DeMarco v. University of North Carolina

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

SALVATORE DEMARCO, 
Plaintiff-Appellant,
v.
UNIVERSITY OF NORTH CAROLINA,
through its Board of Governors;
EAST CAROLINA UNIVERSITY, the  No. 00-2440
Department of Communications,
Science and Disorders; RICHARD R.
EAKINS, Chancellor; JAMES HALLOCK,
Vice Chancellor; MICHAEL
RASTATTER,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Greenville.
Malcolm J. Howard, District Judge.
(CA-99-62-4-H)

Submitted: September 20, 2001

Decided: October 19, 2001

Before WILKINS, LUTTIG, and WILLIAMS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

COUNSEL

Janet I. Pueschel, PUESCHEL & ASSOCIATES, Raleigh, North Car-
olina, for Appellant. Roy Cooper, North Carolina Attorney General,
2 DEMARCO v. UNIV. OF NORTH CAROLINA
Sylvia Thibaut, Assistant Attorney General, Raleigh, North Carolina,
for Appellees.

Unpublished opinions are not binding precedent in this circuit.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

OPINION

PER CURIAM:

Salvatore DeMarco appeals the dismissal on res judicata grounds
of his federal claims arising out of his termination from employment
as a professor at East Carolina University. DeMarco’s federal action
alleged due process violations under the United States and North Car-
olina constitutions, wrongful termination under Title I of the Ameri-
cans with Disabilities Act and North Carolina law, negligent and
intentional infliction of emotional distress, and violation of his First
Amendment rights to free speech and association.

DeMarco received written notification from Chancellor Richard
Eakins that he was suspended from his position and Eakins intended
to permanently discharge him. DeMarco challenged his discharge
through the available state administrative proceedings. After exhaust-
ing his administrative remedies, DeMarco petitioned the Wake
County, North Carolina Superior Court for review. In his petition
before the North Carolina court, DeMarco alleged due process viola-
tions under both the United States and North Carolina constitutions,
discrimination based on his disability, the decision to terminate his
employment was arbitrary and capricious, and other errors of law.
The North Carolina court affirmed the final agency decision and dis-
missed DeMarco’s petition with prejudice on December 23, 1999.
The state court found "no violation of any constitutional or statutory
right of the Petitioner."

DeMarco filed his suit in federal court on May 14, 1999. On
motion by the Defendants, the district court dismissed DeMarco’s suit
 DEMARCO v. UNIV. OF NORTH CAROLINA 3
as barred by the doctrine of res judicata on October 11, 2000. Federal
courts must give preclusive effect to state court judgements where the
state courts would do so. 28 U.S.C. § 1738 (1994). Since North Caro-
lina law would bar any further action by DeMarco, the full faith and
credit doctrine precludes federal adjudication of his federal suit. See
Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (1984);
Rao v. County of Fairfax, 108 F.3d 42, 44 (4th Cir. 1997). Our review
of the pleadings in the state case and the state court’s decision con-
firms that the issues raised in the federal suit were adjudicated in the
state suit. Keith v. Aldridge, 900 F.2d 736, 739 (4th Cir. 1990). We
also find that all of DeMarco’s causes of action arise from the same
transaction. See Meekins v. United States Transportation Union, 946
F.2d 1054, 1058 (4th Cir. 1991). Accordingly, the district court prop-
erly concluded that DeMarco’s federal actions were barred under the
doctrine of res judicata.

For the first time on appeal, DeMarco challenges the veracity of
unsworn testimony offered at his administrative hearing. This court
will not address issues raised for the first time on appeal except in
exceptional circumstances. See Grossman v. Commr., 182 F.3d 275,
280-81 (4th Cir. 1999); Hormel v. Helvering, 312 U.S. 552, 556
(1941). Because no exceptional circumstances exist in this case, we
decline to consider this claim.

We affirm the district court’s finding that DeMarco’s federal suit
is barred by the doctrine of res judicata. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid in the
decisional process.

AFFIRMED