Elliot v. University of Tennessee Defendants' Response to Plaintiffs' Motion for a New Trial, and/or to Alter or Amend Judgement

    IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF TENNESSEE 

EASTERN DIVISION

ROBERT B. ELLIOTT,
Plaintiff

v .

THE UNIVERSITY OF TENNESSEE 
ET AL,

Defendants

)
)
)
)
)
)
)
)
)
)

Civ. Action 
82-1014

No.

The University of Tennessee Defendants1 
Response to Plaintiff's Motion For A New 
Trial, And/Or To Alter Or Amend Judgment

Statement

On May 2, 1984, the Court entered its decision on The 
University of Tennessee defendants' amended motion for summary 
judgment in which the Court concluded that summary judgment 
should be granted in this civil rights action in favor of all 
defendants, and a judgment of dismissal was entered on May 8, 
1984. After entry of the judgment, plaintiff filed a motion for 
a new trial and/or to alter or amend judgment.

Plaintiff cites eight abstract legal principles in support 
of such motion, none of which has the slightest application to 
the facts of this case. The thrust of plaintiff's motion is



t

that the Court erred in holding that the UAPA agency decision 
made pursuant to the Tennessee Uniform Administrative Procedures 
Act, T.C.A. § 4-5-301 et seq., was res judicata upon plaintiff's 
claims of racial discrimination, and that "The Court erred in 
refusing to determine the merits of the plaintiff's claims of 
racial discrimination by reviewing the entire administrative 
record in this case" as a trial court. Essentially these same 
arguments were made, and rejected by the Court, in plaintiff's 
belated response to the University's amended motion for summary 
judgment, which plaintiff filed on March 9, 1984.

It is The University of Tennessee defendants' position that 
the Court's May 2, 1984 Memorandum Decision is proper in all
respects and that this action was correctly dismissed with pre­
judice in favor of all defendants.

Argument

The Doctrine of Res Judicata Was 
Correc11y Applied To The UAPA Final Order

In the very recent case of Migra v. Warren City School Bd., 
104 S.Ct. 892 (1984), the Supreme Court reviewed the application 
of the traditional doctrines of preclusion to civil rights ac­
tions brought under 42 U.S.C. § 1983. Reviewing its decision in 
Allen v. McCurry, 449 U.S. 90 (1980), the Court stated:

2



Allen therefore made clear that issu s 
actually litigated in a state-court pro­
ceeding are entitled to the same preclu­
sive effect in a subsequent federal § 
1983 suit as they enjoy in the courts of 
the State where the judgment was rend­
ered . [p. 897].

★  *  *

Section 1983, however, does not override 
state preclusion law and guarantee peti­
tioner a right to proceed to judgment in 
state court on her state claim and then 
turn to federal court for adjudication 
of her federal claims, [p. 898].

The preclusal doctrines of res judicata and collateral estoppel 
are as applicable to the findings of an adminstrative tribunal 
acting in a judicial capacity, which a LJAPA hearing does, as to 
state court decisions. United States v. Utah Construction & 
Mining Co., 384 U.S. 394 (1966); Printers' Dist. Council No. 38 
v. Englewood Contracting Co. , 416 F. 2d 1081 (5th Cir. 1969);
Barnes v. Oody, 514 F. Supp. 23 (E.D. Tenn. 1981).

Plaintiff's contention that his claims of racial 
discrimination were not raised and passed upon in the UAPA 
proceeding is simply not true. It is crystal clear that 
plaintiff's claims of racial discrimination were allowed to be 
raised as an affirmative defense to the Agricultural Extension 
Services' charges against him in the UAPA case. Indeed, his 
racial discrimination claims permeated the 28-day UAPA hearing. 
All of plaintiff's individual claims of racial discrimination 
were specifically ruled upon in both the UAPA initial and final 
orders. As noted by the Court on page 4 of its decision, Dr. 
Armistead's final order states:

3



I am also convinced from my review of 
the record that the action of the Exten­
sion Service in proposing the termina­
tion of employee's services was not mo­
tivated by employee's race but by a 
desire to terminate employee for what 
the Extension Service sincerely believed 
to be inadequate job performance and in­
adequate job behavior. The lengthy due 
process hearing afforded employee and 
the lengthy hearing record, which has 
been filed with me, are ample evidence 
of such fact [Attachment C, Plaintiff's 
Motion For a TRO And/Or Temporary Stay 
of the Final UAPA Order].

The initial UAPA order, which is incorporated by reference
in the final order, contains five pages of findings on
plaintiff's claims of racial discrimination. [Attachment A,
Plaintiff's Motion for TRO And/Or Temporary Stay of The Final
UAPA Order]. The initial order concluded that plaintiff failed
to prove his claims of racial discrimination:

An overall and thorough review of the 
entire evidence of record leads me to 
believe that employer's action in bring­
ing charges against employee, resulting 
in these proceedings were based on what 
it, through its administrative officers 
and supervisors perceived as improper 
and/or inadequate job performance rather 
than racial discrimination. I therefore 
conclude that employee has failed in his 
burden of proof to the claim of racial 
discrimination as a defense to the char­
ges against him [Emphasis added, Id.].

All plaintiff had to do to seek a review of such finding was to
file a timely petition in the proper state court pursuant to the
UAPA.

4



T

A. The Final UAPA Order Is Entitled To The Same Preclusive 
Effect In This Court As In The Tennessee Courts.

Under 
S. Ct. 892 
preclusive 
Court was

the ruling in Migra v. Warren City School Bd. , 
(1984), the final UAPA order is entitled to the 
effect in this court as in Tennessee courts, 

imminently correct in ruling as follows:

104
same
This

Plaintiff did not seek a stay of the 
final order from Vice President Armi- 
stead, even though such stay is provided 
for in the UAPA, T.C.A. § 4-5-316. More 
significantly, plaintiff did not seek 
judicial review of the UAPA final order 
and T.C.A. § 4-5-322, which requires
that a petition for judicial review must 
be filed in chancery court within 60 
days after the entry of the final order.

* * *

However, since plaintiff did not appeal 
timely to the proper court, the merits 
of the August 1 , 1983 final order are 
not reviewable here in this Court and 
that proceeding is res judicata to any 
attack on the merits of that order in 
this, or any other, court. [Slip Opin­
ion , p . 5] .

Accord, Cornwell v. Ferguson, 545 F.2d 1022 (5th Cir. 1977); 
Kelly v. Warminister Township Bd. of Supervisors, 512 F. Supp. 
658 (E.D. Pa. 1981), both of which plaintiff cites in support of 
his motion but which hold that plaintiff's claims under federal 
law were no more than a restatement of his original cause of 
action which had been fully and fairly litigated. In Kelly v.
Warminster Township Bd. of Supervisors, the Court ruled as fol­
lows :

5



The federal action amounts to no more 
than a rephrasing of the challenge made 
in the first action that there was a 
denial of due process because the body 
which fired him was administratively 
investigator, prosecutor and judge. 
This issue was litigated to final judg­
ment in state court, and now is preclud­
ed by collateral estoppel. [512 F. 
Supp. p. 667].

B. The Court Properly Invoked The Doctrine Of Res Judicata To
All Defendants On The Issue Of Race Discrimination

The initial UAPA order, incorporated with the final order, 
specifically includes findings of fact and conclusions of law on 
plaintiff's claims of racial discrimination by defendants 
Downen, Shearon, Luck, Turner, Coley, Murray, Korwin, and the 
five defendants who were members of the Madison County Agricul­
tural Extension Service.

The only defendants for which specific rulings were not 
made on the issue of racial discrimination are defendants Dr. 
Edward J. Boling, Dr. W. W. Armistead and Mr. Haywood Luck. 
Dr. Boling is the President of The University of Tennessee and 
admittedly had no involvement whatsoever in the employment 
decisions relating to plaintiff. Dr. Armistead is the Univer­
sity's Vice President for Agriculture and issued the final UAPA 
order; he otherwise had no involvement with plaintiff. Defend­
ant Luck is the AES District Supervisor and although not plain­
tiff's immediate supervisor, Luck was, and still is, his overall 
district-wide supervisor. The UAPA order clearly demonstrates

6



that Luck never took any adverse employment action against 
plaintiff on the basis of race, or any other basis.

Moreover, the Court found that there were no violations of 
plaintiff's due process rights on which violations of Section 
1983 actions are otherwise properly premised. More importantly, 
the Court correctly held that "this court was simply the wrong 
place to attack at transfer of job location or change of super­
visors," citing Bishop v. Wood, 426 U.S. 349 (1976); Gross v. 
University of Tennessee, 448 F. Supp. 245 (W.D. Tenn. 1978),
af f1 d , 620 F.2d 109 (6th Cir. 1980). Accordingly, in view of
such rulings it was certainly proper and within the Court's dis­
cretion to grant summary judgment in favor of all defendants.

C. The Court Did Not Make Any Findings Of Fact And Did Not Err
In Granting Summary Judgment And Not Giving Plaintiff A
Hearing

Plaintiff's claim that the Court erred in making findings 
of fact and in granting summary judgment without giving plain­
tiff a hearing is baseless. This action was decided on a motion 
for summary judgment under Rule 59 of the Federal Rules of 
Civil Procedure. The University defendants filed affidavits in 
support of their original motion and an amended motion following 
the conclusion of the UAPA action. Plaintiff finally filed an 
untimely opposing affidavit and a 4-page memorandum claiming 
that this Court should review the "extensive" UAPA administra­
tive record upon certification to this Court, which the Court

7



ruled as a matter of law it cannot do. Since the Court found 
that all defendants were entitled to summary judgment as a 
matter of law, plaintiff was not entitled to a evidentiary hear­
ing .

CONCLUSION

Plaintiff's claims have been properly considered and re­
jected by this Court. Plaintiff's motion for a new trial, 
and/or to alter or amend judgment does nothing to detract from 
the Court's decision. Accordingly, plaintiff's motion should be 
summarily denied.

Respectfully submitted

Beauchamp E. Brogan
General Counsel
The University of Tennessee
810 Andy Holt Tower
Knoxville, Tennessee 37996-0184

Attorneys for The University of 
Tennessee Defendants



Certificate of Service

I certify that a copy of the foregoing response has been 
served upon plaintiff by mailing a copy to Avon N. Williams, 
Jr., Esq., 203 Second Avenue, North, Nashville, Tennessee 37201 
and upon the remaining defendants by mailing copies to G. Ray 
Bratton, Esq., Farris, Hancock, Gilman, Brannan & Hellen, Suite 
1620, First Tennessee Building, Memphis, Tennessee 38103, John 
R. Moss, Esq., P. 0. Box 2103, Jackson, Tennessee 38301, Richard
Glassman, Esq., Suite 1334, 100 North Main Building, Memphis,
Tennessee 38103, and George R. Fusner, Jr., Esq., White &
Reasor, 3305 West End Avenue, Nashville, Tennessee 37203 this 2-Z-
day of May, 1984.

Attorney for The University of 
Tennessee Defendants