UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DAVID C. O'GRADY,
Plaintiff-Appellant,

v.
                                                                    No. 95-3159
MCI TELECOMMUNICATIONS
CORPORATION,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CA-95-1252-A)

Submitted: November 26, 1996

Decided: December 17, 1996

Before MURNAGHAN and LUTTIG, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

John M. Bredehoft, Linda M. Jackson, CHARLSON & BREDE-
HOFT, P.C., Reston, Virginia, for Appellant. Christine H. Perdue,
Elizabeth C. Smith, HUNTON & WILLIAMS, McLean, Virginia;
Harvey Rumeld, MCI COMMUNICATIONS CORPORATION,
Washington, D.C., for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

David C. O'Grady filed this action under Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C.A. #8E8E # 2000e-2000e-17
(West 1994 & Supp. 1996). O'Grady alleged that his rejection of his
homosexual supervisor's attentions caused him to be harassed at
work, and ultimately discharged from his job at MCI Telecommunica-
tions Corp. (MCIT). The district court held that O'Grady's action was
barred on res judicata grounds by a prior action in Virginia state
court. We affirm.

O'Grady was discharged in September 1993. He filed an adminis-
trative charge with the EEOC the same month. In July 1994, O'Grady
filed an action in state court asserting intentional infliction of emo-
tional distress against MCIT and the supervisor, Ward, wrongful ter-
mination against MCIT, with an additional claim of intentional
interference with contractual relations against Ward. The trial court
sustained MCIT's demurrer, and O'Grady filed a nonsuit of his
claims against Ward. The Virginia Supreme Court denied O'Grady's
petition for appeal. This action was filed in the district court in Sep-
tember 1995, and was dismissed on res judicata grounds.

Our standard of review of summary judgment on res judicata
grounds is plenary. Keith v. Aldridge, 900 F.2d 736, 739 (4th Cir.),
cert. denied, 498 U.S. 900 (1990). Section 1738, 28 U.S.C. (1994),
requires federal courts to give preclusive effect to state court judg-
ments where the state courts would do so. We must look to state law
to determine the preclusive effect of a prior state judgment. Marrese
v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 379-80
(1985).

In Virginia, res judicata bars relitigation of a cause of action that
was or could have been litigated between the parties in the first

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action. Smith v. Ware, 421 S.E.2d 444, 445 (Va. 1992). The initial
action must have resulted in a final determination on the merits by a
court with jurisdiction. Gottlieb v. Gottlieb , 448 S.E.2d 666, 669 (Va.
Ct. App. 1994). A decision sustaining a demurrer for failure to state
a claim, as in the state court decision at issue here, is a decision on
the merits. Turpin v. Lyle, 377 F. Supp. 170, 174 (W.D. Va. 1974).

O'Grady's state and federal actions were based on identical facts,
sought the same remedies, and involved the same parties, with the
exception of Ward, who is not involved in this action. Thus, Virginia
courts would find res judicata applicable. Mowry v. Virginia Beach,
93 S.E.2d 323, 327 (Va. 1956). Although O'Grady did not raise a
Title VII claim in his state action, he could have done so--state courts
have jurisdiction over Title VII claims. Yellow Freight Sys., Inc. v.
Donnelly, 494 U.S. 820, 821 (1990). While O'Grady had not yet
received his right to sue notice from the EEOC, he was entitled to one
under 42 U.S.C. § 2000e-5(f)(1) (1994); 29 C.F.R. § 1601.28(a)
(1996).

Accordingly, we conclude that the district court's application of the
res judicata bar was appropriate and correct. We affirm the judgment
against O'Grady. 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.

AFFIRMED

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