University of Tennessee v. Elliott Brief in Opposition

    No. 85-588

Ik t h e

(Umtrt of Hit HUmteb # tate
October Term, 1985

T he University oe T ennessee, et at.,
Petitioners,

vs.

R obert B. E lliott,
Respondent.

O N  W R IT  OF CERTIORARI TO T H E  U N IT E D  STATES 

COURT OF A PPEALS FOR T H E  S IX T H  CIRCU IT

BRIEF IN OPPOSITION

J ulius LeV onne Chambers 
R onald L. E llis*
J udith R eed

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

A von N. W illiams, Jr.
R ichard H. D inkins 
R ussell T. P erkins 

Williams & Dinkins 
203 Second Avenue, North 
Nashville, Tennessee 37201

Attorneys for Respondent

^Counsel of Record



TABLE OF CONTENTS
Page

Table of Authorities .............. ii
Statement of the Case .............  1
Summary of Argument ...........  5
Argument: Reasons for Deny­

ing the Writ ................. 6
I. THE SIXTH CIRCUIT COR­

RECTLY HELD THAT A DIS­
TRICT COURT SHOULD NOT
GIVE RES JUDICATA EFFECT 
TO AN UNREVIEWED ADMINIS­
TRATIVE DECISION AND THAT 
RULING IS CONSISTENT WITH 
DECISIONS OF THIS COURT ______ 6

II. THE WRIT SHOULD BE DENIED 
BECAUSE THE FACTUAL ISSUES 
CONSIDERED BY THE SIXTH 
CIRCUIT ARE VERY DIFFERENT 
FROM THOSE CONSIDERED IN 
OTHER CIRCUITS ................ 10

Conclusion 13



TABLE OF AUTHORITIES
Cases Pa9e
Allen v. McCurry, 449 U.S. 90

( 1980) ..................   6,7
Alexander v. Gardner-Denver,

415 U.S. 36 ( 1974) .......... 9
Bottini v. Sadore Management 

Corp., 764 F .2d 116 (2d 
Cir. 1985) ...................

Buckhalter Pepsi-Cola General 
Bottlers, Inc., 768 F.2d 
842 (7th Cir. 1985) .......... 10, 11

Chandler v. Roudebush, 425 U.S.
840 (1976) ...................  9,12

Elliott v. University of
Tennessee, 766 F.2d 982
(6th Cir. 1985)  ............. 10

Heath v. Morrell & Co., 768
F. 2d 245 (8th Cir. 1985) ....  10

Kremer v. Chemical Construction
Co., 456 U.S. 461 (1982) ..... 6,8,12

Migra v. Warren City School
District, ____  U.S. ____ ,
79 L.Ed.2d 56 (1984) .........  6,7

Moore v. Bonner, 695 F.2d 799
(4th Cir. 1982) ..............  12



Ill

Cases Page
O'Hara v. Board of Education,

590 F. Supp. 696 (D.N.J.
1984), aff'd mem.,
760 F.2d 259 (3d Cir. 1985) .. 11

Ross v. Communications
Sattellite Corp., 759
F.2d 355 (4th Cir. 1984) ..... 11

Zanghi v. Incorporated Village 
of Old Brookville, 752 
F.2d 42 (2d Cir. 1985) ....... 12

Statutes
28 U.S.C. § 1738 ......... ..... 7
42 U.S.C. § 1981 .................. 2
42 U . S . C .  § 1983 .       . . . . . .  2

42 U.S.C. § 1985 ...............  2
42 U.S.C. § 1986 .................. 2
42 U.S.C. § 1988     . 2
42 U.S.C. § 2000e, Title VII

of the Civil Rights Act 
1964, as amended ............ 2

Tennessee Uniform Administra­
tive Proceduce Act ........... 2



No. 85-588

IN THE SUPREME COURT OF THE UNITED STATES 
OCTOBER TERM, 1985

THE UNIVERSITY OF TENNESSEE, et al.,
Petitioners,

vs.
ROBERT B. ELLIOTT,

Respondent.

On Writ of Certiorari to the 
United States Court of Appeals 

for the Sixth Circuit

BRIEF IN OPPOSITION 
Statement of the Case

This case presents a question already 
decided by this Court: whether an unre­
viewed decision of a state administrative 
agency may be accorded res judicata effect 
in a subsequent federal court proceeding



2

in an action under 42 U.S.C. § 2000(e) 
(Title VII), 42 U.S.C. §§ 1981, 1983, 
1985, 1986, 1988.

Robert Elliott, respondent herein, is 
a black employee of the University of 
Tennessee Agricultural Extension Service. 
Appendix at Al. On December 18, 1981, 
respondent was advised that he was to be 
terminated from his job. Four days later, 
respondent filed an administrative appeal 
under the Tennessee Uniform Administrative 
Procedure Act (Appendix at A1-A2), and on 
January 5, 1982, he filed a complaint in 
federal district court alleging violations 
off inter alia, Title VII, and Sections 
1981 and 1983.

An administrative hearing was held 
before the Assistant Vice President for 
Agriculture of the University's Institute 
of Agriculture, who acted as hearing 
examiner and administrative judge.



Appendix at A182. The hearing examiner
was aware of Elliott's pending federal
action and explicitly stated that the
agency had no jurisdiction to determine

1
the merits of a civil rights claim. The 
hearing examiner explicitly rejected the 
notion that he should attempt any resolu­
tion of a claim of racial discrimination: 
"... if jurisdiction exists ... it exists 
in ... Federal District Court and [the] 
employee may not try his civil rights 
actions in this forum," Appendix at A45. 
The hearing examiner ruled that the 
University should transfer respondent 
rather than terminate his employment, 
because only four of the eight charges 
raised by the employer were substantiated.
_  —

The examiner permitted some evidence of 
racial discrimination to be introduced "to 
give ... a more full understanding of the 
matter ..." and in the nature of an 
affirmative defense to the employer's 
charges. Appendix at A44.

- 3 -



4

Appendix at* A77-179. The hearing 
examiner's initial order was adopted by 
the Vice President of the University's 
Institute of Agriculture, thereby making 
final the agency decision. Appendix at 
A33-35.

The Tennessee statute provides for 
judicial review of a final agency decision 
by the State chancery court; however, that 
review is limited to a review of the 
administrative record to determine whether 
the agency decision is "arbitrary, 
capricious, or unsupported by substantial 
evidence. Appendix at A5.

Respondent did not seek state court 
review of the final agency determination, 
but rather elected to pursue his federal 
claims in federal court by proceeding with 
his already filed action. Appendix at A7, 
29. The district court granted peti­
tioner's motion for summary judgment on



5

the grounds that it had no jurisdiction to 
review the administrative agency decision 
and that the agency decision was entitled 
to res judicata effect. Appendix at 
A31-32.

The Sixth Circuit, applying decisions 
of this Court, reversed the district 
court's dismissal of respondent's claims.

SUMMARY OF ARGUMENT
The petition for a writ of certiorari 

should be denied, because the court below, 
in holding that an unreviewed administra­
tive decision should not have preclusive 
effect in a subsequent federal court 
action raising federal claims of racial 
discrimination, correctly applied the 
decisions of this Court. Review of this 
case because of an asserted conflict would 
be inappropriate, given the facts of this
case.



6

ARGUMENT
Reasons for Denying the Writ

I. THE SIXTH CIRCUIT CORRECTLY HELD 
THAT A DISTRICT COURT SHOULD NOT 
GIVE RES JUDICATA EFFECT TO AN 
UNREVIEWED ADMINISTRATIVE DECISION 
AND THAT RULING IS CONSISTENT WITH 
DECISIONS OF THIS COURT

Petitioners assert that the decision 
below conflicts with the decisions of this 
Court in Allen v. McCurry, 449 U.S. 90 
(1980) and Migra v. Warren City School
District, ___ U.S. ___, 79 L.Ed. 2d 56
(1984). This asserted conflict does not 
exist; the Sixth Circuit's decision 
comports with the holdings in those cases, 
as well as the holding in Kremer v. 
Chemical Construction Co., 456 U.S. 461
(1982).



7

Each of these cases concerned the
preclusive effect of state court decisions
on subsequent federal court proceedings.
In Allen, this Court dealt with the
question of whether issues that were
actually litigated in a state court were
entitled to preclusive effect in a Section
1983 action. Based on the determination
that Section 1983 had not repealed 28
U.S.C. § 1738, this Court held that issue

2
preclusion would apply. The question left 
open in Allen, i.e ., whether the same rule 
would apply where the federal issue could 
have been, but was not, litigated in the 
state proceeding, was decided by this 
Court in Migra, where this Court held

2 Section 1738 provides, in part, as 
follows:
... judicial proceedings [of any state]
. . . shall have the same full faith and 
credit in every court within the United 
States ... as they have ... in the courts 
of [that state] ....



8

that a state court judgment would be given 
claim preclusive effect in a Section 1983 
action. Since the instant case involved 
no state court judgment, there is obvi­
ously no conflict between it and these two 
cases.

In Kremer, this Court applied those 
holdings to a Title VII action. Through­
out that opinion, the Court refers only to 
state court decisions. This Court 
explicitly stated that "unreviewed 
administrative determinations by state 
agencies ... should not preclude [de novo] 
review even if such a decision were to be 
accorded preclusive effect in a state’s 
own courts." 456 U.S. at 470 n. 7. See 
also id. at 487 (Justices Blackmun, 
Marshall and Brennan, dissenting) and id. 
at 508-509 (Justice Stevens dissenting). 
Petitioners attempt to read Kremer as
making a distinction between decisions of



9

state administrative agencies with only 
investigatory authority and those with 
adjudicatory authority. Petition at 8. 
Respondent submits there is no support for 
such a distinction in any of those three 
cases.

Moreover, the decision below comports 
with the principles announced in Chandler 
v. Roudebush, 425 U.S. 840 (1976) and 
Alexander v. Gardner-Denver, 415 U.S. 36 
(1974). In Chandler, this Court held that 
the right to a trial de novo on Title VII 
claims, available to private sector 
employees, extended to federal employees 
as well. Two years earlier, in Alexan­
der , this Court had examined congressional 
intent and concluded,

... Congress, in enacting Title VII, 
thought it necessary to provide a 
judicial forum for the ultimate 
resolution of discriminatory employment 
claims. It is the duty of the courts 
to assure the full availability by this 
forum.



10

415 U.S. at 60 n. 21. The Sixth Circuit 
has acted on that duty and has properly 
determined that respondent is entitled to 
pursue his claims in court, relying on the 
decisions of this Court.

II. THE WRIT SHOULD BE DENIED BECAUSE 
THE FACTUAL ISSUES CONSIDERED BY 
THE SIXTH CIRCUIT ARE VERY 
DIFFERENT FROM THOSE CONSIDERED 
IN OTHER CIRCUITS

Including the instant case,according
to the Petition, five courts of appeal
have issued decisions post-Kremer that
examined the question of whether state
administrative agency determinations
should be accorded res judicata effect in
a subsequent Title VII action in federal 

3
court. Only one of those decisions,

See, Buckhalter v. Pepsi-Cola General 
Bottlers, Inc., 768 F.2d 842 (7th Cir. 
1985); Heath v. Morrell & Co., 768 F.2d 
245 (8th Cir. 1985); Elliott v. University

3



Buckhalter v. Pepsi-Cola General Bottlers,
Inc,, 768 F.2d 842 (7th Cir. 1985),
arguably poses a conflict with the holding 

4
below. However, respondent does not 
recommend plenary review of the instant 
case, since it concerns a decision 
rendered, not by an independent body whose 
specific mandate is to decide employment 
discrimination claims, but rather by a 
hearing examiner in the employ of the very 
body accused of discrimination and

of Tennessee, 766 F.2d 982 (6th Cir. 
1985); Bottini v. Sadore Management Corp. 
764 F. 2d 116 (2d Cir. 1985); Ross v. 
Communications Sattellite Corp., 759 F.2d 
355 (4th Cir. 1985).
Petitioners assert that there is also a 
conflict between the Sixth Circuit and the 
Third Circuit; however, inasmuch as the 
affirmance of the district court in 0 'Kara 
v. Board of Education, 590 F.Supp. 696 
(D.N.J. 1984) was without an opinion (760 
F. 2d 259 3d Cir. 1985), it is impossible 
for this Court to determine the basis for 
the Third Circuit's holding and therefore 
whether there is a conflict and, if so, 
the nature of any conflict.



12

reviewed by that same body. Supra, pp. 2, 
4. Cf. Chaqdler v. Rpudebush, supra, 425 
U.S. at 863 n.39 (congressional insistence 
on de novo review based on potential "con­
flict of interest"). Thus, the asserted 
conflict is not a clear one, and respon­
dent would submit that the best course 
would be for this Court to deny the 
petition to permit further consideration
by the remaining courts of appeal and deal

5
with the issue at a later date.

Even fewer circuits have considered the 
question of whether state administrative 
decisions should be accorded preclusive 
effect in subsequent federal court 
proceedings under §§ 1981 and 1983 post- 
Kremer. See, Zanghi v. Incorporated 
Village of Old Brookville, 752 F. 2d 42 (2d 
Cir. 1985) (according preclusive effect 
to determination by Commissioner of Motor 
Vehicles of probable cause for arrest and 
drivers' license revocation) and Moore v. 
Bonner, 695 F.2d 799 (4th Cir. 1982) 
(refusing to accord preclusive effect to 
unappealed decision of a county board of 
education).



13

CONCLUSION
For the foregoing reasons, the writ 

should be denied.

Respectfully submitted,

JULIUS LeVONNE CHAMBERS 
RONALD L. ELLIS*
JUDITH REED

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

AVON N. WILLIAMS, JR.
RICHARD H. DINKINS 
RUSSELL T. PERKINS 
Williams & Dinkins 
203 Second Avenue, North 
Nashville, Tennessee 37201

Attorneys for Respondent
*Counsel of Record

November 1985



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