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)
Jennifer L. Katz, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND,
Baltimore, Maryland, for Appellant/Cross-Appellee.
A. Corkery, WASHINGTON LAWYERS COMMITTEE FOR CIVIL RIGHTS
& URBAN AFFAIRS, Washington, D.C., for
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
Quereshi, HOWARD UNIVERSITY SCHOOL OF LAW, Washington, D.C.;
Debra Gardner, PUBLIC JUSTICE CENTER, Baltimore, Maryland,
for Amici Curiae.
WYNN, FLOYD, and HARRIS, Circuit Judges.
HARRIS, Circuit Judge
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.
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.
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.
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.
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.
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.
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. 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.
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. ...