(dissenting). Today we penalize Kathleen Lindas for careful lawyering. We hold that because she pursued her administrative remedies in 1980, when case law required exhaustion of administrative remedies, she is now barred from maintaining an action on her federal tort claim under 42 U.S.C. § 1983.
It is now established that a plaintiff need not exhaust his or her administrative remedies before beginning a sec. 1983 action. Casteel v. Vaade, 167 Wis. 2d 1, 481 N.W.2d 476 (1992). However, in Kramer v. Horton, 128 Wis. 2d 404, 383 N.W.2d 54, cert. denied, 479 U.S. 918 (1986), the Wisconsin Supreme Court had ruled that the plaintiff was required to exhaust his state administrative remedies before bringing a sec. 1983 action in a Wisconsin circuit court. Casteel overruled Kramer. Cady argues that Kramer, decided in 1986, could not have influenced Lindas's decision here. She filed her complaint with the personnel commission in 1980. She *290began this action October 18, 1985. Five months later, Kramer was decided.
However, the Wisconsin Supreme Court had signalled in Castelaz v. City of Milwaukee, 94 Wis. 2d 513, 534-35, 289 N.W.2d 259, 269 (1980), that it would require exhaustion of an adequate administrative remedy before it would entertain a sec. 1983 action in state court. The court said:
The doctrine of exhaustion is a discretionary rather than a constitutional rule in § 1983 cases. There has been no allegation in this case that the civil service procedures available to Mr. Castelaz were inadequate, nor does he claim that the Board was biased, unable, or unwilling to hear his claim.... We believe, that the no-exhaustion rule as applied to § 1983 claims brought in state courts is not to be "woodenly" applied. We therefore follow the decisions of a number of the federal circuit courts of appeal which have held that, depending on the case, exhaustion of state administrative remedies may be required. [Citations omitted.]
In view of Castelaz, Lindas's attorneys would have been guilty of malpractice had they not first pursued her administrative remedy before beginning her sec. 1983 action. It is true that Lindas did not pursue her state administrative remedy to finality by seeking review of the personnel commission's no-probable cause determination in circuit court. However, Lindas was faced with a dilemma not of her own making. In 1982 the United States Supreme Court had ruled that final state court judgments were entitled to full faith and credit in Title VII actions and that unreviewed determinations by state agencies were not to be given preclusive effect. Kremer v. Chemical Constr. Corp., 456 U.S. 461 (1982). However, reviewed determinations would be given preclusive *291effect. Careful lawyering strongly suggested that this holding would be applied to Lindas's sec. 1983 action, as well as her Title VII action. If Lindas had appealed the commission's no-probable cause determination unsuccessfully, she could not have maintained a sec. 1983 action. If she wished to obtain the advantages of a sec. 1983 action — compensatory damages beyond back pay, prospective relief, and most important, the right to a jury trial — she was forced to discontinue prosecution of her complaint under the Wisconsin Fair Employment Act, secs. 111.31-111.395, Stats.
The majority asserts that these considerations are "irrelevant." "The fact that judicial review [of the personnel commission's determination] was available is what matters . . .." Majority op. at 278. Apparently the majority holds that because Lindas could have had the determination of the personnel commission reviewed by the circuit court, she had "an adequate opportunity to litigate" any disputed issue of fact. University of Tenn. v. Elliott, 478 U.S. 788, 799 (1986). The majority does not appreciate that this is an issue preclusion or collateral estoppel case, and not a claim preclusion case. My conclusion is borne out by the fact that the majority relies on Acharya v. Local No. 1, WSEU, 146 Wis. 2d 693, 432 N.W.2d 140 (Ct. App. 1988). Majority op. at 282. "But Acharya, upon which we rely, is not a collateral estoppel case." Id. The majority states: "We conclude that in applying res judicata and estoppel by record, the applicable factors are whether there is an identity of parties or their privies, and whether there exists an identity between the causes of action or claims." Id. at 12. The majority thus applies claim preclusion principles to what is an issue preclusion case.
The Wisconsin Supreme Court recently noted that " [c]ourts in the past have often contributed to the confii*292sion between these two doctrines [collateral estoppel and res judicata.]" Michelle T. v. Crozier, 173 Wis. 2d 681, 694, 495 N.W.2d 327, 333 (1993) (quoting Crowall v. Heritage Mut. Ins., 118 Wis. 2d 120, 121 n.1, 346 N.W. 327, 329 n.1 (Ct. App. 1984). The Wisconsin court also quoted the United States Supreme court in Lawlor v. National Screen Serv. Corp., 349 U.S. 322, 326 n.6 (1955), "[t]he term res judicata is used broadly in the RESTATEMENT to cover merger, bar, collateral estoppel, and direct estoppel." Michelle T., 173 Wis. 2d at 694, 495 N.W.2d at 333. In Michelle T., the Wisconsin Supreme Court accepted the definition of res judicata given by the United States Supreme Court in Lawlor: "[U]nder the doctrine of res judicata, a judgment 'on the merits' in a prior suit involving the same parties or their privies bars a second suit based on the same cause of action." Id. at 694 n.13, 495 N.W.2d at 333 n.13 (quoting Lawlor, 349 U.S. at 326).
The flaw in the majority's analysis arises from its refusal to recognize that this is an issue preclusion case, not a claim preclusion case. Here, there has been no judgment "on the merits" in the administrative proceeding before the personnel commission. It is true that Lindas could have appealed the commission's no-probable cause determination to the circuit court. As I have pointed out, however, had she done so and been unsuccessful, her claim might well have been barred by res judicata. However, she did not take that step precisely because of such preclusion. She apparently was willing to take her chances that the commission's no-probable cause determination would not be considered preclusive in a subsequent civil rights action either in federal or state court.
I assume that the majority does not hold that Lindas's sec. 1983 action is barred because she failed to *293exhaust her administrative remedy which, of course, included judicial review of the commission's administrative determination. A state court may not require complainants to exhaust state administrative remedies before bringing a sec. 1983 action in state court. Casteel, 167 Wis. 2d 1, 481 N.W.2d 476. The Wisconsin court recognized that it was bound by the decisions of the United States Supreme Court in this area, notably Patsy v. Board of Regents of the State of Fla., 457 U.S. 496 (1982), and Felder v. Casey, 487 U.S. 131 (1988), rev'g 139 Wis. 2d 614, 408 N.W.2d 19 (1987).
Not only are Wisconsin courts bound by the United States Supreme Court's decisions as to the nonapplica-bility of state exhaustion requirements in federal civil rights actions, the courts Eire bound by decisions of the United States Supreme Court as to when a civil rights claim brought in a state court is subject to claim preclusion or issue preclusion. The substance of the fact situation here is indistinguishable from that involved in University of Tenn. v. Elliott, 478 U.S. 788 (1986). In Elliott, a black employee of the university challenged his discharge in a proceeding under the Tennessee Uniform Administrative Procedures Act. He also began an action in federal court under Title VII and other civil rights statutes, including 42 U.S.C. § 1983. He did not obtain the relief he sought in the administrative proceedings. Rather them appeal, he returned to federal court. The university and the defendant employees moved for summary judgment, claiming that the administrative law judge's ruling was entitled to preclusive effect. The district court agreed, but the Sixth Circuit Court of Appeals did not.
The United States Supreme Court granted certio-rari to consider petitioner's contention that the Sixth Circuit Court of Appeals erred in holding that state *294administrative factfinding is never entitled to preclusive effect in actions under Title VII or sec. 1983. Elliott, 478 U.S. at 794. After reviewing the legislative history and the language of Title VII, the Court concluded that the Sixth Circuit correctly held that Congress did not intend unreviewed state administrative proceedings to have preclusive effect on Title VII claims. Id. at 796.
As to sec. 1983 actions, however, the Court found nothing in the language of sec. 1983 or its legislative history which suggested that the principles of issue preclusion should not be applied to the factfinding of administrative bodies acting in a judicial capacity. Id. at 797. The Court looked to the policies underlying the full faith and credit clause, although the clause itself was inapplicable, to conclude that the policies underlying the clause are "served by giving preclusive effect to state administrative fact-finding rather than leaving the courts of a second forum, state or federal, free to reach conflicting results.” Id. at 799 (footnote omitted). Accordingly, the Elliott Court held:
[T]hat when a state agency "acting in a judicial capacity . . . resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate," [ United States v. Utah Constr. & Mining Co., 384 U.S. 394, 422 (1966),] federal courts must give the agency's factfinding the same preclusive effect to which it would be entitled in the State's courts.
Id. (footnote omitted).
Thus, in a case in almost identical procedural posture, the United States Supreme Court applied issue preclusion principles. If the majority had sat in the chairs of the Court, it would have held that Elliott's claim was barred by res judicata and would not have inquired *295whether Elliott had an adequate opportunity to litigate his claim. However, Elliott does not permit a state court to give preclusive effect to an administrative agency's factfinding simply because there was an identity of parties and of claims before the administrative agency. Before a federal court or a state court entertaining a sec. 1983 action may give preclusive effect to unreviewed state agency determinations, the agency must have been acting in a judicial capacity and the parties must have had an adequate opportunity to litigate the claims asserted. Whether we like it or not, Elliot requires that we examine: (1) whether the personnel commission acted in a judicial capacity, and (2) whether Lindas has had an adequate opportunity to litigate her discrimination claim.
As the court in Gjellum v. City of Birmingham, 829 F.2d 1056, 1069 (11th Cir. 1987), points out, the federal courts generally have yet to decide what type of "factfinding" the Elliott court had in mind. I have no doubt that the personnel commission acted in a judicial capacity and resolved disputed issues of fact when it heard witnesses and received evidence on the issue of whether Lindas was discriminated against by the individual defendants on the basis of her sex. I conclude, however, that Lindas did not have "an adequate opportunity to litigate" her claim.
The Restatement (Second) of Judgments § 28 (1982), lists exceptions to the general rule of issue preclusion, including the following:
(3) A new determination of the issue is warranted by differences in the quality or extensiveness of the procedures followed in the two courts ...; or
(5) There is a clear and convincing need for a new determination of the issue (a) because of the *296potential adverse impact of the determination on the public interest or the interest of persons not themselves parties in the initial action ... or (c) because the parties sought to be precluded, as a result of . . . special circumstances, did not have an adequate opportunity or incentive to obtain a full and fair adjudication in the initial action. [Emphasis added.]
In comment h to sec. 28, the Reporters state:
There are many instances in which the nature of an action is such that judgment will have a direct impact on those who are not themselves parties. For example ... an individual may sue as representative of a class.
In comment j to sec. 28, the Reporters state:
[T]he amount in controversy in the first action may have been so small in relation to the amount in controversy in the second that preclusion would be plainly unfair.
[W]hether or not relief from the first judgment may be obtained, the court in the second proceeding may conclude that issue preclusion should not apply because the party sought to be bound did not have an adequate opportunity or incentive to obtain a full and fair adjudication in the first proceeding. [C]onfined within proper limits, discretion to deny preclusive effect to a determination under the circumstances stated is central to the fair administration of preclusion doctrine. [Emphasis added.]
The Reporter's Note to sec. 28 states that:
Subsection (5) represents an effort to distill from case and commentary those situations in which competing policy considerations outweigh the policy factors underlying direct and collateral estoppel. Such situations are, and should be infrequent, but the basic *297principles should be sufficiently flexible to accommodate them when a clear need for a redetermination of an issue has been established.
The Restatement (Second) of Judgments § 28 was cited with approval in Michelle T., 173 Wis. 2d 681, 689 n.10, 495 N.W.2d 327, 331 n.10.
Issue preclusion (collateral estoppel) is an equitable doctrine, and subject to equitable principles? "A major consideration ... is fairness to the party against whom collateral estoppel is asserted." Id. at 692, 495 N.W.2d at 332 (quoting Crowall v. Heritage Mut. Ins. Co., 118 Wis. 2d 120, 126, 346 N.W.2d 327, 331 (Ct. App. 1984)). It "should only be applied as fairness and justice require." Jones v. City of Alton, 757 F.2d 878, 885 (7th Cir. 1985) (quoting Rotogravure Serv., Inc. v. R. W. Borrowdale Co., 77 Ill. App. 3d 518, 525-26, 395 N.E.2d 1143, 1149 (Ill. App. Ct. 1979)). See also Speaker Sortation Sys., Division of A-T-O, Inc. v. United States Postal Serv., 568 F.2d 46, 49-50 (7th Cir. 1978) (doctrine of collateral estoppel may not work injustice on a party); Dannhausen v. First Nat'l Bank of Sturgeon Bay, 538 F. Supp. 551, 567 (E.D. Wis. 1982) (doctrine cannot apply when party did not have full and fair opportunity to litigate issue in previous case); In re D.M.M., 137 Wis. 2d 375, 382, 404 N.W.2d 530, 533 (1987) (fairness is one aspect of the application of res judicata); Desotelle v. Continental Casualty Co., 136 Wis. 2d 13, 21-22, 400 N.W.2d 524, 527 (Ct. App. 1986) (res judicata and collateral estoppel are founded on principles of fundamental fairness).
I conclude that fairness, justice and public policy require that Lindas be allowed to maintain her civil rights action under 42 U.S.C. § 1983. First, the United States Supreme Court has repeatedly stated that "the dominant characteristic of civil rights actions [is that] *298they belong in court." Burnett v. Grattan, 468 U.S. 42, 50 (1984) (citing McDonald v. City of West Branch, 466 U.S. 284, 290 (1984)). It is only in a civil rights action that the claimant can obtain complete relief.
Second, individuals injured by discrimination serve as "the chosen instrument of Congress to vindicate 'a policy that Congress considered of the highest priority.' " Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 418 (1978) (quoting Newman v. Piggie Park Enters., Inc., 390 U.S. 400, 402 (1968)). "[T]he plaintiff in an employment discrimination suit acts to vindicate public policy as well as an individual right." Duello v. Board of Regents of the Univ. of Wis. System, 170 Wis. 2d 27, 42, 487 N.W.2d 56, 63 (Ct. App. 1992). There is "a clear and convincing need for a new determination" of Lindas's discrimination claim because of the potential adverse effect of the personnel commission's determination on the public interest or the interest of other female employees not parties to the proceedings before the commission. See Restatement (Second) of Judgments § 28(5).
Third, a new determination of Lindas's claim is warranted because she did not have an adequate opportunity or incentive to obtain "a full and fair adjudication" before the personnel commission. The only issue litigated before the commission was probable cause. Had Lindas successfully appealed the commission's no-probable cause determination, she could not have obtained complete relief from the commission. The commission had no authority to award her compensatory damages beyond back pay. Lindas could not have obtained prospective relief from the commission. This litigation makes clear that Lindas's most significant disincentive to litigate her claim further before the commission was her inability to obtain a jury trial in the administrative *299proceedings. The issue before the commission — probable cause — was so minor when considered in relation to the ultimate determination Lindas sought — discrimination —that "preclusion would be plainly unfair." RESTATEMENT (Second) of Judgments § 28, comment j. A finding of probable cause is merely a threshold finding and has no significance or weight in subsequent proceedings. Finally, preclusion would be unfair and unjust in the unique circumstances of this case. Because of the unsettled state of the law as to exhaustion and preclusion Lindas was compelled to proceed before the personnel commission or risk losing her right to have her claim decided in court before a jury.
In Elliot, Justice Stevens states that giving preclu-sive effect to state administrative determinations will encourage litigants to "forego state judicial review of those determinations — to protect their entitlement to a federal forum." Elliot, 478 U.S. at 801 (Stevens, J., dissenting; comparing Patsy v. Board of Regents of the State of Fla., 457 U.S. 496 (1982); Fair Assessment in Real Estate Ass'n, Inc. v. McNary, 454 U.S. 100 (1981); and Moore v. City of East Cleveland, Ohio, 431 U.S. 494 (1977)). Our decision will have a similar effect, dissuading litigants like Lindas from exhausting administrative remedies. The value of such procedures in conciliating claims will be lost. Because the result is unfair and unjust and contrary to public policy, I respectfully dissent from that part of the majority's decision which affirms the judgment dismissing Lindas's civil rights action under 42 U.S.C. § 1983.