Young v. South Side Packing Company, 72-C-522.

• Decision Date: 17 December 1973
• Docket Number: No. 72-C-522.,72-C-522.
• Citation: 369 F. Supp. 59
• Court: U.S. District Court — Eastern District of Wisconsin
• Parties: George Lee YOUNG, Plaintiff, v. SOUTH SIDE PACKING COMPANY, a Wisconsin corporation, Defendant.

369 F. Supp. 59

George Lee YOUNG, Plaintiff, v. SOUTH SIDE PACKING COMPANY, a Wisconsin corporation, Defendant.

No. 72-C-522.

United States District Court, E. D. Wisconsin.

December 17, 1973.

Richard J. Steinberg, Milwaukee, Wis., for plaintiff.

Ralph J. Jeka, Milwaukee, Wis., for defendant.

DECISION and ORDER

MYRON L. GORDON, District Judge.

This action is brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The plaintiff has moved for summary judgment. No affidavits have been filed by the defendant, therefore the motion must be resolved on the basis of the plaintiff's verified complaint and affidavit and the defendant's answer. Rule 56, Federal Rules of Civil Procedure.

The plaintiff's employment with the defendant was terminated on September 29, 1969. It is alleged in the complaint and stated in the plaintiff's affidavit that the termination came about as the result of racial discrimination. In both instances, however, the plaintiff's charge is stated in conclusory terms. While conclusory allegations of this type may satisfy the pleading requirements of Rule 8(a), Federal Rules of Civil Procedure, they are insufficient, at least when countered by a general denial, as is the case here, to constitute established fact. 6 Moore's Federal Practice 56.11 1.-2, at 2145.

It is contended by the plaintiff, however, that the factual issue of unlawful discrimination has previously been determined in the plaintiff's favor in state proceedings and is now res judicata. It follows, the argument continues, that there is no factual issue remaining before this court and, this court's jurisdiction having been properly invoked, that the plaintiff is entitled to judgment.

The defendant argues that the plaintiff elected to seek a state remedy, was successful, and is now precluded from proceeding in federal court. Thus, the defendant appears to agree that the principle of res judicata applies. While the plaintiff is actually seeking to apply the collateral estoppel rule to one factual issue, however, the defendant is attempting to bar the entire action.

The reason the action is being pursued in this court is that the plaintiff wants to recover back pay. His state administrative action resulted in an order that he be reinstated and that his seniority be restored. That ruling was affirmed by a state circuit court. Payment of back wages was not ordered, however; apparently this was because of a lack of authority in the state's industrial commission to make such an award. See Murphy v. Industrial Commission, 37 Wis.2d 704, 155 N.W.2d 545, 157 N.W.2d 568 (1968). The demand for back pay in the instant action is the only relief sought that was not previously granted in the state proceeding.

I find both parties' positions to be unpersuasive. The doctrines of collateral estoppel and res judicata do not apply here. Voutsis v. Union Carbide Corporation, 452 F.2d 889, 893 (2d Cir. 1971), cert. denied, 406 U.S. 918, 92 S. Ct. 1768, 32 L.Ed.2d 117 (1972).

"The statutory enforcement scheme contemplates a resort to the federal remedy if the state machinery has proved inadequate. The federal remedy is independent and cumulative . . . and it facilitates comprehensive relief." 452 F.2d at 893.

The plaintiff is free to pursue both the federal and state remedies. He need elect one to the preclusion of the other only after adjudication of both and where necessary to avoid duplicate relief which would unjustly enrich him. See Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th Cir. 1969).

The plaintiff has certainly found the state remedy inadequate. While he was ordered reinstated with seniority, the defendant had ceased doing business by the time the order was effective. Thus, his only practical remedy is back pay, a remedy which apparently is unavailable...