UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ABUL A. ALI,
Plaintiff-Appellant,

v.

BIH J. JENG,
Plaintiff,                                                             No. 95-2485

v.

GEORGE P. FERRERI; DANIEL J.
MESZLER,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Frederic N. Smalkin, District Judge.
(CA-95-708-S)

Submitted: April 16, 1996

Decided: June 4, 1996

Before HAMILTON and MICHAEL, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Glen M. Fallin, Westminster, Maryland, for Appellant. J. Joseph Cur-
ran, Jr., Attorney General, Kathy M. Kinsey, Assistant Attorney Gen-
eral, Susan F. Martielli, Assistant Attorney General, Baltimore,
Maryland, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Abul A. Ali appeals the district court's order granting summary
judgment to the Appellees based upon collateral estoppel and res judi-
cata in this employment discrimination action. Finding no reversible
error, we affirm.

Ali and Bih J. Jeng filed this action against two former supervisors
of the Maryland Department of the Environment (the"Department"),
alleging employment discrimination on the basis of gender in viola-
tion of 42 U.S.C. §§ 1983, 1985 (1988). The basis for their action was
the selection of a woman, Marcia Ways, to fill the vacant position of
the Chief of the Engineering and Technology Assessment Division
within the Department's Air Management Administration in May
1992. Appellees Ferreri and Meszler were sued as Defendants in their
individual capacities. Finding the action barred by res judicata and
collateral estoppel, the district court granted the Defendants' motion
for summary judgment. Ali timely appealed that order; Jeng did not
appeal. Accordingly, only Ali is pursuing this appeal.

Ali and Jeng filed their first action alleging employment discrimi-
nation ("Ali I") in 1992. In that action, they alleged that the State and
two supervisors (different from those named in the instant case) dis-
criminated against them on sixteen different occasions based upon
race, national origin, and retaliation for previous complaints. Among
the sixteen incidents was the promotion that is the subject of the pres-
ent action. Ali and Jeng were represented by counsel in their first
case. The district court awarded summary judgment to the Defendants

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on all claims in Ali I. On appeal, we affirmed the district court in all
respects.

Ali and Jeng then filed this action against two different supervisors.
The complaint alleges the failure-to-promote claim relating to the
selection of Marcia Ways. That claim is identical to one of the sixteen
claims raised in Ali's first action. Although Ali now names two dif-
ferent supervisors as defendants, those supervisors' actions in select-
ing Ways were discussed and evaluated in the first action, because
they were the primary participants in the decision to promote Ways
to the position of Division Chief.

We review the district court's award of summary judgment de
novo. Higgins v. E.I. Du Pont de Nemours & Co. , 863 F.2d 1162,
1167 (4th Cir. 1988). Summary judgment is appropriate when the
record taken as a whole could not lead a rational trier of fact to find
for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 251-52 (1986). In ruling on a motion for summary judgment, we
must assess the evidence in the light most favorable to the non-
moving party. Charbonnages de France v. Smith , 597 F.2d 406, 414
(4th Cir. 1979). Although summary judgment disposition should be
used sparingly in employment discrimination cases, it is appropriate
where there is no genuine dispute of material fact. Ballinger v. North
Carolina Agric. Extension Serv., 815 F.2d 1001, 1004-05 (4th Cir.),
cert. denied, 484 U.S. 897 (1987).

We find that the district court properly granted summary judgment
to the Appellees in this case based upon collateral estoppel and res
judicata. Collateral estoppel acts to bar Ali's litigation of issues in this
case that were already decided in his first action. Collateral estoppel
applies when: (1) the issues litigated in the first action are, in sub-
stance, the same as the issues in the second action; (2) the issues were
actually determined; (3) the issues were necessary to a final judgment;
and (4) the party against whom estoppel is asserted had a full and fair
opportunity to litigate the issues. Virginia Hosp. Ass'n v. Baliles, 830
F.2d 1308, 1311-12 (4th Cir. 1987), aff'd on other grounds, 496 U.S.
498 (1990). Collateral estoppel applies in employment discrimination
actions to bar relitigation of issues that were decided in a previous
action brought against an employer. Thurston v. United States, 810
F.2d 438, 444-45 (4th Cir. 1987).

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With respect to the selection of Marcia Ways, Ali conceded in
Ali I that the Department was entitled to summary judgment on that
claim because he failed to first file his claim with the EEOC. How-
ever, because Jeng declined to concede that the Department was enti-
tled to summary judgment on that claim, the district court in Ali I
considered that claim on the merits. Defendant Meszler was on the
panel that interviewed all candidates for the position. Candidates with
the top three scores were recommended for a follow-up interview
with Meszler, who directly supervised the position, and with Ferreri,
the Director of the Air Management Administration. Marcia Ways
received the highest score of all candidates interviewed for the posi-
tion, and was selected for the position. Neither Ali nor Jeng scored
high enough in the panel interview to qualify for a follow-up inter-
view.

Thus, the district court in Ali I properly found that Ali and Jeng
produced no evidence of discrimination to rebut the Department's
stated reasons for selecting Ways to fill the position. Ali did not spe-
cifically challenge those findings on appeal. Thus, Ali is barred by
collateral estoppel from relitigating an issue that was already decided
against him in Ali I. Shoup v. Bell & Howell Co., 872 F.2d 1178,
1179-81 (4th Cir. 1989) (summary judgment on statute of limitations
grounds constitutes judgment on merits precluding relitigation of
same claim); Samuels v. Northern Telecom, Inc. , 942 F.2d 834, 836-
37 (2d Cir. 1991) (dismissal of first case with prejudice was dismissal
on merits that precluded second action, despite fact that plaintiff had
not exhausted administrative procedures required to bring Title VII
claim). As a party to the Ali I case, Ali is bound by all factual find-
ings and rulings made in that case, even if directed at a co-plaintiff.
Virginia Hosp. Ass'n v. Baliles, 830 F.2d at 1312 (collateral estoppel
applies to parties to a case); Maryland Auto. Ins. Fund v. Soffas, 599
A.2d 837 (Md. Ct. Spec. App. 1991) (ruling on motion for summary
judgment against co-party bound intervenor-plaintiff; under doctrine
of collateral estoppel, issues of fact and law that are decided in a case
are binding on all parties before the court). This is especially true
where, as here, Ali is making the exact same claims based on the
same set of operative facts.

Moreover, we have upheld dismissal of a Title VII case based on
collateral estoppel where the appellate court in the first case affirmed

                     4
only on non-merits grounds. Stebbins v. Nationwide Mut. Ins. Co.,
528 F.2d 934, 937-38 (4th Cir. 1975), cert. denied, 424 U.S. 946
(1976). In Stebbins I, the trial court made alternative findings on mer-
its and procedural grounds. On appeal, we affirmed only on non-
merits grounds. Despite lack of affirmance on the merits, we upheld
the district court's dismissal of Stebbins' second action on the basis
that it would be unfair to burden the defendant with a second action
when the reason that the first action was not decided on the merits
was due solely to Stebbins' failure to exhaust administrative reme-
dies. Stebbins, 528 F.2d at 938. In the instant case, we affirmed Ali I
on the merits; this provides even more reason to uphold the district
court's grant of summary judgment based upon collateral estoppel.

We also find that the district court properly relied upon res judicata
to bar this action. This is at least the second attempt by Ali to litigate
his claims of employment discrimination. Res judicata precludes the
assertion of a claim after a judgment on the merits in a prior suit by
parties or their privies based on the same cause of action. Meekins v.
United Transp. Union, 946 F.2d 1054, 1057 (4th Cir. 1991). The doc-
trine bars litigation of all claims or defenses that were available to the
parties in the previous litigation, regardless of whether they were
asserted or determined in the prior proceeding. Id.; Peugeot Motors
of America, Inc. v. Eastern Auto Distrib., Inc., 892 F.2d 355, 359 (4th
Cir. 1989), cert. denied, 497 U.S. 1005 (1990). Thus, Ali should have
brought his claims against Ferreri and Meszler in his first action. He
may not bring piece-meal litigation by naming different defendants
and alleging new causes of action, when all of his claims arise from
the same operative facts.

The record clearly demonstrates that Ali has had ample opportunity
to offer any evidence he has in support of his claims of employment
discrimination, be they based upon gender, race, religion, or national
origin. Ali has repeatedly failed to offer any such proof. Accordingly,
the district court properly found that Ali's second attempt to litigate
his claims is barred by collateral estoppel and res judicata. We there-
fore affirm the district court's order granting summary judgment to
the Defendants. We dispense with oral argument because the facts

                     5
and legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.

AFFIRMED

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