit in federal courts. This suggestion can­
not be reconciled with this Court’s decision in Thomas or 
with the purpose of full faith and credit. Underlying 
each of the separate opinions in Thomas, which was 
decided under § 1738, is the presumption that § 1738 re­
quires federal courts to give full faith and credit to state 
agency adjudications. The adjudication in question was 
conducted by a state agency, and the second forum was 
the District of Columbia, a federal jurisdiction. Respond­
ent’s argument that § 1738 does not require federal 
courts to extend full faith and credit to state agency 
adjudications simply cannot withstand this Court’s pro­
nouncements in Thomas,4 Furthermore, consistent with 
the purpose of full faith and credit, Congress did not 
provide for one effect in state courts and another effect 
in federal courts. Rather, Congress provided that judicial 
proceedings are entitled to the same full faith and credit 
whether the subsequent action is in state or federal 
court.

4 This Court is the final arbiter of the scope o f full faith and 
credit. See Thomas, 448 U.S. at 271; Magnolia, 320 U.S. at 438. 
Pursuant to that role, this Court has determined that full faith 
and credit extends to state agency adjudications. This Court’s 
pronouncements in Thomas are controlling, therefore, even though 
agencies are not specifically mentioned in § 1738. As explained by 
Justice Stevens in Thomas, “ Congress’ power in this area is not 
exclusive, for this Court has given effect to the Clause beyond that 
required by implementing legislation.”  448 U.S. at 272 n.18, citing 
Bradford Electric Co. v. Clapper, 286 U.S. 145 (1932), in which 
this Court extended full faith and credit to state “ Acts” even 
though :§ 1738 did not include an express reference to state “ Acts” 
until amended in 1948.



11

In support of his argument that the full faith and 
credit statute applies only to state court judgments, re­
spondent cites the decisions of this Court in Allen v. 
McCurry, 449 U.S. 90 (1980), Kremer v. Chemical Con­
struction Corp., 456 U.S. 461 (1982), Migra v. Warren 
City School District, 465 U.S. 75 (1984), and McDonald 
v. City of West Branch, 466 U.S. 284 (1984), none of 
which holds that § 1738 applies only to state court judg­
ments. McDonald, for example, held that collective bar­
gaining arbitration is not a “ judicial proceeding” and 
therefore not entitled to full faith and credit under 
§ 1738. Allen, Migra, and Kremer, on the other hand, 
did not even present the question of whether § 1738 ap­
plies to state agency proceedings but rather whether the 
Reconstruction statutes or Title VII in some manner re­
peal the full faith and credit due state court proceedings. 
Interestingly enough, however, this Court’s statement in 
footnote 7 of Kremer appears premised on the assump­
tion that full faith and credit does apply to agency ad­
judications. Otherwise, there would have been no reason 
to suggest in footnote 7 that Title VII’s “ substantial 
weight”  requirement with respect to the findings of state 
deferral agencies may constitute an implied repeal of 
the full faith and credit due deferral agency decisions.

In full faith and credit cases decided in each of the 
last two terms, this Court reversed decisions of the Sev­
enth and Eleventh Circuits for failing to apply the rules 
of preclusion of the state in which a judgment was 
rendered. See Parsons Steel, Inc. v. First Alabama Bank, 
------ U .S .-------- , 106 S. Ct. 768 (1986) ; Marrese v. Amer­
ican Academy of Orthopaedic Surgeons, ------- U.S. -------,
105 S. Ct. 1327 (1985). In Parsons, Justice Rehnquist 
warned against giving “ unwarrantedly short shrift to 
the important values of federalism and comity embodied 
in the Full Faith and Credit Act,”  106 S. Ct. at 771, and 
quoting Kremer, reminded the courts of appeals that 
“  ‘ § 1738 does not allow federal courts to employ their



12

own rules of res judicata in determining the effect of 
state judgments. Rather, it goes beyond the common law 
and commands a federal court to accept the rules chosen 
by the State from which the judgment is taken.’ ”  Id. at 
771-72. In the absence of any express or implied repeal 
of the full faith and credit statute, therefore, the obliga­
tion of the Sixth Circuit in this case was clear: to give 
the agency adjudication the same issue preclusion effect 
it enjoys in Tennessee’s own courts. The Sixth Circuit’s 
failure even to consider Tennessee law of preclusion in 
this case requires that its judgment be reversed.

III. RESPONDENT HAS FAILED TO DEMONSTRATE 
THAT THE RECONSTRUCTION STATUTES IM­
PLIEDLY REPEAL THE FULL FAITH AND 
CREDIT DUE A STATE AGENCY ADJUDICATION.

In Allen v. McCurry, 449 U.S. 90 (1980 ), and Migra 
v. Warren City School District, 465 U.S. 75 (1984), this 
Court unequivocally held that neither the language nor 
legislative history of § 1983 suggests any congressional 
intention to repeal the statutory command of full faith 
and credit. Respondent, however, does not address the 
Allen and Migra holdings or even attempt to demonstrate 
any manner in which the Reconstruction statutes im­
pliedly repeal the full faith and credit due a state agency 
adjudication. Instead, respondent relies on dissenting and 
concurring opinions from three decisions of this Court— 
Moore v. City of East Cleveland, 431 U.S. 494 (1977), 
Fair Assessment in Real Estate Ass’n v. McNary, 454 
U.S. 100 (1981), and Patsy v. Board of Regents, 457 
U.S. 496 (1982)— not one of which involved a question 
of full faith and credit.

Patsy, the most recent decision cited by respondent, 
held that exhaustion of state administrative remedies is 
not a prerequisite to instituting a federal court action 
under § 1983. The fact that respondent was not required 
to litigate any issue of race discrimination in the state



13

agency makes the application of issue preclusion in this 
case particularly compelling. I f respondent desired one 
unencumbered opportunity to litigate his claims under 
the Reconstruction statutes in federal court, it was avail­
able to him before and at all times during the agency 
adjudication. Instead of pursuing his federal court ac­
tion, however, respondent voluntarily departed from the 
available federal forum, submitted the issue of race dis­
crimination for adjudication in the state agency, and pur­
sued the agency adjudication to final judgment.5 Only 
after losing the issue of race discrimination in the agency 
adjudication did respondent return to federal court and 
seek to litigate the issue again. Having freely chosen the 
state agency as the forum in which to litigate the issue, 
however, respondent should not be allowed to avoid the 
issue preclusion effect of the agency’s judgment.

IV. RESPONDENT HAS FAILED TO DEMONSTRATE 
THAT TITLE VII IMPLIEDLY REPEALS THE 
FULL FAITH AND CREDIT DUE A STATE 
AGENCY ADJUDICATION VOLUNTARILY IN­
VOKED BY RESPONDENT OUTSIDE THE TITLE 
VII ENFORCEMENT SCHEME.

In Kremer v. Chemical Construction Corp., 456 U.S. 
461, 468 (1982), this Court extended to Title VII actions 
the holding in Allen that “ an exception to § 1738 will 
not be recognized unless a later statute contains an ex­
press or implied partial repeal.”  Finding no express re­

5 The district court’s order withdrawing any restraint on employ­
ment action against respondent (Dist. Ct. Nr. 14, filed Mar. 29, 
1982) certainly cannot be construed as compelling respondent to 
invoke the agency adjudication in the first place, to litigate issues 
relevant to his civil rights claims there, or to pursue it to final 
judgment. Nor did the district court's order stay the proceedings 
in federal court. Respondent was free at all times, therefore, to 
pursue his civil rights claims in federal court. He chose instead to 
pursue the state agency proceedings to final judgment.



14

peal of full faith and credit in Title VII, this Court 
went on to reaffirm the “  ‘cardinal principle of statutory 
construction that repeals by implication are not favored’ 
. . . and whenever possible, statutes should be read con­
sistently.” Id. Because no language in Title VII re­
quired Kremer to pursue in state court the unfavorable 
decision by the Title VII state deferral agency and be­
cause no language in Title VII prescribes the effect of a 
state court judgment, this Court held that Title VII does 
not impliedly repeal the full faith and credit due a state 
court judgment.

A  straightforward application of the reasoning in 
Kremer requires the same conclusion with respect to a 
state agency adjudication voluntarily invoked by an em­
ployee in a purposeful departure from the Title VII en­
forcement scheme. No language in Title VII required re­
spondent in this case to invoke the due process hearing 
or to litigate any issue of race discrimination there. No 
language in Title VII prescribes the effect of the agency 
adjudication voluntarily invoked by respondent. Nor does 
the legislative history of Title VII include any reference 
to the effect of adjudications by agencies other than state 
antidiscrimination agencies. Neither the language nor the 
legislative history of Title VII therefore proves any con­
gressional intention to repeal the full faith and credit 
due an agency adjudication outside the Title VII enforce­
ment scheme.

In an effort to avoid the application of this Court’s 
reasoning in Kremer, respondent and the EEOC rely on 
footnote 7 in Kremer to support their position that state 
agency adjudications are never entitled to preclusive ef­
fect in subsequent Title VII actions. Respondent and the 
EEOC further argue that if Congress intended to repeal 
the full faith and credit due a state deferral agency deci­
sion, it surely must have intended also to repeal the full 
faith and credit due an agency adjudication outside the 
Title VII enforcement scheme.



15

The issue of whether Title VII impliedly repeals the 
full faith and credit due state deferral agency decisions 
has not been decided by this Court and is not presented 
in this case. If the “ substantial weight” provision of 
Title VII were construed as an implied repeal of full 
faith and credit as to state deferral agencies, however, 
the congressional purpose would be easily perceived. Be­
cause Congress required Title VII claimants to submit 
their claims of employment discrimination initially to 
state deferral agencies— thus depriving them of the in­
itial choice of forum— Congress provided that the deci­
sions of those agencies would be entitled to “ substantial 
weight,” but not preclusive effect, in subsequent EEOC 
proceedings. When, as in this case, a claimant freely 
chooses the initial forum, the critical policy considera­
tions are radically different and demand that the claim­
ant be bound by the results of his chosen forum. See 
Thomas, 448 U.S. at 289-90 (White, J., concurring); 
id. at 294 (Rehnquist, J., dissenting).

Respondent’s arguments might have some force if liti­
gation of the issue of race discrimination somehow had 
been thrust upon respondent against his will. Respondent 
alone, however, created the circumstance dictating the ap­
plication of issue preclusion in this case. He voluntarily 
invoked a state agency adjudication outside the Title VII 
enforcement scheme and insisted that the issue of alleged 
racial motivation for his proposed termination be ad­
judicated there. If respondent wished to pursue a due 
process hearing to contest his proposed termination prior 
to or simultaneously with pursuit of his Title VII action, 
he could have avoided preclusion quite simply by limiting 
the agency’s adjudication to the issues of his work per­
formance and behavior. Having freely chosen to litigate 
the issue of alleged discriminatory intent in the due proc­
ess hearing and having lost the issue in the forum of his 
choice, respondent should not be permitted to avoid the 
effect of the agency’s finding on his Title VII claim.



16

Respondent’s and the EEOC’s reliance on the decisions 
of this Court in Chandler v. Roudebush, 425 U.S. 840 
(1976), Alexander v. Gardner-Denver Co., 415 U.S. 36 
(1974), and McDonnell Douglas Corp. v. Green, 411 U.S. 
792 (1973), in support of their argument that a state 
agency adjudication is never entitled to preclusive effect 
in a subsequent Title VII action, is seriously misplaced. 
All three cases are plainly inapposite to the questions prei- 
sented here. In Kremer this Court explicitly described the 
McDonnell Douglas and Chandler decisions as holding 
“ that the ‘civil action’ in federal court following an EEOC 
decision was intended to be a trial de novo.”  456 U.S. at 
477. Because the principles of full faith and credit are 
not implicated in the case of two federal forums, this 
Court concluded that neither case was dispositive of the 
full faith and credit question presented in Kremer. Id. 
For the same reason, neither is dispositive or even in­
structive in this case.

This Court also rejected Kremer’s reliance on the 
Gardner-Denver decision because arbitration decisions are 
not subject to the mandate of full faith and credit. Ad­
dressing specifically the Gardner-Denver finding of “ the 
inappropriateness of arbitration as a forum for the res­
olution of Title VII issues,” id. at 478, this Court 
explicitly stated that the “ characteristics [of arbitra­
tion] cannot be attributed to state administrative boards 
and state courts,”  Id. Respondent’s argument that state 
agency adjudications should be treated like arbitration 
proceedings for full faith and credit purposes was un­
mistakably rejected by this Court in Kremer. Respond­
ent’s argument also completely ignores that the state 
agency in this case was exercising the state’s judicial 
power in a manner prescribed by state law and for the 
purpose of ensuring that respondent’s proposed termina­
tion was not in violation of constitutional and statutory 
provisions. See Tenn. Code Ann. § 4-5-322 (h) (1) (1985). 
Unlike arbitration under a collective bargaining agree­



17

ment, the adjudication in this case was undeniably a state 
judicial proceeding controlled, not by the intent of the 
parties, but by governing federal and state law.

While perfunctorily dismissing the critical policy con­
siderations supporting the application of full faith and 
credit to agency adjudications provided by state law for 
the express purpose of protecting Fourteenth Amendment 
liberty and property interests, the EEOC makes the in­
explicable argument that applying issue preclusion to the 
agency adjudication in this case would “upset the division 
of labor between the EEOC and state FEP agencies cur­
rently achieved through worksharing arrangements.” 
(EEOC Br. at 26) This argument completely ignores that 
the question presented in this Court is whether issue pre­
clusion should apply to an agency adjudication voluntarily 
invoked by an employee outside the Title VII enforce­
ment scheme. Employees are not required to submit their 
Title VII claims to state agencies other than § 706 de­
ferral agencies established by state law to provide reme­
dies for employment discrimination. Nor does the EEOC 
enter into worksharing agreements with agencies other 
than § 706 deferral agencies. Affording full faith and 
credit to issues adjudicated by agencies outside the Title 
VII enforcement scheme would have no effect, therefore, 
on the EEOC’s worksharing agreements or on any other 
aspect of the statutory enforcement scheme, including the 
full use of state antidiscrimination remedies. For the 
same reasons, the EEOC’s argument that application of 
preclusion principles would generate confusion and pro­
vide a trap for unwary claimants is decidedly unconvinc­
ing. There certainly can be no confusion as to those state 
agencies which are mandatory deferral agencies and those 
which are not. When an employee purposefully departs 
from the Title VII enforcement scheme, as respondent did 
in this case, he is fairly bound by the findings of his 
chosen forum. Application of issue preclusion is partic­
ularly imperative when the forum chosen by the employee 
is provided by state law for the express purpose of pro­



18

tecting Fourteenth Amendment liberty and property in­
terests. Denial of issue preclusion would render the state 
adjudication futile and seriously undermine its integrity.

Conspicuously absent from respondent’s argument, as 
well as that of the EEOC, is any suggestion that the 
issue of alleged racial motivation for respondent’s pro­
posed termination was not properly before and within the 
scope of the agency’s adjudicatory authority. Indeed, once 
respondent raised the issue of alleged discrimination as an 
affirmative defense to his proposed termination, the Ad­
ministrative Law Judge was required to determine the 
issue. See Tenn. Code Ann. § 4-5-322(h) (1) (1985).
Also conspicuously absent from respondent’s argument 
and that of the EEOC is any response to this Court’s 
holding in Marrese v. American Academy of Orthopaedic
Surgeons, — — U.S. -------, 105 S. Ct. 1327 (1985), that
absent an exception to the full faith and credit statute, 
state law determines the issue preclusion effect of a prior 
state judgment even if it involves a claim within the ex­
clusive jurisdiction of the federal courts. There is neither 
an express nor an implied exception in Title VII to the 
obligation of a federal court to extend full faith and 
credit to state agency adjudications voluntarily invoked 
outside the Title VII enforcement scheme. Therefore, 
even though the agency in this case did not have jurisdic­
tion to determine respondent’s Title VII claim, Tennessee 
law properly determines the issue preclusion effect of the 
agency adjudication. The Sixth Circuit’s refusal to follow 
the mandate of full faith and credit by applying Tennes­
see rules of preclusion tô  the agency adjudication in this 
case requires reversal of the judgment below.



19

CONCLUSION

The Sixth Circuit’s judgment should be reversed and 
this case remanded for a determination of the issue pre­
clusion effect to which the agency adjudication in this 
case is entitled under Tennessee law and the effect of 
issue preclusion on respondent’s claims under the Re­
construction statutes and Title VII.

Respectfully submitted,

Of Counsel
W . J. M ic h ael  Cody 
Attorney General & Reporter 
State of Tennessee 
450 James Robertson Parkway 
Nashville, Tennessee 37219
Jo h n  L. Sobieski, Jr . 
Professor of Law 
The University of Tennessee 
1505 W. Cumberland Avenue 
Knoxville, Tennessee 37996

Beau ch am p  E. Brogan * 
General Counsel 
A la n  M. P arker *
Associate General Counsel 
Cath er in e  S. M izell 
Associate General Counsel 
The University of Tennessee 
810 Andy Holt Tower 
Knoxville, Tennessee 37996 
(615) 974-3245
G. R a y  Bratton  *
1620 First Tenn. Bank Bldg. 
165 Madison Avenue 
Memphis, Tennessee 38103
N. R ichard  Glassm an  * 
Jo h n  B arry B urgess *
26 N. Second Street 
Memphis, Tennessee 38103 

Attorneys for Petitioners 
* Counsel of Record

T o m m y  Coley 
532 Smith Lane 
Jackson, Tennessee 38301 

Pro Se Petitioner
March 1986