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Pense v. Maryland Department of Public Safety and Correctional Services

United States Court of Appeals, Fourth Circuit

June 11, 2019

MICHAEL PENSE, Plaintiff - Appellee,
v.
MARYLAND DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES, Defendant-Appellant.

          Argued: January 29, 2019

          Appeal from the United States District Court for the District of Maryland, at Greenbelt. Paul W. Grimm, District Judge. (8:17-cv-01791-PWG)

         ARGUED:

          Jennifer L. Katz, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellant.

          Susan L. Kruger, ALAN LESCHT & ASSOCIATES, P.C., Washington, D.C., for Appellee.

         ON BRIEF:

          Brian E. Frosh, Attorney General, James N. Lewis, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellant.

          Before MOTZ, KING, and WYNN, Circuit Judges.

          KING, CIRCUIT JUDGE

         This appeal and ongoing proceedings in the District of Maryland concern the state and federal employment discrimination claims of plaintiff Michael Pense, a former employee of the defendant Maryland Department of Public Safety and Correctional Services. Pertinent here, the Department has asserted that the Eleventh Amendment renders it immune from suit in federal court with respect to two state claims, each pursued under Maryland's Fair Employment Practices Act (the "FEPA"). Consistent with previous District of Maryland rulings, however, the district court rejected the Department's assertion of Eleventh Amendment immunity on the premise that the State waived such immunity. See Pense v. Md. Dep't of Pub. Safety & Corr. Servs., No. 8:17-cv-01791 (D. Md. Apr. 30, 2018), ECF No. 19 (the "Immunity Decision"). The Department brought this appeal, seeking interlocutory review of the Immunity Decision. As explained below, in an exercise of our jurisdiction pursuant to the collateral order doctrine, we conclude that the State has not waived the protection of the Eleventh Amendment, and we therefore reverse and remand for the dismissal without prejudice of Pense's FEPA claims.

         I.

         According to the operative Amended Complaint of November 3, 2017, Pense was an employee of the Maryland Department of Public Safety and Correctional Services for seventeen years. The Amended Complaint explains that, in April 2015, a female Department employee falsely accused Pense of sexual harassment. During an investigatory interview in June 2015, Pense disclosed to the Department that he is gay and HIV positive. Two hours later, the Department placed Pense on administrative leave. Within two weeks, and despite having determined that the female employee's sexual harassment allegation could not be sustained, the Department fired Pense. The state claims relevant to this appeal - the FEPA claims - relate Pense's discharge to sexual orientation discrimination (Count 2 of the Amended Complaint) and disability discrimination (Count 5).[*]

         On November 20, 2017, the Department moved to dismiss the FEPA claims on Eleventh Amendment immunity grounds. By its Immunity Decision of April 30, 2018, the district court denied the Department's dismissal motion, relying on a line of prior District of Maryland decisions concluding that the State, through a statutory consent to suit provision, has waived sovereign immunity as to FEPA claims in the state and federal courts.

         On May 11, 2018, the Department noted its appeal from the Immunity Decision, invoking this Court's jurisdiction under the collateral order doctrine. Three days later, on May 14, 2018, the Department filed a motion in the district court to stay that court's proceedings pending our decision and mandate. Pense opposed the stay request, contending that the district court could and should continue to actively entertain his claims because the Department's appeal is frivolous for lack of appellate jurisdiction. The district court rejected Pense's jurisdictional contention and entered a stay. See Pense v. Md. Dep't of Pub. Safety & Corr. Servs., No. 8:17-cv-01791 (D. Md. July 26, 2018), ECF No. 27 (the "Stay Order"). Notably, the Stay Order divulged that, since issuing the Immunity Decision, the district court had ...


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