A federal appeals court last week dismissed claims made against Maryland in a racial discrimination case involving former Eastern Shore police.
Former Pocomoke City police Officer Franklin Savage, former Chief Kelvin Sewell and Lt. Lynell Green alleged the city’s government, the state and the county prosecutor created a hostile work environment based on race.
The 4th U.S. Circuit Court of Appeals affirmed a trial judge’s dismissal of claims against former Worcester County State’s Attorney Beau Oglesby because the suit was barred by prosecutorial immunity but also found the district court erred in not also dismissing the claim against the state. (Oglesby is now a judge on the Worcester County Circuit Court.)
In a published opinion, a three-judge panel ruled Savage failed to state a claim against the state for retaliation under Title VII and the claims should be dismissed, declining to address broader questions raised by both parties.
A spokeswoman for the Maryland Office of the Attorney General called the decision “a straightforward application of prosecutorial immunity” and said the claims against Oglesby and the state were properly dismissed.
The appeal was limited to Oglesby and the state’s liability; the case remains pending for the other defendants.
Savage claimed Oglesby repeatedly read “the n-word” and variations of the word while reading from a letter that was to be used as evidence in a case he was prosecuting. Savage said that, after he complained, Oglesby retaliated against him and he was eventually fired. Green resigned after he said he faced retaliation for supporting Savage, and Sewell said he was fired for refusing to fire the two officers.
Savage argued the state, though not his employer, could be held liable under a third-party retaliatory interference theory for interfering in his relationship with Pokomoke City via Oglesby’s alleged actions. The state claimed the theory was an “end run” attempt around Oglesby’s absolute prosecutorial immunity.
Judge Pamela Harris, writing on behalf of the 4th Circuit panel, noted the use of a slur even once can create a hostile work environment but the context of its use mattered in this case.
“On the facts as alleged by Savage, Oglesby was not aiming racial epithets at Savage, or, for that matter, at anyone else, or using slurs to give voice to his own views,” Harris wrote. “Instead, he was reading (the slur) aloud from letters written by criminal suspects, presented to him by a police officer in the course of a trial-preparation meeting.”
In that context, no Title VII violation can be found to have occurred, the court ruled.
Dennis Corkery, an attorney for Savage, said the decision “should be a wakeup call for lawmakers about the danger of giving prosecutors absolute immunity from suit.”
Corkery, of the Washington Lawyers’ Committee for Civil Rights and Urban Affairs, also said in an emailed statement that the decision does not “negate the harm that Mr. Savage suffered from Mr. Oglesbby’s use of racist language, especially taken in the context of the racism that he, Mr. Sewell, and Mr. Green faced throughout their career.”
Sewell and Green were both indicted in 2016 on charges they covered up a hit-and-run accident in 2014 to help a friend. Sewell was convicted of misconduct in office and sentenced to probation. Green was convicted of conspiracy to commit misconduct in office and was sentenced to serve probation before judgment, meaning the misdemeanor charge could be expunged from his record if he successfully completes probation.
Both men alleged in pretrial motions the charges against them were brought in retaliation for their complaints of racial discrimination.
The appellate case is Franklin Savage et al. v. State of Maryland et al., 17-1636.
The Associated Press contributed to this report.