Adrian W. DeWind to NAACP

    IN THE UNITED STATES COURT OF APPEALS 
FOR THE SECOND CIRCUIT

BLANCHE MITCHELL,
Plain tiff-Appellant, 

v *
NATIONAL BROADCASTING COMPANY, et al*,

Defendants-Appellees *

On Appeal from the United States District Court 
for the Southern District of New York

BRIEF OF THE UNITED STATES EQUAL 
EMPLOYMENT OPPORTUNITY COMMISSION 

AS AMICUS CURIAE

ABNER W. SIBAL 
GENERAL COUNSEL
JOSEPH T. EDDINS 
ASSOCIATE GENERAL COUNSEL
BEATRICE ROSENBERG 
ASSISTANT GENERAL COUNSEL
MARLEIGH DOVER LANG 
ATTORNEY
EQUAL EMPLOYMENT OPPORTUNITY 

COMMISSION 
2401 E Street, N *W. 
Washington, D.C. 20506



TABLE OF CONTENTS
PAGE

STATEMENT OF INTEREST.............. -.......... 1
STATEMENT OF THE CASE-*.................. ..... 2
ISSUE PRESENTED................................ 4
ARGUMENT:

I- A STATE AGENCY'S FINDING 
THAT PLAINTIFF WAS NOT 
DISCRIMINATED AGAINST 
CANNOT PRECLUDE PLAINTIFF 
FROM ASSERTING HER FEDERAL
RIGHTS IN THE FEDERAL COURTS___  5

II- THE DOCTRINE OF RES JUDICATA 
IS INAPPLICABLE TO THE FACTS 
OF THIS CASE...................  9

CONCLUSION..................................... 12
TABLE OF AUTHORITIES

CASES:
Alexander v- Gardner-Denver Co.,415 U-S- 36 (1974)............ ................  1,5,6
American Jewish Congress v. Carter,
9 N-Y- 2d 223 , 173 N-E. 2d 778 (1961).........  3
Batiste v- Furnco Construction Corp.,
5d3 F - 2d 44 7 (7 th Cir . 197 477'-"-':';-'-___ -....... 8
Cooper v- Phillio Morris, Inc-,464 F - 2d 9'""(' 6 th Cir - 197 2)....................  8
Ferrell v. American Express Co-,
__F-Supp-__, 8 FEP Cases 521 (E.D. N-Y- 1974)-- 11
Hollander v. Sears, Roebuck & Co.,J9'2 F.Supp. 9 0'"(D. Conn- 1975 )---.............  10
IBEW, Local 5 v. EEOC,
298 F - 2d 2~4~8”( 3d C i r - 1968 ), cert- denied,
393 U-S- 1021 ( 1969 )..........................  8

i



TABLE OF AUTHORITIES (Cont'd) PAGE

International Wire v* Electrical Workers 
Local 38,357 F.Supp. 1018 (N.D. Ohio 1972), aff'd,
47 5 F. 2d 1078 (6th Cir.), cert, denied,
414 U.S. 867 ( 1973 )...........................  10
Johnson v. Railway Express Agency,
421 U.S. 454 (1975)............................ 5
McNeese v. Board of Education,
373 U.S. 668 (1963) ............................  6
Paramount Transport Systems v. Chauffeurs,
Local 150,436 F. 2d 1064 ( 9th Cir. 1971).................  10

Tipler v. duPont de Nemours & Co.,
443 F. 2d 12T (6th Cir. 1971).....“..............  6
United Engineers & Constructors, Inc, v. Inter­
national Brotherhood of Teamsters,
363 F.Supp. 845 (D. N.J. 1973 )............... 10
United States v. Utah Construction & Mining Co.,
384 U.S . 394~(1966 )..... .".......... ............ 9
Voutsis v. Union Carbide Corp.,
45 2 F. 2d 889 (2d Cir . 1971) .....................  8
Wageed v. Schenuit Industries Inc.,
40 6 F .S upp~ 217 ( D . McL 197 5 ).... .............. 9
Waters v. Wisconsin Steel Workers,
502 F . 2d 1309 (7th Cir . 1974).................. 9
STATUTES:
Title VII of the Civil Rights Act of 1964, 
as amended, 42 U.S.C. §2000e et seq.
(Supp. II, 1972).... ..........................  passim

42 U.S.C. §1981........................ . passim
42 U.S.C. §1983...........................  6

National Labor Relations Act, as amended
42 U.S.C. §158 et seq.....................  7

Human Rights Law
29 5-6 ( a )........... .......................  7

ii



IN THE UNITED STATES COURT OF APPEALS 
FOR THE SECOND CIRCUIT 

No." 76-7376

BLANCHE MITCHELL,
Plaintiff-Appellant, 

v.
NATIONAL BROADCASTING COMPANY, et al., 

Defendants-Appellees.

On Appeal from the United States District Court 
for the Southern District of New York

BRIEF OF THE UNITED STATES EQUAL 
EMPLOYMENT OPPORTUNITY COMMISSION 

AS AMICUS CURIAE

STATEMENT OF INTEREST

The Equal Employment Opportunity Commission is the 
agency established by Congress to administer, interpret, 
and enforce Title VII of the Civil Rights Act of 1964, 
as amended, 42 U.S.C. §2000e-et seer. (Supp. II, 1972). 
Private actions filed under Title VII provide the Commission 
with essential assistance in securing the elimination of 
employment discrimination. See Alexander v. Gardner-Denver 
Co., 415 U.S. 36 (1974). Since the resolution of the
question raised by this appeal may affect Title VII 
plaintiffs, the Commission presents its views to the Court.



STATEMENT OF THE CASE

This is an action brought by plaintiff, Blanche 
Mitchell, under 42 U.S.C. §1981 alleging that defendant, 
National Broadcasting Company (hereinafter "NBC") dis­
criminated against her on the basis of race* The case 
is presently before this Court on an appeal from an 
order of the United States District Court for the 
Southern District of New York dismissing Ms. Mitchell's 
complaint on the grounds that the allegations of her 
complaint had previously been adjudicated in state 
administrative and judicial proceedings. The relevant 
facts, which are not disputed, were set forth in the 
affidavits and accompanying exhibits submitted on a 
motion for summary judgment. They may be summarized as 
follows:

On December 14, 1973, Ms- Mitchell filed a charge 
of employment discrimination against NBC with the New 
York State Division on Human Relations. A field re­
presentative for the state agency conducted an investi­
gative conference to determine whether there was probable 
cause to credit the charge. Testimony at this conference 
was (1) not taken under oath (2) not governed by the 
formal rules of evidence and (3) not transcribed.
Ms. Mitchell was present at the conference but was not

_ o _



represented by counsel- When Ms- Mitchell asked to see 
certain documents which counsel for NBC showed the 
investigator as he was testifying, she was not permitted 
to do so, and, hence, could not object or respond to the 
documents' contents.

Several weeks after the conference, the Division 
on Human Rights issued its determination that there was 
no probable cause to believe that plaintiff had been 
discriminated against and dismissed the complaint. Ms. 
Mitchell pursued her grievance through the state admin­
istrative system, arguing that the state agency had not 
fully investigated her allegations and that she had not 
been given a fair opportunity to present her case- An 
evenly divided State Human Rights Appeal Board affirmed 
the decision on the grounds that the dismissal was not 
arbitrary and capricious, or an unwarranted exercise of 
the state agency's discretion- Ms. Mitchell, represented 
by counsel, petitioned the Appellate Division, First 
Department, of the Supreme Court of New York for an 
order setting aside the administrative determination. 
Although empowered to send the case back to the state 
agency for further investigation, that court did not 
have the authority to decide the merits of Ms- Mitchell's 
claim. See American Jewish Congress v. Car ter, 9 N.Y.
2d 223, 173 N.E. 2d 778 (1961). On November 7, 1974,

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following a review of the administrative record and 
oral argument by counsel on the petition, the court 
confirmed the affirmance by the Appeal Board.

On November 20, 1975, Ms. Mitchell commenced this 
action in the United States District Court for the 
Southern District of New York alleging a violation 
of 42 U.S.C. §1981. Although the prayer for relief 
in the federal complaint contained a request for 
punitive damages, which was not available under state 
law, the factual allegations of the federal complaint 
were substantially the same as those contained in the 
state administrative charge. NBC moved to dismiss the 
action and for summary judgment on the grounds of res 
judicata and collateral estoppel, arguing that the 
issues raised in the complaint had been decided between 
the parties by the state proceedings. On July 29, 1976, 
the district court granted defendant's motion and dis­
missed the suit. This appeal followed.

ISSUE PRESENTED
Whether the no cause determination of the state 

administrative agency, which was affirmed by a state 
court which had no authority to reach the merits, has 
a binding effect on the theories of res judicata or 
collateral estoppel with respect to a federal action 
brought under 42 U.S.C. §1981.

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ARGUMENT
I

A STATE AGENCY'S FINDING THAT 
PLAINTIFF WAS NOT DISCRIMINATED 
AGAINST CANNOT PRECLUDE PLAIN­
TIFF FROM ASSERTING HER FEDERAL 
RIGHTS IN THE FEDERAL COURTS -

The doctrine of res judicata bars the litigation of 
a claim which had been conclusively decided in a prior 
action. It does not bar an action on an independent 
claim growing out of the same subject matter which 
could not have been asserted in the prior action. The 
district court's holding that the New York state agency's 
finding of no probable cause barred Ms. Mitchell from 
maintaining a subsequent action in federal court under 
42 U.S.C. §1981 ignores the independent nature of the 
remedies under the state human resources statute and 
the federally conferred right of action under 42 U.S.C. 
§1981.

The Supreme Court has recognized that a person 
aggrieved by employment discrimination may be vested 
with a number of federal and state rights growing out 
of the same occurrence. See Johnson v. Railway Express 
Agency, 421 U.S. 454 (1975); Alexander v. Gardner-Denver 
Co., 415 U.S. 36 (1974). Where the rights are derived 
from independent sources, the Court has held that the 
avenues of relief open to an employee may be pursued

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independently* In Alexander, the Court noted (415
U.S . at 43 ) :

the legislative history of 
Title VII manifests a Congress­
ional intent to allow an individual 
to pursue independently his rights 
both uncTiTr Title Vil and other 
applicable state and federal statutes - 
(emphasis supplied).

In holding that an employee's statutory right to a trial 
de novo under Title VII was not foreclosed by the prior 
submission of his claim to final arbitration under a 
non-discrimination clause of a collective bargaining 
contract, the Court focused on the source of the rights 
and concluded:

The distinctly separate nature 
of these contractual and statutory 
rights is not vitiated merely be­
cause both were violated as a 
result of the same factual occurrence.
And certainly no inconsistency results 
from permitting both rights to be 
enforced in their respectively 
appropriate forums. Ic3. at 50.

When the Court considered another analogous provision of
the Civil Rights Act, 42 U.S.C. §1983, it found that the
right there conferred was "plainly federal in origin and
nature" and was "supplementary to any remedy any state might
have." McNeese v. Board of Education, 373 U.S. 668, 674,
672 (1963). See also Tipler v. duPont deNemours & Co., 443
F.2d 125 (6th Cir. 1971), where the Sixth Circuit discussed
the independent nature of the rights established by Title

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VII and the National Labor Relations Act* It said
(443 F * 2d at 128-129 ):

Absent a special consideration, 
a determination arising solely 
under one statute should not 
automatically be binding when 
a similar question arises under 
another statute. This is because 
the purposes, requirements, per­
spectives and configuration of 
different statutes ordinarily vary.
(citations omitted).

In the present case, the right which Ms. Mitchell 
asserted in the district court was wholly independent from 
that which she had sought to vindicate in the state forum. 
Had Ms. Mitchell wanted to, she would not have been able 
to assert the federal right in the state process. The 
jurisdiction of the state agency was limited to violations 
of state law; the jurisdiction of the state appellate 
court, which might otherwise extend over federal claims, 
was, in this case, limited to a review of the state agency's 
determination. See Human Rights Law 295-6(a).

Although state courts are bound to apply federal 
standards to federal claims brought in state court, 
there is no requirement that state courts apply federal 
standards to state claims. It would be inconsistent 
with the purposes of federal civil rights legislation 
to permit a state's application of state standards to 
a state claim to bar a subsequent federal action on an

-7



independent federal claim. Every court of appeals, 
including this Court, which has addressed the question 
of the applicability of the doctrine of res judicata 
in the Title VII context has held that exhaustion of 
state remedies will not bar a subsequent federal action 
under Title VII. E.g, Voutsis v. Union Carbide Corp.,
452 F.2d 889 (2d Cir. 1971); Batiste v. Furnco Construction 
Corp., 503 F.2d 447 (7th Cir. 1974); Cooper v. Phillip 
Morris, Inc., 464 F.2d 9 (6th Cir. 1972); IBEW, Local 5 v. 
EEOC, 398 F.2d 248, 250 n.3 (3d Cir. 1968), cert, denied, 
393 U.S. 1021 (1969).

The district court distinguished the Title VII 
authority on the grounds that Title VII requires a 
plaintiff to file a state charge as a prerequisite to 
maintaining the federal action. The distinction is 
unpersuasive. To the extent that the federal right under 
42 U.S.C. §1981 is wholly independent of any state pro­
ceedings, it would logically follow that such right is, 
even less than the remedy under Title VII, not subject 
to determination in the state proceeding. Moreover, 
although Title VII plaintiffs must initially resort 
to the state, they need not exhaust the state's re­
medies. Even if they do so, they will, nevertheless, 
not be barred from maintaining an action under Title 
VII. The same consideration which has led courts not

-8-



to give res judicata effect to state determinations
in Title VII actions— the independence of the state 
right and remedy— is equally applicable in §1981 actions. 
See Wageea v. Schenuit Industries, Inc., 406 F.Supp.
217 (D. Md. 1975). There is no reason why a different 
result should obtain merely because the federal right 
asserted is derived from §1981 instead of Title VII.
See Waters v. Wisconsin Steel Workers, 502 F.2d 1309,
1316 (7th Cir . 1974) .

II
THE DOCTRINE OF RES JUDICATA 
IS INAPPLICABLE TO THE FACTS 
OF THIS CASE.

Assuming, arguendo, that the exhaustion of state 
remedies could bar a subsequent federal action under 
42 U.S.C. §1981, the doctrine of res judicata is in­
applicable to the facts of this case. Administrative 
determinations may be given res judicata effect only 
where both parties have had a full and fair opportunity 
to present their version of the facts. United States 
v- Utah Construction & Mining Co., 384 U.S. 394 (1966).

Whether a given decision will be accorded res 
judicata effect depends on various factors relating to 
the nature of the administrative decision and the adeauacy 
of the fact-finding process upon which it is based.

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As the Ninth Circuit stated in Paramount Transport
Systems v - Chauffeurs, Local 150 , 436 F. 2 d 1064,
1066 (9th Cir. 1971), in holding that a union was
foreclosed from relitigating matters of fact decided
adversely to it in NLRB proceedings:

We conclude that collateral 
estoppel effect should be 
given only to those adminis­
trative determinations that 
have been made in a proceeding 
fully complying with the 
standards of procedural and 
substantive due process-.*.

See also United Engineers & Constructors, Inc, v. Inter­
national Brotherhood of Teamsters, 363 F.Supp. 845 (D. N.J. 
1973); Hollander v. Sears Roebuck & Co., 392 F.Supp. 90 
(D. Conn. 1975); International Wire v. Electrical Workers, 
Local 38 , 357 F.Supp. 1018 (N.D. Ohio 1972), aff'd, 475 F.2d 
1078 ( 6th Cir.), cert, denied, 414 U.S. 867 ( 1973 ).

Those standards have clearly not been met in the 
instant case. Many of the procedural defects to which 
the Supreme Court referred in its analysis of arbitration
proceedings in Alexander, supra, 415 U.S. at 57-58 are also
applicable to the state proceedings here:

. . . the usual rules of evidence 
do not apply, and rights and pro­
cedures common to civil trials, 
such as discovery, complusory 
process, cross-examination and 
testimony under oath are often 
severely limited or unavailable.

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See also Ferrell v. American Express Co,, __ F.Supp.__
8 FEP Cases 521, 525 (E.D. N.Y. 1974) where the court 
held that a federal action was not barred where the 
parties before the state agency were not provided with 
counsel, and the issues argued were not "in the same 
posture in which they might be argued by an attorney 
in a federal action."

In the instant case, defendants concede that 
Ms. Mitchell never had a formal hearing. The in­
vestigatory conference upon which the no probable 
cause determination was made was not a full hearing, 
conforming to the standards of due process. The 
conference was not governed by the formal rules of 
evidence. Testimony was not taken under oath and 
was not transcribed. Furthermore, Ms. Mitchell, 
who was not represented by counsel, was not given 
an opportunity to look at certain documents which 
were being used to evaluate her claim. Since this 
informal hearing did not afford Ms. Mitchell pro­
cedural due process, and subsequent court review 
could not have reached the merits of her complaint, 
the district court erred in barring Ms. Mitchell's 
federal action under §1981.

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CONCLUSION
For the foregoing reasons we respectfully urge

this Court to vacate the order of the district court.
Respectfully submitted,
ABNER W. SIBAL 
General Counsel
JOSEPH T. EDDINS 
Associate General Counsel
BEATRICE ROSENBERG 
Assistant General Counsel

MARLEIGH DOVER LANG 
Attorney

EQUAL EMPLOYMENT OPPORTUNITY 
COMMISSION 

2401 E Street, N.W. 
Washington, D.C* 20506

September 30, 1976 
mlf

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CERTIFICATE OF SERVICE
I hereby certify that copies of the foregoing brief 

of the United States Equal Employment Opportunity Commission 
as Amicus Curiae were mailed this day, postage prepaid, to
the following counsel of record:

Jack Greenberg, Esq.
0. Peter Sherwood, Esq.
10 Columbus Circle, Suite 2030 
New York, New York 10019

Proskauer , Rose, Goetz, and Mendelsohn300 Park Avenue
New York, New York 10032

Attorney
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 
2401 E Street, N.W. 
Washington, D.C. 20506

September 30, 1976 mlf