Appeal from judgment entered by the Southern District of New York, Charles M. Metzner, District Judge, dismissing civil rights complaint on res judicata grounds. Affirmed.
Lumbard, Feinberg, Circuit Judges, and Mishler, District Judge.*fn* Feinberg, Circuit Judge.
This is an appeal from an order of the District Court for the Southern District of New York dismissing the plaintiff-appellant's civil rights action, 42 U.S.C. § 1981, and granting summary judgment in favor of the defendants-appellees. The case raises a significant question, apparently one of first impression, as to whether a state administrative determination, upheld in the state courts, is res judicata of a subsequent federal civil rights action.
The appellant, a black woman, is a former employee of appellee National Broadcasting Company ("NBC"). She began her employment with NBC on March 13, 1972, as an Operations Administrator in the Central Records Department. Although it was originally hoped by NBC that Ms. Mitchell would be promoted to a higher position, on October 17, 1973, allegedly because of her poor work performance and uncooperative attitude, the appellant was placed on probation for 30 days. On November 19, 1973, NBC, who claims that Ms. Mitchell's attitude failed to improve during the probationary period, formally dismissed her.
On December 3, 1973, the appellant filed a complaint with the New York State Division of Human Rights ("STATE DIVISION"),*fn1 charging NBC, S. Theodore Nygreen, the appellant's supervisor, and other NBC employees with discriminatory practices.*fn2 Pursuant to § 297(2) of the New York Human Rights Law, N.Y. Exec. Law § 297(2) (McKinney 1972), the State Division conducted an investigation to determine whether it had jurisdiction and, if so, whether there was probable cause to believe the defendants had engaged in discriminatory practices. In addition, as part of its conciliatory function, the State Division encouraged the parties to work out a settlement, although without success in this case. The investigation conducted by the State Division, according to appellant, consisted of two conferences, held in December 1973 and January 1974, with two different officials of the State Division. At both conferences, the appellant, NBC's attorneys, and the agency officials engaged in "informal discussions," and NBC submitted documents in the form of office correspondence to support its position. On February 11, 1974, Courtney Brown, the Regional Director of the Division of Human Rights, who had presided at one of the conferences, filed an opinion dismissing the complaint on the ground of lack of probable cause.*fn3
On February 12, 1974, pursuant to § 297-A of the Human Rights Law, N.Y. Exec. Law § 297-A (McKinney 1972 and Supp. 1976), the appellant appealed to the State Human Rights Appeal Board ("APPEAL BOARD").*fn4 Two weeks later, on February 27, she filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"), which did not act until nearly a year later. On July 22, 1974, the Appeal Board split 2-2, resulting in an automatic affirmance of the dismissal of the complaint. The dissenting members would have remanded to the State Division for "further investigation." On August 26, 1974, the appellant, now represented by the Legal Aid Society, petitioned the Appellate Division of New York State Supreme Court, pursuant to § 298 of the Human Rights Law, N.Y. Exec. Law § 298 (McKinney 1972) and article 78 of the New York Civil Practice Law and Rules, N.Y.C.P.L.R. § 7801 et. seq. (McKinney 1972 and Supp. 1976), for a judgment setting aside the Appeal Board's order and, inter alia, compelling NBC to re-instate her and award back pay. On November 7, 1974, the Appellate Division unanimously affirmed the ruling of the Appeal Board. The appellant did not seek to appeal to the New York Court of Appeals. Several months later, on February 14, 1975, the EEOC issued a finding of no probable cause with respect to appellant's charges. Although appellant received a notice of right to sue letter from the EEOC, a Title VII proceeding was not begun in the federal courts.
Instead, on November 20, 1975, appellant, now represented by a private law firm, commenced an action under 42 U.S.C. § 1981 in the Southern District of New York. The complaint alleged that the appellant's dismissal had been racially motivated, and sought punitive damages and injunctive relief. Judge Metzner dismissed the complaint on the ground that the state administrative and judicial proceedings "had a res judicata effect barring later action under Section 1981." We affirm.
The appellant raises, essentially, two different arguments against giving the state proceedings res judicata effect. First, it is argued that substantial policy reasons, such as the importance of agency conciliation efforts in civil rights litigation and the undesirability of allowing state proceedings encouraged in Title VII actions to preempt claims brought under the federal civil rights statute, militate against the application of res judicata in this case. Second, even if state proceedings can bar a subsequent § 1981 action, res judicata should not apply since the state proceedings in this case were so inadequate as to deprive appellant of a "full and fair opportunity to litigate her claim." The lack of sworn testimony at the agency's conferences, the failure to subpoena witnesses, the absence of cross-examination, and the fact that appellant was not represented by counsel during the agency proceedings, appellant argues, are reasons why it is inappropriate to give res judicata effect to the state proceedings.
Res judicata is a salutary doctrine, judicial in origin, that reflects "considerations of economy of judicial time and public policy favoring the establishment of certainty in legal relations." Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591, 597, 68 S. Ct. 715, 719, 92 L. Ed. 898 (1948). The general principle is that
a right, question, or fact distinctly put in issue and directly determined by a court of competent jurisdiction, as a ground of recovery, cannot be disputed in a subsequent suit between the same parties or their privies; and even if the second suit is for a different cause of action, the right, question, or fact once so determined must, as between the same parties or their privies, be taken as conclusively established, so long as the judgment in the first suit remains unmodified. This general rule is demanded by the very object for which civil courts have been established, which is to secure the peace and repose of society by the settlement of matters capable of judicial determination. Its enforcement is essential to the maintenance of social order; for, the aid of judicial tribunals would not be invoked for the vindication of rights of person and property, if, as between parties and their privies, conclusiveness did not attend the judgments of such tribunals in respect to all matters properly put in issue and actually determined by them.
Southern Pacific Railroad Co. v. United States, 168 U.S. 1, 48-49, 18 S. Ct. 18, 27, 42 L. Ed. 355 (1897). See Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 578-79, 94 S. Ct. 806, 811-12, 39 L. Ed. 2d 9 (1974). In this case, since the parties are the same in both the state and federal proceedings, the threshold question is whether "the right, question or fact" determined in the state administrative and judicial proceedings is the same as that raised by the § 1981 claim.
Furthermore, the prior state determination involved, in part, a proceeding before an administrative agency. Res judicata effect may attach to determinations of administrative agencies in appropriate circumstances. United States v. Utah Construction & Mining Co., 384 U.S. 394, 422, 86 S. Ct. 1545, 1560, 16 L. Ed. 2d 642 (1966). See Industrial Comm'n of Wisconsin v. McCartin, 330 U.S. 622, 67 S. Ct. 886, 91 L. Ed. 1140 (1947); Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 64 S. Ct. 208, 88 L. Ed. 149 (1943). Among the factors that bear on a determination of whether a state administrative proceeding is res judicata of a subsequent judicial litigation are
(1) the effect which such determinations are accorded by the courts of the jurisdiction within which they are made; (2) the type of hearing which is held and the procedures which are followed by the agency; and (3) the intention of the administrative body and the expectations of the parties before it on the question of finality. See Restatement, Judgments § 4 (1942); ALI, Restatement 2d, Conflicts of Laws § 92, and , at 341 (P.O.D., Pt. I 1967).
Taylor v. New York City Transit Authority, 309 F. Supp. 785, 791 (E.D.N.Y.), aff'd, 433 F.2d 665 (2d Cir. 1970).
Finally, res judicata is a flexible doctrine. A mechanical application of the rule in this case is particularly undesirable in light of the policy considerations raised by the appellant. See Tipler v. E.I. duPont de Nemours and Co., 443 F.2d 125, 128 (6th Cir. 1971); 1B Moore's Federal Practice para. 0.405, at 791 (1974); 2 K. Davis, Administrative Law Treatise § 18.02-.03, at 609-14 (1970 Supp.). ...