Burney v. Polk Community College

• Decision Date: 30 March 1984
• Docket Number: No. 83-3151,83-3151
• Citation: 728 F.2d 1374
• Parties: 34 Fair Empl.Prac.Cas. 727, 34 Empl. Prac. Dec. P 34,295, 16 Ed. Law Rep. 763 James C. BURNEY, Plaintiff-Appellant, v. POLK COMMUNITY COLLEGE, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1374

728 F.2d 1374

34 Fair Empl.Prac.Cas. 727,

34 Empl. Prac. Dec. P 34,295, 16 Ed. Law Rep. 763

James C. BURNEY, Plaintiff-Appellant, v. POLK COMMUNITY COLLEGE, et al., Defendants-Appellees.

No. 83-3151.

United States Court of Appeals Eleventh Circuit.

March 30, 1984.

Alice K. Nelson, Tampa, Fla., for plaintiff-appellant.

Jesse S. Hogg, Donald T. Ryce, Jr., Coral Gables, Fla., for defendants-appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before JOHNSON and ANDERSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.

JOHNSON, Circuit Judge:

Plaintiff James C. Burney, a black male, appeals the district court's grant of summary judgment in defendants' favor on his Title VII, 42 U.S.C.A. Sec. 2000e et seq., claim on the ground of collateral estoppel and the district court's dismissal of his 42 U.S.C.A. Sec. 1983 claim alleging a deprivation of his First Amendment rights of free speech and free association as time barred by the Florida two year statute of limitations governing actions for the recovery of back wages, Fla.Stat.Ann. Sec. 95.11(4)(c). We affirm.

The facts in this case are as follows. Plaintiff was employed as a tenured guidance counselor by the defendant Polk Community College (PCC). On April 11, 1978, the President of PCC petitioned PCC's Board of Trustees (the Board) to conduct proceedings on the President's recommendation that plaintiff be dismissed. Plaintiff requested that a full evidentiary hearing on the charges set forth in the President's petition be held. The Board appointed one of its members to serve as a Hearing Officer. A six day hearing was held at which plaintiff was represented by counsel and numerous witnesses were called on plaintiff's behalf. Plaintiff's defense at the hearing against the President's dismissal recommendation included allegations of racial discrimination based on claimed disparate treatment of similarly situated white faculty members. The Hearing Officer's recommended order rejected plaintiff's claim of disparate treatment and upheld the President's recommendation to dismiss the plaintiff. The Board adopted the Hearing Officer's order and plaintiff was dismissed on December 29, 1978.

Plaintiff appealed the Board's order of his dismissal to the Florida Second District Court of Appeals. The court affirmed the Board's order without published opinion. Burney v. Polk Community College, 380 So.2d 586 (1979).

Plaintiff then filed a charge of race discrimination with the Equal Employment Opportunity Commission (EEOC), received a right to sue letter, and on June 21, 1981, filed a complaint in the United States District Court for the Middle District of Florida alleging causes of action under Title VII, 42 U.S.C.A. Secs. 1981 ¹ and 1983 against PCC, the Board and others. ²

I. THE TITLE VII CLAIM: KREMER V. CHEMICAL CONSTRUCTION CORP.

The President's petition to the Board in this case listed thirteen separate reasons in support of his recommendation that plaintiff be dismissed. Plaintiff responded to these charges by asserting, inter alia, that the dismissal recommendation "[r]eflects the application of discriminatory criteria to him as compared with other College employees." ³ At the six day hearing, where plaintiff was represented by counsel, called seventeen witnesses to testify on his behalf, and submitted sixteen documentary exhibits in support of his defense, plaintiff:

[D]uring both direct and cross-examination of witnesses for Petitioner, attempted to show that the reasons set forth were not the real reasons behind the petition for relief as sought by the Petitioner. [Plaintiff] injected comparisons of [his] evaluations and Counselor E. Horton Briggs, and claimed that the ratings on the evaluations were similar. [Plaintiff] claimed that the continued employment of Briggs and intent to dismiss [him] constituted the application of disparate measures in the evaluations of the services of the two individuals. ⁴

The Hearing Officer concluded that the charges contained the required "good and sufficient reasons" for the dismissal of the plaintiff, noting that the President and the Board have "[w]ide discretion in deciding what constitutes 'good and sufficient reasons' as long as the reasons are of such nature that they do not infringe upon [plaintiff's] exercise of his First Amendment freedoms, nor involve nuances of racial discrimination." ⁵ The Hearing Officer held that "[n]o such allusions are made in the charges as set forth by Petitioner." ⁶ The Board adopted the Hearing Officer's recommended order as its proposed order, and the plaintiff filed exceptions and a brief opposing the recommended order. In its final order, the Board accepted the findings of the Hearing Officer and his recommendation that plaintiff be dismissed. ⁷ On appeal of the Board's order, the Florida Second District Court of Appeals affirmed.

The similarity between the facts of this case and Kremer v. Chemical Construction Corp., 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982), is apparent. In Kremer, the plaintiff filed a discrimination charge with the EEOC claiming that his discharge and failure to be rehired by the defendant was due to his national origin and Jewish faith. Pursuant to the dictates of Title VII, 42 U.S.C.A. Sec. 2000e-5(c), the EEOC referred plaintiff's charge to the New York State Division of Human Rights (NYHRD), the state agency charged with enforcing the New York law prohibiting employment discrimination. The NYHRD found there was no discrimination in plaintiff's discharge and failure to be rehired. The NYHRD Appeals Board upheld this determination. The plaintiff appealed the Board decision to the Appellate Division of the New York Supreme Court. The court affirmed the Board's order without written opinion. Plaintiff could have sought, but did not seek, review by the New York Court of Appeals. Plaintiff also pursued his charge with the EEOC, received a right to sue letter, and brought a Title VII action in federal district court, claiming discrimination on the basis of national origin and religion. The district court dismissed plaintiff's complaint, holding that the state court decision affirming the Board was res judicata ⁸ on plaintiff's Title VII claim.

The United States Supreme Court granted certiorari, and addressed the issue of whether the national policy embodied in Title VII of vesting enforcement of anti- discrimination laws in the federal courts superseded the longstanding principle of comity expressed in 28 U.S.C.A. Sec. 1738 ⁹:

Specifically, we decide whether a federal court in a Title VII case should give preclusive effect to a decision of a state court upholding a state administrative agency's rejection of an employment discrimination claim when the state court's decision would be res judicata in the state's own courts.

456 U.S. at 463, 102 S.Ct. at 1887-88.

The Court held that Section 1738 requires that full faith and credit be given by the federal courts to a state court decision upholding a state administrative agency's rejection of an employment discrimination claim if two criteria are met: (1) the court of the state from which the judgment emerged would grant preclusive effect to the judgment, and (2) the state proceedings, including the administrative action and judicial review of this action, do not violate the procedural requirements of the Fourteenth Amendment's Due Process Clause. As these criteria were satisfied in Kremer, the Court held that plaintiff's Title VII action was properly dismissed by the district court.

The district court held that Kremer is controlling on plaintiff's Title VII claim and thus granted summary judgment in the PCC defendants' favor as a matter of law. In this appeal, plaintiff claims that Kremer does not apply to the present case because the state agency which rendered the administrative decision, the PCC Board, is not the state agency statutorily authorized to enforce Florida's anti-discrimination in employment laws. ¹⁰ Alternately, plaintiff contends that if Kremer does apply, the first criterion of the Kremer test ¹¹ is not met in the present case, i.e., that a Florida court would not grant preclusive effect to the Second District Court of Appeals' affirmance of the Board's order. We disagree.

Plaintiff claims that the scope of the Kremer holding is limited to state court judgments affirming a state equal employment agency's orders. In support of this claim, plaintiff notes that the precise factual context of Kremer was a state court's affirmance of a state equal employment agency's order. We hold, however, that the Kremer analysis extends to the present state court judgment affirming the PCC Board's order, and that in this case it is the state court judgment, and not the agency affirmed, that is determinative of a federal court's full faith and credit obligation.

Clearly, the necessary focus of the Kremer analysis is on the state court judgment, and not the agency affirmed, for purposes of full faith and credit. Thus, in holding that neither the express statutory language nor legislative history of Title VII contains an implied partial repeal of Section 1738, the Court stated that:

No provision of Title VII requires claimants to pursue in state court an unfavorable state administrative action, nor does the Act specify the weight a federal court should afford a final judgment by a state court if such a remedy is sought. While we have interpreted the "civil action" authorized to follow consideration by federal and state administrative agencies to be a "trial de novo," Chandler v. Roudebush, 425 U.S. 840, 844-45 [96 S.Ct. 1949, 1951-52, 48 L.Ed.2d 416] (1976); Alexander v. Garner-Denver Co., [415 U.S. 36, 38, 94 S.Ct. 1011, 1015, 39 L.Ed.2d 147 (1974) ]; McDonnell Douglas Corp. v. Green, [411 U.S. 792, 798-99, 93 S.Ct. 1817, 1822-23, 36 L.Ed.2d 668 (1973) ], neither the statute nor our decisions indicate that the final judgment of a state court is...