University of Tennessee v. Elliott Brief Amicus Curiae in Support of Petitioner

    No. 85-588

In The

gwpron? QJmtrt of tlir llnitrft Stairs
October Term, 1985

The University of Tennessee, et at.,

Petitioners,

v .

Robert B. Elliott,
Respondent.

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

BRIEF AMICUS CURIAE OF THE 
EQUAL EMPLOYMENT ADVISORY COUNCIL 

IN SUPPORT OF THE UNIVERSITY OF TENNESSEE

Robert E. W illiams 
Douglas S. McDowell * 
Kathryn Scully 

McGuiness & W illiams 
1015 Fifteenth Street, N.W. 
Suite 1200
Washington, D.C. 20005 
(202) 789-8600 

Attorneys for Amicus Curiae 
Equal Employment 
Advisory Council

* Counsel of Record

W il s o n  - Epes Prin tin g  Co . .  In c . - 7 8 9 - 0 0 9 6  - W a s h in g t o n . D .C . 2 0 0 0 1



TABLE OF CONTENTS
Page

TABLE OF AUTHORITIES............................................  iii

INTEREST OF THE AMICUS CURIAE ..........   1

STATEMENT OF THE C A SE ........................................ 3

SUMMARY OF ARGUMENT ..............................................  5

ARGUMENT ...............................................     7

I. TRADITIONAL PRINCIPLES OF RES JU­
DICATA AND COLLATERAL ESTOPPEL 
APPLY TO ADMINISTRATIVE PROCEED­
INGS .....................................................    7

II. THE DISTRICT COURT PROPERLY DIS­
MISSED THE FEDERAL CAUSE OF AC­
TION, HOLDING THAT IT WAS PRE­
CLUDED BY PRINCIPLES OF RES JUDI­
CATA FROM REVIEWING ISSUES FULLY 
LITIGATED IN THE STATE ADMINISTRA­
TIVE H EARIN G ......................... .................. ........ l l

A. This Court’s Decision in Kremer v. Chemical 
Construction Corp. Supports The Applica­
tion of Res Judicata Principles To The 
Final Decision Of The Administrative
Judge ........................... ........................................  i i

1. Title VII Does Not Supersede The Judi­
cial Doctrine Of Res Judicata, As Codi­
fied In 28 U.S.C. § 1738 .......................... . 11

2. Kremer Does Not Preclude Application 
of Res Judicata Principles To An Un­
reviewed Decision Of An Administrative 
Agency Acting In A Judicial Capacity.... 14



11

B. Because The Administrative Judge Was Act­
ing In A Judicial Capacity When He Con­
ducted the Due Process Hearing Which Re­
solved Disputed Issues Of Fact Properly Be­
fore Him And The Parties Had An Adequate 
Opportunity To Litigate Those Issues, Prin­
ciples Of Res Judicata Bar A  Subsequent
Suit In Federal C ourt.................................... 17
1. The Decision of the Administrative

Judge Should Be Given Collateral Es­
toppel Effect ................................ .............. 17

2. The Administrative Judge Was Acting 
In A Judicial Capacity When He Con­
ducted The Administrative Hearing And 
Issued The Final Decision In This Case.. 18

3. Factfindings Of The Administrative
Judge Are Entitled To Preclusive E f­
fect .................................................................. 20

4. The Record Clearly Shows That The Re­
spondent Had A Full and Fair Oppor­
tunity To Litigate the Issue of Race Dis­
crimination Before The Administrative 
Judge ............................       21

5. Tennessee Courts Would Give Preclusive
Effect To The Final Administrative De­
cision .............................................     22

C. Principles Of Res Judicata Must Be Applied
To Encourage Judicial Finality And To 
Avoid Multiple Litigation .................................  24

CONCLUSION .......................................................................  26

TABLE OF CONTENTS— Continued
Page



I l l

TABLE OF AUTHORITIES
Cases: Page

Allen v. McCurry, 449 U.S. 90 (1980) ..........7-8, 23, 25-26
Aponte v. National Steel Service Center, 500 F.

Supp. 198 (N.D. 111. 1980) ....................     25
Arizona Governing Committee v. Norris, 463 U.S.

1073 (1983) ............................................................... 2
Baldwin v. Traveling Men’s Association, 283 U.S.

522 (1931) ......... ......... .......................    8
Barnes v. Oody, 514 F. Supp. 23 (E.D. Term.

1981) .....................................    24
Brown v. Felsen, 442 U.S. 127 (1979) ............. . 8-9
Buckhalter v. Pepsi-Cola General Bottlers, Inc.,

768 F.2d 842 (7th Cir. 1985), petition for cert.
filed,------ U .S.L.W .--------  (U .S .------ ) (No. 85-
6094) ..........      passim

Cantrell v. Burnett & Henderson Co., 187 Term.
552, 216 S.W.2d 307 (1948) .................... ............. 23

Chicago, R. I. & P. Ry. Co. v. Schendel, 270 U.S.
611 (1926)................................................................  20

Commissioner v. Sunnen, 333 U.S. 591 (1948).... 8
Elliott v. University of Tennessee, 766 F.2d 982

(6th Cir. 1985) __ ___________ ________ __ ______ 9,14
EZ Loader Boat Trailers, Inc. v. Cox Trailers,

Inc., 746 F.2d 375 (7th Cir. 1984) _____________ 18
Fourakre v. Perry, 667 S.W.2d 483 (Term. App.

1983) ..........................................................................  23
Furnco Construction Co. v. Waters, 438 U S 567

(1978) ____________      3
Groom v. Kawasaki Motors Corp., USA, 344 F.

Supp. 1000 (W.D. Okla. 1972) ....... .................. 18
Hay field Northern Railroad Co. v. Chicago & North

Western Transportation Co., ------  U.S. -____ ,
104 S. Ct. 2610 (1984) ..................................... ....’ 9_10

International Brotherhood of Teamsters v. United
States, 431 U.S. 324 (1977)...................................  3

I.U.E. Local 790 v. Robbins & Myers, Inc., 429
U.S. 229 (1976) _____     3

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

Lee v. Peoria, 685 F.2d 196 (7th Cir. 1982).......  18



XV

TABLE OF AUTHORITIES— Continued
Page

O’Connor v. Mazzullo, 536 F. Supp. 641 (S.D.N.Y.
1982) ....................................................................   20

O’Hara v. Board of Education of Vocational 
School, 590 F. Supp. 696 (D.N.J. 1984), aff’d
mem., 760 F.2d 259 (3d Cir. 1985) ...... 12-13,17,18, 23

Painters District Council No. 38 v. Edgewood Con­
tracting Co., 416 F.2d 1081 (5th Cir. 1969).......  24

Parklane Hosiery Co. v. Shore, 439 U.S. 322
(1979) .................... ..................................... ...............  5, 8

Polsky v. Atkins, 197 Tenn. 201, 270 S.W.2d 497
(1954) .......................      23

Purcell Enterprises, Inc. v. State, 631 S.W.2d 401
(Tenn. App. 1981) ...........     23

Texas Department of Community Affairs v. Bur-
dine, 450 U.S. 248 (1981) ........................... .......... 2-3

Thomas v. Washington Gas Light Co., 448 U.S.
261 (1980) ..............................      10,20

United Inter-Mountain Telephone Co. v. Public 
Service Commission, 555 S.W.2d 389 (Tenn.
1977) ......................    4

United States v. Utah Construction & Mining Co.,
384 U.S. 394 (1966) ..................... ......................... .passim

Zanghi v. Incorporated Village of Old Brookville,
752 F.2d 42 (2d Cir. 1985) .................................... 10

Statutes:
Title YII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e, et seq .........................— --------------- ------ .passim
42 U.S.C. §§ 1981, 1983,1985, 1986,1988............ . 2, 3, 4
42 U.S.C. § 1983 ............................................................  10
28 U.S.C. § 1738..................... ............. ....................... 5,11,13
Tenn. Code Ann. §§ 4-5-301 to -322 .................... ........  22
Tenn. Code Ann. § 4-5-301...... ................ ....................  3, 19
Tenn. Code Ann. § 4-5-301 (b).____ __________ ____  19
Tenn. Code Ann. §§ 4-5-305 to -312..... ......................  19
Tenn. Code Ann. § 4-5-314 (c) .....................................  19
Tenn. Code Ann. § 4-5-322...........................................  4,19

Other Sources:
IB Moore’s Federal Practice 1f 0.405 [1]  ................. 8
IB Moore’s Federal Practice If 0.441 [ 2 ] .................... 9,18



In The

(Emtrt stf %  Btatm
October Term, 1985

No. 85-588

The University of Tennessee, et al, 
v Petitioners,

Robert B. Elliott,
Respondent.

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

BRIEF AMICUS CURIAE OF THE 
EQUAL EMPLOYMENT ADVISORY COUNCIL 

IN SUPPORT OF THE UNIVERSITY OF TENNESSEE

The Equal Employment Advisory Council respect­
fully submits this brief amicus curiae on behalf of 
the University of Tennessee, seeking reversal of the 
decision below. The parties’ written consents to file 
this brief have been filed with the Clerk of the Court.

INTEREST OF THE AMICUS CURIAE

The Equal Employment Advisory Council (EEAC 
or Council) is a voluntary nonprofit association or­
ganized to promote the common interest of employers 
and the general public in sound government policies,



2

procedures and requirements pertaining to nondis- 
criminatory employment practices. Its membership 
comprises a broad segment of the employer commu­
nity in the United States, including both individual 
employers and trade and industry associations. Its 
governing body is a Board of Directors composed 
primarily of experts and specialists in the field of 
equal employment opportunity. Their combined ex­
perience gives the Council a unique depth of under­
standing of the practical and legal considerations rel­
evant to the proper interpretation and application of 
equal employment policies and requirements. EEAC’s 
members are firmly committed to the principles of 
nondiscrimination and equal employment opportunity.

Substantially all of EEAC’s members, or their con­
stituents, are employers subject to various federal and 
state equal employment laws, including Title VII of 
the Civil Rights Act of 1964, as amended, 42 U.S.C. 
§ 2000e, et seq. Thus, EEAC has a direct interest in 
the issue presented for the Court’s consideration in 
the instant case, i.e., whether a final decision by a 
state administrative agency acting in a judicial ca­
pacity, finding no merit to claims of discrimination, 
bars a subsequent federal court action under Title 
VII and 42 U.S.C. §§ 1981, 1983, 1985, 1986, and 
1988, which raises the same issues of employment 
discrimination.

Because of its interest in the res judicata effect of 
prior state court and administrative decisions, EEAC 
filed an amicus brief in Krerner v. Chemical Construc­
tion Corp., 456 U.S. 461 (1982). In addition, EEAC 
has filed briefs as amicus curiae on numerous other 
occasions in this Court, See, e.g., Arizona Governing 
Committee v. Norris, 463 U.S. 1073 (1983); Texas



3

Department of Community Affairs v. Burdine, 450 
U.S. 248 (1981); Furnco Construction Corp. v. Wa­
ters, 438 U.S. 567 (1978); International Brotherhood 
of Teamsters v. United States, 431 U.S. 324 (1977), 
and I.U.E. Local 790 v. Robbins & Myers, Inc., 429 
U.S. 229 (1976).

STATEMENT OF THE CASE

On December 18, 1981, plaintiff Robert Elliott, a 
minority employee of the University of Tennessee 
Agricultural Extension Service, was advised by the 
University that he was to be terminated from his job 
because of inadequate job performance and behavior 
and incidents of gross misconduct. On December 22, 
1981, Elliott filed an administrative appeal under the 
Tennessee Uniform Administrative Procedures Act. 
On January 5, 1982, he filed a federal complaint un­
der Title VII and 42 U.S.C. §§ 1981, 1983, 1985, 
1986 and 1988.

Pursuant to the state administrative appeal proce­
dure, set forth in the Contested Case Provisions of 
the Tennessee Uniform Administrative Procedures 
Act (U APA), Tenn. Code Ann. §4-5-301, an admin­
istrative judge conducted a lengthy due process hear­
ing into Elliott’s charges, during which the parties 
were accorded complete trial rights, Elliott’s counsel 
examined nearly 100 witnesses at the hearing and 
insisted that evidence of alleged racial discrimination 
be admitted. The administrative judge found that 
the University’s action was based on inadequate job 
performance and behavior rather than racial dis­
crimination.

Elliott appealed these findings to the University of 
Tennessee Vice President for Agriculture, who con-



4

eluded that the actions of the University were not 
racially motivated and rejected the appeal. Elliott 
failed to file a petition for review of the administra­
tive judge’s decision in the state courts within sixty 
days of the order, a right provided in the state statute. 
Instead, eighty-four days after the final administra­
tive order, Elliott renewed his federal complaint and 
requested a temporary restraining order, claiming 
that the final administrative order was arbitrary, re­
taliatory, wrongful, illegal, harassing, unnecessary 
and damaging to his reputation. The University op­
posed this motion and filed a motion for summary 
judgment.

The district court granted the University’s motion 
for summary judgment, holding that it was precluded 
by principles of res judicata from reviewing the is­
sues fully litigated in the administrative hearing. 
The court noted that exclusive jurisdiction to judici­
ally review the merits of a final order entered in a 
UAPA contested case is vested in the Tennessee chan­
cery courts under Tenn. Code Ann. § 4-5-322. United 
Inter-Mountain Telephone Co. v. Public Service Com­
mission, 555 S.W.2d 389 (Tenn. 1977). Elliott, how­
ever, did not seek judicial review of the final admin­
istrative decision in the Tennessee chancery courts, but 
instead renewed his action in federal court. The dis­
trict court found that Elliott could not utilize the 
federal civil rights statutes to relitigate what he had 
litigated over a five-month period during the admin­
istrative hearing.

The United States Court of Appeals for the Sixth 
Circuit reversed, holding that unreviewed state ad­
ministrative judgments are not entitled to preclusive 
effect in subsequent federal court actions under Title 
VII or sections 1981, 1983, 1985, 1986 and 1988.



5

SUMMARY OF ARGUMENT

The doctrine of res judicata mandates that a final, 
valid judgment, conclusive as to all matters of fact 
and law, acts as an absolute bar to a subsequent ac­
tion between the same parties upon the same claim or 
demand. The related doctrine o f collateral estoppel 
precludes relitigation of identical issues which are 
raised in subsequent suits involving the same parties 
or their privies, Parklane Hosiery Co. v. Shore, 439 
U.S. 322, 327 (1979). These preclusion doctrines 
apply to administrative, as well as to judicial pro­
ceedings, As this Court stated in Kremer v. Chemical 
Construction Corp., 456 U.S. 461, 484 n.26 (1982):

Certainly, the administrative nature of the fact­
finding process is not dispositive. In United 
States v. Utah Construction & Mining Co., 384 
U.S. 394 . . . (1966), we held that, so long as 
opposing parties had an adequate opportunity to 
litigate disputed issues of fact, res judicata is 
properly applied to decisions of an administra­
tive agency acting in a “ judicial capacity.” Id. 
at 422.. . .

Based on the principles enunciated by this Court in 
Kremer, the final administrative decision at issue in 
this case is entitled to preclusive effect. In Kremer, 
the Court held that full faith and credit principles, 
as codified in 28 U.S.C. § 1738, bar a Title VII law­
suit in federal court when the claim previously has 
been adjudicated by a state administrative agency 
and affirmed on appeal by a state court. The Court 
reasoned that the opportunity for judicial review, to 
ensure that the administrative decision was not arbi­
trary and capricious and that the claimant was not 
denied any procedural rights to which he was en­



6

titled, provided the necessary due process, thus justi­
fying the application of full faith and credit.

In the instant case, the administrative and judicial 
procedures available to the plaintiff met the Kremer 
due process requirements. See Buckhalter v. Pepsi­
Cola General Bottlers, Inc., 768 F.2d 842, 852 (7th
Cir. 1985), petition for cert, filed, ------  U.S.L.W.
----- - (u.S. --------------) (No. 85-6094). The parties
had ample opportunity to gather and present evidence 
and were accorded full trial rights. Most importantly, 
Elliott had an opportunity to appeal the findings of 
the administrative judge in state court, although he 
declined to avail himself of this opportunity.

In addition, these administrative proceedings met 
the requirements set forth in United States v. Utah 
Construction <& Mining Co., 384 U.S. 394, 422 (1966), 
i.e., the parties had an adequate opportunity to liti­
gate disputed issues of fact before the administrative 
judge, who was acting in a judicial capacity. There­
fore, the decision of the administrative judge, finding 
that Elliott did not meet his burden of proving dis­
crimination, is entitled to preclusive effect. Accord­
ingly, Elliott should be barred from litigating the 
same issues of race discrimination in a subsequent 
suit in federal court.

Finally, the decision of the administrative judge 
should be given preclusive effect to promote judicial 
finality and prevent needless litigation. Absent such 
a finding, parties would be unable to rely on prior 
adjudications, and litigation of the same claims and 
issues would continue ad infinitum.



7

ARGUMENT

I. TRADITIONAL PRINCIPLES OF RES JUDICATA 
AND COLLATERAL ESTOPPEL APPLY TO AD­
MINISTRATIVE PROCEEDINGS.

In this case, an administrative judge acting in a 
judicial capacity presided over a lengthy hearing in 
which over 100 witnesses testified and over 150 ex­
hibits were entered into evidence. At this hearing, 
Elliott had ample opportunity to defend against 
charges brought by the University of Tennessee. As 
a defense against these charges, he introduced evi­
dence of alleged race discrimination. All of this evi­
dence was considered by the administrative judge in 
reaching his decision that the actions of the Univer­
sity were not based on race discrimination. Moreover, 
this decision was reviewed thoroughly by the Vice 
President for Agriculture at the University, who 
adopted the initial order of the administrative judge 
and determined, not only that the proposed termina­
tion of Elliott by the University was not based on 
race but also that Elliott had been afforded ample 
opportunity to defend himself against the charges 
brought by the University. Elliott now seeks to re­
litigate the same issues of employment discrimina­
tion in federal court. Clearly, res judicata principles 
should apply in this case to preclude such relitiga­
tion.

The judicial doctrine of res judicata mandates that 
a final, valid judgment on the merits of an action pre­
cludes the parties or their privies from relitigating 
the same claims or demands that were or could have 
been raised in the first action. Allen v. McCurry, 449



8

U.S. 90, 94 (1980):1 IB Moore’s Federal Practice 
0.405 [1]. The related doctrine of collateral estoppel, 

“has the dual purpose of protecting litigants from the 
burden of relitigating an identical issue with the 
same party or his privy and of promoting judicial 
economy by preventing needless litigation.” 2 Park- 
lane Hosiery Co. v. Shore, 439 U.S. 322, 326 (1979) 
(case citation omitted). See also Commissioner v. 
Sunnen, 333 U.S. 591, 599 (1948) (Collateral estop­
pel “ is designed to prevent repetitious lawsuits over 
matters which have once been decided and which have 
remained substantially static, factually and legally.” ). 
“ [C] ollateral estoppel treats as final only those ques­
tions actually and necessarily decided in a prior suit.”

1 The doctrine of res judicata has evolved primarily because 
of a recognition by the courts that “ [pjublie policy dictates 
that there be an end of litigation; that those who have con­
tested an issue shall be bound by the result; of the contest, and 
that matters once tried shall be considered forever settled as 
between the parties.”  Baldwin v. Traveling Men’s Association, 
283 U.S. 522, 525 (1931).

B In Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n.5 
(1979) (citations omitted), the Court distinguished between 
the doctrines of res judicata and collateral estoppel, stating as 
follows:

Under the doctrine of res judicata, a judgment on the 
merits in a prior suit bars a second suit involving the 
same parties or their privies based on the same cause of 
action. Under the doctrine of collateral estoppel, on the 
other hand, the second action is upon a different cause of 
action and the judgment in the prior suit precludes 
relitigation of issues actually litigated and necessary to 
the outcome of the first action.

In this brief, when we refer to “ principles of res judicata,” 
we are referring generally to the doctrine of judicial preclu­
sion, including collateral estoppel.



9

Brown v. Felsen, 442 U.S. 127, 139 n.lQ (1979) (case 
citations omitted). Unlike the doctrine of res ju­
dicata, application of collateral estoppel does not 
require identical causes of action. IB Moore’s Fed­
eral Practice 0.441 [2].

These preclusion doctrines are applicable to admin­
istrative determinations. In United States v. Utah 
Construction.& Mining Co., 384 U.S. 394, 423 (1966), 
this Court found that the Court of Claims had failed 
to give finality to factual findings made by the Board 
of Contract Appeals, when the Board was acting in a 
judicial capacity. Reversing this portion of the Court 
of Claims decision, the Court noted that:

[T]he result we reach is harmonious with gen­
eral principles of collateral estoppel. Occasion­
ally courts have used language to the effect that 
res judicata principles do not apply to adminis­
trative proceedings, but such language is cer­
tainly too broad. When an administrative agency 
is acting in a judicial capacity and. resolves dis­
puted issues of fact properly before it which the 
parties have had an adequate opportunity to liti­
gate, the courts have not hesitated to apply res 
judicata to enforce repose.

Id. at 421-22 (footnotes & case citations omitted & 
emphasis added) .* See, e.g., Ha,yfield Northern Rail-

13 In refusing to apply res judicata principles to the admin­
istrative findings in this case, the Sixth Circuit stated that 
Utah Construction applies only to federal administrative deci­
sions. Elliott v. University of Tennessee, 766 F.2d 982, 989 
(6th Cir. 1985). According to the Sixth Circuit, “ [t]he Court 
[in Utah Construction] did not address the deference that 
federal courts should give to the unreviewed findings of state 
administrative agencies in subsequent federal civil rights ac-



10

road Go. v. Chicago & North Western Transportation
Co., ------  U.S. -------, 104 S. Ct. 2610, 2619 n.15
(1984); Kremer v. Chemical Construction Corp., 
456 U.S. 461, 484 n.26 (1982); Thomas v. Washing­
ton Gas Light Co., 448 U.S. 261, 281 (1980) ( “ [T]he 
factfindings of state administrative tribunals are en­
titled to the same res judicata effect in the second 
State as findings by a court.” ) .

Accordingly, this Court must determine whether 
the specific administrative decision at issue in this 
case is entitled to preclusive effect. Based on this 
Court’s decision in Kremer, we argue below that the 
administrative determination should be given preclu­
sive effect, and thus should bar Elliott from relitigat­
ing the same issue of employment discrimination in 
federal court.

tions.”  Id, (footnote omitted). This interpretation of Utah 
Construction is unduly narrow. As indicated above, the Court 
did not refer to state or federal administrative agencies, but 
simply to “ an administrative agency.”  United States v. Utah 
Construction & Mining Co., 384 U.S. 394, 422 (1966). More­
over, many courts have applied Utah Construction to state ad­
ministrative decisions. See, e.g., Buckhalter v. Pepsi-Cola 
General Bottlers, Inc., 768 F.2d 842, 849-53 (7th Cir. 1985),
petition for cert, filed, ------  U.S.L.W. ------  (U.S. ------ )
(No. 85-6094) ; Zanghi v. Incorporated Village of Old Brook- 
ville, 752 F.2d 42, 46 (2d Cir. 1985) (applying Utah Con­
struction, Second Circuit held that state administrative hear­
ing and appeal must be given preclusive effect in subsequent 
42 U.S.C. § 1983 action).



11

II. THE DISTRICT COURT PROPERLY DISMISSED 
THE FEDERAL CAUSE OF ACTION, HOLDING 
THAT IT WAS PRECLUDED BY PRINCIPLES OF 
RES JUDICATA FROM REVIEWING ISSUES 
FULLY LITIGATED IN THE STATE ADMINIS­
TRATIVE HEARING.

A. This Court’s Decision In Kremer v. Chemical Con­
struction Corp. Supports The Application of Res 
Judicata Principles To The Final Decision Of The 
Administrative Judge.

1. Title VII Does Not Supersede The Judicial Doc­
trine of Res Judicata, As Codified In 28 U.S.C. 
§ 1738.

In Kremer v. Chemical Construction Corp., 456 
U.S. 461, 463 (1982), this Court was faced with the 
question of “whether Congress intended Title VII 
to supersede the principles of comity and repose em­
bodied in § 1738.” In holding that Title VII does not 
supersede section 1738,4 the Court reasoned that 
granting full faith and credit to a state court pro­
ceeding in noi way hinders the enforcement of Title 
VII. The Court stressed that:

Nothing in the legislative history of the 1964 
Act suggests that Congress considered it neces­
sary or desirable to provide an absolute right to 
relitigate in federal court an issue resolved by a 
state court. While striving to craft an optimal 
niche for the States in the overall enforcement

4 28 U.S.C. § 1738 provides, in pertinent part, that:
The . . . judicial proceedings of any court of any such 
State * * * shall have the same full faith and credit in 
every court within the United States and its Territories 
and Possessions as they have by law or usage in the 
courts of such State, Territory or Possession from which 
they are taken.



12

scheme, the legislators did not envision full liti­
gation of a single claim in both state and federal 
forums.

Id. at 473-74.
Furthermore, the Court found that:

In our system of jurisprudence the usual rule is 
that merits of a legal claim once decided in a 
court of competent jurisdiction are not subject to 
redetermination in another forum . . . .  Because 
there is no “affirmative showing” of a “clear and 
manifest”  legislative purpose in Title VII to 
deny res judicata or collateral estoppel effect to 
a state court judgment affirming that a claim of 
employment discrimination is unproved, and be­
cause the procedures provided in New York for 
the determination of such claims offer a full and 
fair opportunity to litigate the merits, [the plain­
tiff will be prohibited from relitigating his claim 
in federal court].”

Id. at 485.
Although the Court in Kremer had before it the 

specific question of whether a decision of an admin­
istrative agency which was affirmed by a state court 
would preclude a subsequent suit in federal court, 
the Court in no way found it dispositive that the 
agency decision was actually reviewed by a state 
court. Instead, the Court based its decision on the 
fact that judicial review was available to the plaintiff. 
Id. at 484. See O’Hara v. Board of Education of Vo­
cational School, 590 F. Supp. 696, 701 (D.N.J. 1984), 
aff’d mem., 760 F.2d 259 (3d Cir. 1985) ( “ The im­
portant due process criterion is the opportunity to 
present one’s evidence, and it is irrelevant that the 
party declined to take advantage of that opportu­



13

nity.”  (emphasis in original & case citations omit­
ted)).

The Court stressed that in determining whether to 
apply full faith and credit in any given situation, all 
of the procedures provided by state law must be taken 
into consideration. The Court specifically pointed out 
that “ this panoply of procedures, complemented by 
administrative as well as judicial review, is sufficient 
under the Due Process Clause” and that “ [c] ertainly, 
the administrative nature of the factfinding process 
is not dispositive.”  Kremer, 456 U.S. at 484 & n.26 
(footnote & case citation omitted).

We maintain that section 1738 should apply in this 
case to preclude relitigation of the factfindings of the 
state administrative agency acting in its judicial ca­
pacity. However, even if section 1738 did not apply, 
as the Seventh Circuit noted in Buckhalter v. Pepsi­
Cola General Bottlers, Inc., 768 F.2d 842, 849 (7th
Cir. 1985), petition for cert, filed, ------  U.S.L.W.
------ (U.S. - — ) (No. 85-6094):

[T]he inapplicability of section 1738 does not 
end our res judicata analysis. In footnote 26 of 
the Kremer opinion the Supreme Court acknowl­
edged the doctrine of “administrative res judi­
cata,”  stating that “ so long as opposing parties 
had an adequate opportunity to litigate disputed 
issues of fact, res judicata is properly applied to 
decisions of an administrative agency acting in 
a ‘judicial capacity.’ ”  456 U.S. at 485 rsicl 
n.26. . . .

(citation omitted).
The Kremer opinion clearly mandates that the 

total state procedure provided to a plaintiff be con­
sidered in determining whether a state court or ad­



14

ministrative decision should be granted preclusive ef­
fect. 456 U.S. at 483-85. Therefore, in the instant 
case, the paramount question is whether Elliott was 
denied any of the procedural rights to which he was 
entitled, including the right of judicial review to as­
sure that the administrative decision was not arbi­
trary and capricious. As discussed below in Part B, 
Elliott was not denied any of the procedural rights to 
which he was entitled. Although he was entitled to 
judicial review, he opted not to pursue it. His failure 
to avail himself of such review, however, does not 
render the state’s procedures inadequate and there­
fore incapable of supporting an application of res 
judicata. Id. at 485.

2. Kremer Does Not Preclude Application Of Res 
Judicata Principles To An Unreviewed Decision 
Of An Administrative Agency Acting In A Ju­
dicial Capacity.

In holding that the decision of the administrative 
judge was not entitled to preclusive effect, the Sixth 
Circuit indicated that the decision in Kremer stands 
for the proposition that unreviewed state administra­
tive determinations are not entitled to deference un­
der res judicata principles. Elliott v. University of 
Tennessee, 766 F.2d 982, 988 (6th Cir. 1985). The 
Sixth Circuit stated as follows :

[T]he Kremer Court itself made plain in foot­
note 7 that its rule of non-preclusion with re­
spect to unreviewed state administrative deci­
sions applies to the decisions of those agencies 
that have full enforcement authority and provide 
full adjudicative procedures as well as to the de­
cisions of agencies that lack those attributes.

Id. This interpretation does not comport with the 
holding in Kremer, nor with established principles of 
res judicata.



15

Footnote seven reads as follows:

EEOC review of discrimination charges previ­
ously rejected by state agencies would be point­
less if the federal courts were bound by such 
agency decisions . . . .  Nor is it plausible to sug­
gest that Congress intended federal courts to be 
bound further by state administrative decisions 
than by decisions of the EEOC. Since it is set­
tled that decisions by the EEOC do not preclude 
a trial de novo in federal court, it is clear that 
unreviewed administrative determinations by 
state agencies also should not preclude such re­
view even if such a decision were to be afforded 
preclusive effect in a State’s own courts.

456 U.S. at 470 (citations omitted & emphasis 
added). It is clear, when this footnote is read in con­
text with the remainder of the Kremer decision, that 
the Supreme Court did not hold that state admin­
istrative determinations may not be given preclusive 
effect. Rather, as the Seventh Circuit explained in 
Buckhalter, 768 F.2d at 854:

In footnote 7, the Supreme Court was clearly 
referring to the state administrative agency in 
its investigatory capacity as it analogized the 
state agency to the EEOC, a Federal agency that 
is authorized to act only in an investigatory ca­
pacity. The import of footnote 7 is that neither 
an investigatory determination of the EEOC nor 
an investigatory determination of a state admin­
istrative agency precludes a trial de novo in Fed­
eral court. The Supreme Court made clear, how­
ever, in footnote 26 of the Kremer opinion, that 
when the state administrative agency acts in a 
judicial capacity, its ruling on the claim of em­
ployment discrimination is entitled to preclusive



16

effect in the Federal court under the doctrine of 
“ administrative res judicata.”

The Seventh Circuit’s interpretation is clearly cor­
rect. In commenting on the preclusive effect to be 
given to administrative decisions, footnote seven in 
Kremer was addressing the situation of state agen­
cies exercising limited functions like those given the 
EEOC, and not state agencies acting in judicial ca­
pacities, The EEOC is empowered only to investigate 
complaints and decide whether to press charges based 
upon its investigations. Title VII does not give the 
EEOC any powers to adjudicate claims and render 
decisions regarding the guilt or innocence of Title VII 
defendants. State agencies, on the other hand, often 
have both investigatory and court-like enforcement 
authority and consequently can both press charges 
and adjudicate cases, thus establishing the existence 
or non-existence of a violation of the state’s anti- 
discrimination laws. Such state agencies, therefore, 
are capable of making two very distinct types of de­
cisions which should not be casually lumped together 
to support the argument that federal courts must 
grant de novo trials to plaintiffs whose claims have 
been adjudicated and dismissed at the state admin­
istrative level.

It is clear that decisions of the EEOC do not pre­
clude de novo trials in federal courts, and it is like­
wise true that administrative decisions of state agen­
cies which are similar to those of the EEOC, i.e., 
decisions pertaining to whether to press charges, also 
should not be given preclusive effect in federal court. 
Decisions by state agencies acting in their judicial 
capacity, however, do not fall within the scope of this 
footnote. Because the administrative judge in this 
case was clearly acting in a judicial capacity, see dis­



17

cussion in Part B, and had full enforcement authority 
and adjudicative powers, his decision is entitled to 
res judicata effect.

B. Because The Administrative Judge Was Acting In 
A Judicial Capacity When He Conducted The Due 
Process Hearing Which Resolved Disputed Issues 
Of Fact Properly Before Him And The Parties Had 
An Adequate Opportunity To Litigate Those Issues, 
Principles Of Res Judicata Bar A Subsequent Suit 
In Federal Court.

1. The Decision Of The Administrative Judge 
Should Be Given Collateral Estoppel Effect.

In order for a federal court to give collateral estop­
pel effect to a state administrative determination, the 
following requirements must be satisfied:

(1) The administrative judge must have acted 
in a judicial capacity;

(2) The administrative judge must have re­
solved disputed issues of fact properly be­
fore him;

(3) The parties must have had a full and fair 
opportunity to litigate; and

(4) The state courts would hold that the state 
administrative decision should be given pre­
clusive effect.

O’Hara v. Board of Education of the Vocational 
School, 590 F. Supp. at 701. As shown below, each 
of these requirements has been met in this case. Ac­
cordingly, this Court should find that the decision of 
the state administrative agency that the actions taken 
by the University against Elliott were not based on 
race discrimination, is entitled to collateral estoppel 
effect.



18

We note that, in this case, the application of col­
lateral estoppel will operate as a complete bar to the 
federal action because the administrative judge’s find­
ing that the University’s actions were not based on 
race discrimination is determinative of the contro­
versy in the second suit. Id. (court held that finding 
o f administrative law judge, affirmed by Commis­
sioner of Education, that plaintiff’s discharge was 
warranted, was entitled to collateral estoppel effect, 
and thus barred Title VII action); see IB Moore’s 
Federal Practice j f  0.441 [2].

2. The Administrative Judge Was Acting In A 
Judicial Capacity When He Conducted The Ad­
ministrative Hearing And Issued The Final Deci­
sion In This Case.

“ [I ]t  [is] clear that issues of fact determined by 
an administrative agency acting in a judicial capac­
ity may collaterally estop future relitigation of ad­
ministratively determined issues.”  Lee v. City of 
Peoria, 685 F.2d 196, 198 (7th Cir. 1982) (emphasis 
added) (citing Utah Construction, 384 U.S. at 422). 
Courts have found administrative agencies to be act­
ing in a judicial capacity where the proceeding was 
adversarial and the parties were represented by coun­
sel, presented evidence and arguments, submitted 
briefs, and had an opportunity to seek judicial re­
view. See, e.g., Buckhalter, 768 F.2d at 851-52 (Hu­
man Rights Commission found to be acting in judicial 
capacity where proceeding conducted just as a trial 
in Illinois state court); EZ Loader Boat Trailers, 
Inc. v. Cox Trailers, Inc., 746 F.2d 375, 378 (7th Cir. 
1984); Groom v. Kaivasaki Motors Corp., USA, 344 
F. Supp. 1000,1002 (W.D. Okla. 1972).



19

To determine whether the administrative judge was 
acting in a judicial capacity in this case, it is neces­
sary to examine the Tennessee Uniform Administra­
tive Procedures Act (UAPA) and the actual admin­
istrative proceeding. Section 4-5-301 of the UAPA 
sets forth the procedures to be followed in hearing a 
contested case. Pursuant to these administrative pro­
cedures, parties are afforded complete trial rights, in­
cluding the right to be represented by counsel, to 
receive notice of the hearing, to file pleadings, mo­
tions, briefs, and proposed findings of fact and con­
clusions of law, to request the administrative judge 
to issue subpoenas, and to examine and cross-examine 
witnesses, Tenn. Code Ann. §§ 4-5-305 to -312. The 
parties in this case were afforded these rights.

In addition, the administrative judge presided at 
the hearing, ruled on questions of the admissibility 
of evidence and swore witnesses. Id. at § 4-5-301 (b). 
The parties had ample opportunity, not only to liti­
gate the disputed issues of fact, but also to seek state 
court review of the final administrative decision. Id. 
at § 4-5-322. Elliott presented more than ninety wit­
nesses and cross-examined some of the agency’s wit­
nesses for more than thirty hours each. Appendix to 
Petition for a Writ of Certiorari to the United States 
Court of Appeals for the Sixth Circuit (Appendix to 
Petition at A31. The initial order of the admin­
istrative judge was a ninety-six page document 
and contained extensive findings of fact and conclu­
sions of law, as required under Tenn. Code Ann. § 4- 
5-314 (c ). Id. It is clear that the administrative 
judge was acting in a judicial capacity when he con­
ducted the hearing and issued the decision in this 
case.



20

3. Factfindings Of The Administrative Judge Are 
Entitled To Preclusive Effect.

“ [T]he factfindings of state administrative tribu­
nals are entitled to the same res judicata effect in 
the second State as findings by a court.” Thomas v. 
Washington Gas Light Co., 448 U.S. 261, 281 (1980) 
(citing Chicago, R. I. & P. Ry. Co. v. Schendel, 270 
U.S. 611 (1926) (Iowa state compensation award 
based on factual finding that employee engaged in 
intrastate commerce precluded subsequent claim un­
der Federal Employer’s Liability Act brought in 
Minnesota state courts which would have required 
finding that employee engaged in interstate com­
m erce)). Factfindings by state administrative tribu­
nals are entitled to the same res judicata effect in 
federal court. O’Connor v. Mazzullo, 536 F. Supp. 
641, 643-44 (S.D.N.Y. 1982) (factual determinations 
of motive by state agency entitled to collateral estop­
pel effect in later suit in federal court).

Accordingly, the factual findings of the administra­
tive judge in this case, i.e., that the actions taken by 
the University were not based on racial discrimina­
tion,5 are entitled to preclusive effect in the federal 
court action.

6 The administrative judge made the following factual 
determination:

An overall and thorough review of the entire evidence of 
record leads me to believe that employer’s action in bring­
ing charges against employee, resulting in these proceed­
ings were based on what it, through its administrative 
officers and supervisors perceived as improper and/or 
inadequate behavior and inadequate job performance 
rather than racial discrimination. I therefore conclude 
that employee has failed in his burden of proof to the



21

4. The Record Clearly Shows That The Respondent 
Had A Full And Fair Opportunity To Litigate 
The Issue Of Race Discrimination Before The 
Administrative Judge.

In order for a final administrative decision to be 
given preclusive effect, the parties must have had a 
full and fair opportunity to litigate. See Kremer, 456 
U.S. at 481-82 & cases cited therein. “ [N ]o single 
model of procedural fairness, let alone a particular 
form of procedure, is dictated by the Due Process 
Clause.”  Id. at 483 (case citations omitted). Admin­
istrative proceedings which provide for an oppor­
tunity informally to present charges against an em­
ployer on the record, including submitting exhibits, 
testimony, and rebuttal evidence, with access to at­
torney assistance and compulsory process, meet the 
requirements of due process when judicial review is 
available to determine that no procedural rights were 
denied and that the agency decision was not arbitrary 
and capricious. Id. at 483-84; Buckhalter, 768 F.2d 
at 852.

The proceedings under the Tennessee Uniform Ad­
ministrative Procedures Act satisfy due process re­
quirements, As discussed above, the UAPA provides 
parties with notice, opportunity to be heard, repre­
sentation at a party’s own expense by counsel, full 
opportunity to file pleadings, motions, objections and 
offers of settlement, as well as briefs, proposed find­
ings of fact and conclusions of law, and proposed 
initial or final orders. At the request of any party,

claim of racial discrimination as a defense to the charges 
against him.

Appendix to Petition For a Writ of Certiorari to the United 
States Court of Appeals for the Sixth Circuit at A177.



22

the administrative judge also! shall issue subpoenas 
and effect discovery. Further, at the hearing, the 
parties are afforded the opportunity to respond, pre­
sent evidence and argument, cross-examine witnesses 
and submit rebuttal evidence. At the conclusion of 
the hearing, the administrative judge must render an 
initial order, which becomes final unless reviewed by 
the agency. Finally, a person aggrieved by the final 
order is entitled to judicial review" in chancery court. 
Tenn. Code Ann. §§ 4-5-301 to -322.

In this case, “a UAPA hearing was convened in 
Jackson, Tennessee, on April 26, 1982. It continued 
with various recesses until its conclusion five months 
later on September 29, 1982. The administrative rec­
ord consists of 55 volumes of transcript containing 
over 5,000 pages of the testimony of over 100 wit­
nesses and 153 exhibits.” Appendix to Petition at 
A27. Initial review of the administrative judge’s 
order was conducted by the agency. Although Elliott 
failed to avail himself of state court review, “ [t]he 
fact that [he] failed to avail himself of the full pro­
cedures provided by state law does not constitute a 
sign of their inadequacy.”  Kremer, 456 U.S. at 485.

Because Elliott had a full and fair opportunity to 
litigate the issue of race discrimination in the admin­
istrative proceedings, his due process rights have been 
satisfied and the final administrative decision should 
be given preclusive effect.

5. Tennessee Courts Would Give Preclusive Effect 
To The Final Administrative Decision.

In determining whether to grant preclusive effect 
to the administrative decision in this case, a federal 
court should examine the rules of res judicata chosen



23

by the state of Tennessee. O'Hara v. Board of Edu­
cation of the Vocational School, 590 F. Supp at 701; 
Kremer, 456 U.S. at 485; cf. Allen v. McCurry, 449 
U.S. at 96 ( “ Congress has specifically required all 
federal courts to give preclusive effect to state-court 
judgments whenever the courts of the State from 
which the judgments emerged would do so. . . .” ).

The doctrine of res judicata applies to final orders 
of administrative agencies in Tennessee. Purcell En­
terprises, Inc. v. State, 631 S.W.2d 401, 407 (Tenn. 
App. 1981) (citing Polsky v. Atkins, 197 Tenn. 201, 
206, 270 S.W.2d 497, 499 (1954)). See also Four- 
akre v. Perry, 667 S.W.2d 483, 486 (Tenn. App. 1983) 
( “Appellee concedes in his brief that a final decision 
of an administrative agency creates estoppel under 
the doctrine of Res Judicata.” ) .

As the Tennessee Supreme Court observed in Can­
trell v. Burnett & Henderson Co., 187 Tenn. 552, 216 
S.W.2d 307, 309 (1948) (quoting 30 Am. Jur. at pp. 
920-21) :

It is a fundamental principle of jurisprudence 
that material facts or questions, which were in 
issue in a former action, and were there admitted 
or judicially determined, are conclusively set­
tled by a judgment rendered therein, and that 
such facts or questions become res judicata and 
may not again be litigated in a subsequent ac­
tion between the same parties or their privies 
. . . whether the subsequent action involves the 
same or a different form or proceedings, or 
whether the second action is upon the same or a 
different cause of action, subject matter, claim, 
or demand, as the earlier action.

In the instant case, because the administrative 
judge determined that Elliott’s allegations of race dis­



24

crimination were without merit and Tennessee courts 
would consider this issue conclusively settled, the fed­
eral action based on the same allegations of discrim­
ination also is barred by principles of res judicata.6

C. Principles Of Res Judicata Must Be Applied To 
Encourage Judicial Finality And To Avoid Multi­
ple Litigation.

“ The policy considerations which underlie res ju­
dicata—-finality to litigation, prevention of needless 
litigation, avoidance of unnecessary burdens of time 
and expense'— are as relevant to the administrative 
process as to the judicial.” Painters District Council 
No. 88 v. Edgewood Contracting Co., 416 F.2d 1081, 
1084 (5th Cir. 1969) (cases citations omitted). As 
this Court pointed out in Kremer, the opportunity to 
litigate a claim one time fully and fairly is all that 
is required by Title VII. 456 U.S. at 473-74. If this 
Court were to uphold the decision of the Sixth Cir­
cuit, it would drastically weaken the foundation of 
the Kremer opinion, because it would allow plaintiffs 
to litigate their claims of discrimination fully in state 
administrative forums and then, if they are not sat­
isfied with the results, to go into federal court and 
begin litigation anew. Such a decision would, in prac­
tical terms, preclude employers from winning at the 
state level, because they could only win the opportu­
nity to start defending all over again in federal court.

6 See Barnes v. Oody, 514 F. Supp. 23, 25 (E.D. Tenn. 1981) 
(district court held that where truth of charges of sexual 
harassment established by administrative tribunals, subse­
quent action for defamation barred; collateral estoppel pre­
vented relitigation of whether plaintiffs guilty of sexual 
harassment).



25

In Aponte v. National Steel Service Center, 500 
F. Supp. 198, 204 (N.D. 111. 1980), the United States 
District Court for the Northern District of Illinois 
commented on this problem, stating that:

The tangled relationship between one employee 
and his employer, relating solely to the continued 
employment relationship, has been the subject of 
an arbitration, an FEPC proceeding carried 
through the administrative process to settlement, 
an EEOC proceeding carried through the admin­
istrative process to settlement, subsequent ad­
ministrative proceedings which led to the con­
clusion that the claims did not have a reasonable 
basis, the filing of a federal court action, appoint­
ment of counsel, and the filing of amended plead­
ings resting upon Title VII, § 1981 of the Civil 
Rights Acts, age discrimination legislation and 
Illinois law.
And, years later, we have only resolved the plead­
ing questions.
We have created an administrative, legislative 
and judicial labyrinth which serves no one well. 
* * * The aggrieved employee has multiple ave­
nues to pursue, all strewn with technical ob­
stacles and all of which may postpone any possi­
ble relief into the indefinite future. The result is 
a festering sense of injustice. The employer set­
tles one claim and finds itself faced with a vari­
ety of others, all requiring it to employ profes­
sional help to guide it through, and to preserve 
its rights, In the various proceedings in which it 
finds itself a target.

Clearly, in these situations, principles of res ju­
dicata are properly invoked to “ relieve parties of the 
cost and vexation of multiple lawsuits, conserve ju­



26

dicial resources, and, by preventing inconsistent deci­
sions, encourage reliance on adjudication.” Alien v. 
McCurry, 449 U.S. at 94 (case citation omitted).

This Court should reiterate that litigation ad in­
finitum benefits no one. A  party who has had an 
opportunity to litigate an issue of race discrimination 
fully and fairly to a final decision should be required 
to live with that decision. Another opportunity to 
litigate the same issue is not required by Title VII 
and certainly should not be created by this Court.

CONCLUSION

For the foregoing reasons, EEA.C respectfully 
submits that the judgment of the Sixth Circuit should 
be reversed.

Respectfully submitted,

Robert E. W illiams 
Douglas S. McDowell * 
Kathryn Scully 

McGuiness & W illiams 
1015 Fifteenth Street, N.W. 
Suite 1200
Washington, D.C. 20005 
(202) 789-8600

Attorneys for Amicus Curiae 
Equal Employment 
Advisory Council

* Counsel of Record
January 24,1986