(dissenting):
The issue in this case is whether the doctrine of res judicata bars plaintiff Blanche Mitchell’s action in a federal district court under 42 U.S.C. § 1981 against her employer, National Broadcasting Company, and one of its managers. The majority holds that plaintiff is barred because she submitted her complaint of racial discrimination to a state fair employment agency and then sought judicial review in the state court of the agency’s unfavorable determination. I submit that application of res judicata here is neither required nor desirable, and I therefore dissent.
In keeping with the desire to give the national policy against racial discrimination the “highest priority,” Newman v. Piggie Park Enterprises, 390 U.S. 400, 402, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968), Congress has “long evinced a general intent to accord parallel or overlapping remedies against discrimination.” Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 1019, 39 L.Ed.2d 147 (1974). The victim of racial discrimination may be able to sue in the federal courts under the Civil Rights Act of 1866, 42 U.S.C. § 1981, as plaintiff has done here, or under the Civil Rights Act of 1871, 42 U.S.C. § 1983, or under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. The victim may also file charges with state administrative agencies, such as the New York State Division of Human Rights, or with the federal Equal Employment Opportunity Commission (EEOC); see 42 U.S.C. §§ 2000e-5(b), (c). “And in general, submission of a claim to one forum does not preclude a later submission to another” because of the “congressional intent to allow an individual to pursue independently his rights under both Title VII and other applicable state and federal statutes.” Gardner-Denver, supra, 415 U.S. at 47—48, 94 S.Ct. at 1019.
Thus, resort to a state administrative proceeding will not bar a subsequent federal action either under Title VII, see Voutsis v. Union Carbide Corp., 452 F.2d 889 (2d Cir. 1971), cert. denied, 406 U.S. 918, 92 S.Ct. 1768, 32 L.Ed.2d 117 (1972); Batiste v. Furnco Construction Corp., 503 F.2d 447 (7th Cir. 1973), cert. denied, 420 U.S. 928, 95 S.Ct. 1127, 43 L.Ed.2d 399 (1975), or under § 1981. See Johnson v. Railway Express Agency, 421 U.S. 454, 465, 95 S.Ct. 1716, 1723, 44 L.Ed.2d 295 (1975) (federal court may “stay [§ 1981] proceedings until the administrative efforts at conciliation and voluntary compliance have been completed”). See also Wageed v. Schenuit Industries, Inc., 406 F.Supp. 217 (D.Md.1975); Hollander v. Sears, Roebuck & Co., 392 F.Supp. 90 (D.Conn.1975). The majority opinion accepts this position, but holds that the Appellate Division review of the administrative decision here bars plaintiff under 28 U.S.C. § 1738, because the state court’s judgment has res judicata effect under New York law.1
Assuming arguendo that this appraisal of New York law is correct, it does not end our inquiry. My colleagues recognize that strong federal policies can override the mandate of 28 U.S.C. § 1738 that a state court judgment be given the same effect in the federal courts that it would have in the state courts in which it was rendered. Such a strong, countervailing federal policy is involved in this case. With respect to employment discrimination, Congress has shown a clear intent to provide injured plaintiffs with a federal fact-finding forum, and several courts, in factual patterns closely analogous to this case, have already held that this intent supersedes the requirement of § 1738. See Crouch v. United Press *278International, 74 Civ. 296 (S.D.N.Y. Feb. 28, 1977); Benneci v. Department of Labor, New York State Division of Employment, 388 F.Supp. 1080 (S.D.N.Y.1975); Young v. South Side Packing Co., 369 F.Supp. 59 (E.D.Wisc.1973). See also Batiste, supra, 503 F.2d at 450; Wageed, supra, 406 F.Supp. at 220-21. And I believe that that conclusion is particularly justified in this case in light of the kind of administrative hearing that plaintiff received and the limited scope of review that applied to the state court’s examination of that hearing. Thus, even though the distinction between a state judicial and a state administrative determination, relied on by the majority, is important,2 it should not be controlling in this case.
In analyzing the application of res judicata here, it is helpful to focus first on the status of administrative rulings in employment discrimination cases under Title VII. If the EEOC or the state human rights agency decides that there is no probable cause for a finding of discrimination, that finding would not prevent plaintiff from presenting a Title VII claim in a federal district court and receiving a de novo review of his claim in that court. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 799, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); see also Ferrell v. American Express Co., 8 F.E.P. Cases 521 (E.D.N.Y. July 15, 1974). As noted in Ferrell, this ultimate resort to a federal forum was provided because “Congress and the courts have recognized that state anti-discrimination agencies are frequently inadequately staffed and budgeted” and because “federal rights are best adjudicated in federal forums.” 8 F.E.P. Cases at 523 (citations omitted). See also Voutsis, supra, 452 F.2d at 894 (state proceedings may be “hampered by inadequate legislation, inadequate procedures, or an inadequate budget”). According to the district judge in this case, however, these policy considerations apply only to Title VII actions, and “the question of estoppel by state proceedings [with respect to §1981] must be examined largely without reference to the Title VII procedures.” Mitchell v. National Broadcasting Co., 418 F.Supp. 462, 463 (S.D.N.Y.1976). The majority opinion, on the other hand, assumes “arguendo ” that the policy considerations overlap. Clearly, the majority’s assumption is correct. As stated in Johnson v. Railway Express, supra, the procedures of § 1981 and Title VII “ ‘augment each other and are not mutually exclusive.’ ” 421 U.S. at 459, 95 S.Ct. at 1719, quoting from H.R. Rep. No. 92-238, p. 19 (1971). This mutuality means that the administrative proceedings that are required, but not binding, in the context of Title VII should not become binding, although not required, in the context of § 1981. Such a convoluted interpretation of the interaction between Title VII and § 1981 would lead directly to the sort of “Catch-22 choice” described by the majority opinion, supra, at 276. In short, coherent interpretation of the two statutes requires that the same policy considerations apply to both with respect to the full scale federal review of agency decisions on employment discrimination. Cf. Bowers v. Campbell, 505 F.2d 1155 (9th Cir. 1974).
It is against this background that the state court review in this case must be judged. Before the New York State Division of Human Rights and again before the State Human Rights Appeal Board, Mitchell was not represented by counsel, and according to her, the agency investigation was based solely on the documents provided by NBC. On her appeal to the Appellate Division of the New York State Supreme Court, the court’s scope of review was governed by Article 78 of the New York C.P. L.R.3 and section 298 of the New York *279Human Rights Law.4 Both provisions contemplate quite limited review based on the sufficiency of the evidence compiled in the administrative proceeding. See Mize v. State Division of Human Rights, 33 N.Y.2d 53, 57, 349 N.Y.S.2d 364, 367-68, 304 N.E.2d 231, 233 (1973). Thus, the state procedures in this case clearly did not provide the plaintiff with the same protections that would be available in the federal court. The state court did not, and could not under the applicable standard of review,5 conduct a de novo inquiry into the merits of plaintiff’s claim. To give the state judgment res judicata effect with respect to the merits of the state agency’s determination in this context would effectively overturn the congressional judgment that administrative decisions in the field of employment discrimination should be subjected to intensive scrutiny in the federal courts. See Benneci, supra, 388 F.Supp. at 1082 (holding that res judicata does not apply to a New York state court’s affirmance under section 298 of the State Division’s and Appeal Board’s determination of no unlawful discriminatory practices); Crouch, supra, (same holding with respect to an affirmance under Article 78). See also South Side Packing Co., supra.6
The majority opinion stresses that, as a matter of comity, the judgment of the state court on the sufficiency of plaintiff Mitchell’s claim should be given preclusive effect. The question before the district court, however, was not whether the state court’s conclusion on the sufficiency of the evidence before the administrative agency was correct, but whether, as a factual matter, plaintiff was discriminated against and whether federal law provides her with the possibility of de novo review of that question. See Benneci, supra, 388 F.Supp. at 1082. This is not a case where the state *280court made its own factual inquiry into the merits. Instead, plaintiff contests the findings of an informal agency investigation,7 and “[t]he integrity of the state court does not depend on the acceptability of the facts found outside the judicial process.” McCormack, Federalism and Section 1983: Limitations on Judicial Enforcement of Constitutional Claims, Part II, 60 Va.L.Rev. 250, 300 (1974).
Finally, defendants point out that four separate entities — the two New York state agencies, the New York state court, and the EEOC — have determined that Mitchell’s claim is completely meritless. Defendants argue that application of res judicata here could prevent this seemingly endless inquiry into a frivolous claim. The argument is a troublesome one. It may be that there is no basis for Mitchell’s claim, and viewed from that perspective, allowing her to present it in the federal court duplicates effort and squanders scarce judicial resources. Yet, the duplication complained of is part and parcel of the congressional determination that racial discrimination claims in employment are important enough to warrant independent and overlapping federal remedies. And they are also important enough to warrant de novo review of administrative rulings on employment discrimination. Some of this effort may be unnecessary, but the courts should not use the doctrine of res judicata to prune away what they view as redundancies in this scheme without close attention to the congressional intention. We should be particularly reluctant to do so where the plaintiff has never received a formal hearing on her complaint and only limited judicial review. In this situation, I believe that the availability of a federal cause of action acts as a necessary safeguard, and I therefore dissent.
. For the text of § 1738, see footnote 11 in the majority opinion, supra.
. See H. Friendly, Federal Jurisdiction: A General View 100-02 (1973); Theis, Res Judicata in Civil Rights Act Cases: An Introduction to the Problem, 70 Nw.L.Rev. 859 (1975); McCormack, Federalism and Section 1983: Limitations on Judicial Enforcement of Constitutional Claims, Part II, 60 Va.L.Rev. 250 (1974). See also Lombard v. Board of Education, 502 F.2d 631, 636 (2d Cir. 1974), cert. denied, 420 U.S. 976, 95 S.Ct. 1400, 43 L.Ed.2d 656 (1975).
. Section 7803 of Article 78 of the New York Civil Practice Law and Rules, N.Y.C.P.L.R. § 7801 et seq. (McKinney 1972) reads:
*279The only questions that may be raised in a proceeding under this article are:
1. whether the body or officer failed to perform a duty enjoined upon it by law; or
2. whether the body or officer proceeded, is proceeding or is about to proceed without or in excess of jurisdiction; or
3. whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed; or
4. whether a determination made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law is, on the entire record, supported by substantial evidence.
. Section 298 of the Human Rights Law, N.Y. Exec. Law §.298 (McKinney 1972) reads in part:
Any complainant, respondent or other person aggrieved by any order of the board may obtain judicial review thereof, and the division may obtain an order of court for its enforcement and for the enforcement of any order of the commissioner which has not been appealed to the board, in a proceeding as provided in this section. . . .
No objection that has not been urged in prior proceedings shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances. Any party may move the court to remit the case to the division in the interests of justice for the purpose of adducing additional specified and material evidence and seeking findings thereon, provided he shows reasonable grounds for the failure to adduce such evidence in prior proceedings. The findings of facts on which such order is based shall be conclusive if supported by sufficient evidence on the record considered as a whole. .
. Although it is true that under section 298, a party may move to cure an inadequate record, a successful motion must show “reasonable grounds for the failure to adduce . . . [the additional evidence] in prior proceedings.” Even then, the state .court will not conduct its own inquiry into the merits, but will “remit” the case to the State Division.
. The majority opinion points out, supra, at p. 272, note 9, that this court has previously given res judicata effect to an Article 78 proceeding. For the most part, those cases are distinguishable, since they do not raise the special policy considerations applicable in an employment racial discrimination case. See, e. g., Taylor v. New York City Transit Authority, 433 F.2d 655 (2d Cir. 1970) (res judicata applied to a procedural due process claim raised in an Article 78 proceeding). And even when these special policy considerations are absent, this court has not always applied traditional res judicata rules to Civil Rights Act cases and Article 78. See Lombard, supra (prior Article 78 proceeding in which claim of procedural due process could have been, but was not, raised does not preclude § 1983 action based on that claim).
. For that reason, the analogy drawn by the majority opinion between the administrative proceedings here and summary judgment in a judicial proceeding is inapposite.