UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MARY M. ALEXANDER,

Plaintiff-Appellant,

v. No. 93-1818

MARYLAND LOTTERY AGENCY,

Defendant-Appellee.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Frederic N. Smalkin, District Judge.

(CA-93-973-S)

Argued: June 3, 1996

Decided: July 11, 1996

Before MURNAGHAN and WILLIAMS, Circuit Judges, and

MACKENZIE, Senior United States District Judge for the Eastern

District of Virginia, sitting by designation.

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Reversed and remanded by unpublished per curiam opinion.

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COUNSEL

ARGUED: Alex Young Kyong Oh, WACHTELL, LIPTON, ROSEN

& KATZ, New York, New York, for Appellant. Joan Ellen Quigley,

Assistant Attorney General, Baltimore, Maryland, for Appellee. ON

BRIEF: J. Joseph Curren, Jr., Attorney General of Maryland, Baltimore, Maryland, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Mary Alexander appeals a decision of the district court dismissing

her claims under Title VII of the Civil Rights Act of 1964, 42

U.S.C.A. § 2000e to 2000e-17 (West 1994), and 42 U.S.C.A.

§§ 1983, 1985 (West 1994) on the basis that they were barred by principles of res judicata. See Fed. R. Civ. P. 12(b)(6). Because we determine that Ross v. Communications Satellite Corp. , 759 F.2d 355 (4th

Cir. 1985), abrogated on other grounds, Price Waterhouse v.

Hopkins, 490 U.S. 228 (1989), dictates the conclusion that Maryland

state courts would not have given preclusive effect to the prior state

proceedings on which the district court based its decision, we reverse

and remand for further proceedings.

I.

Alexander, a black female, was employed by Appellee Maryland

Lottery Agency (MLA) from 1984 until December 1991. At the time

of her termination, Alexander held a supervisory position. In January

1991, Alexander began to experience difficulty with her fellow

employees; she attributed these difficulties to"a hostile working environment created by the offensive and unwanted sexual comments

from her co-workers and supervisor." (Appellant's Br. at 3.) MLA, in

contrast, viewed Alexander's problems as arising from her incompetence as a manager.

Eventually, MLA sought to discharge Alexander on the basis that

she was "incompetent or inefficient in the performance of [her] duty,"

Md. Regs. Code tit. 06, § 01.01.47(A) (1994), had "violated [a] lawful

official regulation or order," Md. Regs. Code tit. 06, § 01.01.47(D)

(1994), and was "wantonly offensive in [her] conduct toward fellow

employees," Md. Regs. Code tit. 06, § 01.01.47(E) (1994). Alexander

contested the discharge under Maryland's Employee Merit System,

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and a hearing was held before an administrative law judge (ALJ) to

determine whether Alexander had, in fact, violated the Maryland regulations. The ALJ determined that MLA had proved its case with

respect to each of the alleged violations, noting that "[t]he evidence

was overwhelming that [Alexander] was a difficult, uncooperative,

tactless, even abusive manager who also lacked compe[ ]tence." (J.A.

at 43.) The ALJ rejected Alexander's claim that the complaints

against her were the product of collusion among her subordinates:

"[I am] mindful that disgruntle[d] employees may sometimes unite in a concerted effort to retaliate against a supervisor who insist[s] they perform their duties in strict

accordance with rules and regulations. However, in this

case, [I] would have to engage in a willing suspension of

disbelief to subscribe to such a conspiracy theory.

(J.A. at 43.) Alexander appealed her dismissal to the Circuit Court of

Anne Arundel County. The appeal was dismissed with prejudice,

however, after Alexander failed to comply with certain procedural

requirements.

During the pendency of the above-described proceedings, Alexander filed a complaint with the Maryland Human Relations Commission (MHRC) alleging discrimination on the basis of race and sex as

well as unlawful retaliation. After an investigation, the MHRC determined that Alexander's charges were meritless. Alexander then filed

a complaint with the Equal Employment Opportunity Commission,

which issued a right-to-sue letter. Alexander subsequently filed the

instant lawsuit. The district court dismissed Alexander's complaint,

concluding that "the dismissal, with prejudice, of plaintiff's appeal of

the state court challenge to her employment termination gives the

issues litigated therein preclusive effect, under Maryland law, for the

purposes of the present lawsuit." (J.A. at 106.) We review de novo the

district court's dismissal of Alexander's complaint. Biggs v.

Meadows, 66 F.3d 56, 59 (4th Cir. 1995).

II.

Alexander raises three alternative challenges to the district court's

decision. Alexander first maintains that the ALJ's ruling is an "unre-

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viewed" determination of a state agency and is not entitled to preclusive effect under University of Tennessee v. Elliott, 478 U.S. 788, 796

(1986) (holding that unreviewed state administrative proceedings do

not have preclusive effect in subsequent Title VII actions), and

Dionne v. Mayor & City Council of Baltimore, 40 F.3d 677, 685 (4th

Cir. 1994) (holding that unreviewed state administrative proceedings

do not have claim preclusive effect in subsequent§ 1983 actions).

Recognizing that this argument depends upon a conclusion that the

circuit court's dismissal with prejudice of Alexander's appeal from

the ALJ's decision does not constitute "review" of the ALJ's decision,

Alexander next argues that even if the state court's dismissal constitutes review of the ALJ's decision, dismissal of her federal action was

nevertheless improper because Maryland courts do not give preclusive effect to a dismissal for abandonment. See Kremer v. Chemical

Constr. Corp., 456 U.S. 461, 466, 478 (1982) (holding in context of

Title VII action that federal courts must give state court judgments the

same preclusive effect they would be given in the state that issued the

judgment); see also McQuaid v. United Wholesale Aluminum Supply

Co., 358 A.2d 922, 926 (Md. Ct. Spec. App. 1976) (holding that "a

judgment of non pros . . . is without prejudice to file another suit

based on the same cause of action"). Third, Alexander argues that

even if Maryland courts would give preclusive effect to a dismissal

for abandonment under some circumstances, this court's holding in

Ross requires us to conclude that no preclusive effect would be

accorded to the state court judgment at issue here.

We do not address Alexander's first and second arguments because

Ross requires reversal. In Ross, we addressed the question of whether

Maryland courts would give preclusive effect to a state administrative

agency's denial of unemployment compensation in a subsequent discrimination suit. "[U]nder Maryland law," we concluded, "a judicial

determination by one administrative agency is not binding on another

adjudicator `which is seeking to determine an apparently identical

issue under a different statute,' so long as there exist `substantial differences' between the statutes themselves." Ross, 759 F.2d at 361-62

(citation omitted) (quoting Cicala v. Disability Review Bd., 418 A.2d

205, 211, 212 (Md. 1980)). Applying Cicala, we determined that an

administrative determination under Maryland's unemployment insurance law did not preclude a subsequent Title VII action because the

enforcement mechanisms, purposes, and standards of recovery of the

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two statutes "manifest[ed] substantial differences" between them. Id.

at 362.

Here, as in Ross, significant differences exist between Maryland's

Employee Merit System, pursuant to which Alexander's termination

proceedings were conducted, and the federal statutes upon which her

discrimination claims are based. For example, one of the purposes the

Employee Merit System is to set standards of employment for all state

employees, see State Admin. Bd. of Election Laws v. Billhimer, 531

A.2d 1298, 1304 (Md. Ct. Spec. App. 1987), rev'd on other grounds,

548 A.2d 819 (Md. 1988), while anti-discrimination statutes such as

Title VII seek "to achieve equality of employment opportunities and

remove barriers that have operated in the past." Ross, 759 F.2d at 362

(internal quotation marks omitted). In short, "while a Maryland

administrative adjudicator is concerned with forbidden conduct on the

part of the employee, Title VII directs the factfinder's attention to a

forbidden motive on the part of the employer." Id. (second and fourth

emphasis added). Bound by precedent, we conclude that Maryland

courts would not give preclusive effect to the ALJ's decision regarding Alexander's termination. Accordingly, we reverse and remand for

further proceedings.

REVERSED AND REMANDED

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