Thelma DAVIS v. UNITED STATES STEEL SUPPLY, DIVISION OF UNITED STATES STEEL CORPORATION, Appellant.
No. 80-2571.
United States Court of Appeals, Third Circuit.
Argued May 18, 1981. Resubmitted March 16, 1982. Decided Aug. 30, 1982.
Richard F. Lerach (argued), Pittsburgh, Pa., for appellant.
Argued May 18, 1981
Before GIBBONS, HUNTER and GARTH, Circuit Judges.
Resubmitted March 16, 1982
Before SEITZ, Chief Judge, and ALDISERT, ADAMS, GIBBONS, HUNTER, WEIS, GARTH, HIGGINBOTHAM, SLOVITER and BECKER, Circuit Judges.
OPINION OF THE COURT
ADAMS, Circuit Judge.
In this appeal from a district court judgment in favor of plaintiff Thelma Davis under
I
Thelma Davis, a black woman, commenced her employment with the Steel Supply Division of the United States Steel Corporation on May 5, 1966. She worked as a Flexograph operator and was the first black office employee of the Supply Division‘s Reedsdale Street location. She had been employed by U. S. Steel for almost four years when she was terminated on February 3, 1970.
During her tenure with U. S. Steel, Davis experienced difficulties with fellow employees. Tension developed between Davis and two other women employees in the Flexograph Room. At least one of these women complained to Boris Pishko, their immediate supervisor, that Davis was uncooperative.
These efforts were to no avail, at least so far as the Flexograph room was concerned, and in early 1969 Pishko moved Davis to the file room. The record is equivocal as to whether Davis’ problems continued in this department. On the morning of February 3, 1970, however, Pishko, as a result of complaints made by co-workers, requested that Davis use less perfume on her person. Davis was offended by this request and complained to Paul Sykes, the acting district manager and Pishko‘s then supervisor. Later that day, Davis discovered that one of her boots was torn, and attributed that action to her fellow employees. She complained to Pishko that the torn boot was another example of the type of harassment she was suffering. During a tempestuous discussion, Davis left Pishko‘s office and refused his requests that she return. Pishko then went to Sykes, and, after informing him of the events that had transpired, asked Sykes to discharge Davis. Davis was thereupon called to Sykes’ office and discharged. She alleges, and Sykes denies, that Sykes told her, among other things, that her discharge was for “her safety‘s sake.”
Davis complained to the City of Pittsburgh Commission on Human Relations (PCHR) on February 4, 1970, the day after her discharge. She claimed that an atmosphere of racial intolerance was maintained at U.S. Steel; that she had been subjected to harassment by fellow employees during the last three years of her employment; that her complaints to supervisors had largely been ignored; that she had been improperly discharged; and that her discharge occurred after Taylor, who had been sensitive to her complaints, was transferred to another city.
The Commission conducted a full adversarial hearing regarding Davis’ complaint on June 4, 1971. Nine witnesses—Davis among them—testified and were subjected to cross-examination. The PCHR issued its decision on March 6, 1972 and found that U.S. Steel had violated Section 8(a) of the Pittsburgh Human Relations Ordinance because it had treated Davis differently from the way it treated other employees.1 The PCHR accordingly ordered U.S. Steel to cease and desist from racial discrimination, to reinstate Davis, and to award her back pay. A supplemental order of October 2, 1972 specified the amount of damages.
U.S. Steel appealed that decision under
Davis did not appeal that decision to any higher Pennsylvania court; nor, of course, did U.S. Steel. Instead, Davis filed suit in the United States District Court for the Western District of Pennsylvania on August 13, 1975, alleging that her discharge by U.S. Steel constituted a violation of
After the denial of the summary judgment motion, the matter was tried on the merits before the district judge sitting without a jury. By stipulation of both parties and with the consent of the court, the evidence in the federal court proceeding was limited to the PCHR record and a deposition of Davis.4 On the basis of that evidence, the district court concluded in a Memorandum Opinion and Order of October 19, 1979 that U.S. Steel had discharged Davis in violation of
On appeal from that decision, U.S. Steel argues that the district court erred in denying the motion to dismiss on res judicata grounds, that the court‘s findings of a racially discriminatory motive for the dismissal were clearly erroneous, and that the court erred in awarding damages to Davis. Following a decision by a panel of this Court, we granted a petition to consider the case in banc and vacated the opinion of the panel.
We now hold, in light of the Supreme Court‘s recent decision in Kremer, that Davis’ federal claim under section 1981 is barred by res judicata. Because we so hold, we do not reach the remaining issues raised by U.S. Steel.
II
Under federal law, “[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. ...”
There does not appear to be any relevant failure of proof on the part of U.S. Steel as to at least three of these factors. Thus, there can be little question as to the identity of the parties, the identity of quality and capacity of the parties, or the identity of the thing sued on. Davis and U.S. Steel were the opposing parties in both actions, and both lawsuits challenge the same conduct of U.S. Steel. Nor, given the identity of the parties, is there any reason to suppose that under Pennsylvania law U.S. Steel‘s ability to assert the res judicata defense would be undermined by the fact that U.S. Steel was the party that instituted the judicial action resulting in the state court judgment. This conclusion is in accord with Pennsylvania‘s principle of mutuality of estoppel under which “one may not have the benefit of a judgment as an estoppel unless he would have been bound by it had it been the other way....” See Helmig v. Rockwell Mfg. Co., 389 Pa. 21, 32, 131 A.2d 622, 627-28 (citing cases), cert. denied, 355 U.S. 832, 78 S.Ct. 46, 2 L.Ed.2d 44 (1957). Consequently, if U.S. Steel would not have been bound by an unfavorable state court judgment, it would not now be entitled to assert res judicata. But because U.S. Steel would have been bound by a judgment against it, mutuality of estoppel is not violated by allowing U.S. Steel to raise the res judicata defense now. The principle of mutuality of estoppel is subject to exceptions, but none is applicable here. See Helmig, supra, and Posternack v. American Casualty Co. of Reading, 421 Pa. 21, 25, 218 A.2d 350, 352 (1966).
More difficult is the question of identity of the causes of action. A single cause of action may comprise claims under a number of different statutory and common law grounds. Kremer, supra, 456 U.S. at n.22, 102 S.Ct. at 1897 n.22; Antonioli v. Lehigh Coal and Navigation Co., 451 F.2d 1171, 1176-78 (3d Cir. 1971), cert. denied, 406 U.S. 906, 92 S.Ct. 1608, 31 L.Ed.2d 816 (1972); Williamson v. Columbia Gas & Electric Corp., 186 F.2d 464, 468 (3d Cir. 1950). Rather than resting on the specific legal theory invoked, res judicata generally is thought to turn on the essential similarity of the underlying events giving rise to the various legal claims, although a clear definition of that requisite similarity has proven elusive. See Donegal Steel Foundry Co. v. Accurate Products Co., 516 F.2d 583, 588 n.10 (3d Cir. 1975) (considering various proposed definitions); C. Wright, A. Miller & E. Cooper, 18 Federal Practice and Procedure § 4407 (1981 & Supp.1982).
Whatever the conceptual difficulties inherent in any definition of a “cause of action,” often the presence of a single cause of action is clear. For example, in the two actions involved in this case, as in Williamson:
the acts complained of and the demand for recovery are the same. The only thing that is different is the theory of recovery. The same witnesses and documents will be necessary in the trial in both cases. No material fact is alleged in [the second action] that was not alleged in [the first].... Everything plaintiff was entitled to ask for from defendant was included in [the first action].
186 F.2d at 470. In both her state and federal proceedings, Davis sought redress for her treatment at the hands of U.S. Steel on the ground that the treatment was racially discriminatory and therefore illegal. Indeed, the closeness of her claims in both the state and federal proceedings is revealed by her decision to rest her federal claim almost entirely upon the record of the state proceeding. Cf. Herendeen v. Champion International Corp., 525 F.2d 130, 133-35 (2d Cir. 1975) (one test for identical causes of action is “whether the same evidence is necessary to maintain the second cause of action as was required in the first“).
Arguably, a court judgment reviewing an administrative proceeding might in some circumstances be denied res judicata effect if there were procedural deficiencies in the administrative proceeding, and the court’s standard of review were limited, or if the administrative decision were not deemed to be final. E.g., International Union of Operating Engineers, Local No. 714 v. Sullivan Transfer, Inc., 650 F.2d 669, 672-76 (5th Cir. 1981); Mitchell v. National Broadcasting Co., supra, 553 F.2d at 267-68. Before the PCHR, Davis received the equivalent of a full judicial hearing.6 Indeed, as previously noted, she was willing to rely on the record of that proceeding for her federal claim, and there is no indication that she considered the hearing to have been procedurally inadequate. Moreover, the administrative judgment in Davis’ case was fully reviewed by the Pennsylvania courts. Given her decision not to file an appeal to the Pennsylvania Supreme Court, the Commonwealth Court’s decision is now final within the state system.7
Davis argues that the appellate review of the PCHR decision by the state courts should not be treated as a judgment
III
Whether in federal or state courts, “res judicata and collateral estoppel relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication.” Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 414, 66 L.Ed.2d 308 (1980). See also Southern Pacific Railroad Co. v. United States, 168 U.S. 1, 48-49, 18 S.Ct. 18, 27, 42 L.Ed. 355 (1897); Switlik v. Hardwicke Co., Inc., 651 F.2d 852 (3d Cir.), cert. denied, 454 U.S. 1064, 102 S.Ct. 614, 70 L.Ed.2d 601 (1981). Moreover, when applied by a federal court to give preclusive effect to a state court judgment, “res judicata and collateral estoppel not only reduce unnecessary litigation and foster reliance on adjudication, but also promote the comity between state and federal courts that has been recognized as a bulwark of the federal system.” Allen v. McCurry, 449 U.S. at 95–96, 101 S.Ct. at 415 (citing Younger v. Harris, 401 U.S. 37, 43-45, 91 S.Ct. 746, 750-751, 27 L.Ed.2d 669 (1971)). See also New Jersey Education Association v. Burke, 579 F.2d 764, 771-72 (3d Cir.), cert. denied, 439 U.S. 894, 99 S.Ct. 252, 58 L.Ed.2d 239 (1978). The policies behind res judicata and section 1738 go beyond encouraging parties to plead all grounds for relief in a single lawsuit; the rationales cited above seem to be applicable even where a party seeks to relitigate an adjudicated claim on the basis of a legal theory which, for one reason or another, he was unable to invoke in the previous proceeding.
Mindful of these concerns, the Supreme Court has applied section 1738 broadly. Drawing on its decision in Allen v. McCurry, the Court reiterated in Kremer, supra, that “an exception to § 1738 will not be recognized unless a later statute contains an express or implied partial repeal.” 456 U.S. at 468, 102 S.Ct. at 1889. In order to conclude that
Looking first to the language of section 1981, we can discern no sign that Congress intended that a procedurally adequate state court judgment resolving a claim of racial discrimination in employment should not be given full faith and credit in a similar action brought in federal court under section 1981. Indeed, the statute itself provides no guidance whatsoever as to the relationship between state and federal proceedings. It reads, in its entirety:
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
Because it neither stipulates the manner in which employment discrimination suits should be pursued,10 nor connotes any sug-
449 U.S. at 99-100, 101 S.Ct. at 417-418 (footnotes omitted). In support of this interpretation the Court made specific reference to the 1866 Act, observing that:
To the extent that Congress in the post-Civil War period did intend to deny full faith and credit to state-court decisions on constitutional issues, it expressly chose the very different means of postjudgment removal for state-court defendants whose civil rights were threatened by biased state courts and who therefore “are denied or cannot enforce [their civil rights] in the courts or judicial tribunals of the State.”
Id. at 99 n.14, 101 S.Ct. at 417 n.14 (quoting Act of Apr. 9, 1866, ch. 31, § 3, 14 Stat. 27) (emphasis added). The Court thus construed the 1866 Act as affecting the weight properly given to state judgments only if those judgments arose out of state proceedings that were defective.
Although Allen v. McCurry recognized that procedural or constitutional defects in a state court judgment would undercut full faith and credit in the section 1983 context, the Court declared that such an exception to the dictates of section 1738 “would be essentially the same as the important general limit on rules of preclusion that already exists: Collateral estoppel does not apply where the party against whom an earlier court decision is asserted did not have a full and fair opportunity to litigate the claim or issue decided by the first court.” Id. at 101, 101 S.Ct. at 418. The Court distinguished its reading of the statute from the more expansive interpretation that it rejected: that “Congress intended to allow relitigation of federal issues decided after a full and fair hearing in a state court simply because the state court‘s decision may have been erroneous.” Id. (footnote omitted).
As this Court previously has observed, section 1981 need not be construed identically with section 1983: the two statutory provisions are aimed at different wrongs and are derived from different constitutional sources. Croker v. Boeing Co., 662 F.2d 975, 987 (3d Cir. 1981) (in banc); Mahone v. Waddle, supra, 564 F.2d at 1030. With respect to their relation to section 1738, however, there appears to be little reason to infer that divergent results were intended by the drafters of the two roughly contemporaneous statutes. Both Acts reflect a desire to alter federal-state relations to ensure fair adjudication of constitutional claims; neither suggests that state judgments fairly rendered should be reviewed de novo by a federal tribunal. In view of the analysis adopted by the Supreme Court in Allen v. McCurry, and in the absence of any demonstrated reason to infer that section 1981 was intended to affect state judgments other than those shown to be unfair, biased, or arrived at in a procedurally deficient fashion, we conclude that section 1981 does not modify, implicitly or explicitly, the requirement of section 1738 that state court judgments be given full faith and credit by federal tribunals.12
IV
It may be, as Justice Blackmun contended in his dissent in Kremer, that procedural rules such as res judicata and collateral estoppel can “serve as a trap for the unwary pro se or poorly represented complainant.” 456 U.S. at 504, 102 S.Ct. at 1910. Such a concern may justify legislative attention to the interplay between Title VII and section 1981 and a clear congressional statement as to the way in which the two statutes should operate together to combat racial discrimination in employment. In view of the Supreme Court‘s decisions in Kremer and McCurry, however, we believe that under existing law Davis’ section 1981 claim is barred by res judicata. Accordingly, the judgment of the district court will be reversed.
GARTH, Circuit Judge, concurring.
I concur fully with Judge Adams‘s analysis in the majority opinion and the result which it reaches. Thus I am privileged to join that opinion. I write separately, however, to emphasize some particular aspects of this case which clearly bring it within the ambit and reasoning of Kremer v. Chemical Construction Corp., 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982).
I preface these remarks by noting that as a member of the panel which initially considered Davis‘s appeal, I had been of the view that Congress had always intended to provide victims of employment discrimination with a federal fact-finding forum and that Congress‘s clear expression of this intent was sufficient to override and supersede any requirement of Section 1738. It was my belief that the importance of a federal fact-finding forum in the employment discrimination context set off this category of cases from cases that might otherwise respond to the concerns of comity and judicial efficiency, both of which are ordinarily served by applying a res judicata bar.1
The dissenting opinion of now Chief Judge Feinberg in Mitchell v. National Broadcasting Corp., 553 F.2d 265, 277-80 (2d Cir. 1977) (Feinberg, J., dissenting), substantiated my view that federal fact-finding in this context was clearly intended. The majority opinion in Mitchell had held that Mitchell, who had filed a complaint charging that she had been dismissed from her position as a result of discriminatory employment practices was barred by res judicata from bringing a Section 1981 claim in federal court. Her federal action had been brought after her claim had been rejected by the New York State Division of Human Rights, and after her appeals had been rejected by the New York State Human Rights Appeals Board and the Appellate Division of the New York State Supreme Court. Judge Feinberg had dissented from the majority‘s conclusion that Mitchell was not entitled to still another trial on her employment claim.
I had also been influenced by this court‘s decision in Smouse v. General Electric Co., 626 F.2d 333 (3d Cir. 1980), a Title VII action brought against General Electric claiming discrimination against women who had been transferred from full to part-time positions as a result of a phase out of opera-
the Title VII context, nothing in Title VII manifests a concern with section 1981 sufficiently broad to justify an inference that Title VII modified the operation of section 1738 in section 1981 actions in situations where an employee brings a section 1981 complaint in federal court after losing an appeal in state court that was taken by the employer. Rather, the intent appears to be that recognized in Johnson v. Railway Express Agency, supra, 421 U.S. at 466, and in Alexander v. Gardner-Denver Co., 415 U.S. 36, 48, 94 S.Ct. 1011, 1019, 39 L.Ed.2d 147 (1974): that section 1981 should remain available as an independent remedy, virtually unaffected by the enactment of Title VII. Evidence of a legislative intent to modify section 1981 even as it applies to the relatively unusual procedural setting before us, in a context in which Title VII is not directly involved, would appear to be far too attenuated to satisfy the relatively demanding requirements of McCurry and Kremer.
Of course, all of those views are now “water under the bridge.” Since espousing those thoughts, not only has the panel opinion which contained them been vacated, Davis v. United States Steel Supply, Division of United States Steel Corporation, No. 80-2571 (Nov. 6, 1981), but the United States Supreme Court has now decided the very issue with which we are faced, namely, whether a federal discrimination action should be barred by prior state proceedings concerning the same allegation of discrimination, Kremer v. Chemical Construction Corp., supra.
It is clear to me, as Judge Adams‘s opinion for the majority of the court holds, that Kremer definitively resolves the issue that res judicata bars the present 1981 action brought by Ms. Davis. The fact that Kremer brought a Title VII action and Davis a § 1981 action, as I have indicated, is a distinction without a difference. Moreover, as I read Kremer, I find that other suggested distinctions are insubstantial.
Justice White, writing for the Kremer Court, must have been aware of Justice Blackmun‘s dissenting observation, the thrust of which was that res judicata should not apply where the plaintiff had not sought judicial review of the administrative action but had rather been forced into a state forum by the defendant. Kremer v. Chemical Construction Corp., 456 U.S. at 504 n.18, 102 S.Ct. at 1907-1909 n.18 (Blackmun, J., dissenting); see also Mitchell v. National Broadcasting Corp., 553 F.2d at 275 n.13. Having been faced with the argument that in such a situation the plaintiff who had been discriminated against might well be barred from prosecuting a later federal action, the majority opinion did not even address that hypothesis. In my opinion, by failing to do so, the Supreme Court has clearly indicated that no such distinction can avoid the res judicata bar. Thus, at least to me, it is now evident that § 1738 bars a federal proceeding which seeks to litigate the same discriminatory actions adjudicated in a prior state court proceeding, even though it was not the plaintiff who chose the state court forum.
Moreover, I observe that in this case Ms. Davis, who could have initially instituted her 1981 action in federal court, did not do so. Ms. Davis was not obliged as was Kremer, to defer to a local administrative agency in the first instance. Kremer, it should be remembered, was a Title VII claimant and was therefore required by statute initially to seek relief under state or local law. See,
I note also, as Judge Adams has aptly observed, (Maj. op. page 172), that at no time did Ms. Davis ever challenge the procedures of the Pittsburgh Commission on Human Relations. Ms. Davis never charged that she was denied discovery or that the agency procedures or proceedings were less than adequate (if indeed they were), or that a complete record had not been made (which indeed it had), or that there was any other imperfection with the record developed before the Commission. To the contrary, Ms. Davis stipulated with the defendant that the very same record created before the Commission, with minor exceptions not relevant here, should be the record on which her claims should be re-
Hence, for at least two reasons—(1) Davis‘s affirmative selection of the Pittsburgh Commission on Human Relations as the forum to hear her claims in lieu of proceeding directly in federal court as she had a right to do; and (2) the fact that a complete, adequate and full record was developed before the Commission and Ms. Davis has never challenged its adequacy before any court—it is evident to me that after Kremer, Davis‘s § 1981 claim is a fortiori barred by res judicata.
Because no other issue raised in this case is appropriate for consideration in light of our res judicata holding, I express no opinion with respect to the “findings” made by the district court concerning liability or damages,2 even though it was the standard governing our review of those findings which gave rise to this court‘s en banc hearing rather than any dispute with the panel‘s earlier view that Davis‘s § 1981 action had not been barred by the earlier state proceedings.
For these reasons, as well for all the reasons so ably set forth in Judge Adams‘s majority opinion, I join that opinion.
GIBBONS, Circuit Judge, with whom A. LEON HIGGINBOTHAM, Jr., Circuit Judge joins, dissenting:
This case is before us on an appeal from a final judgment against United States Steel
Corporation (USS) in favor of Thelma Davis in her action alleging employment discrimination in violation of
I.
The complaint was filed in August of 1975. USS did not answer, but moved for summary judgment on the ground that the action was time barred. The district court granted that motion.1 On appeal this court, over four years ago, reversed. At that time Judge Van Dusen, in an opinion in which Judge Adams joined, summarized Ms. Davis’ complaint as follows:
Plaintiff‘s complaint accuses her employer of racially discriminatory conduct in basically two respects. First, U.S. Steel Supply‘s supervisory personnel are alleged to have failed to correct, and to have tacitly approved, a pattern of racial abuse directed at Mrs. Davis by her fellow workers. Second, plaintiff alleges that her discharge was in response to her complaints of racial harassment and constituted an unlawful termination of her employment. Plaintiff‘s complaint cites incidents of abuse and of personal property damage, but not of bodily injury. The
This is an accurate summary. Ms. Davis complains not merely of the events which occurred on February 2, 1970, but of the atmosphere maintained by USS which culminated in those events.
In the first appeal, although the district court had not reached the issue, USS relied upon res judicata as an alternative ground for affirmance, and Judge Van Dusen‘s opinion refers to the February 19, 1975 decision of the Commonwealth Court. Addressing that ground, he wrote:
There is an open question under state and federal law whether the Commonwealth Court‘s reversal of the Commission‘s order would be accorded res judicata effect in a subsequent private suit brought under either the Human Relations Act or under federal civil rights laws. The res judicata force of state judicial review of local administrative adjudications depends on a variety of factors which have not been developed in the record in this case. See New Jersey Educ. Ass‘n v. Burke, 579 F.2d 764 (3d Cir. 1978); Mitchell v. NBC, 553 F.2d 265 (2d Cir. 1977).
The district court, in fact, did not reach the res judicata issue in dismissing plaintiff‘s § 1981 complaint. We intimate no view as to the proper res judicata effect, if any, that should be accorded the Commonwealth Court‘s reversal of a finding of discrimination in a subsequent action under the Pennsylvania Human Relations Act of 1961.3
Judge Van Dusen‘s discussion of res judicata was not a casual reference. The issue was argued orally and was the subject of extensive supplemental briefing in the first appeal. Thus even before USS filed an answer, this court, after full argument and briefing, gave the litigants a clear indication that something more than an offhand reference to the Commonwealth Court decision was required before a court could pass on the affirmative defense of res judicata.
II.
On remand USS did not immediately file an answer. Instead it made a renewed motion for summary judgment. This motion apparently was made orally at a conference with the trial judge, for there is no docket entry for the motion, and no supporting affidavit in the record. Thus there is no way that this court can tell precisely what was presented to the district court in support of the renewed motion for summary judgment. Included in the appendix to the briefs in this court, however, is the affidavit of G.R. Southworth, dated September 5, 1975. (302a-304a). Since that is the date on which the first summary judgment was rendered, it appears that USS relied, in the renewed motion, on the same papers which were before this court in the first appeal.4 As here relevant, Mr. Southworth‘s affidavit alleges:
wealth Court. It contains only the September 5, 1975 motion, which reads in its entirety:
MOTION TO DISMISS, OR IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT
Defendant United States Steel Corporation moves the Court, pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, to dismiss the instant Complaint on the grounds of
III.
When its renewed motion to dismiss was denied, in March of 1979, USS finally filed an answer, which pleaded affirmatively:
33. Davis’ cause of action is barred by the doctrine of res judicata.
34. Davis’ cause of action is barred by the doctrine of collateral estoppel.
lack of jurisdiction over the subject matter and failure to state a claim upon which relief can be granted; or, in the alternative, moves the Court to enter summary judgment in its favor on the basis that the pleadings, together with the affidavit and exhibits attached to
(310a). Thereafter, pursuant to an order entered on the authority of a local rule, the parties filed a pre-trial stipulation. That stipulation set forth a number of admissions. It also placed in evidence the Transcript of Proceedings before the Pittsburgh Human Relations Commission and Ms. Davis’ deposition. No other exhibits were made a part of the trial record. Of particular significance is the fact that none of the proceedings in the Pennsylvania state courts were placed in evidence. The stipulation lists as a legal issue the question “[w]hether the instant Complaint is barred by the doctrine of res judicata.” (381a). It does not list collateral estoppel as an issue. It provides, moreover, that “[t]he foregoing admission of fact having been made, and the parties having specified the issues of fact and law remaining to be litigated, this stipulation shall supplement the pleadings and govern the course of trial unless modified to prevent injustice.” Id. The stipulation was never modified. Thus it is clear beyond question that the affirmative defense of collateral estoppel pleaded in the answer was abandoned by USS in the pre-trial stipulation. That abandonment is confirmed by the fact that no records of the Pennsylvania courts, upon which a plea of collateral estoppel would have to rest, were included in the trial record. There is simply no basis in the record before us on this appeal for the consideration of a collateral estoppel issue. The majority‘s suggestion that USS‘s counsel may not have appreciated the distinction between res judicata and collateral estoppel (p. 173 n.9) is, in light of paragraphs 33 and 34 of the answer, preposterous.
As to res judicata, the pre-trial stipulation and exhibits do not include even the decision of the Commonwealth Court. The res judicata issue is listed as a legal issue, but since no trial record was made on it, USS obviously did not expect the district
the brief accompanying this motion, show that there is no genuine issue as to any material fact and that Defendant United States Steel Corporation is entitled to judgment as a matter of law.
IV.
In considering whether USS was in 1975 entitled to summary judgment on res judicata grounds, this court cannot confine its consideration to the ground recited in the district court‘s order. That ground, that Ms. Davis did not resort to the state courts but was brought there as a defendant, is in our view correct for reasons set forth hereafter. But entirely aside from that ground, the majority still must be satisfied that USS‘s summary judgment record entitled it to a judgment as a matter of law. In reaching that conclusion the court must be satisfied: (1) that under Pennsylvania law the courts of that state would treat the judgment relied on as a bar to a subsequent suit on a federal law cause of action; and (2) that even if Pennsylvania courts would ordinarily do so, no overriding federal law prevents that result. The majority‘s analysis does not satisfy us in either respect.
A.
We agree with the majority that when presented with a defense of res judicata
based upon a final personal judgment in favor of the defendant, our starting point is the direction in
The court must, before assessing the effect of that judgment, consider what it actually decided. USS was before the Commonwealth Court as an appellant from a decision of the Court of Common Pleas of Allegheny County. It was before the latter court as an appellant in an appeal brought pursuant to section 7 of the Pennsylvania Local Agency Law,
shall affirm the adjudication unless it shall find that the same is in violation of the constitutional rights of the appellant, or is not in accordance with law, or that the provisions of [the Local Agency] act have been violated in the proceedings before the agency, or that any finding of fact made by the local agency and necessary to support its adjudication is not supported by substantial evidence.
The majority opinion refers to no Pennsylvania case resolving that question, and our research has not uncovered any. Certainly the two Pennsylvania cases referred to, Duquesne Slag Products Co. v. Lench, 490 Pa. 102, 415 A.2d 53 (1980), and Callery v. Municipal Authority of the Township of Blythe, 432 Pa. 307, 243 A.2d 385 (1968), are not dispositive, for both involved prior adjudications in courts of record, having unlimited subject matter jurisdiction, in which compulsory witness process and discovery were available, and in which the rules of evidence applied. Even when adjudications have taken place in such tribunals, the Pennsylvania rule with respect to claim preclusion—res judicata—as distinguished from issue preclusion—collateral estoppel—is carefully circumscribed. “For the defense of res judicata to prevail, it is necessary that between the previous action and the present action there be identity in the thing sued on, identity of the cause of action, identity of the persons and parties to the action, and identity of the quality or capacity of the parties suing or sued.” Duquesne Slag Products Co. v. Lench, 490 Pa. at 105, 415 A.2d at 55.
Pennsylvania‘s carefully articulated rule respecting claim preclusion (we reiterate that a collateral estoppel claim is not presented in this record) is predicated upon the policy in favor of requiring a party to plead in a single lawsuit all legal bases for relief, and to request all forms of relief which might be available as a result of a transaction or series of connected transactions. The rationale for a claim preclusion rule as broad as the underlying transaction is best set forth in the Restatement (Second) of Judgments:
Equating claim with transaction, however, is justified only when the parties have ample procedural means for fully developing the entire transaction in the one action going to the merits to which the plaintiff is ordinarily confined. A modern procedural system does furnish such means. It permits the presentation in the action of all material relevant to the transaction without artificial confinement to any single substantive theory or kind of relief and without regard to historical forms of action or distinctions between law and equity. A modern system allows allegations to be made in general form and reads them indulgently; it allows allegations to be mutually inconsistent subject to the pleader‘s duty to be truthful. It permits considerable freedom of amendment and is willing to tolerate changes of direction in the course of litigation. Parties can resort to compulsory process besides private investigations to ascertain the facts surrounding the transaction, thereby measurably avoiding
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Because the transactional view set forth in this Section assumes as the present standard a modern system of procedure with the general characteristics described in this Comment, there is a need to allow exceptions to the general rule where the judgment is rendered in a jurisdiction whose procedural system has not been modernized, especially one where unification of law and equity has not been achieved. These exceptions are set forth in § 26(c).
Restatément (Second) of Judgments. § 24 comment a (1982). The exception to claim preclusion to which the Comment refers states:
When any of the following circumstances exists, the general rule of § 24 does not apply to extinguish the claim, and part or all of the claim subsists as a possible basis for a second action by the plaintiff against the defendant:
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(c) The plaintiff was unable to rely on a certain theory of the case or to seek a certain remedy or form of relief in the first action because of the limitation on the subject matter jurisdiction of the courts or restrictions on their authority to entertain multiple theories or demands for multiple remedies or forms of relief in a single action, and the plaintiff desires in the second action to rely on that theory or to seek that remedy or form of relief
Restatement (Second) of Judgments § 26(1)(c) (1982). The Comment to that subsection observes:
The general rule of § 24 is largely predicated on the assumption that the jurisdiction in which the first judgment was rendered was one which put no for-mal barriers in the way of a litigant‘s presenting to a court in one action the entire claim including any theories of recovery or demands for relief that might have been available to him under applicable law. When such formal barriers in fact existed and were operative against a plaintiff in the first action, it is unfair to preclude him from a second action in which he can present those phases of the claim which he was disabled from presenting in the first.
The formal barriers referred to may stem from limitation on the competency of the system of courts in which the first action was instituted, or from the persistence in the system of courts of older modes of procedure—the forms of action or the separation of law from equity or vestigial procedural doctrines associated with either.
Restatement (Second) of Judgments, § 26 comment c (1982). We have no doubt, given the careful manner in which Pennsylvania has articulated its claim preclusion rule, that it would recognize the qualification in section 26(1)(c). Certainly no Pennsylvania case suggests otherwise.
Given that qualification, we are certain that the Pennsylvania Supreme Court would not treat the judgment in the Commonwealth Court as a res judicata bar to an action under
In an effort to obfuscate, the majority opinion treats the opinion of the Commonwealth Court not as what it is—a limited review of the decision of an agency with limited and specialized jurisdiction—but as if it were a primary adjudication. The opinion observes that “the court clearly concluded that the findings and record in the case were inadequate to support the conclusion that U.S. Steel had discriminated against Davis because of her race.” (At 173). Even if that statement were accurate, it would not be dispositive on claim preclusion, for at best it would be a holding that Ms. Davis had failed to make a record before the agency which would support a claim under the ordinance. It would not justify treating the agency as if it had subject matter jurisdiction over causes of action arising under other laws. The legal tests for claim preclusion and for issue preclusion are not the same under Pennsylvania law (or under that of any other state), and it is improper to rely on a description of the court‘s determination of a factual issue to apply claim preclusion to causes of action which never were and never could have been litigated. The policy behind the claim preclusion rule, as the Second Restatement makes clear, is to encourage litigation of all claims in a single proceeding. That policy is inoperative with respect to local agency adjudications in Pennsylvania because they lack subject matter jurisdiction to entertain all claims. There is not even a reason for a rule requiring a litigant to make the best factual case before a tribunal which lacks jurisdiction to adjudicate all causes of action arising out of a transaction or series of transactions.
Worse, however, than the effort to obfuscate the distinction between claim preclusion and issue preclusion is the majority‘s patent misstatement of the holding of the Commonwealth Court. That court‘s opinion focused not on the record before the agency, but only upon the agency‘s findings. The opinion notes:
In view of the fact that the lower [Common Pleas] court did not take any additional testimony or receive any additional evidence, our scope of review in this case is to determine whether the Commission abused its discretion or committed an error of law. See Pittsburgh Press Employment Advertising Discrimination Appeal, 4 Pa.Cmwlth. 448, 287 A.2d 161 (1972).
We have carefully reviewed the record in this case, and we conclude that we must reverse because the Commission‘s findings of fact are not sufficient to support its conclusion that Section 8(a) of the Ordinance was violated.
United States Steel Supply, Div. of U.S. Steel Corp. v. Pittsburgh, 16 Pa.Cmwlth. 425, 428, 332 A.2d 871, 873–74 (1975). The court focused its attention upon the provision in the ordinance making it an unlawful employment practice to discriminate with respect to discharge. Compare Judge Van Dusen‘s description of Ms. Davis’ Complaint. After quoting the findings, the Commonwealth Court observed:
A careful reading of the Commission‘s findings, quoted above, leads us to conclude that they are not related to the offense which the Commission concluded took place. The findings offer no information concerning how the Supply Division discriminated “in dismissing Mrs. Davis” and therefore do not support the Commission‘s conclusion.
Our observations about the majority‘s misdescription of the Commonwealth Court decision are not particularly relevant on the res judicata issue, because, for the reasons set forth above, it is clear that neither Pennsylvania nor any other state would apply a rule of claim preclusion to a judgment vacating an order of a local municipal agency with limited subject matter jurisdiction and affording only limited procedural safeguards. If the issue of collateral estoppel were fairly presented by this record, what the Commonwealth Court decided might well be relevant. For the reasons set forth in Part III above, no collateral estoppel claim is before us, although the majority opinion quite unfairly suggests that it is. Issue preclusion—collateral estoppel—would require that we examine those findings of fact which were not set aside as clearly erroneous by the Commonwealth Court in order to determine whether any of them, applied against Ms. Davis, would bar relief on her federal court complaint, which Judge Van Dusen‘s earlier opinion fairly summarizes. The agency findings of fact, numbered, are set forth in the margin.5 Of
Moreover, even if the majority‘s description of the Commonwealth Court‘s opinion were fair, that court‘s decision that the record before the local agency was insufficient to support a conclusion that Ms. Davis had been discriminated against would not, as a matter of law, support a collateral
these employee problems. On investigation by Commission on Human Relations staff after the dismissal of the employee, it appeared that Complainant‘s records were kept in a different fashion than the records of other employees, and letters involving other employees, critical of Complainant, were kept in the Complainant‘s file. (276a-278a).
estoppel on the discrimination issue. The record here is different. It includes, besides the testimony taken before the local agency, an extensive deposition of Ms. Davis. At best the Commonwealth Court decision would estop her from claiming that, on precisely the same record which she presented to the agency and which was reviewed by that court, a court in a later proceeding could find discrimination.
B.
The majority‘s reliance on Kremer v. Chemical Construction Corp., 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982), is misplaced for several reasons.
In the first place, Justice White did not and could not instruct in that case on the law of Pennsylvania. He dealt, rather, with a specific provision in the New York Human Rights Law, not with the common law of res judicata of any state. Kremer‘s complaint was referred to the New York State Division of Human Rights, a statewide agency operating under a detailed statutory scheme radically different from the Pennsylvania Local Agency Law.
If an individual elects to institute such an action without resorting to the state agency “he may not subsequently resort to the procedure herein.” But if he does resort to the agency, “the final determination therein shall exclude any other action, civil or criminal, based on the same grievance of the individual concerned.”
There is no question that this judicial determination precludes Kremer from bringing “any action, civil or criminal, based on the same grievance” in the New York courts. N.Y.Exec. Law § 300 (McKinney 1972).
456 U.S. at 470, 102 S.Ct. at 1890. There is no such Pennsylvania statute applicable
to local agencies.6 The Supreme Court in Kremer was not dealing with common law principles of res judicata, but with a specific, detailed statutory scheme in which the New York legislature said expressly that a claimant did not have to resort to the agency, but if the claimant did so, that resort was a complete election of remedies. There is no such Pennsylvania legislation applicable to this case.7
It should be noted, moreover, that under the New York scheme the statutory election of remedies applies whether or not either party seeks judicial review, for under section 298 agency orders become final within thirty days, and section 300 refers to all final determinations. Yet in its discussion of
Juxtaposing the Kremer Court‘s explicit recognition of a Title VII claimant‘s right to bypass state judicial review with its observations about issue preclusion, it seems to us that the opinion cannot have any application to a case such as this, in which the claimant never was in a position to seek state court judicial review because she was not aggrieved by the agency action. The recognition that claimants need not resort to state judicial review demonstrates that the federal statutes do not contemplate a doctrine that would recognize transaction-wide claim preclusion as a result of an agency proceeding. If Kremer were to be construed to mean that whenever an agency afforded even the slightest relief, a respondent could drag the charging party into a state court and thereby achieve transaction-wide claim preclusion, the Kremer Court‘s clear premise that there was no obligation to present all claims or all facts to the agency would be undermined. An interpretation of Title VII and section 1738 which recognizes issue preclusion in those instances in which a claimant resorts to state court judicial review is a reasonable accommodation between conflicting federal policies favoring vindication of civil rights and state policies favoring finality of judicial determinations. Carrying the Kremer holding to the next stage, as the majority proposes, is unreasonable, inconsistent with Justice White‘s analysis, and dangerous. Not all localities are enthusiastic supporters of antidiscrimination legislation, and it will not take long for some local agencies to appreciate that all they have to do to deprive a claimant of a Title VII or section
1981 remedy in a federal court is to grant some scintilla of relief so that a respondent can drag the claimant into a state court. The effect of such practices would be that the only Title VII cases which ever reached the federal courts would be those in which the claim so lacked merit that the local agency did not afford even a scintilla of relief. At that point federal judges will, no doubt, complain to Congress that Title VII should be repealed so as to relieve their dockets of “junk” cases. It is inconceivable, given his express reendorsement of Chandler v. Roudebush, 425 U.S. 840, 96 S.Ct. 1949, 48 L.Ed.2d 416 (1976); Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974), and McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), that Justice White intended such a result.9 The majority obviously does. And as Judge Sloviter convincingly demonstrates, the majority position will inevitably result in by-passing the state conciliation effort, which Congress thought appropriate, for in every case in which a federal remedy other than under Title VII can be sought in a federal court no represented defendant should in the future make Ms. Davis’ mistake.
Furthermore the majority‘s application of its misinterpretation of Kremer to a section 1981 action is entirely too glib. That statute and Title VII present quite distinct issues. As the Kremer opinions make clear, despite the language adopted by Congress in 1793,
The majority‘s reference to Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980), in support of its application of Kremer to section 1981 cases does not advance the analysis. As the majority concedes, Allen v. McCurry involved
is not a prerequisite for a section 1983 action. Thus Allen v. McCurry lends no support for an extension of the Kremer holding from Title VII cases to section 1981 cases. With respect to section 1981 two separate inquiries are necessary. The first is whether the initial tribunal had jurisdiction to adjudicate a section 1981 claim. If it did not, claim preclusion cannot apply. It is clear that the initial tribunal, the local agency, did not as a matter of Pennsylvania law have jurisdiction to adjudicate a section 1981 action or an application for attorneys fees under
That the district courts of the United States, within their respective districts, shall have, exclusively of the courts of the several States, cognizance of all crimes and offenses committed against the provisions of this act, and also, concurrently with the Circuit Courts of the
of race. Judgment is for E. W then brings an action in federal court, alleging that the discharge in question was in violation of a federal statute prohibiting discrimination in employment on account of race. The state court judgment does not preclude litigation of the federal claim if the federal statute contemplates that the federal claim may be asserted notwithstanding the adjudication in state court.
Section 86 comment d, illustration 1. See also Note, The Collateral Estoppel Effect of Prior State Court Findings in Cases Within Exclusive Federal Jurisdiction, 91 Harv.L.Rev. 1281 (1978); Note, Exclusive Jurisdiction of the Federal Courts in Private Civil Actions, 70 Harv.L.Rev. 509 (1957).
The legislative history of that provision is hardly clear,12 and the subsequent history of the statute perhaps less so.13 It is at least uncertain whether any state court has jurisdiction to entertain a section 1981 action, and before the majority may blithely assume that a Pennsylvania claim preclusion rule can bar such an action, it is obliged, at least, to explore the question.
The second inquiry is whether, assuming the Pennsylvania courts have jurisdiction to adjudicate section 1981 actions, Congress intended in the Civil Rights Act of 1866 to create an exception to the predecessor of
case notwithstanding.”15 (Emphasis supplied). The 1863 post-judgment new trial provision is as unambiguous an exception to the predecessor of
The post-judgment removal feature of the 1866 Act is what the Court refers to in Allen v. McCurry, 449 U.S. 90, 99 n.14, 101 S.Ct. 411, 417 n.14, 66 L.Ed.2d 308 (1980). The majority quotes the footnote, but concludes:
The Court thus construed the 1866 Act as affecting the weight properly given to state judgments only if those judgments arose out of state proceedings that were defective.
(At 176). That conclusion is obscurant nonsense. Plainly in distinguishing section 1983, which derived from a different and later statute, the Court was contrasting the intention of the 1863 and 1866 Congresses to render ineffective all state judgments having to do with racial and Unionist discrimination. It is true that in the post-reconstruction era, when the Court began the process of emasculating the Civil Rights Acts, it construed the separate pre-trial removal provisions of the 1866 Civil Rights Act as requiring a showing that state procedures were on their face unfair. Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880); Virginia v. Rives, 100 U.S. 313, 25 L.Ed. 667 (1880). Those cases, however, dealt with pre-judgment removal, which has no relevance whatever to res judicata.
Since it is indisputable that Congress intended a res judicata exception in the 1866 Act, the only open question is whether, when the post-judgment removal provision was dropped from the Revised Statutes of 1874, Congress evidenced a positive intention to make actions under that statute subject to state res judicata rule for the first time. Section 5596 of the Revised Statutes provides:
All acts of Congress passed prior to said first day of December one thousand eight hundred and seventy-three, any portion of which is embraced in any section of said revision, are hereby repealed, and the section applicable thereto shall be in force in lieu thereof; ... and all acts of Congress passed prior to said last-named day no part of which are embraced in said revision, shall not be affected or changed by its enactment.
The manner in which many statutes—the civil rights acts particularly—were distributed by the codifiers among various titles makes it difficult to apply section 5596 in particular instances. See, e.g., Wilson v. Omaha Indian Tribe, 442 U.S. 653, 99 S.Ct. 2529, 61 L.Ed.2d 153 (1979); Runyon v. McCrary, 427 U.S. 160, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976). But given the general congressional intention to repeal only the prior statutes which were then codified, and leave other laws in effect, anyone trying to treat the Revised Statutes as a change in the congressional policy against giving state court judgments res judicata effect in section 1981 cases has the burden of persuasion. The majority opinion does not persuade us.
V.
Since we do not join in the majority‘s res judicata-collateral estoppel reasoning or conclusion, it is appropriate to note that USS‘s alternative position is equally devoid of merit. USS contends that the trial court‘s findings of fact are clearly erroneous. The trial court performed the classic function of the factfinder: drawing inferences from conflicting evidence as to the ultimate facts in issue. Under the standards governing this court set forth in
VI.
The majority has disregarded the record in this case, ignored a prior decision of this court made on an identical record, misstated the contents of the Commonwealth Court decision, confused the distinction under Pennsylvania law between claim preclusion and issue preclusion, misinterpreted the Supreme Court‘s decision in Kremer v. Chemical Construction Corp., 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 and misread the Civil Rights Act of 1866—all in an unsuccessful effort to justify the patently unjust result of depriving Ms. Davis of a judgment for money damages and attorneys fees to which the trial court properly found her entitled. We dissent.
SLOVITER, Circuit Judge, dissenting.
I believe, essentially for the reasons set forth in the dissenting opinion of Judge Gibbons, that the Pennsylvania Supreme
After her termination by U.S. Steel, Ms. Davis had various options. She could have immediately filed a section 1981 suit in federal court or she could have followed the administrative procedure necessary before filing a Title VII suit in federal court. She promptly chose to seek relief before the City of Pittsburgh Commission on Human Relations which is authorized to attempt to eliminate the alleged racial discrimination by means of private conferences or meetings with all parties. See section 13(e), Pittsburgh Human Relations Ordinance. The advantages of resorting in the first instance to a procedure whereby disputes may be resolved by conference, conciliation and persuasion are evident: an unrepresented claimant may seek and sometimes be awarded relief; the parties may informally resolve their differences without the bitterness engendered by litigation; and the courts are spared the additional burden of yet more lawsuits.
Had Ms. Davis chosen to pursue her Title VII remedy, prior resort to either the state or the local Commission on Human Relations would have been mandatory. The decision of that agency, even if unfavorable to Ms. Davis, would not have precluded her Title VII suit in federal court, see Kremer v. Chemical Construction Corp., 456 U.S. 461, 102 S.Ct. 1883, 1889, 72 L.Ed.2d 262 (1982), and presumably would not have precluded a section 1981 suit in federal court, unless she had chosen to appeal to the state courts.
Ironically, Ms. Davis was not unsuccessful in her claim before the administrative tribunal. Indeed, the PCHR ordered U.S. Steel to cease and desist from racial discrimination, to reinstate Davis and to award her backpay. Thereafter, according to the logic of the majority opinion, the die was cast. Her well-financed employer appealed, first to the Allegheny County Court of Common Pleas, and when unsuccessful there, continued the appeal process to the Commonwealth Court where, at this third stage, it received a favorable decision. According to the majority, this decision by the Commonwealth Court now bars Ms. Davis’ suit in federal court for race discrimination in employment under section 1981.
Had Ms. Davis been unsuccessful before the local agency, U.S. Steel could not have appealed to the state courts and Ms. Davis could have proceeded as she did by filing her section 1981 suit in federal court and would not be deprived of the $50,736.11 judgment awarded her by the district court because of the Commonwealth Court decision. On the other hand, had Ms. Davis bypassed the state or local administrative procedure entirely and filed her section 1981 suit immediately in federal court, she would not be deprived of the $50,736.11 judgment awarded her by the district court because of the Commonwealth Court decision. Therefore, because she sought to utilize the informal procedure which the State of Pennsylvania provides for persons who believe themselves to be victims of racial discrimination, because she chose to conciliate rather than litigate in the first instance, and because she was successful in that effort, thereby giving U.S. Steel the opportunity to invoke the jurisdiction of the Pennsylvania courts, Ms. Davis will lose the $50,736.11 judgment awarded to her by the district court.
This leads to the patently unsatisfactory conclusion that complainants will be well-advised to bypass the state administrative machinery. I cannot believe that any of the legislative history utilized by the majority in discussing public policy can mandate this result. The courts and judges of this country, from the Chief Justice of the Unit-
Notes
It shall be an unlawful employment practice, except where based upon applicable national security regulations established by the United States, by the Commonwealth of Pennsylvania, or by any political subdivision of the Commonwealth having jurisdiction in the City of Pittsburgh, or except where based upon a bona fide occupational exemption certified by the Commission in accordance with Section 7, subsection (d) of this ordinance:
(a) For any employer to refuse to hire any person or otherwise to discriminate against any person with respect to hiring, tenure, compensation, promotion, discharge or any other terms, conditions or privileges directly or indirectly related to employment because of race, color, religion, ancestry, national origin or place of birth.
For a discussion of the res judicata effect of state court judgments in state court, see Lehman v. Lycoming County Childrens Services, 648 F.2d 135, 138-39 (3d Cir. en banc) aff‘d, 458 U.S. 502, 102 S.Ct. 3231, 73 L.Ed.2d 928 (1982). Davis v. United States Steel Supply, Div. of U.S. Steel Corp., 405 F.Supp. 394 (W.D.Pa. 1976).(b) In the event a full and complete record of the proceedings before the local agency was made, the court to which the appeal is taken shall hear the appeal without a jury on the record certified by the local agency. After hearing, the court shall affirm the adjudication unless it shall find that the same is in violation of the constitutional rights of the appellant, or is not in accordance with the law, or that the provisions of this act have been violated in the proceeding before the agency, or that any finding of fact made by the local agency and necessary to support its adjudication is not supported by substantial evidence. If the adjudication is not affirmed, the court may set it aside or modify it, in whole, or in part, or may remand the proceeding to the local agency for further disposition in accordance with the order of the court.
Because the merits of Ms. Davis‘s claims (racial discrimination, damages, mitigation of damages) need not be reached and thus have not been addressed, I believe it is also inappropriate to imply, as Judge Sloviter‘s dissenting opinion seems to, that the district court judgment in Ms. Davis‘s favor would have withstood appellate review, or that she would have fared differently on the merits in federal court than she did in state court. Davis v. United States Steel Supply, Div. of U.S. Steel Corp., 581 F.2d 335, 338 (3d Cir. 1978).2. Mrs. Davis had received her training at Connelly Vocational School, M.D.T.A. program, and was very highly recommended by her teachers for this employment.
3. Mrs. Davis took an examination, given by the Respondent, and appeared to possess all of the necessary skills for her future employment.
4. The United States Steel Supply Division of the United States Steel Corporation had never employed Negro personnel, either in clerical, secretarial, or any capacity other than laborers in the warehouse who performed menial jobs.
5. The first year of Complainant‘s employment went without major incident, but beginning in 1966 Complainant experienced difficulties with other employees and was the victim of name calling (i.e., racial slurs) and suffered damage to personal property, the only employee to experience such.
6. Complainant had, on several occasions, reported the incidents to her immediate supervisor but in all cases little or no credence was given them, with the word of the other employee taken for value.
7. Complainant experienced difficulties in the Flexograph Room and was transferred to the File Room but the difficulties continued.
8. On February 2, 1970, when Complainant went to the then acting manager to complain concerning damage to her boots, she was summarily dismissed from the employment of the United States Steel Supply Division.
9. The Complainant was dismissed on the spot and no apparent effort was made to determine the validity of her complaint of the incident.
10. Various employee conflicts apparently occurred in the office where Complainant worked and the supervisor and management appeared unable or unwilling to ameliorate
No provision of Title VII requires claimants to pursue in state court an unfavorable state administrative action, nor does the Act specify the weight a federal court should afford a final judgment by a state court if such a remedy is sought. While we have interpreted the “civil action” authorized to follow consideration by federal and state administrative agencies to be a “trial de novo,” Chandler v. Roudebush, 425 U.S. 840, 844-845 (1976); Alexander v. Gardner-Denver Co., supra, 415 U.S., at 38; McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798-799 (1973), neither the statute nor our decisions indicate that the final judgment of a state court is subject to redetermination at such a trial.
456 U.S. at 469-470, 102 S.Ct. at 1891. Justice Blackmun, dissenting, also observed:
The Court, as it must, concedes that a state agency determination does not preclude a trial de novo in federal district court.... Congress made it clear beyond doubt that state agency findings would not prevent the Title VII complainant from filing suit in a federal court.
This applies even if the causes of action are not identical. See Schubach v. Silver, 461 Pa. 366, 377, 336 A.2d 328, 333-334 (1975), adopting the rule of Restatement, Judgments § 68 (“Where a question of fact essential to the judgment is actually litigated and determined by a valid and final judgment, the determination is conclusive between the parties in a subsequent action on a different cause of action....“)
We doubt that the issue of collateral estoppel was abandoned by U.S. Steel. In stipulating before trial that the issue of “res judicata” remained to be litigated, the parties may have been using this term inclusively to refer both to “claim preclusion” (res judicata in the narrow sense) and to “issue preclusion” (collateral estoppel). See C. Wright, A. Miller and E. Cooper, 18 Federal Practice and Procedure § 4402 (1981), which states that “substantial progress has been made toward” this broad usage.
See also Patsy v. Board of Regents of the State of Florida, 457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982).We turn, therefore, to the legislative history of section 1981 to determine whether that statute contains an implicit exception to the “full faith and credit” requirement of section 1738. Section 1981 derives from the Civil Rights Act of 1866 and the reenactment of section 1 of that Act in sections 16 and 18 of the Civil Rights Act of 1870. Runyon v. McCrary, 427 U.S. 160, 168-70 n.8, 96 S.Ct. 2586, 2593-2594 n.8, 49 L.Ed.2d 415 (1976); Mahone v. Waddle, 564 F.2d 1018, 1030 (3d Cir. 1977). As we observed in Mahone, the legislative history of these acts manifests “Congress’ purpose to enact sweeping legislation implementing the thirteenth amendment to abolish all the remaining badges and vestiges of the slavery system.” 564 F.2d at 1030. The legislative history also reflects a fear that some state courts might remain hostile forums for adjudication of rights under the thirteenth, and later the fourteenth, amendments. The original 1866 legislation provided that federal court jurisdiction would be exclusive for “persons who are denied or cannot enforce in the courts or judicial tribunals of the State or locality where they may be any of the rights secured to them by the first section of this act.” Act of April 9, 1866, ch. 31, § 3, 14 Stat. 27 (1866). In addition, the Act provided that a defendant in any state court proceeding initiated to punish acts committed in furtherance of the Civil Rights Act would have the right to have the case removed to federal court. Id.
Nowhere in the legislation, in its legislative history, or, indeed, in any of the Act‘s subsequent refinements,11 did Congress suggest that by conferring jurisdiction on federal courts it meant to render ineffective state court judgments having to do with race discrimination. Quite to the contrary, the 1866 legislation carefully limited federal jurisdiction to those instances in which the states had failed to provide effective enforcement of individual rights. The 1866 legislation in this respect appears quite similar to the Civil Rights Act of 1871, now codified at
Congress realized that in enacting § 1983 it was altering the balance of judicial power between the state and federal courts.... But in doing so, Congress was adding to the jurisdiction of the federal courts, not subtracting from that of the state courts.... The debates contain several references to the concurrent jurisdiction of the state courts over federal questions, and numerous suggestions that the state courts would retain their established jurisdiction so that they could,
against discrimination in private employment on the basis of race“); General Building Contractors Association, Inc. v. Pennsylvania, 458 U.S. 375, 102 S.Ct. 3141, 73 L.Ed.2d 835 (1982) (holding that relief under § 1981 requires a showing of discriminatory intent). See generally Comment, Developments in the Law—Section 1981, 15 Harv.C.R.-C.L.L.Rev. 29 (1980).
See Restatement (Second) of Judgments § 86 (1982). The Restatement provides these illustrations:A Co. brings an action against B Co. in a state court under a state antitrust law and loses on the merits. It then commences an action in a federal court upon the same facts, charging violations of the federal antitrust laws, of which the federal courts have exclusive jurisdiction. The second action is not barred.
Section 26 comment c, illustration 2.
W brings an action in state court against E, her employer, alleging that she was discharged from her employment on account of race, in violation of a state statute prohibit-ing discrimination in employment on account
The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:
*
To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States.
See Mahone v. Waddle, 564 F.2d 1018, 1032-36 (3d Cir. 1977).
14 Stat. 27 (1866).