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.,
*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,
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 scоpe 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 Wаshington, 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 еxtended 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,
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,
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 actiоn, 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,
“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,
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 pаrt:
“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 thе 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 anоther 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,
In the case
sub judice,
WMATA claims that the Fourth Circuit’s decision in
Lizzi v. Alexander, et al.,
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,
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 the State of Nevada could recover money damages in federal court in the event of the state’s failure to comply with the FMLA’s family-leave provision,
see
29 U.S.C. § 2612(a)(1)(C), the Supreme Court settled the question of whether a statе could be sued in relation to alleged violations of the
family-leave provision
of the FMLA.
10
What the decision did not do, regardless of how vigorously petitioner claims otherwise, was provide that the
personal-leave provision
of the FMLA,
see
29 U.S.C. § 2612(a)(1)(D), also allows for states to be sued when alleged violations of the personal-leave provision are asserted. Chief Justice Rehnquist, writing for the Court, made it clear that the
Hibbs
decision was limited in its scope to only the family-care provision of the FMLA.
See Hibbs,
The fact that
Hibbs
does nothing to inhibit the
res judicata
effect of the Fourth Circuit’s decision in
Lizzi
upon the case
sub judice
is supported by the Court of Appeals for the Tenth Circuit’s post
-Hibbs
opinion in
Brockman v. Wyoming Dep’t of Family Servs.,
Recognizing the recent Supreme Court decision in
Hibbs
and its effect as to only the family-care provision of the FMLA, the Tenth Circuit found that “the self-care provision in [29 U.S.C. § 2612(a)(1)(D) ]
is not implicated by that decision.” Brockman,
“First, Congress was attempting to alleviate the economic burdens to both the employee and to his or her family of illness-related job-loss. See S.Rep. No. 103-3, at 11 (1993), reprinted in 1993 U.S.C.C.A.N. 3, 13-14; H.R.Rep. No. 101-28(1), at 23 (1990). Second, Congress was attempting to prevent those with serious health problems from being discriminated against by their employers. See S.Rep. No. 103-3, at 12; H.R. Rep. 101-28(1), at 23. The legislative history does not, however, identify as the basis for subsection (D) a link between these two motivations and any *211 pattern of discriminatory stereotyping on the part of the states as employers.”
Id.
We agree with the Tenth Circuit’s decision in
Brockman
insofar as it relates to the effect that the Supreme Court’s decision in
Hibbs
has on the personal-leave provision of the FMLA,
i.e.,
that it
does not have any effect
on that particular рrovision. The Fourth Circuit’s holding in
Lizzi
as it relates to the FMLA personal-leave provision — that it is not a valid abrogation of state sovereign immunity — is not disturbed by the Supreme Court’s opinion in
Hibbs
and effectively bars petitioner’s present claims because of
res judicata. See Solley v. Big Spring State Hosp.,
There are post
-Hibbs
cases in the federal system that have held contrary to the cases we cite abоve.
See, e.g., Montgomery v. Maryland,
There ostensibly remains the issue of petitioner’s state constitutional claims. At the Court of Special Appeals, that court identified the issue before it in relation to state constitutional claims as,
“IV. Whether appellant’s statе constitutional law claim is barred by limitations?”
At the circuit court the defendants argued that the state constitutional claims were barred by the doctrine of res judi-cata because, according to them, the appropriate provisions of the federal statute at issue permitted them to be brought in the federal district court so long as they arose out of the same factual situation. The defendants also argued that the state constitutional claim was time-barred as well. Their motion to dismiss that count was granted by the trial judge on immunity and res judicata grounds without any mention of limitations.
However, at the Court of Special Appeals the respondents argued, and petitioner responded to that argument in his reply brief, that the state constitutional claim was filed more than three years after the termination of petitioner and thus was untimely filed and that the issue had been raised at the trial court (as, in fact, it was). Petitioner argued below (at both courts) that the claim was timely filed because it related back to the prior counts.
At the time the state constitutional count was added, counts substantially similar to the prior counts filed in the state court had already been resolved and dismissed in the federal courts and we have held that the preclusive effect of the fedеral courts’ actions was res judicata and that those counts, accordingly, could not be maintained in the state action. Thus, with our holding based upon res judicata principles that those *213 counts were properly dismissed the third count stands alone. And it was untimely filed.
III. Conclusion
We hold that petitioner’s present claim concerning the ability of the personal-leave provision of the FMLA to overcome the sovereign immunity of this State is barred due to the
res judicata
effect of the Fourth Circuit’s opinion in
Lizzi v. Alexander, et al.,
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS TO BE PAID BY PETITIONER.
Notes
. In his brief, petitioner characterizes and refers to these named employees as “supervisors.”
. As we shall discuss, infra, petitioner’s FMLA claim is morе specifically a claim relating to 29 U.S.C. § 2612(a)(1)(D) of the Act, otherwise known as the personal-leave provision. This provision states:
"§ 2612. Leave requirement
(a) In general
(1) Entitlement to leave
Subject to section 2613 of this title, an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period for one or more of the following:
(D) Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee.”
. As we shall discuss, infra, the intermediate appellate court affirmed the dismissal of petitioner's suit, but it did so without addressing whether res judicata, an issue presented to it, barred petitioner’s claims.
. This fifth and final question was mentioned in petitioner’s brief to this Court, but was not specifically included in his Petition for Writ of Certiorari.
. A later hearing on Count III was needed because petitioner did not add this count to his complaint until he filed a second amеnded *205 complaint, which was filed on the morning of the first motions hearing on January 4, 2002.
. Our decision to address the question of whether res judicata bars petitioner’s claim is further bolstered by the fact that the circuit court based its dismissal of two of petitioner’s counts solely on res judicata, and a third count because of both res judicata and the court’s own finding of sovereign immunity. The issue was also extensively briefed in WMATA’s brief before the Court of Special Appeals, as well as in WMATA's brief to this Court. Therefore, WMATA's res judicata defense cannot be said to have appeared out of thin air. It is not a surprise to petitioner. Additionally, petitioner responded to the issue in this Court by referring the Court to his briefing of this issue in the Court of Special Appeals.
. The Eleventh Amendment to the United States Constitution states that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United Stаtes by Citizens of another State, or by Citizens or Subjects of any Foreign State.” The United States Supreme Court has extended the states' Eleventh Amendment immunity to suits against a state by its own citizens.
See Hans v. Louisiana,
. An identical conclusion regarding the effect of the language of the WMATA сompact was reached by the Court of Special Appeals in its decision below.
See Lizzi,
. At the time of the Supreme Court’s decision in
Hibbs,
only the Court of Appeals for the Ninth Circuit had held that a specific provision of the FMLA abrogated sovereign immunity,
see Hibbs v. Dep't of Human Resources,
. In reaching this holding, which is limited to the family-leave provision of the FMLA, the Supreme Court found that the impetus for the family-leave provision was to alleviate the effects of gender discrimination in the workplace. The Supreme Court stated that existing “state practices continue to reinforce the stereotype of women as caregivers/'
Hibbs,