Appeals from the United States District Court for the Western District of Wisconsin, No. 83 C 528- John C. Shabaz, Judge.
Before: CUMMINGS, Chief Judge, ESCHBACH, Circuit Judge, and SWYGERT, Senior Circuit Judge.
In this consolidated appeal of two orders of the district court we must decide whether an action for back pay under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e), is barred by res judicata when the plaintiff earlier obtained administrative relief (not including back pay) which was affirmed on appeal to state court. We are also asked to decide whether plaintiff is entitled to attorney's fees under Title VII for successfully prosecuting his discrimination claim in state proceedings. We hold that his action for back pay is not barred by res judicata but do not reach the issue of attorneys' fees, because the district court was without jurisdiction to enter an order.
In 1972 the plaintiff John T. Patzer, a white male, applied for a position as apprentice painter at the University of Wisconsin. His application was rejected on January 8, 1973, because he was not a woman or a member of any of six specified minority groups. The Director of the Bureau of Personnel had authorized the University to impose such a restriction, as he was permitted to do by a provision of the Wisconsin Administrative Code known as "Pers 27."
On January 11, 1973, Patzer filed simultaneous complaints with the Equal Employment Opportunities Commission (EEOC) and the Wisconsin Department of Industry, Labor and Human Relations (DILHR), charging that he had been discriminated against because of his sex and race. The Equal Rights Division of DILHR issued a finding of probable cause, and on February 22, 1974, a hearing examiner found in his favor. The DILHR Commissioners affirmed the hearing examiner's decision on October 31, 1974. The respondents were ordered to examine Patzer and hire him for the next available apprentice painter vacancy if his test score entitled him to be certified. He was examined and certified but he was not and never have been offered employment.*fn1
At the time Patzer filed his complaint, Wisconsin law did not authorize an award of back pay as a remedy for unlawful discrimination. Effective June 16, 1974, after the decision of the hearing examiner but before the affirmance by the Commissioners, Wisconsin law was amended to authorize an award of back pay.
The respondents sought review of the Commissioners' ruling in the state circuit court, and on May 17, 1976, the circuit court affirmed, holding that Pers 27 violated the Wisconsin constitution, as administrative action beyond the powers delegated by the legislature. Undaunted, the respondents appealed to the Wisconsin Supreme Court, which affirmed on the same grounds. State (Department of Administration) v. Department of Industry, labor and Human Relations, 77 Wis. 2d 126, 252 N.W.2d 353 (1977).
In June 1978 Patzer filed a complaint in state court alleging that he had not been offered a position in accordance with the DILHR decision and asking for $25,000 in damages for lost wages and fringe benefits and for expense incurred in finding other employment. The court dismissed the suit for want of personal jurisdiction on April 24, 1979, because the suit was against the state and Patzer had failed to comply with Wisconsin's notice of claim statute, which requires the claimant to serve written notice of the claim on the attorney general within 120 days (then 90 days) of the event causing the injury. Wis. Stat. ann. § 893.82 (West 1983). Patzer did not appeal.
Patzer now turned to the EEOC, where his claim had lain dormant. The EEOC's efforts at conciliation and settlement proved fruitless, and Patzer requested and received a right-to-sue letter in 1983. He then filed this action in district court, seeking back pay, restoration of employment, restoration of all fringe benefits, and compensatory and punitive damages of $100,000,*fn2 plus attorneys' fees and costs.
The district court dismissed the claim brought under 42 U.S.C. § 1983 as time-barred. Treating the remaining Title VII claim, the court rejected the defense of laches, finding that although the ten-year delay was unreasonable, it was nevertheless excusable, and defendants had not shown prejudice. But on January 19, 1984, the court entered summary judgment for the defendants, holding that Patzer's Title VII claim was barred by res judicata as a result of the dismissal of his state court suit in 1979. Patzer v. Board of Regents, 577 F. Supp. 1553 (W.D. Wis. 1984). Patzer filed his notice of appeal on February 15, 1984, that appeal is No. 84-1267.
On February 3, 1984, Patzer filed a motion in the district court seeking attorneys' fees in accordance with New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 64 L. Ed. 2d 723, 100 S. Ct. 2024 (1980), for successfully prosecuting his state administrative claim. On March 8, 1984, the court denied the motion on the grounds that Patzer could have requested attorneys' fees in his state action; the dismissal of that action therefore precludes him from seeking attorneys' fees now. Patzer filed his notice of appeal from that order on March 13, 1984; that appeal if No. 84-1411. IIA. The Action for Back pay (No. 84-1267) 1. The Holding of the District Court
The district court based its holding on Kremer v. Chemical Construction Corp., 456 U.S. 461, 72 L. Ed. 2d 262, 102 S. Ct. 1883 (1982), in which the Supreme Court held that Title VII did not repeal the requirement of 28 U.S.C. § 1738 that federal courts afford the same full faith and credit to state court judgments that would apply in the state's own courts. The district court reasoned that because Patzer could have joined his Title VII claim to his state court action, the dismissal of that action would bar him under Wisconsin principles of res judicata from prosecuting his Title VII claim in state court now. Hence, the court concluded, Kremer and § 1738 bar him from prosecuting his Title VII claim in federal court also.
The flaw in the district court's reasoning lies in its assumption that the courts of Wisconsin would give preclusive effect to the dismissal of Patzer's action by the state court in 1979, so as to bar the subsequent litigation of a Title VII claim in state court. Under Wisconsin law only a final judgment on the merits has preclusive effect. Krueger v. Winters, 37 Wis. 2d 204, 211, 155 N.W.2d 1, 5 (1967). The 1979 dismissal was a final judgment, but it was not on the merits. Patzer's suit was dismissed for want of personal jurisdiction because he failed to comply with the notice of claim statute, a condition precedent to obtaining personal jurisdiction over state defendants.*fn3 ...