Lindas v. Cady

• Decision Date: 11 March 1993
• Docket Number: No. 91-1293,91-1293
• Citation: 175 Wis.2d 270,499 N.W.2d 692
• Parties: , 85 Ed. Law Rep. 504 Kathleen LINDAS, Plaintiff-Appellant, d v. Elmer CADY, Robert Hable, State of Wisconsin Department of Health and Social Services, Defendants-Respondents.
• Court: Wisconsin Court of Appeals

Page 692

499 N.W.2d 692

175 Wis.2d 270, 85 Ed. Law Rep. 504

Kathleen LINDAS, Plaintiff-Appellant, ^d v. Elmer CADY, Robert Hable, State of Wisconsin Department of Health and Social Services, Defendants-Respondents.

No. 91-1293.

Court of Appeals of Wisconsin.

Submitted on Briefs June 24, 1992.

Opinion Released March 11, 1993.

Opinion Filed March 11, 1993.

Before EICH, C.J., and DYKMAN and SUNDBY, JJ.

DYKMAN, Judge.

This is an appeal from a judgment which dismissed Kathleen Lindas's 42 U.S.C. § 2000e-2(a)(1) (Title VII) claim, and from a memorandum decision which dismissed her 42 U.S.C. § 1983 (sec. 1983) claim. We affirm.

This case began twelve years ago. Its facts and history through mid-1989 are found in Lindas v. Cady, 150 Wis.2d 421, 441 N.W.2d 705 (1989). After the supreme court reinstated Lindas's Title VII claim, the matter was set for trial. In addition, the trial court reinstated Lindas's sec. 1983 claim because Gray v. Lacke, 885 F.2d 399 (7th Cir.1989), had held that sec. 1983 actions were governed by a six-year statute of limitations, not a three-year statute of limitations which the trial court had previously concluded barred Lindas's sec. 1983 claim. The court also permitted defendants to raise the defenses of res judicata and estoppel by record. Defendants argued that those defenses barred Lindas's sec. 1983 claim. The trial court agreed and dismissed that claim.

Lindas tried her Title VII claim in March 1991. Since Title VII did not permit either party to have a jury trial, the trial was to the court. In April 1991, the court decided the Title VII claim against Lindas. In May 1991, Lindas appealed.

On November 21, 1991, President Bush signed the Civil Rights Act of 1991. This act provided for the right to a jury trial in Title VII actions. Lindas moved this court to vacate the trial court's judgment as to her Title VII claim because she was denied a jury trial. We denied this motion, saving the issue for this decision.

SECTION 1983 CLAIM

In 1980, Lindas filed a complaint with the Wisconsin Personnel Commission alleging employment sex discrimination. The commission issued an initial determination finding no probable cause to believe Lindas's employment termination was caused by discrimination. Lindas appealed, and after a four-day hearing, the commission again determined that no probable cause existed. Lindas did not seek judicial review of this decision. Instead, she commenced this action, seeking relief under Title VII and sec. 1983. The trial court dismissed the sec. 1983 claim, reasoning that it was barred by Lindas's prior complaint filed with the commission.

Adequate Opportunity to Litigate

The United States Supreme Court has declared that when a state agency acts in a judicial capacity to resolve disputed issues of fact which are properly before it, and the parties have had an adequate opportunity to litigate, federal courts must render the same preclusive effect to the agency's factfinding that the courts of that state would assign. University of Tenn. v. Elliott, 478 U.S. 788, 799, 106 S.Ct. 3220, 3226, 92 L.Ed.2d 635 (1986). This holding expressly applies to federal courts of appeal and district courts. However, we conclude that before we address the common law of preclusion in Wisconsin, Elliott requires us to determine whether the commission was acting in a judicial capacity and the parties had an adequate opportunity to litigate the factual issues.

Because there is no dispute concerning the commission's authority to determine probable cause or the capacity in which it was acting when it held the hearing, we only consider whether Lindas had an adequate opportunity to litigate. Elliott does not specify the factors that courts should consider when deciding this issue. However, we believe the appropriate test is found in Kremer v. Chemical Constr. Corp., 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982).

In Kremer, the issue was whether the plaintiff was precluded from asserting a Title VII claim in federal district court after a state court affirmed an agency's finding that there was no probable cause to believe employment discrimination occurred. The Court held that state law controlled in resolving the question as long as the state proceedings offered a "full and fair" opportunity to litigate. Id. at 480-81 We find support for equating an "adequate opportunity" with a "full and fair opportunity" in Buckhalter v. Pepsi-Cola Gen. Bottlers, Inc., 820 F.2d 892, 896-97 (7th Cir.1987). In Buckhalter, after an adverse ruling by the Illinois Human Rights Commission (HRC), the plaintiff-employee opted to file a federal lawsuit asserting claims under Title VII and 42 U.S.C. § 1981, rather than obtain judicial review of the HRC's decision in the state courts. The Seventh Circuit based its conclusion that the HRC hearing provided an adequate opportunity to litigate on essentially the same set of procedures discussed in Kremer and noted above.

                481 n. 22, 102 S.Ct. at 1896-97, 1897 n. 22.   To pass this test, the state proceedings "need do no more than satisfy the minimum procedural requirements of the Fourteenth Amendment's Due Process Clause...."  Id. at 481, 102 S.Ct. at 1897.   While the Court stated that there is "no single model of procedural fairness," it found the following "panoply" of procedures sufficient under the due process clause:  (1) the claimant could present charges through testimony and submit as many exhibits as desired;  (2) the claimant could rebut the respondent's evidence;  (3) an attorney could represent the claimant during the agency's investigation;  (4) the claimant could request the agency to subpoena witnesses;  and (5) the claimant was entitled to seek judicial review of the agency's decision.  Id. at 483-84, 102 S.Ct. at 1898-99
                

In its memorandum decision and order dated August 14, 1990, the trial court provided the following summary of the personnel commission proceeding:

The defendants assert, and the plaintiff concedes, that the plaintiff availed herself of a wide range of procedural process in the [p]ersonnel [c]ommission case. She requested and received time extensions amounting to two years from the filing of the charge in which to conduct pre-hearing discovery. She was permitted to substitute the original hearing examiner. She was able to subpoena witnesses and to have all witnesses sequestered. She was represented by counsel throughout the entire proceeding. At the probable cause hearing, counsel gave an opening statement, examined and cross-examined witnesses and presented a closing argument. Plaintiff offered [fifty] exhibits for the hearing record. Her counsel was permitted to depose a witness and submit a brief after the hearing. She had the opportunity to petition the [p]ersonnel [c]ommission for re-hearing and to seek judicial review of the [c]ommission's findings and conclusions.

It is clear from this summary that the commission proceeding satisfied the minimum procedural requirements of the due process clause, and thus afforded Lindas an adequate opportunity to litigate.

In analyzing the adequate opportunity issue, the dissent focuses on the reasons why Lindas lacked incentive to seek judicial review of the personnel commission's decision: (1) the commission could not award compensatory damages beyond back pay; (2) the commission could not provide prospective relief; and (3) the "most significant" reason--the inability to obtain a jury trial in the commission proceedings. ¹ See Res Judicata

                dissent at 705.  Reading Elliott in light of Kremer, it is clear that such [175 Wis.2d 278] considerations are irrelevant.  The fact that judicial review was available is what matters;  that Lindas made the strategic choice to forego such review is of no consequence.  See Kremer, 456 U.S. at 485, 102 S.Ct. at 1899.   Furthermore, had the Supreme Court considered the availability of a jury of paramount importance, it would have been unnecessary for the Court to remand Elliott, as there was no jury present at the university's hearing on the charges
                

Acharya and Prior Cases

Lindas argues that Wisconsin law does not permit preclusion by unreviewed administrative decisions; here, the personnel commission's determination of no probable cause. She cites Board of Regents of Univ. of Wis. Sys. v. Wisconsin Personnel Comm'n, 103 Wis.2d 545, 309 N.W.2d 366 (Ct.App.1981), and several older cases for the rule that "Wisconsin rejects the application of the doctrine of res judicata to the proceedings of an administrative agency." Id. at 552, 309 N.W.2d at 369.

But in all of the decisions Lindas cites for this rule, the question was whether an administrative agency was required to give preclusive effect to one of its own prior decisions. Lindas agrees with this observation, but asserts that we held that administrative decisions are not entitled to preclusive effect in any subsequent forum because, in Board of Regents, we said: "Even if the long-standing denial of res judicata effect to an administrative determination were to be overhauled and modernized, it would not be applicable to the circumstances of this case because [two of the litigants] were not parties to the declaratory ruling of the [p]ersonnel [b]oard." Id. (emphasis added).

Lindas reads too much into this quote from Board of Regents. She has cited no case prior to Board of Regents where a Wisconsin court has specifically held that, whatever the forum, an administrative decision is not entitled to preclusive effect. There was no reason or necessity in Board of Regents for us to consider preclusion in an agency-court situation because the issue in Board of Regents was the preclusive effect of an agency determination on a subsequent agency determination. We are required to give the reasons for our decisions. Section 752.41(1), Stats. Had we intended in Board of Regents to reach the question of preclusion in agency-court determinations, we would have explained why, when the facts did...