ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Civ No. 79-0515)
Before Seitz, Chief Judge, and Gibbons and Rosenn, Circuit Judges.
Mary Smouse (the plaintiff) and Local 623, International Union of Electrical, Radio & Machine Workers (Local 623) appeal from an order of the district court granting summary judgment in favor of General Electric Co. (the defendant), the plaintiff's employer, on the ground that this Title VII action was barred by res judicata as a result of state administrative proceedings.
The plaintiff was employed by the defendant at its Coil Manufacturing Department in West Mifflin, Pennsylvania. The plaintiff worked in the division that made armature and stator coil. Local 623 is the collective bargaining representative of the employees in that division.
During 1970 the defendant decided to transfer its armature and stator coil works to a plant in Ohio. When the phaseout of operations at the West Mifflin plant took place in April 1971, the defendant allegedly did not treat men and women similarly with respect to transfer to other full time positions.*fn1 The plaintiff was one of the women transferred to a part-time position during the phaseout.
In September 1971, three female employees from the Coil Department filed a complaint with the Pennsylvania Human Relations Commission (PHRC) challenging the phaseout on the ground of sex discrimination in violation of § 5(a) of the Pennsylvania Human Relations Act, Pa.Stat.Ann. tit. 43, § 955(a). Although the plaintiff was not a named party, the PHRC labelled the case as a class action on behalf of all female employees of the Coil Department.
A hearing panel of the PHRC held hearings on June 26-27 and August 1, 1973. On April 1, 1974, the PHRC found that the defendant had violated the state act. It ordered the defendant to offer to rehire or reassign all women laid off or reassigned in 1971, to provide training to those who accepted this offer, and to give backpay to the women in question.
There followed a series of appeals in which the Pennsylvania Commonwealth Court reversed the PHRC, General Electric Corp. v. Commonwealth, 18 Pa.Cmwlth. 316, 334 A.2d 817 (1975), and in which the Pennsylvania Supreme Court reversed the Commonwealth Court, General Electric Corp. v. Commonwealth, 469 Pa. 292, 365 A.2d 649 (1976). On October 28, 1977, the Commonwealth Court reinstated the PHRC's original order. However, as of the time this appeal was argued, no employee in the class has received backpay as required by the order.
Instead of following the course of her fellow employees, the plaintiff filed a timely complaint with the Equal Employment Opportunity Commission (EEOC). She alleged that the 1971 phaseout violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The EEOC issued a right to sue letter, and the plaintiff and Local 623 timely filed this action raising the Title VII claim.
The district court granted summary judgment to the defendant on the ground that the present action was barred by res judicata as a result of the PHRC order. This appeal followed.
Although no money judgment has yet been entered in the state proceedings, we will assume, without deciding, that all of the elements of res judicata, including finality, are present. Thus the sole question presented by this appeal is whether a decision by the PHRC that is subsequently affirmed by the Pennsylvania Supreme Court is res judicata so as to bar relitigation of the plaintiff's discrimination claim under Title VII in federal court. In Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S. Ct. 1011, 39 L. Ed. 2d 147 (1974), the Supreme Court held that arbitration of an employee's discrimination grievance pursuant to a collective bargaining agreement will not bar a subsequent Title VII action in federal court. We believe that ...