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., DefendantsAppellees.
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 defendantsappellees.
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.
3

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.
19811 and 1983 against PCC, the Board and others.2

5I. THE TITLE VII CLAIM: KREMER V. CHEMICAL CONSTRUCTION CORP.

6

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:

7
[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 judicata8 on plaintiff's Title VII claim.

10

The United States Supreme Court granted certiorari, and addressed the issue of
whether the national policy embodied in Title VII of vesting enforcement of
antidiscrimination laws in the federal courts superseded the longstanding
principle of comity expressed in 28 U.S.C.A. Sec. 17389 :

11
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.

12
13

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.

14

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 test11 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.

15

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.

16

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:

17 provision of Title VII requires claimants to pursue in state court an unfavorable

No
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 subject to redetermination at such a trial.
***
18
19
Nothing
in the legislative history of the 1964 Act suggests that Congress considered
it necessary or desirable to provide an absolute right to relitigate in federal court an
issue resolved by a state court.
456 U.S. 469-70, 73, 102 S.Ct. 1891-92, 1893 (emphasis in original).
20
21

This language is clearly evidence of the Kremer Court's focus on the state court
judgment, and not the agency affirmed, for purposes of full faith and credit, and
further disposes of plaintiff's claim that he is entitled to a trial de novo in
federal court on his Title VII claim.

22

Additional internal evidence of the focus of the Kremer Court's analysis is

found in the Court's holding that:

23 comity and federalism interests embodied in Sec. 1738 are not compromised
[T]he
by the application of res judicata and collateral estoppel in Title VII cases. Petitioner
maintains that the decision of the Court of Appeals will deter claimants from seeking
state court review of their claims ultimately leading to a deterioration in the quality
of the state administrative process. On the contrary, stripping state court judgments
of finality would be far more destructive to the quality of adjudication by lessening
the incentive for full participation by the parties and for searching review by state
officials. Depriving state judgments of finality not only would violate basic tenets of
comity and federalism, Board of Regents v. Tomanio, 446 U.S. 478, 488, 491-92,
[100 S.Ct. 1790, 1797, 1798-99, 64 L.Ed.2d 440] (1980), but also would reduce the
incentive for States to work toward effective and meaningful antidiscrimination
systems. Id. at 478 [100 S.Ct. at 1790] (footnote omitted).
24

The destructive effect of stripping state court judgments of finality is equally

applicable to state court judgments affirming that a claim of employment
discrimination is unproven made by a state administrative agency other than
that expressly authorized to determine employment discrimination claims.
Likewise, plaintiff's claim that affirming the federal district court's holding that
Kremer applies to the PCC Board's order will deter claimants from seeking
state court review of such orders is unfounded.

25

Finally, that the state court judgment is the determinative factor in the Kremer
analysis is illustrated by the Kremer Court's holding that:

26 congressional directive that the EEOC should give "substantial weight" to

[T]he
findings made in state proceedings, Sec. 706b, 42 U.S.C. Sec. 2000e-5(b), indicates
only the minimum level of deference the EEOC must afford all state determinations;
it does not bar affording the greater preclusive effect which may be required by Sec.
1738 if judicial action is invovled[,]
Id. at 470, [102 S.Ct. at 1891]
27
28

and accompanying footnote seven:

29 it is well settled that decisions by the EEOC do not preclude a trial de novo in
Since
federal court, it is clear that unreviewed administrative decisions by state agencies
also should not preclude such review even if such a decision were to be afforded
preclusive effect in a State's own courts.
30

In sum, it is the state court judgment, and not the agency decision, that triggers
the full faith and credit requirement of Section 1738.

31

Our holding that Kremer applies to the present state court judgment affirming
the PCC Board is supported not only by the clear import of the Kremer analysis
but also by the pre-Kremer precedent of the former Fifth Circuit.12 In Frazier v.
East Baton Rouge Parish School Board, 363 F.2d 861 (5th Cir.1966) (per
curiam), a public school teacher brought a Section 1983 action in federal court
based on claims previously rejected by the School Board after a public hearing
and affirmed by the Louisiana state court. The court held that plaintiff's Section
1983 action was barred by res judicata and that: "[i]f state administrative action
is first challenged in the state court, and the state court acts judicially, the state
court decision is res judicata and bars a decision by a federal court." Id. at 862.

32

In Jennings v. Caddo Parish School Board, 531 F.2d 1331 (5th Cir.1976) (per
curiam), the School Board ordered plaintiff, a public school teacher, dismissed
after a full hearing at which plaintiff was represented by counsel. Plaintiff
appealed the Board's order to the Louisiana state court, which affirmed.
Plaintiff's Section 1983 suit, alleging that her dismissal was racially motivated,
was held to be barred by the res judicata effect of the state court judgment.

33

In Cornwell v. Ferguson, 545 F.2d 1022 (5th Cir.1977), plaintiff, an associate

professor at the University of Florida, was not granted tenure or renewed
employment by the University's Academic Freedom and Tenure Committee. At

a hearing before the Committee, plaintiff alleged, inter alia, that this action
constituted a denial of equal protection. The Committee found that no
constitutional deprivations had occurred, and plaintiff was dismissed. Plaintiff
then petitioned the Florida district court of appeal for review, and shortly
thereafter filed an action in federal court, alleging similar causes of action under
the Civil Rights Act. On defendants' motion the federal district court stayed the
proceedings pending the outcome of the state appeal. The state court affirmed
the Committee's order. The parties then returned to federal court and
defendants' motion for summary judgment was granted on the ground of res
judicata. On appeal, the former Fifth Circuit affirmed, holding the district
court's abstention was proper and that the decision of the state court was res
judicata in the federal proceeding:
34 process does not require federal courts to get involved in every action alleging a
Due
federal constitutional or civil rights claim. Here the complaining party freely and
voluntarily chose to first seek relief from the state court. This court has previously
held that a state court judgment is conclusive as to all matters which were litigated or
might have been litigated in the first action.
Id. at 1024.
35
36

We find this precedential trio concerning the actions of administrative agencies

similar to the PCC Board to be highly persuasive, if not controlling, in the
present Title VII context because although each case involved federal claims
under the Civil Rights Act the Kremer Court noted that:

37 finding that Title VII does not create an exception to Sec. 1738 is strongly
Our
suggested if not compelled by our recent decision in Allen v. McCurry [449 U.S. 90,
101 S.Ct. 411, 66 L.Ed.2d 308 (1980) ] that preclusion rules apply in 42 U.S.C. Sec.
1983 actions and may bar federal courts from freshly deciding constitutional claims
previously litigated in state courts. Indeed, there is more in Sec. 1983 to suggest an
implied repeal of Sec. 1738 than we have found in Title VII. 456 U.S. at 476, 102
S.Ct. at 1894.
38

See also Lee v. City of Peoria, 685 F.2d 196 (7th Cir.1982) (relying on
Jennings and Kremer in holding that a state court judgment affirming an
administrative decision of a police personnel board is res judicata and barred
plaintiff's Civil Rights Act claims). Since a federal court is required to give full
faith and credit to a state court judgment affirming an administrative agency
determination under both the Civil Rights Act and Title VII, we find no
principled basis for distinguishing between the preclusive effect of a state court
judgment affirming a school or university Board decision under the Civil Rights
Act and under Title VII. In sum, we hold that the Florida court's affirmance of

the PCC Board's order is entitled to full faith and credit in a federal court if the
Kremer criteria are met.
39

We turn now to plaintiff's claim that the first criterion of the Kremer test is not
met in this case and that a Florida court would not accord preclusive effect to
the Second District Court of Appeals' judgment affirming the PCC Board's
order. Plaintiff contends that the PCC Board did not have jurisdiction to
determine his claim of employment discrimination and from this premise seeks
to draw the conclusion that the state court's affirmance of the Board's order
likewise was without jurisdiction and would not be given preclusive effect in a
Florida state court. We disagree.

40

First, we note that the court's affirmance of the PCC Board's order can be read
as necessarily involving a determination that the Board had jurisdiction over
plaintiff's claim. See Sauls v. DeLoach, 182 So.2d 304, 305 (Fla. 1st
D.C.A.1966) (on the district court of appeals' review of administrative agency
actions under Fla.Stat.Ann. Sec. 120.31(1) (1977), the predecessor statute to
current Fla.Stat.Ann. Sec. 120.68, "[t]he question which we must decide is
whether the administrative agency acted without or in excess of its
jurisdiction"). Cf. Kremer, 456 U.S. at 480, 102 S.Ct. at 1896-97 ("[t]he
Appellate Division's affirmance of the NYHRD's dismissal necessarily decided
that petitioner's claim under New York law was meritless").

41

Second, we address plaintiff's claim that the state court's summary affirmance
of the PCC Board's order "obviously" did not address plaintiff's claim of
employment discrimination or the Board's jurisdiction over such a claim.
Fla.Stat.Ann. Sec. 120.68 governs judicial review of final agency action and
provides that the district court of appeals "[s]hall remand the case to the agency
if it finds the agency's exercise of discretion to be outside the range of
discretion delegated to the agency by law," id. (12)(a), or "[i]f the court finds
that the agency has erroneously interpreted a provision of law ... it shall: (a) set
aside or modify the agency action, or (b) remand the case to the agency for
further action under a correct interpretation of the provision of law," id. (9).
Whether the Board's actions in determining plaintiff's employment
discrimination claim were within its jurisdiction as a matter of law or delegated
statutory discretion is an issue that would be properly presented to the district
court of appeals on direct review. The record in this case does not reflect on
what grounds plaintiff sought review of the PCC Board's order in the Florida
court. Assuming that plaintiff did not raise such a challenge to the PCC Board's
jurisdiction before the district court of appeals, this fact is irrelevant to the
application of the doctrine of res judicata to the district court of appeals'
affirmance of the Board's order in a subsequent proceeding in a Florida court. In

Coulter v. Davin, 373 So.2d 423, 427 (Fla.2d D.C.A.1979), the court held that:
42
[W]hen
administrative agency action in a proceeding has become final as to a party,
whether or not review by a district court of appeal is sought, that party is foreclosed
from asserting in circuit court that the agency action is unconstitutional (or is
improper for any other reason). This is for the simple reason that the
unconstitutionality of the action is an issue which could have been asserted by the
party on direct review by the district court of appeal pursuant to Section 120.68.
43

See also, Key Haven v. Board of Trustees of Internal Improvement Trust Fund,
427 So.2d 153, 157-58 (Fla.1982); Albrecht v. State, 407 So.2d 210, 211 (Fla.
2d D.C.A.1981); Hays v. State Department of Business Regulation, 418 So.2d
331, 332 (Fla. 3d D.C.A.1982). Since a Florida court would grant res judicata
preclusive effect to all issues, including that of the PCC Board's jurisdiction,
which could have been raised before the district court of appeals on direct
review of the Board's order, a federal court is required to do the same.

44

Third and finally, we note that the issue of employment discrimination decided
by the PCC Board's order is entitled under Florida law to collateral estoppel
effect in subsequent proceedings before another administrative agency or state
court, apart from direct review by the district court of appeals. See Coulter v.
Davin, supra; City of Bartow v. Public Employees Relations Commission, 382
So.2d 311, 313 (Fla. 2d D.C.A.1979); Marion County School Board v. Clark,
378 So.2d 831, 835 (Fla. 1st D.C.A.1979). (Ervin, J. concurring). Again, a
federal court is required to do the same.

45

We therefore hold that Kremer requires that full faith and credit be given by a
federal court to the judgment of the Florida Second District Court of Appeals
affirming the Board's order disposing of plaintiff's claim of employment
discrimination and that accordingly the federal district court did not err in
granting summary judgment in the PCC defendants' favor as a matter of law.

II. THE SECTION 1983 CLAIM: MCGHEE V. OGBURN

46

The district court held that the applicable limitations period under Florida law13
to plaintiff's Section 1983 claim, alleging a deprivation of his First Amendment
rights of free speech and association, was that of Fla.Stat.Ann. Sec. 95.11(4)(c),
governing an "action to recover wages or overtime or damages or penalties
concerning the payment of wages and overtime." Since plaintiff was discharged
on December 29, 1979, and suit was not filed until June 21, 1981, the district
court granted the PCC defendants' motion to dismiss plaintiff's Section 1983
claim as time barred. In determining the applicable statute of limitations for

plaintiff's Section 1983 claim under Florida law the district court relied on
McWilliams v. Escambia County School Board, 658 F.2d 326 (5th Cir. Unit B
1981),14 in which the court held that Section 95.11(4)(c) applies to a Section
1983 claim alleging race discrimination in employment and seeking both legal
and equitable relief. After the district court's decision in this case, McGhee v.
Ogburn, 707 F.2d 1312 (11th Cir.1983), was decided. In McGhee, this Court
extended McWilliams to a Section 1983 claim alleging a deprivation of
procedural due process in employment termination. The PCC defendants claim
that the rationale of McGhee is controlling on the appropriate limitations period
for plaintiff's Section 1983 claim in the present case, alleging a deprivation of
his First Amendment rights. We agree only because we are bound by McGhee.
47

Plaintiff seeks to distinguish McGhee on the grounds that his First Amendment
claims are not employment related and are distinct from any claim of race
discrimination in employment. We agree that plaintiff's First Amendment rights
exist outside of any employment relationship with the PCC defendants; we find,
however, that the clear gravamen of plaintiff's Section 1983 claim is a claim
that he was discharged by the PCC defendants in retaliation for exercising his
First Amendment rights.15 It is clear that plaintiff's First Amendment claim for
retaliatory discharge is distinct from any claim of race discrimination in
employment. If we were writing on a clean slate, we would hold that due to the
distinct nature of plaintiff's First Amendment claim from any claim of racial
discrimination in employment this case falls without the ambit of McWilliams
and Fla.Stat.Ann. Sec. 95.11(4)(c). This panel is, however, bound by McGhee
v. Ogburn, which can only be reconsidered and overruled by the court en banc.
As in McGhee, plaintiff:

48
[A]rgues
that the appropriate limitations period is four years under either
Fla.Stat.Ann. Sec. 95.11(3)(f) (West 1982), which applies to an "action founded on a
statutory liability," or id. Sec. 95.11(3)(o), which applies to an "action for ... any ...
intentional tort." Employment discrimination and due process claims share the
pertinent characteristics of these statutes. Both are grounded in statutory liability,
imposed by the Civil Rights Acts. If plaintiff's due process claim, based on the
denial of sufficient notice and hearing, can be termed an action for an intentional
constitutional tort, so can a claim for racial discrimination in demotion and eventual
termination of employment. If, as McWilliams concluded, an "action to recover
wages ..." is the most closely analogous Florida action to a Sec. 1983 action seeking
injunctive relief as well as damages, then the same is true for a Sec. 1983 due
process employment case seeking the same relief.
707 F.2d at 1314.
49
50

Although we find considerable merit to plaintiff's claim that a First Amendment

50

Although we find considerable merit to plaintiff's claim that a First Amendment

retaliatory discharge action arises separate and distinct from any claim of racial
discrimination as in McWilliams, we find no principled basis for distinguishing
between the present First Amendment retaliatory discharge claim and the
McGhee procedural due process claim. If plaintiff's First Amendment claim of
retaliatory discharge can be characterized as an intentional constitutional tort
grounded in the statutory liability of the Civil Rights Act, then the same is true
of a procedural due process employment termination claim. For this reason,
unless and until this Court en banc overrules McGhee's extension of
McWilliamsto claims under the Civil Rights Act distinct from those involving
allegations of racial discrimination, we affirm the district court's dismissal of
plaintiff's Section 1983 claim alleging that he was discharged in retaliation for
exercising his First Amendment rights as time barred under Fla.Stat.Ann. Sec.
95.11(4)(c).

III. CONCLUSION
51

We AFFIRM the district court's grant of summary judgment in the Polk

Community College defendants' favor on plaintiff's Title VII claim, and
AFFIRM the district court's dismissal of plaintiff's Section 1983 claim as time
barred by Fla.Stat.Ann. Sec. 94.11(4)(c).

52

R. LANIER ANDERSON, III, Circuit Judge, concurring specially:

53

I concur in the judgment and in all of the opinion, except that I express no
opinion on the wisdom of the rule in McGhee v. Ogburn, 707 F.2d 1312 (11th
Cir.1983).

Plaintiff does not appeal the district court's dismissal of his Section 1981 claim
as time barred by Fla.Stat.Ann. Sec. 95.11(4)(c)

In addition to PCC and the Board, the plaintiff's amended complaint names
PCC's Dean of Students, Director of Counselling, Director of Admissions and
Records, and a secretary to the Dean of Students as defendants in their
individual capacities. We refer to all of the defendants in this case collectively
as the PCC defendants

Although plaintiff's actual response is not of record, the President's petition,

Record at 61, states that plaintiff so responded to the charges in a letter of
March 23, 1978. Plaintiff does not here contend that he did not raise this
defense before the Hearing Officer, nor does he claim that the federal district
court clearly erred in finding that "[t]he hearing officer did consider plaintiff's

claims of racial discrimination and disparate treatment and found them lacking
in merit." Record at 109
4

Hearing Officer's recommended order, Record at 79-80, quoted in the federal

district court's memorandum opinion and order, Record at 108

Id. at 82, quoted in the federal district court's memorandum opinion and order,
Record at 108-109

Id

Plaintiff contends that the Board never adopted the Hearing Officer's finding
that he was not dismissed for racial reasons in its final order. This claim is
contradicted by the record: "The Board ... has decided to affirm the findings and
conclusions of the Hearing Officer as modified herein." Record at 84. No
modification of the Hearing Officer's finding that the charges were not based on
racially discriminatory reasons follows, and the Board's final order adopts the
Hearing Officer's conclusions as to the "good and sufficient reasons" standard.
Id. at 85. The federal district court did not err in finding that the Board accepted
the Hearing Officer's rejection of plaintiff's claims of racial discrimination

We note at this juncture that the term "res judicata" is used generically to refer
to both collateral estoppel, or issue preclusion, and res judicata, or claim
preclusion. See Migra v. Warren City School Board of Education, --- U.S. ----, ---, 104 S.Ct. 892, 894-95, 79 L.Ed.2d 56 n. 1 (1984); Kremer, 456 U.S. at 46667 n. 6, 102 S.Ct. at 1889-90 n. 6. Res judicata in this second narrower sense of
claim preclusion refers to the effect of a judgment in foreclosing the parties
from relitigating issues that were or could have been raised in the prior action.
Collateral estoppel, or issue preclusion, refers to the effect of a judgment in
foreclosing litigation of a matter that has been litigated and decided. In Kremer,
collateral estoppel was applied to prevent relitigation of the issue of
employment discrimination previously decided by the state courts. Likewise, in
the present case the district court held that the state court's affirmance of the
Board's order collaterally estopped the plaintiff from relitigating the issue of
employment discrimination

28 U.S.C.A. Sec. 1738 provides in pertinent part:

The ... judicial proceedings of any court of any such State ... shall have the
same full faith and credit in every court within the United States and its
Territories and Possessions as they have by law or usage in the courts of such
State ....

10

Fla.Stat.Ann. Sec. 23.161 et seq. is Florida's employment discrimination Act.

Section 23.167 prohibits discrimination in employment on the basis of race,

religion, sex, national origin, age, handicap, or marital status. Sections 23.16366 provide for a Commission of Human Relations to investigate and hold
hearings on claims of employment discrimination and to serve as a deferral
agency for the federal government. We agree with the plaintiff that the Florida
Human Relations Commission is analogous to the New York State Division of
Human Rights in Kremer
11

Plaintiff also claims that the second criterion in Kremer, i.e., that the
administrative proceedings and judicial review comport with due process, is not
met in this case. Plaintiff's sole argument in support of this claim is that the
administrative proceedings did not meet minimal due process standards because
the Hearing Officer was a member of the Board and thus, plaintiff claims,
deprived him of his due process right to a fair and impartial decision maker.
However, because plaintiff has pointed to no record evidence of actual bias in
support of his claim that the Board was in an adversarial posture to him, and
because our review of the record has revealed no such evidence, we hold that
this claim is without merit and precluded by precedent binding upon this court,
Megill v. Board of Education of the State of Florida, 541 F.2d 1073, 1079 (5th
Cir.1976):
An impartial decisionmaker is a basic constituent of minimum due process.
Ferguson v. Thomas, 430 F.2d 852, 856 (5th Cir.1970); Simard v. Board of
Educ., 473 F.2d 988, 993 (2d Cir.1973). In Duke v. North Texas State Univ.,
469 F.2d 829 (5th Cir.1972), cert. denied, 412 U.S. 932, 93 S.Ct. 2760, 37
L.Ed.2d 160 (1973), this Court refused to adopt any per se rule disqualifying
administrative hearing bodies. The record must support actual partiality of the
body or its individual members. "In the absence of evidence to the contrary, we
must assume therefore that the [administrative hearing body] acted
independently and properly in these circumstances." 469 F.2d at 834. Accord
Jenkins v. Louisiana State Bd. of Educ., 506 F.2d 992, 1003 (5th Cir.1975).
Further we note that under the Florida Administrative Procedure Act,
Fla.Stat.Ann. Sec. 120.50 et seq., plaintiff had the right to request that the
Hearing Officer be disqualified for bias, prejudice, interest, or other causes for
which a judge may be recused. Fla.Stat.Ann. Sec. 120.71; State ex rel. Allen v.
Board of Public Instruction, 214 So.2d 7 (Fla.1968). As in Kremer, "[t]he fact
that [the plaintiff] failed to avail himself of the full procedures provided by state
law does not constitute a sign of their inadequacy." 456 U.S. at 485, 102 S.Ct.
at 1899.

12

The Eleventh Circuit has adopted the case law of the former Fifth Circuit
handed down as of September 30, 1981, which is binding unless and until

overruled or modified by this Court en banc. See Bonner v. City of Prichard,

661 F.2d 1206, 1209 (11th Cir.1981) (en banc)
13

It is well settled that federal courts must look to the applicable state limitations
period if Congress, as in the Civil Rights Act, has not provided a federal
statutory limitation period, 42 U.S.C.A. Sec. 1988; Johnson v. Railway Express
Agency, Inc., 421 U.S. 454, 462, 95 S.Ct. 1716, 1721, 44 L.Ed.2d 295 (1975)
We recognize the proper approach is to first determine the essential nature of
the claim under federal law and then focus on the period applicable to such a
claim under state law.... But, as recognized in Braden v. Texas A & M
University System, 636 F.2d at 92 [5th Cir.1981] and Shaw v. McCorkle, 537
F.2d 1289, 1292 (5th Cir.1976), this distinction between the two steps becomes
blurred since the federal characterization of the claim draws heavily on state
law. McGhee v. Ogburn, 707 F.2d 1312, 1315 (11th Cir.1983).

14

Decisions rendered after September 30, 1981, by a Unit B court of the Former
Fifth Circuit are binding precedent in this Circuit. Stein v. Reynolds Securities,
Inc., 667 F.2d 33, 34 n. 2 (11th Cir.1982)

15

Plaintiff's amended complaint p 14 states:

Defendant PCC, its agents and employees, did infringe on Plaintiff's rights to
free speech and free association by:
(a) Terminating Plaintiff because of his association with PCC maintenance
workers;
(b) Terminating Plaintiff because of his association and support of Claretha
Carnegie, another black PCC employee;
(c) Terminating him for his questioning of administrative policy decisions
during the course of faculty and staff meetings;
(d) Terminating him for his active support of equal opportunity goals;
(e) Terminating him for writing a letter in support of such goals; and
(f) Using Plaintiff's jestful comments intended as an ethnic reference as a
negative evaluation factor.
Record at 23.
Plaintiff seeks both injunctive relief and damages for his Section 1983 claim of
retaliatory discharge. Record at 25.