Rights Act of 1964, 42 U.S.C. § 2000e et seq., alleging that defendant Progress Lighting Corporation unlawfully terminated the plaintiff's employment because of his race. Prior to filing the complaint in this case, the plaintiff filed charges of discrimination against the defendant with the Philadelphia office of the Equal Employment Opportunity Commission, as required by 42 U.S.C. § 2000e-5. Although the parties agree that the plaintiff also "voluntarily" filed charges of discrimination against the defendant with the Philadelphia Commission on Human Relations (P.C.H.R.), it appears that prior to considering the plaintiff's charges the E.E.O.C. would have referred those charges to the P.C.H.R. pursuant to 42 U.S.C. § 2000e-5(c). On August 4, 1983, the P.C.H.R., following its investigation, notified the plaintiff that his charges would be dismissed as not substantiated unless the plaintiff requested a review hearing. The plaintiff did not request such a hearing, nor did he appeal the P.C.H.R.'s dismissal of his charges to the Pennsylvania Court of Common Pleas, which was his right pursuant to § 9-1107(10) of the P.C.H.R. provisions and 2 Pa.Cons.Stat.Ann. §§ 752-754 (Purdon Supp. 1984). Subsequently the E.E.O.C., relying on the findings of the P.C.H.R., determined that there was not probable cause to believe that a Title VII violation had occurred and issued the plaintiff a right-to-sue notice. The plaintiff timely commenced this lawsuit within the ninety-day period set forth in 42 U.S.C. § 2000e-5(f)(1). The defendant has filed a motion for summary judgment on the basis of res judicata. The defendant contends that as a result of plaintiff's failure to appeal the P.C.H.R.'s dismissal of his charges, the determination of the P.C.H.R. would have been afforded "final and preclusive" effect within the Pennsylvania court system. The defendant further contends that under the principles of res judicata embodied in the full faith-and-credit clause of the Constitution (Art. IV & § I) and its statutory counterpart (28 U.S.C. § 1738), as recently applied to Title VII cases by the Supreme Court in Kremer v. Chemical Construction Corp., 456 U.S 461, 102 S. Ct. 1883, 72 L. Ed. 2d 262 (1982), the P.C.H.R. determination precludes the plaintiff from bringing this action in federal court. For the reasons that follow the defendant's motion for summary judgment will be denied.
In Kremer v. Chemical Construction Corp., supra, the plaintiff filed an employment discrimination complaint with the E.E.O.C., which referred the matter to the New York state agency charged with enforcing the New York laws prohibiting employment discrimination. The agency concluded that no discrimination had occurred. The plaintiff appealed the agency's determination to the Appellate Division of the New York Supreme Court, which affirmed the agency's findings. Subsequently, the E.E.O.C. determined that there was not probable cause to believe the charge of discrimination was true and issued the plaintiff a right-to-sue notice. The plaintiff then commenced a Title VII action in the federal district court, which dismissed the complaint on the ground that the state court affirmance of the agency's determination barred the federal lawsuit under the principles of res judicata. See Kremer v. Chemical Construction Corp., U.S. at , 102 S. Ct. at 1888-89.
The Supreme Court held that the state court's affirmance of the agency's determination did preclude the plaintiff's subsequent Title VII action in federal court. In so holding the Court applied the "full faith-and-credit" provision of 28 U.S.C. § 1738, which provides in pertinent part:
The Acts of the legislature of any state . . . and judicial proceedings of any court of any such State . . . shall have the same full faith and credit in every court within the United States . . . as they have by law of usage in the courts of such State . . . from which they are taken.