Cf. Elliott, 478 U.S.
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at 796 n.5 ("‘[T]he legislative history of Title VII manifests a congressional intent to allow an individual to pursue independently his rights under both Title VII and other applicable state and federal statutes.'" (citation omitted)).
Therefore, given that relitigation is permitted when the claim in an administrative court was identical and directly investigated by the agency created specially for that task, it is perverse for the majority to create a new rule prohibiting relitigation when the claim was merely tangential and addressed only in passing by an agency appointed for another task. Cf. Gardner-Denver, 415 U.S. at 56 ("‘[T]he choice of forums inevitably affects the scope of the substantive right to be vindicated.'" (quoting U.S. Bulk Carriers v. Arguelles, 400 U.S. 351, 359-60 (1971) (Harlan, J., concurring))).
The majority claims its position is supported by two exceptions: the full faith and credit statute, and compulsory arbitration under the Federal Arbitration Act (FAA). It is not. While the majority claims these exceptions demonstrate that there is "no absolute right to de novo review in federal court of all issues arising in a Title VII claim," majority op. 17, they instead prove the rule.
A. The First Exception
One of the fundamental tenets of our judicial system is that federal courts are required to give "full faith and credit" to the "judicial proceedings of any court of any . . . State." 28 U.S.C. § 1738. In Kremer v. Chem. Constr. Corp., 456 U.S. 461 (1982), the Supreme Court
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held that a de novo trial pursuant to Title VII was precluded where a state court had reviewed the state administrative agency's decision. Because the state court's review triggered § 1738 and accordingly required the application of full faith and credit, permitting a de novo trial in federal court of a final judgment of a state court would have implicitly repealed the full faith and credit statute. Thus, absent clear congressional intent, Title VII could not supercede the full faith and credit statute (just as SOX does not supercede Title VII). Id. at 470-72 ("[A]n implied repeal must ordinarily be evident from the language or operation of a statute . . . [and the legislative history of Title VII] plainly do[es] not demonstrate that Congress intended to override the historic respect that federal courts accord state court judgments.").
B. The Second Exception
Nor does Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991), undermine the general rule of a de novo trial under Title VII/ADEA. Rather, Gilmer stands for the proposition that an employee may voluntarily waive this statutory right, and that the text and legislative history of the ADEA do not preclude such waiver. See id. at 26 (requiring a showing "that Congress intended to preclude a waiver of a judicial forum for ADEA claims"). This holding does not eviscerate the existence of the right to a de novo trial; to the contrary, it affirms its viability. Moreover, the Court constructed this exception with particular care, after repeatedly denying preclusive effect in the related context of collective bargaining. See, e.g., McDonald v. City of West Branch, 466 U.S. 284 (1984); Barrentine
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v. Arkansas-Best Freight System, Inc., 450 U.S. 728 (1981); Gardner-Denver, 415 U.S. 36. The care with which the Supreme Court carved out these two exceptions attests to the strength of the principle that Title VII and ADEA claims are entitled to de novo trial in federal court.
Without more, the Sarbanes-Oxley Act, either in purpose or in text, cannot be said to diminish the force of the precedents I have cited, which unambiguously hold that unreviewed agency findings—such as the one that dealt with Tice's claim here—have no preclusive effect on Title VII or ADEA claims.
II.
One further comment must be made, and because it has assumed the importance that it does in the majority opinion, I feel it must be corrected. The majority opinion, in Section II.C, reads the language in Solimino, 501 U.S. 104 (1991), as holding that the "clear intent" rule does not apply to Title VII preclusion. It is mistaken. Solimino states only that the "clear intent" rule does not apply to administrative preclusion, precisely because administrative preclusion does not "represent independent values of such magnitude and constancy as to justify the protection of a clear statement rule." 501 U.S. at 109.
By contrast, the "clear intent" rule does apply to Title VII, and it applies specifically here because SOX is a federal statute conflicting with Title VII. Indeed, if the preclusion doctrine under Title VII were non-statutory and thus subordinate to other statutes, as the majority suggests, then the "clear statement" rule would not have been invoked in Kremer,
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456 U.S. at 468-76, to resolve a conflict between principles of preclusion under Title VII and the full faith and credit statute because the latter would have clearly trumped. The fact that it was invoked at all demonstrates that Title VII is not automatically subordinate to SOX. In Kremer, Title VII yielded because it was enacted subsequent to, and did not repeal, the full faith and credit statute. See id. at 468 ("[A]n exception to § 1738 will not be recognized unless a later statute contains an express or implied partial repeal." (emphasis added)). Likewise, SOX is subordinate to Title VII, not only because of policy considerations and common sense, see supra, but because SOX was enacted long after Title VII and there is no evidence in either § 42121 or 18 U.S.C. § 1514A of even a glimmer of express or implied repeal.
III.
Nevertheless, mindful of the doctrine that the decision of a lower court "must be affirmed if the result is correct although the lower court relied upon a wrong ground or gave a wrong reason," SEC v. Chenery Corp., 318 U.S. 80, 88 (1943), I join in affirming the District Court's grant of summary judgment to Bristol-Myers. I do so, not because the administrative findings precluded Tice's Title VII and ADEA claims, but because the District Court could permissibly adopt the ALJ's findings of fact. In doing so, the District Court properly determined that Tice had failed to demonstrate any genuine issue of material fact concerning her admitted falsifications of sales reports.
Thus, although I strongly disagree with the preclusion analysis of the majority, and
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accordingly dissent from that analysis, I respectfully concur in the judgment which affirms the District Court's order of September 13, 2007.
[ENDNOTES]
1 Tice's suit also involves a claim under the Pennsylvania Humans Relations Act (PHRA), governed by the same standards as her Title VII claim. See Woodson v. Scott Paper Co., 109 F.3d 913, 919 (3d Cir. 1997).
2 It is not clear when Tice initiated her Title VII claim with the Equal Employment Opportunity Commission. Her right to sue letter was issued on September 26, 2006. At oral argument, Tice's counsel characterized her SOX and Title VII claims as "parallel" proceedings, in an effort to refute the impression that the Title VII claim was an improper method of collaterally attacking the SOX judgment. This is contrary to Tice's brief, which states that she "instituted the underlying action by filing a Complaint against Bristol-Myers . . . following the conclusion of the SOX proceedings." Appellant's Br. 9. Even assuming that the Title VII and SOX claims were "parallel proceedings," the relative timing of the actions is immaterial to our decision.
3 The District Court had jurisdiction under 28 U.S.C. § 1331 and we have jurisdiction under 28 U.S.C. § 1291.
4 The Dissent correctly notes that principles of federalism are no basis for distinguishing between the preclusive effect of state and federal agency decisions. Our distinction is not between state and federal agencies, per se, but rather between state agencies in general, and a federal agency whose final judgments have been explicitly deemed immune to collateral attack.
5 Not only does the clear statement rule not apply, but Congress' intent is much clearer in this case than in Solimino, where merely implicit intent with respect to preclusion was deemed sufficient to override the general presumption of administrative estoppel. In this case, there is explicit intent in § 42121(b)(4)(B) to affirm the presumption of administrative estoppel.
6 The discrimination analysis set out in Fuentes outlines an alternative theory for proving discrimination: since discrimination need not be the sole motivating reason for mistreatment to trigger liability under Title VII or the ADEA, Tice could show that although she was fired for falsifying sales reports, other evidence shows that "an invidious discriminatory reason was" also a motivating reason for her termination. 32 F.3d at 764; see also Miller v. CIGNA Corp., 47 F.3d 586, 593-94 (3d Cir. 1995) (en banc) (holding that ADEA's requirement that a discharge decision be "because of" an employee's age does not require that it by "solely because of" age); Wilson v. Susquehanna Twp. Police Dept., 55 F.3d 126, 130 (3d Cir. 1995) (applying Miller to Title VII sex discrimination claim).
7 The earliest reference appears to be in the Safe Drinking Water Act, Pub. L. No. 93-523, § 1450, 88 Stat. 1660 (1974) (codified at 42 U.S.C. § 300j-9(i)(3)(B)). Additional references are contained in at least seven other statutes. Consumer Product Safety Improvement Act of 2008, Pub. L. No. 110-314, § 219, 122 Stat. 3062 (codified at 15 U.S.C. § 2087(b)(5)(B)); 9/11 Commission Act of 2007, Pub. L. No. 110-53, § 1413, 121 Stat. 266, 418 (codified at 6 U.S.C. § 1142(c)(4)(B)); Pipeline Safety Improvement Act of 2002, Pub. L. No. 107-355, § 6(a), 116 Stat. 2985 (2002) (codified at 49 U.S.C. § 60129(b)(4)(B)); Aviation Investment and Reform Act, Pub. L. No. 106-181, § 519(a), 114 Stat. 61 (2000) (codified at 49 U.S.C. § 42121(b)(4)(B)); Energy Reorganization Act of 1974, Pub. L. No. 95-601, sec. 10, § 210, 92 Stat. 2947 (1978) (codified as amended at 42 U.S.C. § 5851(c)(2)); Clean Air Act Amendments of 1977, Pub. L. No. 95-95, sec. 312, § 322, 91 Stat. 685 (1977) (codified as amended at 42 U.S.C. § 7622(c)(2)); and Toxic Substances Control Act, Pub. L. No. 94-469, § 23, 90 Stat. 2003 (1976) (codified at 15 U.S.C. § 2622(c)(2)). Other statutes may incorporate by reference in the manner of SOX. See 18 U.S.C. § 1514A(b)(2).
8 See Roth v. Koppers Indus. Inc., 993 F.2d 1058 (3d Cir. 1993); Univ. of Tenn. v. Elliott, 478 U.S. 788 (1986); Chandler v. Roudebush, 425 U.S. 840 (1976); Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104 (1991).
9 Under the existing statutory schemes, a plaintiff must first file separate complaints with each respective agency. See 18 U.S.C. § 1514A(b)(1) (allowing action in district court under SOX only "if the Secretary [of Labor] has not issued a final decision within 180 days"); 29 C.F.R. § 1601.28 (mandating issuance of notice of right to sue under Title VII only after 180 days has passed since the filing of a charge with the EEOC); 29 U.S.C. § 626(d) (prohibiting the filing of a civil action under the ADEA until 60 days after a charge has been filed with the EEOC).