UNPUBLISHED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Reversed and remanded by unpublished per curiam opinion.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, Balti-
more, Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

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 prin-
ciples of res judicata. See Fed. R. Civ. P. 12(b)(6). Because we deter-
mine 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 envi-
ronment 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 incompe-
tence 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 reg-
ulations. 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 some-
          times unite in a concerted effort to retaliate against a super-
          visor 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, Alexan-
der filed a complaint with the Maryland Human Relations Commis-
sion (MHRC) alleging discrimination on the basis of race and sex as
well as unlawful retaliation. After an investigation, the MHRC deter-
mined 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 preclu-
sive 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 consti-
tutes review of the ALJ's decision, dismissal of her federal action was
nevertheless improper because Maryland courts do not give preclu-
sive 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 dis-
crimination 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 dif-
ferences' 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 insur-
ance 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 regard-
ing Alexander's termination. Accordingly, we reverse and remand for
further proceedings.

REVERSED AND REMANDED

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