                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 11-2060


WALTER LEE WHITAKER,

                Plaintiff - Appellant,

          v.

NASH-ROCKY MOUNT BOARD OF EDUCATION, d/b/a Nash-Rocky Mount
Public Schools; RICHARD A. MCMAHON, Superintendent; CARINA
BRYANT, Southern Nash Middle School Principal,

                Defendants - Appellees.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:11-cv-00246-BO)


Submitted:   March 23, 2012                 Decided:   April 6, 2012


Before DAVIS, WYNN, and DIAZ, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Walter Lee Whitaker, Appellant Pro Se.  Lewis Wardlaw Lamar,
Jr., THE VALENTINE LAW FIRM, Nashville, North Carolina, for
Appellees.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Walter Lee Whitaker appeals the district court’s order

granting      the    defendants’       Fed.    R.     Civ.   P.   12(b)(6)     motion      to

dismiss    his      complaint    raising       claims     under    Title      VII    of   the

Civil Rights Act of 1964, 42 U.S.C.A. § 2000e to 2000e-17 (West

2003   &   Supp.      2011)     (“Title       VII”),     and      the    Americans        with

Disabilities Act of 1990, 42 U.S.C. §§ 12101 to 12213 (2006)

(“ADA”).      Whitaker challenges the district court’s determination

that his claims are barred by res judicata.                       At issue is whether

Whitaker’s      current       claims    are    the     same,    for     purposes     of   res

judicata, as those raised in his previous appeal, pursuant to

N.C.   Gen.    Stat.      §   115C-325(n)          (2011),   to   the    North      Carolina

superior court seeking review of the Nash-Rocky Mount Board of

Education’s (“Board”) decision not to renew Whitaker’s contract

for employment as a probationary public school teacher.

              We review de novo a district court’s Rule 12(b)(6)

dismissal, Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir.

2008), and are bound under 28 U.S.C. § 1738 (2006) to apply the

law of the rendering state to determine the extent to which a

state court judgment should have preclusive effect in a federal

action.       See Davenport v. North Carolina Dep’t of Transp., 3

F.3d 89, 92-93 (4th Cir. 1993).                    In North Carolina, the doctrine

of res judicata will bar a claim when there is (1) a final

judgment      on    the   merits   in     an       earlier     suit,    (2)   both    cases

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involve the same cause of action, and (3) the new claim involves

the same parties as the earlier suit, or their privies.                     State

ex rel. Tucker v. Frinzi, 474 S.E.2d 127, 128 (N.C. 1996).

             As     we    previously    discussed      in    Davenport,     North

Carolina utilizes a modified form of the transactional approach

to   determine      whether   claims     are   the   same    for   res    judicata

purposes.     See Davenport, 3 F.3d at 93-97.                Pursuant to this

approach,    North       Carolina    tempers   the   broad   claim   preclusive

effect of a pure transactional methodology with case-specific

considerations based on prudential and equitable concerns.                    See

id.; Country Club of Johnson County, Inc. v. United States Fid.

&    Guar.   Co.,    563    S.E.2d     269,    275   (N.C.   Ct.   App.     2002);

Northwestern Fin. Group v. County of Gaston, 430 S.E.2d 689, 694

(N.C. Ct. App. 1993).

             In keeping with this approach, North Carolina courts

are reluctant to apply the bar of res judicata where the claim

in question could not have been raised or fully adjudicated in

the initial proceeding.         See Davenport, 3 F.3d at 93-97; Country

Club of Johnson County, 563 S.E.2d at 275; Spry v. Winston-

Salem/Forsyth County Bd. of Educ., 412 S.E.2d 687, 689 (N.C. Ct.

App. 1992).       Accordingly, under North Carolina law, res judicata

will not bar successive suits or claims, even when based on the

same predicate facts, where the complaining party has not had an

opportunity to litigate, in a single judicial proceeding, all

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claims arising from the transaction or events at issue.                                        See

Davenport, 3 F.3d at 96-97.

               Here, we conclude that, based on the limited nature of

the judicial proceeding afforded Whitaker under § 115C-325(n),

North       Carolina      would      not         consider        the    claims        raised   in

Whitaker’s previous appeal and those asserted in his instant

suit to be the same for purposes of res judicata.                                 First, under

North Carolina law then in force, Whitaker had no right to a

hearing, discovery, or an opportunity to present evidence prior

to the Board’s decision not to renew his contract.                                      Moore v.

Charlotte-Mecklenburg Bd. of Educ., 649 S.E.2d 410, 415-18 (N.C.

Ct. App. 2007).

               Further,        under        §    115C-325(n),          the   appeal      to    the

superior court was limited to the evidence before the school

board * and whether the school board’s actions                               violated North

Carolina law.            Id. at 416-19.                 Accordingly, even if Whitaker

could       have   raised      his   current           federal    law    claims       before   the

superior       court,     he    would           have    done     so    without    a    right    to

discovery,         the   ability       to       present    relevant       evidence,      or    the


        *
       On motion, Whitaker was allowed to supplement the record
before the superior court with additional documents.     As the
superior    court’s    opinion    indicates,   however,    this
supplementation was not as of right, and was allowed based on
the court’s finding of just cause and a lack of opposition from
the Board.



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privilege of having his case heard by a jury.                Moreover, due to

the procedural incongruities of adjudicating the appeal of a

state   agency’s     administrative      decision      alongside    newly      raised

federal law claims, it is unlikely that the superior court would

or could have allowed Whitaker to join new, federal claims with

his appeal under § 115C-325(n).               Davenport, 3 F.3d at 97 n.8.

Therefore, because Whitaker could not have effectively raised or

fully   adjudicated       his    current      claims    during      his   previous

challenge    to    the   non-renewal    of    his   contract,      we   find    that,

under North Carolina law, they are not barred by res judicata.

See Davenport, 3 F.3d at 96-97.

             Accordingly,       we   vacate   the     district     court’s      order

dismissing        Whitaker’s     complaint      and     remand      for      further

proceedings consistent with this opinion.                We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would

not aid the decisional process.

                                                          VACATED AND REMANDED




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