Lizzi v. Washington Metropolitan Area Transit Authority

CATHELL, J. This case concerns the viability of a lawsuit brought by Christopher T. Lizzi, petitioner, who, on August 27, 1999, filed a three-count complaint in the Circuit Court for Prince George’s County alleging that respondents, the Washington Metropolitan Area Transit Authority (“WMATA”) and seven individuals employed by WMATA, 1 unlawfully terminated petitioner’s employment with WMATA: (1) in violation of the Family and Medical Leave Act of 1998 2 (“FMLA” or “the Act”) ( 29 U.S.C. §§ 2601 et seq.); (2) in breach of contract; and (3) in violation of the Maryland Constitution. On January 4, 2002, the circuit court ruled, pursuant to a hearing on a motion to dismiss, that, because of the United States Court of Appeals’ decision in Lizzi v. Alexander, et al., 255 F.3d 128 (4th Cir.2001), cert. denied, 534 U.S. 1081 , 122 S.Ct. 812 , 151 L.Ed.2d 697 , reh’g denied, 535 U.S. 952 , 122 S.Ct. 1352 , 152 L.Ed.2d 254 (2002), Counts I and II of petitioner’s complaint were barred by res judicata and therefore dismissed. On March 29, 2002, the circuit court also ruled that Count III in petitioner’s complaint was barred both by res judicata and by sovereign immunity. ²⁰² On December 22, 2003, the circuit court’s ruling was affirmed on appeal by the Court of Special Appeals of Maryland. 3 Lizzi v. WMATA, 156 Md.App. 1 , 845 A.2d 60 (2003). Petitioner thereafter petitioned this Court for Writ of Certio-rari.

On June 11, 2004, we granted the petition. Lizzi v. WMATA, 381 Md. 674 , 851 A.2d 593 (2004). Petitioner presents the following questions for our review: “I. Did the Court of Special Appeals err by failing to hold that, under the United States Supreme Court’s holding in [Nevada Department of Human Resources v.] Hibbs, [ 538 U.S. 721 , 123 S.Ct. 1972 , 155 L.Ed.2d 953 (2003),] the FMLA abrogates any state sovereign immunity of WMATA and its employees?

II

Did the Court of Special Appeals err by holding that the WMATA Compact confers upon WMATA state sovereign immunity from FMLA claims?

III

Did the Court of Special Appeals err by holding that [petitioner] is not entitled to maintain an action under the Maryland Constitution. (and this Court’s decision in Robinson v. Bunch [, 367 Md. 432 , 788 A.2d 636 (2002)]) against WMATA for its violations of the FMLA’s substantive provisions?

IV

Did the Court of Special Appeals err by holding that WMATA’s (supposed) state sovereign immunity ‘transfers’ to the Supervisors, thereby immunizing them from personal liability for FMLA and Maryland Constitution violations committed in the scope of their official duties? V. [Can] WMATA [ ] be held liable for breach of contract if it violates a personnel policy incorporating the FMLA[?][ 4 ]” [Alterations added.] [Footnote added.] ²⁰³ Because we hold that res judicata effectively bars petitioner’s FMLA claim, we do not address the remaining questions presented to this Court. I. Facts WMATA is an interstate compact agency and instrumentality of Maryland, Virginia, and the District of Columbia and serves to operate the Metrobus and Metrorail systems in the Washington, D.C., metropolitan area. WMATA was created in 1966 with the consent of the United States Congress.

See Washington Metropolitan Area Transit Authority Compact, Pub.L. No. 89-774, 80 Stat. 1324 (1966). Petitioner was employed by WMATA as a bus wheelchair lift mechanic prior to his termination in September 1997. The termination was a result of petitioner’s alleged misuse of sick days and vacation leave so as to be absent from his employment for extended periods of time. Petitioner contested his termination and first filed suit in the federal court system, alleging that his firing was in violation of the FMLA and naming WMATA and seven individual supervisors of WMATA as defendants in the suit.

Petitioner subsequently filed the instant suit in the Circuit Court for Prince George’s County. A. The Federal Court Proceedings On August 7, 1998, petitioner first filed suit, based on the same facts and cause of action as the case sub judice, in the United States District Court for the District of Maryland. While petitioner’s original complaint in the federal court action contained six counts, all but the count concerning WMATA’s alleged violation of the FMLA were voluntarily dismissed by petitioner. The federal district court granted summary judgment on the remaining FMLA count in favor of WMATA, but allowed the suit to continue as against the named defendant supervisors in their individual capacities.

On appeal to the United States Court of Appeals for the Fourth Circuit, the federal appellate court affirmed the dismissal of WMATA but reversed with respect to the individual defendant supervisors, ordering that the supervisors be dis ²⁰⁴ missed from the suit as well. Lizzi v. Alexander, 255 F.3d at 138 . The Fourth Circuit stated that “[bjecause sovereign immunity extends to WMATA, and because the claims against the WMATA employees are in reality claims against the agency itself, we affirm in part, reverse in part, and remand with directions to dismiss the action.” Id. at 130 . Petitioner thereafter petitioned for a rehearing/rehearing en banc, both of which were denied by the Fourth Circuit on July 17, 2001.

On January 7, 2002, the United States Supreme Court denied petitioner’s Petition for Writ of Certiorari. Lizzi v. WMATA, 534 U.S. 1081 , 122 S.Ct. 812 , 151 L.Ed.2d 697 , reh’g denied, 535 U.S. 952 , 122 S.Ct. 1352 , 152 L.Ed.2d 254 (2002). B. Maryland Court Proceedings On August 27, 1999, more than a year subsequent to the filing of his federal claim, petitioner filed the instant action in the Circuit Court for Prince George’s County. As stated, supra, petitioner’s complaint, as amended, contained three counts.

Petitioner’s FMLA claim, his initial count, was identical to that advanced in the then-pending federal court action. Because of the pending federal court action, the circuit court ordered a stay of the state court action pending the decision by the Fourth Circuit in the federal court action. After receiving a favorable decision by the Fourth Circuit in the federal action, WMATA filed a motion in the circuit court to (1) lift the stay in the state court action and (2) dismiss the entire action. On January 4, 2002, subsequent to a hearing on the motions, the circuit court dismissed Counts I (FMUA claim) and II (contract claim) of petitioner’s complaint on the ground of res judicata.

At a later hearing on March 29, 2002, the circuit court dismissed Count III (Maryland Constitution claim) of petitioner’s complaint as being barred by both sovereign immunity and res judicata. 5 ²⁰⁵ On appeal to the Court of Special Appeals, the court was “asked to decide whether the circuit court correctly dismissed all three counts of [petitioner’s] complaint on the ground of res judicata and, insofar as Count III is concerned, the additional ground of sovereign immunity.” Lizzi v. WMATA, 156 Md. App. at 6 , 845 A.2d at 63 (alteration added). While the intermediate appellate court did affirm the decision of the circuit court, it did so in relation to petitioner’s Counts I and II “for reasons other than those relied upon by that court.” Id. at 7 , 845 A.2d at 63 . In explaining its reasoning behind its departure from the reasons for dismissal given by the circuit court, the Court of Special Appeals stated: “It is not necessary that we decide whether res judicata bars [petitioner’s] suit on the ground that the federal court ruled [respondents] immune. This is because we hold that WMATA and the individual [supervisors] are shielded from suit in state court by the doctrine of sovereign immunity, and that WMATA has not waived that immunity for claims such as those brought by [petitioner].” Id. at 8 , 845 A.2d at 64 (alterations added).

II

Discussion Petitioner initially contends that, under Maryland Rule 8-131 (2004), WMATA’s claim that res judicata bars the claim sub judice from proceeding is improper insofar as it was not raised in either WMATA’s response to petitioner’s certiorari petition or in any cross-petition. That lack of action, petitioner claims now bars the issue from being raised in WMATA’s brief to this Court. Maryland Rule 8-131 provides, in pertinent part: “Rule 8-131. Scope of review.

(a) Generally. The issues of jurisdiction of the trial court over the subject matter and, unless waived under Rule 2-322, over a person may be raised in and decided by the appellate court whether or not raised in and decided by the ²⁰⁶ trial court. Ordinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court, but the Court may decide such an issue if necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal.” [Emphasis added.] The issue of res judicata was raised in and has been fully determined by the trial court. If, we were to determine that petitioner’s other claims had merit, we would be required to remand this case to the Court of Special Appeals for it to determine the issue relating to res judicata and the determination of that court would in all likelihood be the subject of another Petition to this Court.

Thus, we find it preferable to address the res judicata issue at this point, so as “to avoid the expense and delay of another appeal,” as is intended under the language of Maryland Rule 8-131 (a). 6 It would be a waste of judicial resources to remand the case, and the burden of resolving this issue, to the Court of Special Appeals for it to determine the issue when it would, in all probability, end up back here. Therefore, we shall proceed with an examination of whether res judicata does in fact bar petitioner’s FMLA claim. Res judicata literally means “a thing adjudicated,” and generally indicates “[a]n affirmative defense barring the same parties from litigating a second lawsuit on the same claim, or any other claim arising from the same transaction or series of transactions and that could have been — but was not — raised in the first suit.” Black’s Law Dictionary 1336- ²⁰⁷ 37 (8th ed.2004). See Alvey v. Alvey, 225 Md. 386, 390 , 171 A.2d 92, 94 (1961) (stating that “[t]he doctrine of res judicata is that a judgment between the same parties and their privies is a final bar to any other suit upon the same cause of action, and is conclusive, not only as to all matters that have been decided in the original suit, but as to all matters which with propriety could have been litigated in the first suit”); see also Mackall v. Zayre Corp., 293 Md. 221, 228 , 443 A.2d 98, 102 (1982) (stating that “if a proceeding between parties involves the same cause of action as a previous proceeding between the same parties, the principle of res judicata applies and all matters actually litigated or that could have been litigated are conclusive in the subsequent proceeding”).

Res judicata is based “upon the judicial policy that the losing litigant deserves no rematch after a defeat fairly suffered, in adversarial proceedings, on issues raised, or that should have been raised.” Colandrea v. Wilde Lake Community Ass’n, Inc., 361 Md. 371, 391 , 761 A.2d 899, 909 (2000). In the case sub judice, WMATA claims that the Fourth Circuit’s decision in Lizzi v. Alexander, et al., 255 F.3d 128 (4th Cir.2001), effectively bars petitioner’s present claims because of res judicata. In order to ascertain whether WMA-TA’s contention is correct, we must first examine the extent of the Fourth Circuit’s holding in Lizzi. In its decision in Lizzi, the Fourth Circuit noted “at the outset that WMATA possesses Eleventh Amendment[ 7 ] immunity.

The signatories of the [WMATA] compact intended to ²⁰⁸ confer Eleventh Amendment immunity on WMATA.” Id. at 132 (alteration added) (footnote added). The Fourth Circuit further stated that “WMATA is a state agency, subject to all the benefits and liabilities of a state itself, including sovereign immunity.” Id. (emphasis added). In its discussion as to why the WMATA compact had not evidenced an intent to waive WMATA’s sovereign immunity, 8 despite petitioner’s contention that it did, the Fourth Circuit extensively examined virtually all of the arguments that underlie petitioner’s present claim before this Court as to why the FMLA, specifically the personal-leave provision of 29 U.S.C. § 2612 (a)(1)(D), should be found to abrogate WMATA’s sovereign immunity.

In fact, the only new wrinkle in petitioner’s argument that makes for even the slightest difference in the case as it was presented to the Fourth Circuit and as it is now presented before this Court is petitioner’s inclusion in his brief of the recent United States Supreme Court case of Nevada Dep’t of Human Resources v. Hibbs, 538 U.S. 721 , 123 S.Ct. 1972 , 155 L.Ed.2d 953 (2003), which petitioner claims effectively overruled the Fourth Circuit’s Lizzi decision. With Hibbs , the Supreme Court had before it the opportunity to settle a disagreement among the federal courts of appeal as to whether there existed sovereign immunity of a state in a private action for damages under the FMLA. 9 In holding ²⁰⁹ that, notwithstanding state sovereign immunity, employees of