I respectfully dissent. My disagreement with the majority stems wholly from a dif*936ference in analysis of the question to be decided. If, as the majority suggests, the sole issue is one of timeliness, then surely the majority is right in holding that the timely filing with the state agency in a deferral state is not a jurisdictional prerequisite to filing a complaint before the EEOC. Likewise the majority would be correct in allowing a subsequent suit in federal district court under Title VII provided the claimant filed his complaint with the EEOC within the 300 days specified by statute. 42 U.S.C. § 2000e-5(e). Because plaintiff’s complaint was filed 158 days after his termination the majority correctly holds that the EEOC and the district court had jurisdiction over his claim notwithstanding his untimely filing before the Kentucky Commission for Human Rights (KCHR). Rasimas v. Michigan Department of Mental Health, 714 F.2d 614, 620 (6th Cir.1983). In reaching the conclusion that the state court proceedings had no further significance in this litigation, however, the majority introduces into this appeal an issue which was raised by neither party nor by the district court. To the district court, to the parties, and to me the question is not one of timeliness before the EEOC under Rasimas, 714 F.2d at 622. The issue rather is whether the state court proceedings under the circumstances here operate as res judicata to bar further federal proceedings even though the ultimate judgment in the state proceedings was itself based upon a determination of untimeliness. The majority errs in disposing of this appeal on a ground not raised by the parties and not determinative of this court’s jurisdiction since timeliness is not a jurisdictional question, Zipes v. Trans World Airlines, 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982). It also errs in its failure to recognize the preclusive effects of the state court dismissal of Maurya’s claim.
Underlying this case is the classic aphorism that hard cases make bad law. In a rather unexpected turn of events, a plaintiff who thought he had been successful on the merits and who was quite content to rely upon the administrative determination that his employer was guilty of discrimination, instead found that determination vacated and nullified by an adverse state court judgment based solely on his untimely filing before the KCHR. A defense of the dismissal ordered by the district court here and compelled in my view by case law is indeed difficult, but no more so than any case in which the merits are blocked by a procedural requirement.
The majority at least pays lip service to the principles of res judicata in footnotes 3, 6 and 8, and thus presumably it would not quarrel with the Supreme Court’s holdings in Migra v. Warren City School District Board of Education, 465 U.S. 75, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984), Kremer v. Chemical Construction Corp., 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982), and our circuit’s holding in Cemer v. Marathon Oil Co., 583 F.2d 830 (6th Cir.1978). My point of difference with the majority concerns the importance accorded plaintiff’s having done considerably more than file what was ultimately determined to be an untimely claim with the KCHR-plaintiff voluntarily proceeded to state court. No provision of Title VII requires a plaintiff to pursue in state court review of administrative action, but neither Title VII nor Supreme Court precedent “indicate[s] that the final judgment of a state court is subject to redetermination.” Kremer, 456 U.S. at 469-70, 102 S.Ct. at 1891 (emphasis in original). Although Maurya obtained a generally favorable decision from the KCHR on the question of discrimination, he also appealed its order to the Ohio [County] Circuit Court, where he challenged the Commission’s determination that he was entitled to reinstatement only and not to back pay. His employer cross-appealed, asserting that the action should be dismissed altogether because not timely under Kentucky law.
The state court judgment, to which the district judge gave preclusive effect, is therefore a judgment dismissing Maurya’s claim because it was not timely filed and not because it lacked merit. Nonetheless, under Kentucky law as found by Judge Johnstone and not seriously disputed by the parties, as well as under the law of our *937circuit, the termination of such litigation for being untimely acts as a determination on the merits and is therefore entitled to preclusive effect under 28 U.S.C. § 1738. Judge Johnstone correctly examined the legal significance of the state court dismissal and concluded that it barred continuation of the federal suit:
Pursuant to Rule 41.01 [of the Kentucky Rules of Civil Procedure], a voluntary dismissal, whether by the plaintiff, by stipulation or by order of the court, constitutes a dismissal without prejudice. An involuntary dismissal, however, (other than one for lack of jurisdiction, improper venue, or failure to join a party) “operates as an adjudication upon the merits” and constitutes a dismissal with prejudice. Ky.R.Civ.P. 41.02(3). Dismissal of an action with prejudice precludes another action on the same matter. Polk v. Wimsatt, 689 S.W.2d 363, 365 (Ky. App.1985). The Final Judgment of the Hopkins Circuit Court ordered dismissal of Maurya’s KCHR complaint with prejudice. Under Kentucky law, that judgment operates as a preclusive adjudication on the merits.
This case is unlike Loudermill v. Cleveland Bd. of Educ., 721 F.2d 550 (6th Cir.1983), aff'd on other grounds, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), in which this court refused to grant preclu-sive effect to an Ohio state court dismissal of an appeal from an adverse administrative ruling. Ohio courts treat a failure to file a timely notice of appeal as a jurisdictional bar and not as an adjudication on the merits. In contrast, Kentucky expressly models its employment discrimination law on Title VII; the Kentucky court’s direction to dismiss Maurya’s claim “with prejudice” for untimeliness and not for lack of jurisdiction accords with Zipes v. Trans World Airlines, 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982), in which the Supreme Court held that filing a timely charge of discrimination with the EEOC was not a jurisdictional prerequisite. The majority attempts to disregard the state court action on the basis that it was procedurally barred by the untimely filing before the KCHR. Neither the parties’ arguments nor Kentucky law supports that view.
The proposition is well entrenched both in Kentucky and in federal law that Maur-ya is now precluded from pursuing his federal claim since he initiated his litigation in the Kentucky courts and could have achieved the benefit of a successful result which would have been binding upon his-employer. Although Maurya’s initial resort to the KCHR could not deprive him of his right to a federal trial on his Title VII claim, this does not mean that the state court judgment can be disregarded. Kremer, 456 U.S. at 477-78, 102 S.Ct. at 1895. Section 1738 of Title 28, as interpreted in Kremer, requires us to treat the adverse state court judgment, though itself based upon an issue of timeliness, as res judicata.
I would accordingly AFFIRM the judgment of the district court.