Wakeen v. Hoffman House, Inc.
| Decision Date | 02 February 1984 |
| Docket Number | No. 82-2829,82-2829 |
| Parties | 33 Fair Empl.Prac.Cas. 1476, 33 Fair Empl.Prac.Cas. 1816, 33 Empl. Prac. Dec. P 33,977 Wayne WAKEEN, Individually and on behalf of all others similarly situated, Plaintiff-Appellant, v. HOFFMAN HOUSE, INC., Hoffman House Restaurants, Inc., and The Pillsbury Company, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Jeff Scott Olson, Julian & Olson, Madison, Wis., for plaintiff-appellant.
Keith C. Hult, Matkov, Griffin, Parsons, Salzman & Madoff, Chicago, Ill., for defendants-appellees.
Before WOOD and ESCHBACH, Circuit Judges, and GORDON, Senior District Judge. *
Wayne Wakeen, plaintiff-appellant, commenced a class action under Title VII of the Civil Rights Act of 1964 () against defendants Hoffman House Restaurants, Inc., and Pillsbury Co. (hereinafter collectively referred to as "Hoffman House"), alleging sex discrimination in the payment of overtime wages. During the course of the action, the district court denied a motion from Wakeen for leave to file a second amended complaint that was designed to reinstate a previously dismissed claim for lunch break discrimination, and ultimately entered summary judgment in favor of the defendants on the basis that Wakeen's previous state court action barred the federal courts from entertaining his Title VII suit. Wakeen appeals both of these rulings. In addition, Gregory G. Hoffman appeals the district court's denial of his motion for leave to intervene as a named party plaintiff and representative of the class. We affirm the district court on all three issues.
The background facts are undisputed. Hoffman House Restaurants employed Wakeen as a bartender from June 1971 through August 1973, except for a three-month period between December 1971 and March 1972. Wakeen voluntarily terminated his employment. On August 3, 1973, Wakeen filed a complaint with the Equal Rights Division of the Wisconsin Department of Industry, Labor and Human Relations ("DILHR") asserting two counts of sex discrimination against Hoffman House East: discrimination in the payment of overtime wages, and discrimination in the amount of paid break time allowed. Wakeen filed the same charge with the Equal Employment Opportunity Commission ("EEOC"), but, pursuant to Section 706(c) of Title VII, 42 U.S.C. Sec. 2000e-5(c), the EEOC deferred to the DILHR for 60 days.
On December 7, 1978, the DILHR Equal Rights Division hearing examiner dismissed Wakeen's complaint. The Labor and Industry Review Commission affirmed the dismissal on April 27, 1979. Wakeen appealed the DILHR's dismissal to the Circuit Court of Dane County without success. On December 31, 1979, the court found that Hoffman House acted involuntarily, paying overtime to women due to a direct order from the DILHR, issued pursuant to a Wisconsin protective law in effect at the time, Wis.Stat. Sec. 103.02. 1 The court concluded that the involuntary nature of Hoffman House's actions absolved Hoffman House of all liability for sex discrimination under the Wisconsin Fair Employment Act, Wis.Stat. Secs. 111.31-111.395. Upon the advice of counsel, Wakeen decided not to pursue his rights any further through the state courts.
On July 18, 1980, however, Wakeen commenced a Title VII class action in the United States District Court for the Western District of Wisconsin, again alleging sex discrimination in the payment of overtime wages. Wakeen amended his complaint on August 13, 1980, to add an individual claim of sex discrimination in paid break time. Wakeen alleged that female bartenders received a half-hour paid break per shift, while male bartenders received only a fifteen minute break per shift. On March 11, 1982, in response to Hoffman House's motion for a judgment on the pleadings and partial summary judgment, the district court dismissed this portion of Wakeen's case. Wakeen moved for leave to file a second amended complaint on May 7, 1982, seeking to reinstate his claim of lunch break discrimination. The district court denied this motion on July 22, 1982. Wakeen does not appeal the district court's initial dismissal of the lunch break discrimination claim, but does appeal the court's denial of his motion to amend.
On May 24, 1982, while Wakeen's motion to amend was pending, Hoffman House filed a motion for summary judgment, arguing that Wakeen's action alleging sex discrimination in the payment of overtime wages was barred by res judicata under Kremer v. Chemical Construction Corp., 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982), due to Wakeen's unsuccessful attempt to press his claim through the state courts. On July 22, 1982, the district court denied Hoffman House's summary judgment motion on the ground that Kremer was not to be applied retroactively. In that same order, the court certified the plaintiff's class. On September 22, 1982, however, after a clarification of the law in Lee v. City of Peoria, 685 F.2d 196 (7th Cir.1982), the court announced that it was inclined to grant summary judgment for Hoffman House on res judicata grounds. The court then gave the parties until September 24 to file additional papers.
On September 24, faced with the possible dismissal of Wakeen's complaint, Gregory Hoffman 2 filed his motion for leave to intervene as a named party plaintiff and as one of the class representatives. On October 14, 1982, the district court granted the defendants' motion for summary judgment against Wakeen on the basis of the prior state court proceedings, and rejected Hoffman's last minute attempt to take over as class representative on the ground that he had never filed a charge of discrimination with the EEOC. Due to the absence of an adequate class representative, the court vacated its July 22, 1982, order granting class certification.
The main issue in this appeal is whether Wakeen's adverse state court decision bars his Title VII claim of sex discrimination in the payment of overtime wages under Kremer v. Chemical Construction Corp., 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982).
The procedural history in Kremer bears a remarkable similarity to the case before us now. Alleging that his former employer was guilty of unlawful discrimination in refusing to rehire him, Kremer filed a complaint with the EEOC. Pursuant to section 706(c) of Title VII, 42 U.S.C. Sec. 2000e-5(c), the EEOC referred Kremer's charge to the appropriate state agency, the New York State Division of Human Rights ("NYHRD"). The NYHRD rejected Kremer's claim, and the State Human Rights Appeal Board upheld the agency's determination. Kremer again raised his claim with the EEOC, and also petitioned for review in the state courts. The Appellate Division of the New York Supreme Court affirmed the Appeal Board's order. Kremer did not seek review by the New York Court of Appeals.
After the Appellate Division rendered its decision, the EEOC issued a right to sue letter, and Kremer commenced a Title VII action in federal court. The district court dismissed Kremer's complaint on the grounds that under res judicata the adverse state court decision barred further action on Kremer's claim in the federal courts. 477 F.Supp. 587 (S.D.N.Y.1979). The Second Circuit affirmed. 623 F.2d 786 (2d Cir.1980).
The Supreme Court upheld the dismissal of Kremer's federal action, ruling that 28 U.S.C. Sec. 1738 3 requires a federal court in a Title VII case to give preclusive effect to a state court decision upholding a state administrative agency's rejection of an employment discrimination claim when: (1) the state court's decision would be accorded preclusive effect in the state's own courts; and (2) the procedures followed at the state court level comport with the requirements of due process. Kremer, 456 U.S. at 481, 102 S.Ct. at 1897; accord Unger v. Consolidated Foods Corp., 693 F.2d 703 (7th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 1801, 76 L.Ed.2d 366 (1983).
Wakeen does not dispute that Wisconsin courts would accord the Dane County Circuit Court decision preclusive effect, 4 or that the Wisconsin proceedings satisfy due process requirements. Rather, Wakeen seeks to escape Kremer by arguing that Kremer should not reach situations where state law and Title VII require different results on the same operative facts. 5 Wakeen contends that even if the DILHR's order directing Hoffman House to comply with the Wisconsin protective laws absolves Hoffman House from liability for sex discrimination under the Wisconsin Fair Employment Act, it does not protect Hoffman House from liability under Title VII. Wakeen concludes that the adverse state court ruling should not bar his Title VII claim.
Even if Wakeen's interpretation of Title VII is correct, his argument comes too late. Res judicata extends not only to issues actually raised in a prior proceeding, but also to issues that could have been raised. See, e.g., Kremer, 456 U.S. at 465 n. 4, 102 S.Ct. at 1889 n. 4; Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 414, 66 L.Ed.2d 308 (1980); Fleming v. Travenol Laboratories, Inc., 707 F.2d 829 at 832 (5th Cir.1983); Nilsen v. City of Moss Point, 701 F.2d 556, 560 (5th Cir.1983); Lee v. City of Peoria, 685 F.2d 196, 199 (7th Cir.1982). Wakeen's federal action is based on the same operative facts, and revolves around the same central issues, as Wakeen's state action: whether Hoffman House can be excused for paying overtime wages to women at the same time that it denied those benefits to men. That a potential response to Hoffman House's defense finds its base in federal law does not mean that Wakeen can bring an independent federal action to assert that response. Cf. Lee, 685 F.2d at 200; Miller-Wohl Co. v. Commissioner of Labor & Industry, 685 F.2d 1088, 1090 (9th Cir.1982)....
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