Tipler v. EI DuPont deNemours and Co.

• Decision Date: 27 May 1971
• Docket Number: No. 20639.,20639.
• Citation: 443 F.2d 125
• Parties: Sylvester TIPLER, Plaintiff-Appellee, v. E. I. duPONT deNEMOURS AND CO., Inc., Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

443 F.2d 125 (1971)

Sylvester TIPLER, Plaintiff-Appellee, v. E. I. duPONT deNEMOURS AND CO., Inc., Defendant-Appellant.

No. 20639.

United States Court of Appeals, Sixth Circuit.

May 27, 1971.

William F. Kirsch, Jr., Memphis, Tenn., for defendant-appellant, Maurice Wexler, Memphis, Tenn., on brief, Heiskell, Donelson, Adams, Williams & Wall, Memphis, Tenn., of counsel.

Ronald S. Borod, Memphis, Tenn., for plaintiff-appellee.

Robert B. Fitzpatrick, Washington, D. C., for Equal Employment Opportunity Commission as amicus curiae, Stanley P. Hebert, Gen. Counsel, Julia P. Cooper, Gen. Atty., David W. Zugschwerdt, Atty., Equal Employment Opportunity Commission, Washington, D. C., on brief.

Before CELEBREZZE and MILLER, Circuit Judges, and O'SULLIVAN, Senior Circuit Judge.

WILLIAM E. MILLER, Circuit Judge.

This action is based on Title VII of the Civil Rights Act of 1964. It comes before us upon a discretionary appeal from a denial of appellant's motion to reconsider the Court's prior adverse ruling on a motion for summary judgment. Plaintiff-appellee, a Negro laborer who had been employed by defendant-appellant for ten years, successfully participated in a union election which ousted appellant's white foreman from a position of leadership in a 95% black union. Appellee and three other black employees were subsequently discharged from employment with appellant on May 5, 1967.¹ Appellant contends that these employees were fired for cause, especially for leaving work early on the day of their discharge.

On May 8, 1967, appellee filed a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC), alleging that his discharge was racially motivated, that appellant discriminated against Negroes in both the physical conditions of employment and the opportunities for promotion, and that he had been punished for advocating his rights as an employee. After appellee amended his charge of discrimination to include general allegations of racial discrimination and the EEOC conducted an investigation, a Notice of Right to Sue was issued on August 19, 1969, based upon the EEOC's finding of reasonable cause to believe that appellant had violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.

Two days later on May 10, 1967, appellee filed a claim for unemployment compensation with the Tennessee State Department of Employment Security. Finding that appellee was not discharged for misconduct within the meaning of the applicable Tennessee statute, the appeals tribunal of the Tennessee Employment Security Department reversed a preliminary determination and allowed appellee's claim.

On May 11, 1967, appellee filed a charge with the National Labor Relations Board (NLRB), alleging in general terms that he had been fired in violation of Sections 8(a) (1)² and 8(a) (3)³ of the National Labor Relations Act. In an amended charge he specified that appellant had discharged him because of his union activities. Following an extended evidentiary hearing, the NLRB Trial Examiner found that appellee was dismissed for cause and not because of the personal vengeance of appellant's foreman, and recommended that appellee's claim be dismissed. The NLRB accepted the Trial Examiner's findings and recommendation.

Pursuant to the EEOC's authorization, appellee then filed suit in the United States District Court for the Western District of Tennessee, Western Division, seeking an injunction against future racially discriminatory practices, reinstatement and back pay, and general relief. He alleged that his discharge was based on racial motivations and his active opposition to appellant's unlawful employment practices. He further charged that appellee discriminated against Negro employees in the provision of restrooms, eating facilities, coffee breaks and opportunities for promotion, in violation of Title VII of the Civil Rights Act of 1964.

Appellant filed a motion for summary judgment on the issues of appellee's discharge, reinstatement and back pay. The motion, alleging collateral estoppel and res judicata, judicial estoppel, lack of standing, and a variance between the EEOC charge and the judicial complaint, was denied. Appeal is from the denial of a motion to reconsider.⁴

I Collateral Estoppel and Res Judicata

Appellant first argues that the appellee is precluded by res judicata and collateral estoppel from asserting that he was discharged because of racial prejudice since the cause of his discharge was previously litigated by the NLRB. We do not agree.

Although frequently confused, res judicata and collateral estoppel are different theories which often lead to the same result. These rules have been distinguished in the following manner:

* * * application of the doctrine of res judicata necessitates an identity of causes of action, while the invocation of collateral estoppel does not. Each doctrine, on the other hand, requires that, as a general rule, both parties to the subsequent litigation must be bound by the prior judgment. The essence of collateral estoppel by judgment is that some question or fact in dispute has been judicially and finally determined by a court of competent jurisdiction between the same parties or their privies. Thus the principle of such an estoppel may be stated as follows: Where there is a second action between parties, or their privies, who are bound by a judgment rendered in a prior suit, but the second action involves a different claim, cause, or demand, the judgment in the first suit operates as a collateral estoppel as to, but only as to, those matters or points which were in issue or controverted and upon the determination of which the initial judgment necessarily depended. 1B Moore\'s Federal Practice ¶0.4412, at 3777 (footnotes omitted).

Neither collateral estoppel nor res judicata is rigidly applied. Both rules are qualified or rejected when their application would contravene an overriding public policy or result in manifest injustice. Title v. Immigration and Naturalization Service, 322 F.2d 21 (9th Cir. 1953); Matias Rivera v. Gardner, 286 F.Supp. 305 (D.P.R.1968); Old Dutch Farms, Inc. v. Milk Drivers & Dairy Employees Local Union No. 584, 281 F. Supp. 971 (E.D.N.Y.1968); 1B Moore's Federal Practice ¶0.40512, at 791; 2 K. Davis, Administrative Law Treatise § 18.02, at 548 (1958).

It is now accepted that both res judicata and collateral estoppel can be applicable to decisions of administrative agencies acting in a judicial capacity. United States v. Utah Construction & Mining Co., 384 U.S. 394, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966); Painters District Council No. 38 v. Edgewood Contracting Co., 416 F.2d 1081 (5th Cir. 1969); Pacific Seafarers, Inc. v. Pacific Far East Line, Inc., 131 U.S.App.D.C. 226, 404 F.2d 804 (D.C. Cir. 1968), cert. denied, 393 U.S. 1093, 89 S.Ct. 872, 21 L.Ed.2d 784 (1969); Fairmont Aluminum Co. v. Commissioner of Internal Revenue, 222 F.2d 622 (4th Cir.), cert. denied, 350 U.S. 838, 76 S.Ct. 76, 100 L.Ed. 748 (1955); 2 K. Davis, Administrative Law Treatise § 18.02, at 609 (Supp.1970). Cf. Safir v. Gibson, 432 F.2d 137 (2d Cir.), cert. denied, see 400 U.S. 850, 91 S.Ct. 57, 27 L.Ed.2d 88 (1970).

Despite the possible applicability of these doctrines to administrative decisions, in the instant action it would be inappropriate to apply either. The issue here is whether appellee's dismissal was in violation of Title VII of the Civil Rights Act of 1964. The NLRB decision, on the other hand, dealt with an alleged violation of the National Labor Relations Act. Although these two acts are not totally dissimilar, their differences significantly overshadow their similarities. Pettway v. American Cast Iron Pipe Co., 411 F.2d 998 (5th Cir. 1969). See Comment, 44 N.Y.U.L.Rev. 404 (1969). Absent a special consideration, a determination arising solely under one statute should not automatically be binding when a similar question arises under another statute. See Title v. Immigration and Naturalization Service, 322 F.2d 21, 25 n. 11 (9th Cir. 1963); 2 K. Davis, Administrative Law Treatise § 18.04, at 577-78 (1958); cf. Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591, 601-602, 68 S.Ct. 715, 92 L.Ed. 898 (1948). This is because the purposes, requirements, perspective and configuration of different statutes ordinarily vary. This case provides an excellent example of the differences in two statutes. Racial discrimination in employment is an unfair labor practice that violates Section 8(a) (1) of the National Labor Relations Act if the discrimination is unjustified and interferes with the affected employees' right to act concertedly for their own aid or protection. United Packinghouse, Food & Allied Workers International Union v. National Labor Relations Board, 135 U.S.App.D.C. 111, 416 F.2d 1126, 1135, cert. denied, 396 U.S. 903, 90 S.Ct. 216, 24 L.Ed.2d 179 (1969). In contrast, racial discrimination in employment is prohibited by Title VII without reference to the effect on the employees' right to unite. Hence, certain discriminatory practices that are valid under the National Labor Relations Act may be invalid under Title VII. See Taylor v. Armco Steel Corp., 429 F.2d 498 (5th Cir. 1970). See generally, Fuchs & Ellis, Title VII: Relationship and Effect on the National Labor Relations Board, 7 B.C.Ind. & Com.L.Rev. 575, 597-600 (1966).

As a result of the variant standards of these statutes, the NLRB hearing did not adequately consider the factors necessary for a Title VII violation. The Trial Examiner was primarily concerned with the question whether the appellee's union activities led to his discharge.⁵ This is understandable considering that the Trial Examiner was only investigating a possible violation of the National Labor Relations Act. Consequently, he did not fully explore the racial aspects of the case before him.⁶ Had he done so, he may have been acting beyond the scope of his authority since certain acts of racial discrimination are...