Argued: January 29, 2019
from the United States District Court for the District of
Maryland, at Greenbelt. Paul W. Grimm, District Judge.
Jennifer L. Katz, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND,
Baltimore, Maryland, for Appellant.
L. Kruger, ALAN LESCHT & ASSOCIATES, P.C., Washington,
D.C., for Appellee.
E. Frosh, Attorney General, James N. Lewis, Assistant
Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND,
Baltimore, Maryland, for Appellant.
MOTZ, KING, and WYNN, Circuit Judges.
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.
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).[*]
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
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 ...