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Savage v. Sewell

United States Court of Appeals, Fourth Circuit

July 13, 2018

FRANKLIN SAVAGE, Plaintiff - Appellee,
v.
STATE OF MARYLAND, Defendant-Appellant, and KEVIN SEWELL; LYNELL GREEN, Plaintiffs, and UNITED STATES OF AMERICA, Intervenor/Plaintiff, and POCOMOKE CITY; POCOMOKE CITY POLICE DEPARTMENT; WORCESTER COUNTY SHERIFF'S OFFICE; DEPARTMENT OF MARYLAND STATE POLICE; RUSSELL BLAKE, in his individual capacity only; ERNIE CROFOOT, individually, and in his official capacity as Pocomoke City Manager; BRUCE MORRISON, individually, and in his official capacity as Pocomoke City Mayor; BEAU OGLESBY, in his individual capacity as the Worcester County State's Attorney; NATHANIEL PASSWATERS, in his individual capacity only; BROOKS PHILLIPS, individually, and in his official capacity as a Department of Maryland State Police Corporal; DALE SMACK, in his individual capacity only; DALE TROTTER; RODNEY WELLS, in his individual capacity only; PATRICIA DONALDSON, individually, and in her official capacity as a Department of Maryland State Police Sergeant; COUNTY COMMISSIONERS OF WORCESTER COUNTY; REGGIE T. MASON, in his official capacity as Worcester County Sheriff, Defendants. HOWARD UNIVERSITY SCHOOL OF LAW CIVIL RIGHTS CLINIC; PUBLIC JUSTICE CENTER, Amicus Supporting Appellee. FRANKLIN SAVAGE, Plaintiff - Appellant, and KEVIN SEWELL; LYNELL GREEN, Plaintiffs, and UNITED STATES OF AMERICA, Intervenor/Plaintiff,
v.
BEAU OGLESBY, in his individual capacity as the Worcester County State's Attorney, Defendant-Appellee, and POCOMOKE CITY; POCOMOKE CITY POLICE DEPARTMENT; WORCESTER COUNTY SHERIFF'S OFFICE; DEPARTMENT OF MARYLAND STATE POLICE; RUSSELL BLAKE, in his individual capacity only; ERNIE CROFOOT, individually, and in his official capacity as Pocomoke City Manager; BRUCE MORRISON, individually, and in his official capacity as Pocomoke City Mayor; NATHANIEL PASSWATERS, in his individual capacity only; BROOKS PHILLIPS, individually, and in his official capacity as a Department of Maryland State Police Corporal; DALE SMACK, in his individual capacity only; DALE TROTTER; RODNEY WELLS, in his individual capacity only; PATRICIA DONALDSON, individually, and in her official capacity as a Department of Maryland State Police Sergeant; COUNTY COMMISSIONERS OF WORCESTER COUNTY; REGGIE T. MASON, in his official capacity as Worcester County Sheriff; STATE OF MARYLAND, Defendants. HOWARD UNIVERSITY SCHOOL OF LAW CIVIL RIGHTS CLINIC; PUBLIC JUSTICE CENTER, Amici Supporting Appellant. FRANKLIN SAVAGE, Plaintiff - Appellee, and KEVIN SEWELL; LYNELL GREEN, Plaintiffs, and UNITED STATES OF AMERICA, Intervenor/Plaintiff,
v.
STATE OF MARYLAND, Defendant-Appellant, and POCOMOKE CITY; POCOMOKE CITY POLICE DEPARTMENT; WORCESTER COUNTY SHERIFF'S OFFICE; DEPARTMENT OF MARYLAND STATE POLICE; RUSSELL BLAKE, in his individual capacity only; ERNIE CROFOOT, individually, and in his official capacity as Pocomoke City Manager; BRUCE MORRISON, individually, and in his official capacity as Pocomoke City Mayor; BEAU OGLESBY, in his individual capacity as the Worcester County State's Attorney; NATHANIEL PASSWATERS, in his individual capacity only; BROOKS PHILLIPS, individually, and in his official capacity as a Department of Maryland State Police Corporal; DALE SMACK, in his individual capacity only; DALE TROTTER; RODNEY WELLS, in his individual capacity only; PATRICIA DONALDSON, individually, and in her official capacity as a Department of Maryland State Police Sergeant; COUNTY COMMISSIONERS OF WORCESTER COUNTY; REGGIE T. MASON, in his official capacity as Worcester County Sheriff, Defendants. HOWARD UNIVERSITY SCHOOL OF LAW CIVIL RIGHTS CLINIC; PUBLIC JUSTICE CENTER, Amici Supporting Appellee.

          Argued: March 20, 2018

          Appeals from the United States District Court for the District of Maryland, at Baltimore. J. Frederick Motz, Senior District Judge. (1:16-cv-00201-JFM)

         ARGUED:

          Jennifer L. Katz, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellant/Cross-Appellee.

          Dennis A. Corkery, WASHINGTON LAWYERS COMMITTEE FOR CIVIL RIGHTS & URBAN AFFAIRS, Washington, D.C., for Appellee/Cross-Appellant.

         ON BRIEF:

          Brian E. Frosh, Attorney General, Karen L. Federman Henry, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellant/Cross-Appellee.

          Matthew Handley, WASHINGTON LAWYERS COMMITTEE FOR CIVIL RIGHTS & URBAN AFFAIRS, Washington, D.C.; Deborah A. Jeon, Sonia Kumar, ACLU OF MARYLAND, Baltimore, Maryland; Theodore A. Howard, Brian G. Walsh, Craig Smith, Kendra P. Norwood, WILEY REIN LLP, Washington, D.C., for Appellee/Cross-Appellant.

          Ajmel Quereshi, HOWARD UNIVERSITY SCHOOL OF LAW, Washington, D.C.; Debra Gardner, PUBLIC JUSTICE CENTER, Baltimore, Maryland, for Amici Curiae.

          Before WYNN, FLOYD, and HARRIS, Circuit Judges.

          PAMELA HARRIS, Circuit Judge

         These appeals are part of broader litigation alleging pervasive race discrimination and unlawful retaliation against three African-American police officers who worked for Pocomoke City in Worcester County, Maryland. The issues before us today arise from the interactions of one of those plaintiffs, Franklin Savage, with the State's Attorney for Worcester County, Beau Oglesby. According to Savage, Oglesby created a hostile work environment by reading aloud, at a trial preparation meeting, potential evidence in the form of letters containing racial epithets. And then, Savage alleges, after he complained of the incident, Oglesby retaliated against him by refusing to call him as a witness in criminal cases and notifying Pocomoke City officials of that decision.

         On the basis of these allegations, Savage sued State's Attorney Oglesby for violations of his civil rights. He also sued the State of Maryland under Title VII, asserting that Maryland, as Oglesby's employer, is vicariously liable for his unlawful acts. The district court dismissed the claims against Oglesby, holding that he is protected by absolute prosecutorial immunity, but allowed the claims against Maryland to proceed.

         We agree with the district court that prosecutorial immunity bars Savage's claims against Oglesby. Reviewing and evaluating evidence in preparation for trial, making judgments about witness credibility, and deciding which witnesses to call and which cases may be prosecuted all are directly connected to the judicial phase of the criminal process, protected by absolute immunity. We disagree, however, with respect to Savage's retaliation claim against Maryland. Because no reasonable employee could believe that Oglesby violated Title VII at the trial-preparation meeting to which Savage objected, Savage's allegations fail to state a claim under Title VII, and should be dismissed for that reason.

         I.

         A.

         Franklin Savage alleges that he was subjected to unlawful discrimination and retaliation while he was employed by the Pocomoke City Police Department and on detail to the Worcester County Criminal Enforcement Team ("CET"), a multi-jurisdictional drug interdiction task force led by the Worcester County Sheriff's Office. He and two co-plaintiffs, all African Americans and former Pocomoke City police officers, filed a suit against multiple state and local agencies and their employees, alleging widespread race-based employment discrimination and retaliation. The interlocutory cross-appeals before us today address just one discrete part of this broader litigation, and are limited to Savage's allegations against State's Attorney Oglesby and the State of Maryland as Oglesby's employer.

         Savage joined the Pocomoke City Police Department in 2011, and in 2012 was assigned to the CET. In April 2014, Savage attended a meeting with members of the Worcester County State's Attorney's office, including State's Attorney Oglesby. The purpose of the meeting, according to Savage, was to "discuss an upcoming case" on which he had been the arresting officer. J.A. 109. During the meeting, Savage alleges, he "presented some documents" - letters written by the suspects - "that were going to be looked at by the State's Attorney's Office to decide if they were going to use them in the upcoming court case." Id. Then, Savage claims, Oglesby "began to read the letters verbatim line for line," which meant "us[ing] the word Nigga over and over again." Id. When Oglesby stopped and asked whether he was "offending anybody by reading these letters," Assistant State's Attorney Ajene Turnbull, the only other African American present, left the room. Id. Savage remained, and Oglesby continued reading. After some discussion, Oglesby asked for "copies of the letters so that he could use them for trial." Id.

         In July 2014, after Savage had resigned from the CET and returned to the Pocomoke City Police Department, he filed two written complaints, one with the Equal Employment Opportunity Commission and one with the Maryland Attorney Grievance Commission. Both objected to Oglesby's repeated reading of the racial slur during the April 2014 meeting. In his complaints, Savage described the word "Nigga" as "highly powerful and hurtful," and expressed his deep offense that Oglesby would "use the word Nigga so freely and without care in front of ASA Turnbull and me." J.A. 109. Since the meeting, Savage said, he was "having problems with [his] cases being prosecuted" and also "problems sleeping." Id.

         In September 2014, Oglesby sent a letter to the Pocomoke City Mayor and City Council, "implying that he would not allow Officer Savage to testify in court" because of concerns about his "veracity." J.A. 54. And indeed, Oglesby's letter directly stated that the "recent conduct of . . . Savage calls into question his veracity." J.A. 187.[1] Citing his legal obligation to disclose material that could be used to impeach state witnesses, Oglesby went on to conclude that he would be required to "evaluate any case" in which Savage would be a witness "to determine what impact he w[ould] have on our ability to prosecute." Id. The bottom line appeared to be that Oglesby would not call Savage as a witness without corroboration for his testimony, and would instead decline to prosecute in such cases: "If we are unable to independently corroborate his testimony and therefore must rely solely on his word, the likely outcome will be a dismissal of the case." Id. According to Savage, because testifying in court was a "vital part" of his duties, that decision "directly interfered" with his ability to do his job. J.A. 69.

         Over a year later, in October 2015, Oglesby and the Pocomoke City Manager had a telephone conversation. Savage's complaint describes it as follows: "Oglesby was adamant that Officer Savage would never be able to testify again and was thus useless to the Pocomoke City Police Department. On information and belief, Oglesby reiterated that Officer Savage should be terminated." J.A. ...


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