UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOHN COLEMAN PIGNATO,
Plaintiff-Appellant,

v.

COMMONWEALTH OF VIRGINIA,
DEPARTMENT OF ENVIRONMENTAL
                                                                      No. 96-1379
QUALITY; PETER W. SCHMIDT, in his
official capacity as Director of the
Virginia Department of
Environmental Quality,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert E. Payne, District Judge.
(CA-95-461-3)

Argued: January 30, 1997

Decided: February 25, 1997

Before RUSSELL and WILKINS, Circuit Judges, and HERLONG,
United States District Judge for the District of South Carolina,
sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: James Broome Thorsen, THORSEN & MARCHANT,
Richmond, Virginia, for Appellant. Guy Winston Horsley, Jr., Senior
Assistant Attorney General, OFFICE OF THE ATTORNEY GEN-
ERAL, Richmond, Virginia, for Appellees. ON BRIEF: James S.
Gilmore, III, Attorney General of Virginia, Catherine C. Hammond,
Deputy Attorney General, Neil A.G. McPhie, Senior Assistant Attor-
ney General, OFFICE OF THE ATTORNEY GENERAL, Richmond,
Virginia, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

John C. Pignato, a former employee of the Department of Environ-
mental Quality ("DEQ") of the Commonwealth of Virginia, appeals
the district court's ruling: (1) that the doctrine of collateral estoppel
precluded him from litigating his due process and state breach of con-
tract claims against the DEQ and its director, Peter W. Schmidt; and
(2) that his First Amendment claim against the DEQ and Schmidt
could not survive summary judgment. We affirm.

When Pignato was hired in 1984 as the Director of Administration
for the State Water Control Board (the "WCB"), he was a Grade 17
employee. At that time, Grade 17 employees experiencing employ-
ment problems utilized the Commonwealth's grievance procedure
under the Virginia Personnel Act ("VPA"). 1 Employees having access
to the grievance procedure were "classified" employees; those without
access were "exempt" employees.

On July 1, 1985, eight months after Pignato's hiring and almost 10
years before his employment with the Commonwealth terminated, a
change in state law re-categorized certain positions as "exempt"
_________________________________________________________________

1 Va. Code Ann. § 2.1-110 - 116 (Michie 1985 & Supp. 1996).

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employees.2 In 1993 the WCB and three other agencies were consoli-
dated to form the DEQ. Pignato transferred to the DEQ and assumed
the position of Special Assistant for Program Development. This posi-
tion was classified as an "exempt" position without access to the
grievance procedure, before Pignato accepted reassignment.

When Governor Allen began downsizing state government, the
DEQ decided to abolish the position of Special Assistant for Program
Development. As a result, Pignato's employment with the DEQ ter-
minated on June 10, 1994. Within six weeks of his firing, Pignato
challenged his termination by filing an action in county court3 and by
filing an administrative complaint with Schmidt under the VPA's
grievance procedure. Pignato's administrative complaint asserted that
his right to the grievance procedure began in 1984 when he was hired;
that his right was not eviscerated by the 1985 statute change; and that
his right survived the 1993 agency consolidation.

The administrative group reviewing Pignato's complaints deter-
mined that grievance rights are not portable, and that upon accepting
the Special Assistant position--a known "exempt" position--Pignato
lost his right to the grievance procedure. Pignato appealed the admin-
istrative decision to the Circuit Court of the City of Richmond (the
"Richmond Court").

After reviewing the case de novo, the Richmond Court, affirmed
the administrative decision. The Richmond Court held that Pignato
was not entitled to access the grievance procedure because: (1) Pigna-
to's transfer resulting from the 1993 consolidation was not a ruse to
_________________________________________________________________
2 Those employees re-classified as"exempt" included: executive offi-
cers, employees directly reporting to an agency head, those immediately
below that level, and those at pay grade 16 or higher. Va. Code Ann.
§ 2.1-116(A)(16) (1985) (amended 1995) (deleting former subdivision
(A)(16) which pertained to officers and employees of executive branch
agencies).
3 In the Circuit Court of Chesterfield County, Pignato sought an order
permitting him access to the grievance procedure, and an injunction fore-
stalling his firing. The court dismissed his actions for want of subject
matter jurisdiction because he had not exhausted his administrative reme-
dies.

                    3
eliminate his vested rights; (2) Pignato's position was classified as
"exempt" before Pignato accepted the position; and (3) Pignato's reas-
signment and the 1993 consolidation resulted from a legitimate exer-
cise of governmental discretion undertaken for purposes unrelated to
Pignato's employment.

Pignato then initiated an action in federal district court asserting
that the DEQ and Schmidt violated his First and Fourteenth Amend-
ment rights, respectively, when they fired him in June 1994, allegedly
because of his lack of political associations, and when they denied
him access to the Commonwealth's grievance procedure upon his ter-
mination. Pignato also brought an independent state breach of con-
tract action. Noting that Pignato's due process and breach of contract
claims involved factual issues identical to those that had been fully
and fairly litigated before the Richmond Court, the district court ruled
that the doctrine of collateral estoppel precluded Pignato from reliti-
gating those same issues in federal court.

Collateral estoppel, as applied in Virginia, precludes a party from
re-litigating any issue of fact decided adversely against that party in
another case involving a different cause of action. 4 The district court
found that the Richmond Court had previously determined that upon
the 1993 consolidation Pignato became an "exempt" employee, and
was neither entitled to access the grievance procedure nor entitled to
a legitimate expectation in continued state employment.

With respect to Pignato's First Amendment claim that the DEQ and
Schmidt fired him for his lack of political associations with the
Republican party, the district court found the record void of any genu-
ine issue of material fact concerning Schmidt's knowledge of Pigna-
to's political affiliation. Pignato failed to show that Schmidt knew
Pignato was not affiliated with the Republican party, and failed to
produce any evidence tending to show that his firing was politically
motivated. Consequently, the district court granted the DEQ's and
Schmidt's motions for summary judgment.
_________________________________________________________________

4 Angstadt v. Atlantic Mut. Ins. Co., 457 S.E.2d 86, 87 (Va. 1995); Reid
v. Ayscue, 436 S.E.2d 439, 440 (Va. 1993).

                    4
Having carefully reviewed the record, briefs, and contentions of the
parties at oral argument, we can find no error in the district court's
applying the doctrine of collateral estoppel to Pignato's due process
and breach of contract claims, and granting the DEQ and Schmidt
summary judgment with respect to Pignato's First Amendment claim.
Accordingly, we affirm the decision of the district on the opinion of
that court.

AFFIRMED

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