Herrera v. Churchill McGee, LLC
680 F.3d 539
6th Cir.2012Background
- Herrera, Cuban-born with African ancestry, worked as a laborer for Churchill McGee from 2003 to 2008 and was terminated for alleged unsatisfactory attendance and absences following a jail sentence.
- Herrera filed a complaint with Fayette HRC on April 4, 2008 alleging discrimination and wage garnishment; he claimed race/national-origin discrimination and disparate treatment.
- Fayette HRC investigator found no probable cause on July 21, 2008, stating others were treated similarly and inviting Herrera to provide more information.
- Executive Director dismissed the charge for lack of probable cause on July 31, 2008, and a final Order of Dismissal issued about three weeks later.
- Herrera filed suit March 4, 2009 in district court alleging § 1981 discrimination and Kentucky Civil Rights Act (KCRA) claims, Counts One and Two respectively; district court granted partial judgment on the pleadings and summary judgment.
- Court of Appeals affirms dismissal of the KCRA claim and the § 1981 race-discrimination claim, but reverses as to the § 1981 retaliation claim and remands for further proceedings
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 344.270 bars the KCRA claim | Herrera argues Order of Dismissal was not a final order | Churchill McGee relies on finality of Order of Dismissal | Yes, order is final; KCRA claim barred |
| Whether administrative preclusion bars Herrera's § 1981 race claim | Race claim based on same conduct as HRC proceeding | HRC acted in a judicial capacity; findings preclude relief | Yes, precluded; summary judgment affirmed for Count One |
| Whether administrative preclusion applies to the retaliation claim | HRC did not consider retaliation; preclusion should not apply | HRC decision covered only non-probable-cause finding | No, preclusion does not apply to retaliation; remand for merits |
| Whether Churchill McGee waived the preclusion defense | Preclusion raised late | Defense raised in Answer and brief; no prejudice | Waiver not shown; defense timely raised |
Key Cases Cited
- Vaezkoroni v. Domino's Pizza, Inc., 914 S.W.2d 341 (Ky. 1995) (final order of no probable cause triggers election-of-remedies bar)
- Burton v. Ky. State Police, 341 S.W.3d 589 (Ky.Ct.App. 2011) (final order of no probable cause bars subsequent KCRA action)
- Clifton v. Midway College, 702 S.W.2d 835 (Ky. 1985) (illustrates inter-agency procedural concerns)
- Kremer v. Chem. Constr. Corp., 456 U.S. 461 (1982) (no-probable-cause findings; full opportunity to litigate in administrative process)
- Elliott v. University of Tennessee, 478 U.S. 788 (1986) (administrative findings given preclusive effect when in judicial capacity)
- Nelson v. Jefferson County, 863 F.2d 18 (6th Cir. 1988) (agency acts in judicial capacity; opportunity to litigate)
- Keller v. Yeoman, 983 S.W.2d 459 (Ky. 1998) (preclusion principles for administrative decisions in Kentucky)
- Cockrel v. Shelby Cnty. Sch. Dist., 270 F.3d 1036 (6th Cir. 2001) (federal court preclusion where agency decision did not resolve retaliation)
- Godbey v. Univ. Hosp. of the Albert B. Chandler Med. Ctr., 975 S.W.2d 104 (Ky. Ct. App. 1998) (state agency decisions analogous to court judgments for res judicata)