Labor & Employment Law Daily Maryland did not waive immunity from FEPA suits brought in federal court
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Thursday, June 13, 2019

Maryland did not waive immunity from FEPA suits brought in federal court

By Lisa Milam, J.D.

While the state waived sovereign immunity from FEPA claims in state court, it did not agree to defend such claims in federal court.

The state of Maryland never waived Eleventh Amendment immunity from Fair Employment Practices Act (FEPA) suits brought in federal court, the Fourth Circuit held, reversing and remanding a federal district court’s contrary finding on interlocutory review. While the state waived sovereign immunity from these state-law claims in state courts, it never expressly waived immunity from such suits in federal court, the appeals court explained. The decision came in the case of a state employee who alleged he was fired shortly after revealing that he was gay, and HIV-positive—a disclosure made during the course of an investigation into allegations of sexual harassment against him, brought by a female coworker (Pense v. Maryland Department of Public Safety and Correctional Services, June 11, 2019, King, R.).

During an investigatory interview regarding claims of sexual harassment brought against him by a female coworker, the employee, who worked for the Maryland Department of Public Safety and Correctional Service, disclosed that he was gay, and also HIV-positive. He was placed on administrative leave within two hours of the interview, and then fired two weeks later despite the employer’s conclusion that the sexual harassment allegations against him lacked merit. He sued for sexual orientation discrimination and disability discrimination; the state claims were brought under the FEPA.

The employee filed suit in a federal district court. He asserted sex and disability discrimination claims under federal and state law asserting that he was terminated based on his sexual orientation and his HIV-positive status. The state sought dismissal of his state-claims, which were brought under the FEPA, on Eleventh Amendment immunity grounds. But the district court rejected the motion, reasoning that, through a statutory consent to suit provision, the state had waived sovereign immunity from FEPA claims. The state sought interlocutory review under the collateral order doctrine, and the Fourth Circuit reviewed de novo.

The appeals court reversed, first citing the U.S. Supreme Court’s maxim that “‘a State does not consent to suit in federal court merely by consenting to suit in the courts of its own creation.’” States only waive Eleventh Amendment immunity “‘by the most express language or by such overwhelming implication from the text as [will] leave no room for any other reasonable construction,’” the High Court held in Atascadero State Hosp. v. Scanlon, a 1985 decision.

The statutory consent to suit provision states that the “State, its officers, and its units may not raise sovereign immunity as a defense against an award in an employment discrimination case under this title.” Under a separate venue provision, a FEPA action “shall be filed in the circuit court for the county where the alleged unlawful employment practice occurred.” Combined, these provisions undermine any notion the state had waived immunity from federal suit. The consent to suit provision does not “specify the State’s intention to subject itself to suit in federal court” and, as the Supreme Court instructs, such an intent cannot be construed as a waiver if not expressly stated. Without the state’s express consent to suit, it is shielded from FEPA claims in federal court.

Other Maryland consent to suit provisions expressly limit the waiver of sovereign immunity to suit in state court. The lower court reasoned that the lack of such an express limitation in in FEPA means that the waiver extends to suit in federal court as well. But the U.S. Supreme Court foreclosed this reasoning in Atascadero, among other decisions, the appeals court pointed out. The High Court imposed a “stringent” test for finding that a state waived Eleventh Amendment immunity: a “clear declaration” of its willingness to consent to submit to the jurisdiction of a federal court. FEPA provides no such declaration; in fact, the district court seems to have acknowledged as much since its issuing its decision below, as it conceded the state had a strong argument that the state had not waived immunity from federal suit under the FEPA.

Therefore, the appeals court remanded, instructing the district court to dismiss the FEPA claims against the state with prejudice.

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