Salt Creek Freightways v. Wyoming Fair Employment Practices Commission

GUTHRIE, Justice.

Salt Creek Freightways, as appellant, pursues this appeal from a judgment of the district court of Natrona County, which affirmed an order of the Wyoming Fair Employment Practices Commission,1 an appellee herein. This order found that Salt Creek had been guilty of discrimination when it discharged Kathleen Banyai, an appellee, because of her religious creed and beliefs. Based upon this finding, the Commission ordered Salt Creek to pay $950.40 in wages and the sum of $2,847.75 as attorney’s fees.

Throughout this opinion, for the sake of brevity, Salt Creek Freightways will be described as Salt Creek. The Wyoming Fair Employment Practices Commission will be designated as the F.E.P.C., appellee-Kath-leen Banyai will be described as Banyai, and the Employment Security Commission will be described as E.S.C.

Banyai was employed by Salt Creek on January 7, 1974. At the time of her employment, she received a handbook, which *436set out the working rules and conditions and the policy governing vacations, sick leave, and leaves of absence. Banyai does not claim that she was unfamiliar with these and concedes that she understood that she was entitled to a one-week vacation after being employed for one year. These rules further provided for a maximum of six-days paid sick leave, if necessary, because of sickness, and the provision for personal leave of absence without pay, upon written application, which was not to be granted “except for various, significant reasons.”

After her original employment, she joined the World Wide Church of God and became a baptized member in August of 1974. There is no suggestion that during her employment she had not properly performed her work up to the time of discharge, although she had been absent from work for over 105 hours between the date of her employment and September 26. During the summer months, she learned that members of her church were supposed to attend a convocation in California sometime late in September or early October. On September 12, she requested a leave of absence from her supervisor, Mr. Klone, for a Holy Day observance on September 17. The supervisor at that time told her that she had been taking a lot of time off, but granted her permission to be absent on that day. It was during this conversation that she advised him of her intention to attend the church convocation in California beginning September 26 to and until October 10. This was the first time that her employer learned of her church affiliation. The supervisor at that time told her that he would not let her go because there was no one available to handle her work, and he had too short a notice to train someone else. This was followed by a letter on September 20, which detailed the reasons for the denial of her application with a comment upon her absenteeism. The letter did confirm permission to take September 17 off. In various conversations during this interim, Ban-yai reiterated her intention to be absent from her work from September 26 to October 10, to attend the convocation, although she was told she would be terminated if she did so because of the hardship upon her fellow employees. Her minister advised her against terminating employment. However, she did absent herself for this period and attended the convocation. Salt Creek discharged appellee as of September 25 because of her absence.

After her discharge, Banyai filed a claim with the E.S.C. for benefits by way of unemployment compensation from September 27. A deputy of that commission determined that she was not entitled thereto, because her discharge by Salt Creek was properly based upon her misconduct. Ban-yai then pursued her appeal from that deputy’s determination and was granted and received a full hearing before the appeals examiner. After a full hearing thereon, the appeals examiner, acting for the commission, reversed the decision of the deputy insofar as he found that the discharge was based upon her “misconduct connected with her work.”

The E.S.C. order found that “for having voluntarily left her most recent employment without good cause, the claimant is disqualified from October 13th, 1974, through February 15th, 1975.” (Emphasis added.) This decision was rendered on December 4th, 1974, and appellee did not appeal this ruling as was her right under § 27-27 D VII, W.S.1957 (now designated as § 27-3-107(d)(vii), W.S.1977.

On October 15, 1974, she had filed a verified complaint with the F.E.P.C. No further action is reflected thereon until February 19, 1975, when an order and decision of the commission recites that a determination had been made that there was probable cause to believe that the respondent had violated § 27-261(1), W.S.1957 (now designated as § 27-9-105(a)(i), W.S.1977). This order further recites that as a result of the investigation conducted pursuant to their rules of practice and procedure that a settlement agreement was offered to respondent and complainant by the director of the commission. The respondent refused to sign the same. We are in the dark as to the terms of this agreement.

*437On March 27, 1975, Salt Creek filed their answer to Banyai’s complaint, which was served upon the commission and received March 31, 1975. This was set for hearing on May 6, 1975. There was an order and decision entered by the commission adverse to this appellant dated July 11, 1975, and in pursuit of an appeal by appellant, the court remanded this matter and entered an order permitting Salt Creek to present additional evidence to the F.E.P.C., as follows:

(1) The decision and order of the appeals examiner of the E.S.C.;
(2) An order of the E.S.C. itself;
(3) The appeal of the said Banyai; and
(4) The transcript of the proceedings of the hearing held before the appeals examiner, which was made a part of the record on appeal.

The court observed that before it could be in a position to review the said matter, this entire record including all this evidence should be presented to the F.E.P.C. and reviewed by them upon the entire record, and a decision be made therefrom.

Upon the remand of this matter to the F.E.P.C., hearing was had on January 6, 1977, with the same result, and the decision and order of March 28, 1977, noted that “the transcript of the evidence from the appeals examiner of the Employment Security Commission, the decision and order of the examiner, and the order of the Employment Security Commission were made a part of the evidence herein, and they were duly considered together with all other evidence in this matter by the commission.”

Among the asserted errors urged by Salt Creek is the following:

“Failing to hold as a matter of law that the decision of the Wyoming Employment Security Commission that Banyai was not discriminated against on account of her religious practices is a bar to reliti-gation of that issue before the Wyoming Fair Employment Commission under the doctrine of res judicata.”

It is necessary to make disposal of this issue before giving consideration to any of the other asserted errors. If this contention is correct, there are no other matters which can properly be reached in resolution of this case.

At one time, there appears to have been considerable authority that res judicata did not apply to administrative decisions. Davis, Administrative Law Treatise, § 18.02, p. 548 (1958). This was rapidly changed, and it is now almost universally recognized that the rule is to be applied to such decisions. Davis, Administrative Law Text, 3d Ed., § 18.02, p. SOl.-

Cases which hold that the doctrine of res judicata or its principles are applicable to administrative decisions under certain conditions are: Morin v. J. H. Valliere, 113 N.H. 431, 309 A.2d 153, 155 (1973); Woodlawn Area Citizens Association v. Board of County Commissioners for Prince George’s County, 241 Md. 187, 216 A.2d 149, 153 (1966); Retail Clerks Union, Local 1401, Retail Clerks International Association AFL-CIO v. National Labor Relations Board, 149 U.S.App.D.C. 370, 376, 463 F.2d 316, 322 (1972); Harrah v. Richardson, 4th Cir., 446 F.2d 1, 2 (1971); State v. District Court, 259 Minn. 228, 107 N.W.2d 307, 310 (1960).

Although these authorities speak in terms of res judicata, it might be suggested that they really recognize and apply collateral estoppel to the field of administrative law. This is not entirely unusual as noticed by Chief Justice Warren in the footnote to Lawlor v. National Screen Service Corp., 349 U.S. 322, 326 (n. 6), 75 S.Ct. 865, 99 L.Ed. 1122 (1955), which calls attention to the fact that Restatement of the Law of Judgments, Ch. 3, §§ 47, 48, & 68 (1942), uses the term res judicata broadly “to cover merger, bar, collateral estoppel, and direct estoppel.”

Res judicata is primarily and originally a legal doctrine and is normally based upon the assertion and the theory of the same cause of action so that it can hardly be strictly applied to administrative hearings. But, decisions should not turn upon such fine distinctions or alleged fine distinctions between these doctrines in administrative law cases. The propriety of the application *438of the principles of collateral estoppel to such proceedings has been recognized, although in many cases it has been described as res judicata.

The Supreme Court of the United States in United States v. Utah Construction and Mining Co., 384 U.S. 394, 421-422, 86 S.Ct. 1545, 1559-1560, 16 L.Ed.2d 642, 660 (1966), has recognized the propriety of this application:

“ . . . [W]e note that the result we reach is harmonious with general principles of collateral estoppel. Occasionally courts have used language to the effect that res judicata principles do not apply to administrative proceedings, but such language is certainly too broad. When an administrative agent is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce the repose. [Citing cases.] . . . ”

The doctrine of collateral estoppel has much in common with res judicata, except that it does not involve the same cause of action but does involve identical issues necessary for disposal of the controversy. Roush v. Roush, Wyo., 589 P.2d 841, 843 (1979) (per curiam); Lawlor v. National Screen Service, Corp., supra. The findings of the E.S.C. and the F.E.P.C. demonstrate the identity of the issues necessary for the disposal of the controversies submitted to the commission. The E.S.C. finding was as follows:

“The claimant’s right to observe her Sabbath or other holy days of her church is not questioned and the constitutional guarantee of the free exercise of her religion is granted. Such right, however, may not be extended to an indefinite number of non-Sabbath days before and after the Sabbath or other Holy Day. If the claimant had quit work because of an employer requirement that she work on the Sabbath or other Holy Day she would then have been considered to have left her employment with good cause. The claimant agrees that she was not required by a mandate of her church to attend the function in question. In order to do so she was absent from Casper for 15 days. During that time she missed 11 working days. She agrees that had she not made the trip she could have worked on all days except October 1 and October 8. She was aware that if she took the time off after being denied a leave of absence by her employer she would be replaced. In so doing she voluntarily left her employment. The employer’s denial of the claimant’s request for leave was not arbitrary but was based upon the claimant’s earlier absences and the undue burden which her absence would place on other employees. For purposes of establishing entitlement to unemployment benefits it must be concluded that the claimant left her employment without good cause and is subject to disqualification.”

Implementing this order is the following decisional paragraph:

“For having voluntarily left her most recent employment without good cause the claimant is disqualified for benefits from October 13, 1974 through February 15, 1975. Accordingly, $1,096 (90%) of her accrued benefit credits during her benefit year ending October 12, 1975 are forfeited.”

Thereafter, in its determination of Banyai’s claim, the F.E.P.C. found:

“9. The COMMISSION finds that the sole reason for COMPLAINANT’S discharge was that she took an unapproved leave of absence to attend a regional religious convocation of the Worldwide Church of God held in Pasadena, California.”

Then, in its “Conclusions of Law,” paragraph 7, the commission stated:

“7. The COMMISSION finds that COMPLAINANT has been discriminated against by the RESPONDENT’S use of her creed as the standard or criteria for her termination in violation of W.S. 27— 261(1).”

These findings illustrate that there was only one basic question presented in both of these hearings; i. e., the reason for employ*439ee-Banyai’s termination by Salt Creek, and that in both proceedings she rested her claim upon the basis that she was improperly discharged as a result of a religious discrimination and her observance of religious holidays, and the actions of both separate commissions are based upon the identical factual situation.

After a full hearing thereon with notice and with Banyai present, the E.S.C. had found, as before mentioned, that she had voluntarily left her employment without good cause. With apparent dissatisfaction with the result, Banyai pursued no appeal from the finding of the E.S.C. although she had the right of appeal from such determination, which became final. Section 27 — 27 D V, W.S.1957 (now designated as § 27-3-107(d)(v), W.S.1977). She then pressed her complaint with the F.E.P.C. with the resulting order from which this appeal is made.

No matter how skillful a semantic approach may be employed in suggesting that each such commission has as its directed purpose a different aim or aims, this cannot obscure the clear fact that there were identical parties and identical factual issues earlier determined at a contested matter before the E.S.C., at which the appellee-Ban-yai appeared.

We find most persuasive the cases of Umberfield v. School District No. 11, Joint Counties of Archuleta and LaPlata, 185 Colo. 165, 522 P.2d 730 (1974); and Colorado Springs Coach Company v. State Civil Rights Commission, 35 Colo.App. 378, 536 P.2d 837 (1975), and can see no valid reason not to follow these holdings nor to criticize the logic and basis thereof with the further comment that it is most unusual to find cases as similar.

In Umberfield, supra, claimant was a tenured teacher who applied for time off to celebrate certain holy days of the World Wide Church of God. The school board decided against such application, and Um-berfield did not teach on these days but did attend these church meetings. He was dismissed by the board, and upon appeal a full adversary hearing was had before a full teacher tenure panel, and upon the recommendation of the panel, the board terminated his contract. He did not seek judicial review, which was available. Thereafter, he filed a complaint with the Colorado Civil Rights Commission charging, as here, that he had been dismissed because of his religious beliefs. The commission held that Umberfield was discharged because of his religious belief and in violation of the law. On appeal, the Court held that Umberfield’s failure to seek judicial relief by way of review of the decision of the teacher tenure panel prevented him from relitigating his claim before the Civil Rights Commission. That court’s reasons are set out at page 734 of 522 P.2d thereof as follows:

“Umberfield did not seek judicial review of the adverse recommendation of the Teacher Tenure Panel and his subsequent dismissal in the school board. Instead he instituted a new proceeding before the Civil Rights Commission which is before us now. Because Umberfield had a full adversary hearing before the Teacher Tenure Panel which had the power to determine all his claims of religious discrimination, we hold that the doctrine of res judicata operates as a bar to the relit-igation of issues which Umberfield raised or could have raised in the hearing before that panel and on judicial review. [Citing cases.] . . . ”

The second case, Colorado Springs Coach Company v. Civil Rights Commission, supra, involved a claim for unemployment compensation with the denial thereof as in this ease. Claimant based his claim upon asserted racial discrimination. During that proceeding, he filed another complaint with the Colorado Civil Rights Commission alleging that he was discharged because of illegal discrimination. There, as here, the Civil Rights Commission disregarded res judicata as a defense. Based upon Umberfield, the court held the defense applied and commented citing from Umberfield about the anomalous position that the court would occupy if it might be compelled to affirm two opposite results of two separate bodies.

Although we could comfortably base our disposal of this matter upon these two Colo*440rado cases, Davis, supra, at page 559, has enunciated a rule that is remarkably close in its application and would seem to have been uttered for application to just such a factual situation as we have in this case, when this text says:

“True the doctrine of res judicata should be applied in full force to some administrative actions and this seems clear beyond question. The doctrine is at its best and it applies to an adjudication of past facts where the second proceeding involves the same claim or transaction.”

The court in Stuckey v. Weinberger, 9th Cir., 488 F.2d 904, 911 (1973), cites this latter part of this statement with approval and adds:

“ . . .In those situations, the findings and decisions are res judicata and ‘the question whether the (tribunal making the decision is) an agency or a court is immaterial.’ . . . ”

It has been said that a decision of an administrative board is conclusive if a judicial review is granted by statute and no appeal be taken. Campbell v. Superior Court, In and For County of Maricopa, 18 Ariz.App. 287, 501 P.2d 463, 465 (1972), and cases collected therein. Thus, the decision of the E.S.C. became conclusive when Banyai failed to appeal.

In our society, which is witnessing such increases in the field of activity of administrative bodies and the proliferation of their actions, the protection of citizens from being harassed and vexed by repeated hearings on the same matter is of monumental importance. It may not be amiss to note the entirely human instinct that governs the operation of such administrative bodies, and that they, when exposed to the temptation to do so, have difficulty resisting opportunity to enhance their power and importance by assertions of jurisdiction in matters already in the hands of some other competent administrative body.

Because the unappealed order of the E.S.C. was final and conclusive, any rede-termination of this issue by the F.E.P.C. was beyond its power and barred.

We do not find anything in our statutory scheme that would demonstrate any legislative intent to give primacy to the F.E.P.C.

Reversed.

. Although we refer to the Wyoming Fair Employment Practices Commission, by statute the commission is denominated the Wyoming Fair Employment Commission. Throughout the proceedings below, F.E.P.C. was used, as was also done in all proceedings in this court. We shall use the denomination F.E.P.C. for the sake of consistency but note that in current practice the F.E.P.C. is called Wyoming Fair Employment Commission (W.F.E.C.).