Policy Statement: Kremer v. Chemical Construction Corp, 456 U.S. 461 (1982) (I)

N-915

                                                                                                                        April 2, 1986

 

  1. SUBJECT: Policy Statement: Kremer v. Chemical Construction Corp., 456 U.S.
    461 (1982).
  2. PURPOSE: This Policy Statement reflects the Commission's view, in light of the Supreme Court's decision in Kremer, of the effect of a prior state court judgment on the          Commission's administrative process where a charging party seeks additional relief not       granted in prior state court proceedings.
  3. ORIGINATOR: Guidance Division, Office of Legal Counsel.
  4. EFFECTIVE: DATE: Upon receipt.
  5. INSTRUCTIONS: File behind page 605-49 of Section 605, Volume II.


            In 1982, the Supreme Court decided Kremer v. Chemical Construction Corp., 456 U.S. 461 (1982). In Kremer, the plaintiff filed an employment discrimination charge with the Commission under Title VII of the Civil Rights Act of 1964, as amended (the Act or Title VII), 42 U.S.C. § 2000e et seq., and the Commission deferred to a state FEP agency.[1] The State agency conducted an investigation and found that there was no reasonable cause to believe that the defendant had engaged in employment discrimination. That decision was upheld by an administrative appeal board as not arbitrary, capricious, or an abuse of discretion. The plaintiff filed a petition for judicial review in state court, and the state court affirmed the appeal board's decision. Subsequently, the Commission determined that there was no reasonable cause to believe that the charge of discrimination was true and issued a right-to-sue notice.[2] The plaintiff then filed a Title VII action in federal district court. The federal district court dismissed because of the earlier state court decision, and the court of appeals affirmed. The Supreme Court granted certiorari and affirmed.

            The Court held that Title VII does not expressly or impliedly repeal 28 U.S.C. § 1738, which requires federal courts to give the same preclusive effect to state court judgments that those judgments would be given in the courts of the state from which the judgments emerged.[3] Section 1738 "does not allow federal courts to employ their own rules of res judicata [and collateral estoppel] in determining the effect of state judgments. Rather, it goes beyond the common law and commands a federal court to accept the rules chosen by the State from which the judgment is taken". Kremer, 456 U.S. at 481-82. In addition, state proceedings must do no more than satisfy the minimum procedural requirements of the Fourteenth Amendment's due process clause to receive the full faith and credit guaranteed by § 1738.[4] Therefore, because the procedures provided in New York offered the plaintiff a full and fair opportunity to litigate the merits of his employment discrimination claim,[5] and because the state court decision precluded the plaintiff from bringing any other action based upon the same grievance in the New York courts,[6] the Supreme Court concluded that the plaintiff's Title VII action in federal court must be dismissed under § l738.

            The Commission first expressed its position regarding how it would process charges that raise issues addressed in Kremer in a notice which was later incorporated into § 605 of the EEOC Compliance Manual.[7] Subsequently, the Commission issued decisions addressing specific issues raised by the application of Kremer to the Commission's administrative process.[8] In those decisions, the Commission stated that, in processing charges where a prior state court judgment exists, it will determine whether the state court judgment would be given preclusive effect under state law in the courts of the state from which it emerged, and whether the charging party had a full and fair opportunity to litigate the merits of his or her employment discrimination claim in the state proceedings. If both of these conditions are met, the Commission will dismiss the charge.

            The Commission has received charges in which a charging party seeks additional relief under Title VII which was not granted in prior state court proceedings.[9] For example, a charging party may seek attorney fees or back pay before the Commission where such relief was either not awarded in state court or where the charging party alleges that the amount of the award was inadequate. Generally, these charges fall into two categories: (1) the relief being sought was authorized under state law but was not granted, and (2) the relief being sought was not authorized under state law. It is the Commission's position that a prior state court decision on the issue of relief is entitled to preclusive effect under Kremer where the decision would be accorded preclusive effect on that issue under the law of that state.

            Where the relief being sought by a charging party was authorized under state law, state rules of res judicata may bar a subsequent action seeking different or additional relief because the issue of relief either was or could have -been raised in the prior state court action.[10] Thus, where state law authorizes the particular form of relief being sought by a charging party, the Commission will look to that state's law to determine whether preclusion applies. If state law precludes a subsequent action on the issue of relief, the charge will be dismissed and a notice of right to sue issued. If state law does not preclude such an action, the Commission will continue to process the charge. However, where a charging party seeks only attorney fees, the Commission will limit its role to issuing a notice of right to sue.

            Where state law does not authorize the particular form of relief being sought, a charging party may bring a subsequent federal action to recover such relief. New York Gaslight Club, Inc. v. Carey, 447 U.S. 54 (1980).[11] Such an action is not precluded under Kremer, since the issue of relief could not have been raised in state court because it was not authorized. Therefore, the Commission will continue to process charges where state law does not provide for the form of relief being sought. However, as stated above, where a charging party seeks only attorney fees, the Commission will limit its role to issuing a notice of right to sue.


Questions concerning the application of this policy statement to the facts of a particular charge should be directed to the Regional Attorney for the Commission office in which the charge was filed.


APR 2 1986                                                    Approved:             __________________________
Date                                                                                        Clarence Thomas
                                                                                                Chairman

 

 

 

[1]  Section 706(c) of the Act provides:

In the case of an alleged unlawful employment practice occurring in a State . . . which has a state or local law prohibiting the unlawful employment practice alleged and establishing or authorizing a State or local authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, no charge may be filed under subsection (b) of this section by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law,  unless such proceedings have been earlier terminated.

42 U.S.C. § 2000e-5(c) (1982).

[2]  Sections 706(b) and 706(f)(l) of the Act, 42 U.S.C. §§ 2000e5(b) and (f)(l), provide that where the Commission determines that there is no reasonable cause, it must dismiss the charge and issue to the charging party a statutory right-to-sue notice. Within ninety days after receipt of the right-to-sue notice, the charging party may institute a civil action in federal court against the party named in the charge. See Kremer, 456 U.S. a 456, n.3.

[3]  28 U.S.C. § 1738 (1982) provides:

Such Acts, records and judicial proceeding..., 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, Territory or Possession from which they are taken.

[4]  Kremer, 456 U.S. at 481.

[5]  In Kremer, the plaintiff was entitled to a full opportunity to present his charges on the record, including the right to testify on his own behalf, present witnesses, submit exhibits, rebut the defendant's evidence, and have the assistance of counsel. The state statute also provided for a public hearing under certain circumstance, and f or judicial review in state court. Kramer, 456 U.S. at 48-85.

[6]  N.Y. Exec. Law S 300 (McKinney 1972).

[7]  Notice, No. 915 Interpretive Memorandum: Kramer v. Chemical Construction Corp., 456 U.S. 461, 28 EPD ¶ 32,674 (1982), issued in December of 1983, states that the Commission's field offices can dismiss charges where the circumstances surrounding the charges are identical to Kramer; however, where the circumstances are not identical to those in Kremer, the charges must be processed according to the provisions of EEOC Compliance Manual § 603 and § 605.17(f).

[8]  See Commission Decision No. 85-14 (a state court judgment of dismissal for failure to prosecute may be a judgment on the merits which would be given preclusive effect under state law; and, if so, the charge should be dismissed); Commission Decision No. 85-17 (the preclusive effect given to a state court judgment does not depend upon whether the charging party or the respondent sought state court review; and, if a state court judgment reversing an PEP agency decision is entitled to preclusive effect under state law, the charge should be dismissed); and Commission Decision No. 86-4 (a prior state court judgment on Charging Party's appeal from Respondent's decision to terminate her employment is entitled to preclusive effect under Kremer if the decision is entitled to preclusive effect under state law and if Charging Party had a full and fair opportunity to litigate the merits of her employment discrimination claim; however, a prior state PEP agency decision on Charging Party's wage allegation is not entitled to preclusive effect under Kramer).

[9]  This discussion also applies to charges arising under the Age Discrimination in Employment Act, 29 U.S.C. § 624 et seq. (1982), and the Equal Pay Act, 29 U.S.C. § 206(d) (1982).

[10]  Trujillo v. County of Santa Clara, 766 7.2d 1368 (9th Cir. 1985) (res judicata applies where the state court was authorized to award attorney fees but declined to do so). Cf. Patzer v. Board of Regents, 763 F.2d 851 (7th Cir. 1985) (a federal court action for supplemental relief in the form of back pay would be allowed under state law as an exception to state rules of res judicata, even where back pay was authorized but not awarded in state court).

[11]  In Cary, the Supreme Court considered the role that the states play under Title VII and concluded that:

It is clear from this scheme of interrelated and complementary state and federal enforcement that Congress viewed proceedings before the EEOC and in federal court as supplements to available state remedies f or employment discrimination. Initial resort to state and local remedies is mandated, and recourse to the federal, forums is appropriate only when the State does not provide prompt or complete relief.

447 U.S. at 65.