Bray v. Alexandria Women's Health Clinic Brief for NAACP Legal Defense and Educational Fund, Inc. Amicus Curiae in Support of Respondents

    )XJL̂ L

7-7 963
J

UNITED STATES COURT OF APPEALS 
FOR THE SECOND CIRCUIT

EVELYN DELORIS BRAY,
Plaintiff-Appellant,
vs.

NEW YORK LIFE INSURANCE COMPANY,
Defendants-Appellees.

On Appeal from The United States District Court 
Southern District of New York

BRIEF FOR PLAINTIFF-APPELLANT

JULIUS LeVONNE CHAMBERS 
RONALD L. ELLIS 
JUDITH REED

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

Attorneys for Plaintiff- 
Appellant



%

 ̂ ■%TABLE OF CONTENTS

Issue Presented for Review ...........................  1
STATEMENT OF THE CASE ................................. 1

The Proceeding Below ............................. 2
Statement of Facts ............................... 3

SUMMARY OF ARGUMENT ................................... 8
ARGUMENT
I. THE DISTRICT COURT ERRED IN GIVING PRECLUSIVE 

EFFECT TO A STATE COURT JUDGMENT THAT NEITHER 
REVIEWED THE AGENCY DETERMINATION NOR CONSIDERED PLAINTIFF'S CLAIM ON TRE MERITS .................  9
A. Federal Courts May Not Give Preclusive

Effect to Unreviewed Administrative Agency 
Determinations in Title VII Actions ........  9

B. The Principles Underlying the Full Faith and 
Credit Statute Are Inapplicableto this Case ................................ 14

CONCLUSION ............................................ 19
Appendix

Page

i



TABLE OF AUTHORITIES

A l l e n  v .  M c C u r r y ,  4 4 9  U . S .  3 0 8
(1980)...................................... 7,8,9,12,17
Haring v. Prosise, 462 U.S.306 (1983) ............  8,18
Hoag v. New Jersey, 365 U.S. 464 (1958) ..........  18
Keeton v. Hustler Magazine, Inc., 465 U.S. 770(1984)   19
Kremer v. Chemical Construction Co., 456 U.S. 461

(1982)   4,7,9,11
Mitchell v. National Broadcasting Co., 553 F.2d265 (2d Cir. 1977)   12
Montana v. United States, 440 U.S. 147 (1979) ........  15
Newman v. Piggie Park Enterprises, Inc., 390 U.S.400 (1968)   18
Occidental Life Insurance Co. v. EEOC, 432 U.S.355, 367 (1977)   19
Parklane Hosiery Co. v. Shore,, 439 U.S. 322,(1979)   15
Smith v. Russell Sage College, 54 N.Y.2d 185,445 N. Y. S. 2d 68 (1981)   9,12
United States v. Utah Construction & Mining Co.,384 U.S. 394 (1966)   14

 ̂ University of Tennessee v. Elliott,, 478 U.S. ___,
92 L. Ed. 2d 461 ((82) ............................. 8,9

Federal Statutes
Title VII of the Civil Rights Act of 1964,

as amended ....................................... 2,12,17
28 U.S.C. § 1738..................................2,9,12,17,18

42 U.S.C. § 1981 .................................. 19
42 U.S.C. § 1983 ................................. 2,12

Cases Page

- ii -



V

Page

42 U.S.C. § 2000 (e) -5 ................................. 10,18
42 U.S.C. §§ 2000e-5c ................................. 3

State Statutes
CPLR §214(2)   19
CPLR § 403(c)   16
Exec. Law § 298 ....................................... 4
Tenn. Code Ann. § 4-5-101 et. seq. (1985)..............  10
Federal Rules -
Rule 56, Fed. R. Civ. P................................ 2

iii -



V

87 - 7963

UNITED STATES COURT OF APPEALS 
FOR THE SECOND CIRCUIT

EVELYN DELORIS BRAY,
Plaintiff-Appellant,
vs.

NEW YORK LIFE INSURANCE COMPANY,
Defendants-Appellees.

On Appeal from The United States District Court 
Southern District of New York

BRIEF FOR PLAINTIFF-APPELLANT

Issue Presented for Review
Did the district court err in dismissing plaintiff's 

employment discrimination suit on res judicata grounds based on a 
prior decision of a state court, where the state court conducted 
no review of the administrative agency's decision?

STATEMENT OF THE CASE
Plaintiff-appellant, Evelyn Deloris Bray, appeals from a 

final judgment of the United States District Court for the 
Southern District of New York (Duffy, J.), granting summary 
judgment in favor of defendant-appellee, New York Life Insurance



V  nCompany ("New York Life"). The district court's decision is 
reported at 677 F.Supp. 127 (1987).

The Proceedings Below
Plaintiff filed a complaint on December 3, 1985, with the

pro se clerk of the United States District Court for the Southern 
District of New York.1 The complaint, which was docketed in the 
district court on January 30, 1986, raised claims under Title VII 
of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5, 
and 42 U.S.C. § 1981, et seq. It alleged discrimination based on 
race, color and sex. JA 1-4. New York Life in its answer denied 
the allegations of discrimination and asserted as affirmative 
defenses that plaintiff had failed to state a claim upon which 
relief could be granted, that the suit had not been commenced 
within 9 0 days of receipt of her right-to-sue notice, and that 
plaintiff was barred by her election to pursue her discrimination 
claims in state court. JA 7-11.

On February 5, 1986, plaintiff sought appointment of
counsel, and that application was granted on April 28, 1986. JA 
6, 13. In December, 1986, New York Life moved for summary
judgment, under Rule 56, Fed. R. Civ. P. , pursuant to the Full 
Faith and Credit Statute, 28 U.S.C. § 1738, and the doctrine of 
res judicata. JA 15-17. The district court granted that motion 
and judgment was entered on October 21, 1987, dismissing the

x JA 1. References to documents not reproduced in the 
Joint Appendix ("JA") are to the number given to a particular
document by the district court clerk's office ("Dkt. Nr.___ ").The docket entries are reproduced at JA i-ii.

2



complaint. JA 79. Plaintiff filed her notice of appeal on 
November 5, 1987. JA 80.

Statement of Facts
Evelyn Deloris Bray is a black woman who worked for New York 

Life from August 1980 until her employment as a Training 
Apprentice Field Underwriter was terminated on February 29, 1984. 
JA 25. On April 9, 1984, plaintiff, without the assistance of
counsel, filed a charge of discrimination with New York State 
Division of Human Rights (the "State Division"), alleging that 
she had been denied equal terms and conditions of employment and 
that she had been dismissed from her job because of her race, 
color, and sex, in violation of the New York State Human Rights 
Law.2 JA 25, 67. This charge was also filed with the Equal
Employment Opportunity Commission ("EEOC") . JA 18, 69. On
April 25, 1985, the State Division issued a determination of no
probable cause to believe that New York Life had engaged in the 
discriminatory practice complained of. JA 32. The determination 
noted that any party could appeal the determination to the 
Appellate Division of the New York State Supreme Court by filing 
and serving a Notice of Motion and Petition within 60 days after 
service of the determination. The decision also contained the 
following language:

PLEASE TAKE FURTHER NOTICE that a complainant who seeks

The State Division is New York's fair employment or section 706(c) deferral agency. See § 706(c), 42 U.S.C. §§ 
2000e-5c. Pursuant to statute, the EEOC must "defer" for at 
least 60 days to a state agency, before it conducts any investigation of a charge of discrimination.

3



state judicial review, and receives an adverse dicision 
[sic] therein, may lose his or her right to proceed 
subsequently in federal court under Title VII, by virtue of 
Kremer v. Chemical Construction Co.. 456 U.S. 461 (1982).

Id.
On June 25, 1985, plaintiff, still acting without counsel, 

filed a handwritten Notice of Motion and Verified Petition in the 
Appellate Division of the Second Judicial Department, in 
Brooklyn, New York. JA 33-34. Plaintiff's petition sought a 
judgment pursuant to Article 78, New York Civil Practice Law and 
Rules, "reversing as arbitrary, capricious, erroneous, contrary 
to law, and unsupported by substantial evidence," the State 
Division's finding of no probable cause. JA 34.

On September 12, 1985, the matter was transferred, on the 
court's own motion, from the Second Department to the Supreme 
Court in Westchester County, based on a statutory amendment 
requiring such appeals to be heard in the County where the 
discriminatory act is alleged to have occurred. Exec. Law § 298 
(McKinney 1982, Supp. 1987). There is no indication on the face 
of the transfer order that plaintiff was sent any notice of this 
transfer, and the district court found that plaintiff was in fact 
unaware of the transfer. JA 42; 73.

Between the time plaintiff filed her state court appeal and 
the state court's dismissal of that appeal, on September 20, 
1985, the EEOC concluded its processing of the charge of 
discrimination by simply adopting the State Division's no 
probable cause "determination as its own," and issued a right- 
to-sue letter. JA 5, 44. From all indications, the EEOC's

4



♦ 1review of the record was but a fleeting one. The EEOC's 
determination made no mention of the evidence considered by the 
State Division, nor did it comment on the quality of the 
investigation or the correctness of the findings. JA 44.

Not having heard anything from the state court, and still 
unrepresented, plaintiff timely filed her complaint in federal 
district court, and in February 1986, having already been granted 
the right to proceed in forma pauperis (Dkt. Nr. 1), she 
requested that the court appoint counsel to represent her. JA 6, 
66; 70. The district court granted the request, on the following 
grounds:

It appears from Plaintiff's papers that she is unable 
to adequately present her case on her own and that she 
is indigent. Although the EEOC found no reasonable 
cause to believe Plaintiff's allegations, there is an 
insufficient basis to evaluate the merits of her claim 
based on the EEOC's determination, on Plaintiff's complaint, and on Defendant's answer. Furthermore, 
Plaintiff has stated that she has attempted to obtain 
counsel for two years. Finally, it appears that the 
appointment of counsel is necessary for an adequate investigation of crucial facts in this case.

JA 13. Plaintiff's appointed pro bono counsel entered an
appearance on May 28, 1986. As the district court noted, this
was plaintiff's "first opportunity to consult with an attorney in
connection with this action." JA 74.

More than one year after plaintiff filed in state court, and
almost one year after the state court proceedings were
transferred, the Supreme Court in Westchester County ruled on her
petition. During the time period between the filing of her
petition and the issuance of any ruling thereon, plaintiff was

5



^ -ynot contacted by the state court at any time. JA 66. By a one- 
page order entered on August 18, 1986, the state court denied the 
petition for plaintiff's failure to commence the proceeding 
within the required 60 days and for failure to effect proper 
service on respondents, New York Life and the State Division. JA 
43. The state court conducted no review whatsoever of the State 
Division's determination or the merits of plaintiff's claims of 
discrimination; the text of the August 18th order does not even 
refer to the State Division's determination. Id. Thus, the 
state court neither affirmed the State Division's determination 
of no probable cause nor indicated whether that determination was 
arbitrary or capricious or supported by the evidence. NYCPLR § 
7803.

Subsequently, New York Life moved for summary judgment in 
the district court on the ground that the state court's denial of 
her petition precluded plaintiff from litigating her action in 
federal court. JA 17. In support of its motion, New York Life 
submitted a Rule 3(g) statement and affidavit of counsel, with 
attached exhibits. JA 17-53. Plaintiff submitted a Rule 3(g) 
statement in opposition and her affidavit. JA 54-67.

The district court, with great reluctance, granted the 
motion for summary judgment. The district court considered the 
notice on the State Division's determination to be far from 
adequate, and, moreover, to present plaintiff with an untenable 
choice;

This letter was the only notice provided to Bray, a
layperson and pro se plaintiff, which mentioned the fact

6



that her choice of how to proceed on the NYSDHR ruling might 
affect her future rights to appeal from an as yet unknown EEOC decision. Thus the 'choice' provided to Bray, assuming 
that she understood the implication of the citation to 
Kremer. was the Hobson's choice of appealing the NYSDHR 
decision and risking loss of the right to proceed in federal 
court or waiting for the EEOC decision and its attendant 
right to proceed in federal court but meanwhile losing any 
right to proceed in New York State courts. This is hardly a choice Bray could have made wisely.

JA 72.
The district court correctly recognized that the State

Division, "an administrative tribunal, [was] currently the only
forum which has reviewed the merits of Bray's claim." JA 75.
Nonetheless, the district court, felt constrained by the
decisions in Allen v. McCurrv. 449 U.S. 94 (1980) and Kremer v.
Chemical Construction Co.. 456 U.S. 461 (1982), to give
preclusive effect to the state court's summary dismissal of the
petition, while noting such a preclusion rule worked a
particularly harsh result on a pro se plaintiff:

In the instant case, it does not seem just that a pro 
se plaintiff be dismissed without anv opportunity for 
judicial review on the merits simply because she was 
one day late in filing papers. However, I am bound by 
the above precedents to grant defendant [New York 
Life's] motion for summary judgment. I do so reluctantly.

JA 75-78 (emphasis added). After filing a notice of appeal on 
plaintiff's behalf, the attorney appointed to represent plaintiff 
in the district court withdrew. This Court's Staff Counsel's 
office then requested that the NAACP Legal Defense and 
Educational Fund, Inc. represent Ms. Bray for purposes of this 
appeal. (See Appendix to this brief.) The Fund has agreed to do 
so, filing this brief in accordance with that request, based on

7



its view that the decision below is a misapplication of Supreme 
Court precedent.

SUMMARY OF ARGUMENT
The district court erred in granting summary judgment and 

dismissing plaintiff's employment discrimination action. The 
district court's ruling gives preclusive effect in a Title VII 
action to an unreviewed determination of a state administrative 
agency, contrary to the decisions in University of Tennessee v.
Elliott. 478 U.S. _____  , 92 L.Ed.2d 635 (1986) and Kremer v.
Chemical Construction Coro.. 456 U.S. 461 (1982). The state
court judgment does not preclude the assertion of claims under § 
1981 in a federal court, because plaintiff has not had a full and 
fair opportunity to litigate her federal claim and because an 
application of res judicata to the instant case is inconsistent 
with federal policy. Allen v. McCurrv. 449 U.S. 308 (1980);
Haring v. Prosise. 462 U.S. 306 (1983).

8



V

ARGUMENT
I. THE DISTRICT COURT ERRED IN GIVING PRECLUSIVE

EFFECT TO A STATE COURT JUDGMENT THAT 
NEITHER REVIEWED THE AGENCY DETERMINATION 

NOR CONSIDERED PLAINTIFF'S CLAIM ON THE MERITS

A. Federal Courts May Not Give Preclusive Effect 
to Unreviewed Administrative Agency 
Determinations in Title VII Actions

The district court's analysis was straightforward. The 
court first reasoned that the Full Faith and Credit statute, 28 
U.S.C. § 1738, and the decision in Allen v. McCurrv. 449 U.S. 90 
(1980) , required that it look to New York law to determine 
whether a dismissal on the grounds of statute of limitations 
should be treated as a decision on the merits.3 The court 
relied on Smith v. Russell Sage College. 54 N.Y.2d 185, 194, 445 
N.Y.S.2d 68, 72 (1981), to conclude that such a dismissal was a
decision on the merits and that therefore the state court 
decision had to be given preclusive effect.4

Appellant does not challenge the district court's holding

3 Section 1738 provides in relevant part that
[t]he ... judicial proceedings of any court 
of any 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.

4 The district court did not distinguish between claim 
preclusion and issue preclusion. It is clear however from the 
opinion that the court used the more inclusive term of res 
judicata to indicate claim preclusion.

9



that under New York law a dismissal on statute of limitations 
grounds is a decision "on the merits" in the sense that such a 
dismissal bars the filing of a later suit in state court on the 
same claim. It is appellant's position, rather, that the Supreme 
Court's decisions in University of Tennessee v. Elliott. 478
U.S. ______ , 92 L.Ed. 2d 635 (1986) ("Elliott") and Kremer v .
Chemical Construction Coro.. 456 U.S. 461 (1982) ("Kramer"), 
require that the decision below be reversed, because in Title 
VII actions, federal courts may not give preclusive effect to the 
decision of an unreviewed administrative agency even where state 
courts would do so.5

In Elliott. the plaintiff, a black employee of the 
University of Tennessee, had elected to contest his proposed 
termination through administrative proceedings provided for under 
the Tennessee Uniform Administrative Procedures Act, Tenn. Code 
Ann. § 4-5-101 et. seq. (1985) . Prior to the start of the 
administrative hearing, plaintiff filed suit in federal court 
seeking relief under Title VII and 42 U.S.C. § 1983. 92 L.Ed.2d 
at 641. The agency decision included a finding that the decision 
to terminate Mr. Elliott's employment had not been racially 
motivated. Id. at 642. Elliott did not seek review of the 
agency proceedings in state courts; however, the district court 
granted summary judgment on the ground that the administrative

Although the opinion in Elliott was issued on July 7, 
1986, neither party discussed this case in any of the memoranda 
submitted on the summary judgment motion (Dkt. Nrs. 10, 14, and 
16) , and thus the district court's opinion does not address the holding in that case.

10



decision was entitled to preclusive effect. Id. The Sixth 
Circuit reversed, and the Supreme Court affirmed the appellate 
court's holding that "Congress did not intend unreviewed state 
administrative proceedings to have preclusive effect on Title VII 
claims." Id. at 645.

The Supreme Court underscored the distinction between a
state court judgment and an unreviewed agency determination. The
Court stated that while a "state court's judgment affirming the
state agency's finding of no discrimination was entitled to
preclusive effect in the employee's Title VII action,"
"unreviewed determinations by state agencies stand on a different
footing." Id. at 642; n.3. The Supreme Court approved the
Sixth Circuit's reliance on the following language from Kremer;

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

Id. at 642-643 (citations omitted) (emphasis added).
In Kremer. the Supreme Court had examined the preclusive 

effect of a decision of a state court upholding an administrative 
agency's decision on an employment discrimination claim. Like 
Ms. Bray, plaintiff herein, Mr. Kremer filed a charge with the 
EEOC, which was first investigated by the State Division, which 
concluded that there was no probable cause to believe that the 
defendant had discriminated. 456 U.S. at 464. This
determination was upheld by the State Division's Appeal Board. 
Again, like Ms. Bray, Kremer appealed to the Appellate Division

11



of the New York Supreme Court. However, unlike Ms. Bray, Kremer 
had his day in court, for, in less than three months after his 
appeal, "five justices of the Appellate Division unanimously 
affirmed" the Appeal Board's order that the State Division's 
determination was "not arbitrary, capricious or an abuse of 
discretion." Id.6 The EEOC issued a finding of no reasonable 
cause and a right-to-sue notice, and Kremer brought a Title VII 
action in federal court. Kremer's action was dismissed on the 
grounds of res judicata. The district court's decision was

§ee also Mitchell v. National Broadcasting Co., 553
F. 2d 265 (2d Cir. 1977), where this Court upheld the application 
of preclusion principles to a state court judgment affirming a 
determination of no probable cause made by the State Division. 
In upholding the dismissal of an action under 42 U.S.C. §1981, the Court commented:

It is reasonable to question whether ... a legal 
determination, when made only by administrative 
officials, should bar consideration of the complaint by 
a federal court. But in this case, five judges of New 
York State's second highest court reviewed the agency's finding.

553 F.2d at 276 (emphasis added); see also Id. at 273 ("there is 
no question that a determination of the Appellate Division affirming [a dismissal for lack of probable cause] operates as an 
absolute bar to any other action on the same facts in the courts of New York").

Finally, in the Russell Sage opinion the Court of Appeals found a dismissal on statute of limitations grounds
sufficiently close to the merits for claim 

preclusion purposes to bar a second action, especially 
where the motion to dismiss the first action was 
treated as one for summary judgment on which the court 
considered submissions of the parties dehors the pleadings.

Id. (footnote omitted) (emphasis added). A consistent theme in 
the above holdings is that there was in fact some examination of the merits by the state court.

12



upheld by this Court and by the Supreme Court.
After rejecting Kremer's argument that Title VII did not 

expressly or impliedly repeal 28 U.S.C. § 1738, based on the
Court's earlier decision in Allen v. McCurrv. the Supreme Court 
considered the argument that there should be no preclusive effect 
accorded because the state court had not resolved the issue of 
whether there had been discrimination. After a lengthy 
discussion of New York State's substantive anti-discrimination 
law and case law regarding the judicial review afforded 
determinations of the State Division, the Court held preclusion 
applicable. The Court's holding rests in large part on the role 
played by New York's Appellate Division as a bulwark against the 
possibility that "a claimant [might be] denied any of the 
procedural rights to which he was entitled and that the [State
Division' s] determination was not arbitrary and capricious." 456
U.S. at 484. The Court held that "decisions applying the
standard [of review required by the Executive Law] are
decisions on the merits.'' 456 U.S. at 479 n.21. The Court
therefore concluded that

The Appellate Division's affirmance of the [State 
Division's] dismissal necessarily decided that 
petitioner's claim under New York law was meritless, 
and thus it also decided that a Title VII claim arising 
from the same events would be equally meritless (footnote omitted).

456 U.S. 480 (emphasis added). Here, on the other hand, the 
state court has decided only that plaintiff is forever barred 
from seeking judicial review of the State Division's 
determination; such a decision did not decide anything regarding

13



the merits of Ms. Bray's claim under any law. The effect of the 
state court's decision is solely to preclude any review of the 
administrative decision —  not a de novo examination of the 
merits of her discrimination claims. The words "on the merits" 
are not magical or sacrosanct, and a conlusion that a decision is 
"on the merits" does not mean that a federal court must give the 
preclusive effect given by the court below. The state court's 
decision in the instant appeal is not the kind of decision "on 
the merits" that was countenanced in Kremer: therefore, the
district court was erred in giving that decision preclusive 
effect. Moreover, even if the New York Courts would give the 
states court's decision such effect, a federal court is not 
required to do so in Title VII actions based on the holdings in 
Elliott and Kremer. The result reached in the court below is 
clearly not what the Supreme Court intended be read into its 
holdings. Plaintiff has not even been accorded the minimal and 
deferential review provided for under the statute, and the 
district court here has done what the Supreme Court in Elliot 
held cannot be done —  given preclusive effect to a determination 
of no probable cause that has not been reviewed by any court.^

B. The Principles Underlying the Full Faith and 
Credit Statute Are Inapplicable to this Case

The Full Faith and Credit Statute, 42 U.S.C. § 1738, was

' It is beyond dispute that the State Division does not 
act in a judicial capacity. Cf. United States v. Utah 
Construction & Minina Co. . 384 U.S. 394 (1966) ("it is sound 
policy to apply principles of issue preclusion to the fact­
finding of administrative bodies acting in a judicial capacity")

14



 ̂ ■*intended to codify principles of res judicata and collateral 
estoppel with regard to federal court treatment of state court 
decisions. These principles rest on notions of finality and 
judicial economy:

To preclude parties from contesting matters that they 
have had a full and fair opportunity to litigate 
protects their adversaries from the expense and 
vexation attending multiple lawsuits, conserves 
judicial resources, and fosters reliance on judicial 
action by minimizing the possibility of inconsistent decisions.

Montana v. United States. 440 U.S. 147, 153-154 (1979) (footnote 
omitted); see Parklane Hosiery Co. v. Shore. 439 U.S. 322, 327 n. 
5 (1979); see also Elliott 92 L.Ed.2d at 646 (discussing 
rationale for applying res judicata and collateral estoppel to 
some administrative agency determinations). The touchstones of 
section 1738 are thus, first, that the party against whom section 
1738 has been invoked must have had a full and fair opportunity 
to litigate, and, second, that the prior court judgment must have 
disposed of the claim involved in the subsequent lawsuit.

Although Kremer held that New York's procedures for 
reviewing State Division determination afford complainants a full 
and fair opportunity to litigate their claims, the facts in this 
case show that, whatever the abstract merits of New York's 
system, appellant did not in fact receive a full and fair 
opportunity to pursue her claims. First, the district court 
found that she had received no notice of the transfer of her 
petition for review. Thus, plaintiff's failure to actively 
litigate her claim is a direct result of the state's failure to

15



provide her with notice, the sine qua non of due process. 
Second, plaintiff, an unsophisticated pro se litigant, see JA 13, 
may well have been misled by the very information provided to her 
in the State Division's Determination. For one thing, the 
Determination stated that she could appeal "within sixty (60) 
days after service of this Determination," JA 32. Nothing in the 
Determination indicated to plaintiff that the date on which 
service was made was the date on which the document was mailed, 
rather than the date on which it was received.8 To a layperson, 
the latter is obviously a more plausible construction of an 
unfamiliar legal term. Thus, because it must have taken at least 
one day for the State Division's letter to reach her, plaintiff 
in fact filed within sixty days of receipt of the Determination.9 
For another, the Determination gave directions for perfecting an 
appeal:

A copy of the Petition and Notice of Motion must also 
be served on all parties including the State Division of Human Rights.

JA 32. Since plaintiff was "served" by the Division by mail, it 
was natural for her to assume that she could serve other parties

Nor, in fact was there any reference to the C.P.L.R. 
section regarding service by mail from which plaintiff could have discovered this date.

In fact, even in federal court, certain documents, such as 
petitions for rehearing are deemed filed only when received, 
while other documents, such as briefs on the merits, are deemed filed when mailed.

The EEOC, of course, informs complainants that they 
have ninety days from the receipt of a right to sue letter to 
file suit. This is clearly the more sensible tack to take when dealing with unrepresented lay persons.

16



by mail. In fact, however, the state court dismissed her 
petition because "petitioner only mailed the Notice of Motion and 
Petition upon the respondent[s] . . . whereas service was 
required to be made in the same manner as a summons (CPLR § 
403[c])." JA 43.10 But plaintiff was never informed of this 
asymmetry between the way in which she was served by the Division 
and the way in which the Division was entitled to be served by 
her. Plaintiff reasonably did everything necessary to obtain a 
full and fair opportunity to litigate, but was affirmatively 
misled by the instructions provided to her by the state. Under 
these circumstances, as the district court recognized, plaintiff 
had no real opportunity to seek review of the merits of the State 
Division's findings.

Second, any application of section 1738 necessarily requires 
determining the contours of the state court decision, because 
only the actual decision is entitled to full faith and credit.11
The Appellate Division's decision in this case involves solely a 
question of state law —  whether plaintiff filed a petition for 
review of the State Division's determination within the 
prescribed time. The state court did not address the question of 
federal law —  whether New York Life violated Title VII and 
section 1981. Thus, only the former decision should be accorded

1(̂ Serving in the same manner as a summons requires at least the attempt to effect personal service.
11 Claims which might have been litigated are also within 

the scope of the actual decision. See Allen v. McCurrv. 449 U.S. at 94 n.5.

17



preclusive effect. 12

In an analogous situation, the Supreme Court recognized that
federal courts should be especially wary of dismissing civil
rights claims on the ground that prior summary state court
proceedings have disposed of the issues involved. The plaintiff
in Haring v. Prosise. 462 U.S. 306 (1983), had pleaded guilty in
state court to possession of drugs. He later brought a damages
action under 42 U.S.C. § 1983 against the police officers who
arrested him, claiming that their search had violated his Fourth
Amendment rights. The Court held that his earlier guilty plea
did not foreclose his later federal damages action, despite the
fact that, had he insisted on going to trial and had he been
convicted, the conviction would necessarily have required
upholding the validity of the search. In rejecting the argument
that section 1738 applied, the Court stated:

Petitioners allude generally to the interests that 
underlie the principles of collateral estoppel, such as 
the elimination of "the expense, vexation, waste, and 
possible inconsistent results of duplicatory 
litigation." Hoag v. New Jersey. 356 US 464, 478, 2 L 
Ed 2d 913, 78 S Ct 829 (1958). Yet these interests are 
quite simply inapplicable to this case. When a court 
accepts a defendant's guilty plea, there is no

Moreover, in cases where a state procedural maze 
threatens to engulf a plaintiff raising claims of racial 
discrimination, a federal court has the power to "disregard an 
otherwise applicable state rule of law if the state law is 
inconsistent with the federal policy underlying [such statutes]." 
449 U.S. at 314. A rule that would permit federal courts to 
throw out discrimination actions under the circumstances that 
exist here fails to accord such actions the "highest priority" as 
considered appropriate by Congress, Newman v. Piggie Park 
Enterprises. Inc.. 390 U.S. 400,402 (1968), and fails to
recognize the special role of federal courts in adjudicating federal rights.

18



adjudication whatsoever of any issues that may 
subsequently be the basis of a § 1983 claim. There is 
thus no repetitive use of judicial resources and no 
possibility of inconsistent decisions that could 
justify precluding the bring of such claims.

Haring v. Prosise. 462 U.S. at 322, n. 11. These same
considerations apply here. There was no adjudication of
plaintiff's claims of discrimination; the state court instead
ruled solely on adequate and independent state grounds.13 Nor is
there any danger of inconsistent adjudication; plaintiff's
federal claim rests on the EEOC's determination and right to sue
letter, while the state court claim depended solely on the State
Division's determination and right to review notice.

CONCLUSION
For the foregoing reasons, the decision below should be 

reversed.

§he only purpose of the state rule here is to enforce 
the state statutes of limitations rule against evasion. If Bray 
had not ever filed in state court, no argument would have been 
made regarding preclusion. She has not "slept" on her rights in 
any sense of the word. It would be ironic indeed if the federal 
court's doors were closed to Bray by operation of a state 
limitations rule, when Bray's action was timely under both Title 
VII and § 1981. Cf. Occidental Life Insurance Co. v. EEOC.
432 U.S. 355, 367 (1977) (applicable state statutes of 
limitations will not be "borrowed" if to do so would be 
inconsistent with federal policy). See also Keeton v. Hustler 
Magazine. Inc.. 465 U.S. 770 (1984) (plaintiff whose libel action 
was dismissed by Ohio court permitted to bring action in New 
Hampshire, the only state where the statute of limitations had 
not yet run). Bray's initial charge was filed within less than 
two months after her discharge, although she had at least 240 
days to file such a charge. In addition, the district court 
found that her complaint had been filed in federal court within 
90 days after receipt of the right-to-sue notice. Finally, if 
Bray had bypassed all administrative consideration and simply 
filed her complaint in federal court, her action would have been timely under § 1981. New York CPLR §214(2).

19



F ..............i

~1
(JULIUS L. CHAMBERS 
RONALD L. ELLIS 
JUDITH REED

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

Attorneys for Plaintiff-Appellant

Dated: New York, New YorkApril 4, 1988

20