The opinion of the court was delivered by: GILES
JAMES T. GILES, UNITED STATES DISTRICT JUDGE
In September of 1982, Elizabeth McNasby (McNasby) filed the present action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., as a class action on behalf of female workers at Crown Cork & Seal, Inc. (Crown). The complaint alleged that Crown and the Sheet Metal Production Workers Union, Local 266, had engaged in a pattern and practice of sex discrimination, particularly during the period between October 17, 1970 and December 31, 1975. McNasby filed her complaint with the EEOC on May 17, 1971. None of the other plaintiffs filed such a complaint.
The events from which McNasby's claims arise were also the subject of hearings before the Pennsylvania Human Relations Commission (PHRC). McNasby had filed a written complaint with the PHRC in June of 1971. The PHRC then filed an amended complaint which detailed the allegations of discrimination by the defendants and included affidavits from most of the plaintiffs in the present action. The Commission held thirty-seven days of public hearings on the allegations of the complaint. On September 29, 1981, the PHRC issued its findings of fact and its final order. The Commission concluded that McNasby and the other plaintiffs were victims of discrimination, but granted very limited monetary relief to the victims.
McNasby had amended her EEOC complaint while the state court appeals were pending and brought the current action in federal court in September of 1982. The case was placed on the civil suspense docket pending the outcome of the state appeals and was returned to the active case list in December of 1985. Defendants filed a motion for summary judgment in January of 1986, but this motion was denied on the grounds that the PHRC was not entitled to res judicata effect because the PHRC did not fashion the "make-whole" remedy to which plaintiffs were entitled under Title VII, 656 F. Supp. 206.
Defendant Crown now moves for summary judgment based upon the recent decision of the United States Court of Appeals for the Third Circuit in Gregory v. Chehi, 843 F.2d 111 (3d Cir. 1988). Crown claims that the class action stands or falls on McNasby's claims because she is the only plaintiff who filed a charge with the EEOC, a prerequisite to filing a Title VII action. Plaintiff does not dispute this.
A federal court is bound by the Full Faith and Credit statute, 28 U.S.C. § 1738, in applying preclusion principles and must therefore give a prior state judgment the same preclusive effect as would be given to that judgment under the law of the state in which the judgment was rendered. Gregory v. Chehi, 843 F.2d at 116. If state law does not preclude relitigation, then the federal action may go forward. If state law does preclude relitigation, then the court must consider whether any circumstances exist which would prevent the application of § 1738.
I. The Pennsylvania Law of Claim Preclusion
Defendant contends that, under both Pennsylvania statutory and common law, McNasby's claims would be precluded in the Pennsylvania state courts. It argues that, under § 1738, plaintiff's action must also be barred in federal court.
Defendant maintains that the Pennsylvania Human Relations Act (PHRA), under which McNasby brought her claim at the state level, contains a section which provides the Pennsylvania rule of claim preclusion. The statute provides:
As to acts declared unlawful by section five of this act the procedure herein provided shall, when invoked, be exclusive and the final determination therein shall exclude any other action, civil or criminal, based on the same grievance of the complainant concerned.
Pa. Stat. Ann. tit. 43, § 962(b) (Purdon Supp. 1988).
In Kremer v. Chemical Construction Corp., 456 U.S. 461, 463, 72 L. Ed. 2d 262, 102 S. Ct. 1883 (1982), the Supreme Court addressed the issue of 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 as meritless. Defendant argues that the Court in Kremer based its decision on a New York statute that is "virtually identical" to the PHRA statute in this case.
In Kremer, the New York administrative agency's decision was affirmed by both the agency's appeals board and the Appellate Division of the New York Supreme Court. The Court stated:
There is no question that this judicial determination precludes Kremer from bringing "any other action, civil or criminal, based upon the same grievance" in the New York courts. N.Y. Exec. Law § 300 (McKinney) 1972. By its terms, therefore, § 1738 would appear to preclude Kremer from relitigating the same question in federal court.
Plaintiff has not directly addressed the issue of the statute. Plaintiff's arguments are made under the Pennsylvania common law.
b. The Pennsylvania Courts' Jurisdiction
Plaintiff first argues that Pennsylvania courts would not apply claim preclusion to McNasby's Title VII claim because Title VII claims are within the exclusive jurisdiction of the federal courts. Under Pennsylvania law, a second tribunal will be bound by the findings of a first tribunal if the first court to adjudicate the matter had jurisdiction to hear the omitted claim. See City of Philadelphia v. Stradford Arms, Inc., 1 Pa. Commw. 190, 274 A.2d 277, 280 (1971); Gregory, 843 F.2d at 117.
Plaintiff also cites the Supreme Court case of Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 84 L. Ed. 2d 274, 105 S. Ct. 1327 (1985) which stated:
With respect to matters that were not decided in the state proceedings, we note that claim preclusion generally does not apply where the plaintiff was unable to rely on a certain theory of the case or to seek a certain remedy because of the limitations on the subject matter jurisdiction of the court.
Plaintiff claims that, under Bradshaw v. General Motors Corp., 805 F.2d 110 (3d Cir. 1986), federal courts have exclusive jurisdiction over Title VII claims. Because the Pennsylvania court was not free to consider the Title VII claim, plaintiff argues, it would not be precluded under Pennsylvania law.
Defendant correctly asserts that, although the third circuit held that federal courts have exclusive jurisdiction over Title VII claims in Bradshaw, Pennsylvania courts were free to entertain Title VII claims at all relevant times during the course of the state proceedings in this case (1970-1985). In Chmill v. City of Pittsburgh, 488 Pa. 470, 412 A.2d 860 (1980), the Pennsylvania Supreme Court considered and rejected a Title VII challenge to actions of the Pittsburgh Civil Service Commission. Defendant also points out that, in the present case, the PHRC considered Title VII with respect to statistical evidence and the remedial authority of the PHRC. Appendix to Motion of Defendant at 146, 156.
Plaintiff has not shown that Title VII was within the exclusive jurisdiction of the federal courts at the times relevant to this case. Because the Pennsylvania courts considered themselves free to hear Title VII claims, McNasby's action would be precluded under Pennsylvania law.
c. Identity of Cause of Action
Plaintiff next contends that Title VII and the state law discrimination claims are not the same causes of action and, as such, would not be awarded preclusive effect by the Pennsylvania courts. Under Pennsylvania common ...