Barnes v. McDowell

• Decision Date: 06 November 1986
• Docket Number: Civ. A. No. 83-09.
• Parties: Robert BARNES and Joe Thompson, Plaintiffs, v. Charles McDOWELL, Ed Fossett, and Sam Seraglio, Defendants.
• Court: U.S. District Court — Eastern District of Kentucky

647 F. Supp. 1307

Robert BARNES and Joe Thompson, Plaintiffs, v. Charles McDOWELL, Ed Fossett, and Sam Seraglio, Defendants.

Civ. A. No. 83-09.

United States District Court, E.D. Kentucky, Frankfort Division.

November 6, 1986.

Phillip C. Kimball, Louisville, Ky., for Robert E. Barnes.

James Groves, Jr., Louisville, Ky., for Joe Thompson.

Nathan Goldman and George Geoghegan III, Office of Atty. Gen., Frankfort, Ky., for defendants.

MEMORANDUM OPINION AND ORDER

BERTELSMAN, District Judge.

This 42 U.S.C. § 1983 action is before the court for resolution of the defendants' pleas of res judicata, presented by their motions for summary judgment.

FACTS

This action was commenced by plaintiffs Robert Barnes and Joe Thompson in response to adverse personnel actions taken by the Kentucky Department for the Blind (formerly the Kentucky Bureau for the Blind) against the plaintiffs. The bases for the actions were sexual harassment of female employees and general incompetence or inefficiency. Both plaintiffs were discharged.

Plaintiffs allege that they made critical comments regarding the Department for the Blind and defendant McDowell, Executive Director of the Department for the Blind and plaintiffs' superior, and that this was the real basis for the personnel actions.

Plaintiffs appealed the firings to the Kentucky State Personnel Board.¹ The Board affirmed the Barnes dismissal but ordered Thompson reinstated following a thirty-day suspension. Plaintiff Barnes, but not plaintiff Thompson, then filed an appeal in the Franklin Circuit Court in which the Board's decision was affirmed. The Court of Appeals affirmed the Circuit Court. The Kentucky Supreme Court denied review.

Thus, it may be seen that Barnes went the full route of administrative review and lost both before the Personnel Board and before the state courts,² which affirmed both the findings of fact and conclusions of law of the Personnel Board. Therefore, the state courts have adjudicated that Barnes was guilty of misconduct and justly dismissed for that reason.

Plaintiff Thompson did not appeal beyond the State Personnel Board, which found that he was not guilty of sexual harassment, but was guilty of inefficiency sufficient to justify a thirty-day suspension. The Board found that Thompson had received one promotion too many, that he was not competent to discharge his duties effectively, but was not guilty of actual misconduct. Thus, the Board modified the penalty as to Thompson to a thirty-day suspension pursuant to Ky.Rev.Stat. 18A.095(23)(c).

Following a hearing held on September 11, 1986, this court granted summary judgment for defendants as to plaintiff Barnes, but did not enter a separate judgment under Fed.R.Civ.P. 58 or certify the matter for appeal. The court further ordered that plaintiff Thompson file a supplemental memorandum of law addressing the issues of res judicata or collateral estoppel applicable to the above administrative proceedings, with particular attention to the recent decision of the Supreme Court of the United States in University of Tennessee v. Elliott, ___ U.S. ___, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986).

This memorandum has been filed. Barnes has also filed a motion to reconsider this court's granting of the defendants' motion for summary judgment based on res judicata.

Barnes' Claim

It is clear under recent decisions of the Supreme Court of the United States that the claim of the plaintiff Barnes is barred by that aspect of the doctrine of res judicata, referred to as collateral estoppel.³ The Personnel Board found that he had engaged in sexual harassment and was deserving of dismissal for such misconduct. This was appealed to the Kentucky courts and affirmed up the line. Although the cause of action is not the same in this 42 U.S.C. § 1983 action, which seeks damages for alleged constitutional violations, as in the proceedings before the Personnel Board, the issue of the reasons for Barnes dismissal and their justification were actually litigated. We are mandated by the Supreme Court to apply Kentucky law to the defendant's defense of collateral estoppel. Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980); Cf. Migra v. Warren City School District Board of Education, 465 U.S. 75, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984).

Kentucky law requires that where, as here, the parties to a court action are the same as in previous litigation,⁴ issues actually litigated between them shall be considered determined in later litigation, although the causes of action are different. Whittenberg v. Liberty Mutual Ins. Co., 390 S.W.2d 877 (Ky.1965); Gilbert v. Bowling Green Bank & Trust Co., 460 S.W.2d 14 (Ky.1970); Norrell v. Electric Water Plant Bd., 557 S.W.2d 900 (Ky.App.1977).

Therefore, plaintiff Barnes' claims must be dismissed because he is barred by the doctrine of collateral estoppel from relitigating the administrative finding that he was justly dismissed for good cause arising out of his sexually harassing a female employee.

Thompson's Claim

With regard to Thompson's claim, the doctrine of collateral estoppel is equally applicable although neither Thompson nor the Commonwealth appealed the decision of the Personnel Board, finding that Thompson was guilty of inefficiency, but not of sexual harassment. No finding was made by the Personnel Board as to the motive of the defendants in bringing an unfounded sexual harassment charge against Thompson.

The disposition of this issue is controlled by a recent decision of the Supreme Court of the United States, namely, University of Tennessee v. Elliott, ___ U.S. ___, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986). There, the Court held that in § 1983 actions the same res judicata and collateral estoppel doctrines were applicable to the unappealed decisions of state administrative agencies, acting in a judicial capacity and employing fair procedures, as would be applied by the forum state's courts under state law. Id. at 3227. No contention is made that the Kentucky Personnel Board did not act in a judicial capacity in this appeal or that it does not meet the requirement of employing fair procedures.

It is not totally clear from the opinion in Elliott, supra, whether res judicata or collateral estoppel effect would be applicable to conclusions of law⁵ of state administrative agencies, but it is clear that findings of evidentiary or ultimate fact would have preclusive effect, if they had such effect under the law of the forum state.

Kentucky has for many years followed the rule that the decisions of administrative agencies acting in a judicial capacity are entitled to the same res judicata effect as judgments of a court. The earliest case in which such rule adopted by the highest court of Kentucky seems to have been Happy Coal Co. v. Hartbarger, 251 Ky. 779, 65 S.W.2d 977 (1933), involving a collateral attack on an order of the Kentucky Workmen's Compensation Board. There, the court said:

"It necessarily follows, therefore, that the hearing on the first motion herein, and which was finally disposed of in the first case supra Happy Coal Company v. Hartbarger, 233 Ky. 273, 25 S.W.(2d) 384, became and was a final adjudication of the rights of the parties as based upon the facts and grounds as they then existed, and which is true because of the well-known doctrine of res judicata, since it is applicable to the quasi judicial acts of public commissions and administrative boards, as it is to judgments of courts; in substantiation of which is the text in 34 C.J. 878, § 1287, saying: `The rule which forbids the reopening of a matter once judicially determined by competent authority applies as well to the judicial and quasi judicial acts of public, executive, or administrative officers and boards acting within their jurisdiction as to the judgments of courts having general judicial powers. This rule has been recognized as applying to the decisions of road or highway commissioners, boards of audit, county boards, common council or municipal assembly, tax commissioners, boards, or officers, school commissioners, police commissioners, public service commissioners, land commissioners or officers, patent officers, collector of customs, referees in bankruptcy, and other like officers and boards.'

"Cases from many state courts, as well as federal ones, are cited in the copious notes to that text. There is also a reference in note 3 to that text to a prior section in the same volume (1171) on page 759, in which the compiler thereof says: `A decision rendered by an officer or board of state or municipal officers, when acting judicially, and which has by law the force and effect of a judgment, is a bar to further actions on the same matter between the parties or their privies,' etc. That text is also fortified by many cases cited in note 93. See, also, 15 R.C.L. 998, § 474. We deem it unnecessary to incumber this opinion with further substantiating authority, since the rule as incorporated in the inserted texts rests upon a sound basis. If it were otherwise, a movant desiring compensation before the board having charge of the administration of such acts would never be concluded, and could perpetually harass his adversary from day to day, as well as the board, with successive motions based upon the same facts, until the time expired under the law for making them. Such a procedure is in direct conflict with the cherished rule that `there should be a finality to litigation,' and to that end the law disallows to the losing litigant, or claimant, a second independent cause of action or complaint based upon the same facts and upon the same grounds of his former lost one." (Emphasis added).

65 S.W.2d at 978.

Many subsequent decisions of the Kentucky courts have applied the same rules of issue and claim preclusion.⁶Bank of Shelbyville v. People's Bank of Bagdad, 551 S.W.2d 234 (Ky.1977) (change of conditions renders usual rule inapplicable); Dink v. Palmer-Ball, 479 S.W.2d 897 (Ky.1972) (sa...