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4th Circuit: U.S. courts closed to job bias claims against Md. agencies

State law does not waive immunity, appeals court says

Federal courthouse doors are closed to discrimination claims against Maryland state agencies under the state’s Fair Employment Practices Act, a U.S. appeals court ruled Tuesday in dismissing a former prison system budget director’s claim he was fired because he is gay.

In its published 3-0 decision, the 4th U.S. Circuit Court of Appeals said the Constitution’s bar against states being sued in federal court without their consent applies to FEPA. The court said the law contains no express statement that Maryland may be sued in federal court, thus the state’s 11th Amendment immunity from suit applies.

The 4th Circuit’s decision reversed U.S. District Judge Paul W. Grimm’s ruling that permitted Michael Pense to pursue his FEPA claim against the Maryland Department of Public Safety and Correctional Services.

Grimm, who sits in the federal courthouse in Greenbelt, ruled that Maryland waived its 11th Amendment protection under a FEPA provision that bars the state from raising sovereign immunity as a defense and enables plaintiffs to sue the state in the circuit court for the county where the alleged discrimination occurred.

But the 4th Circuit, citing a line of Supreme Court decisions, said FEPA’s provision did not waive the state’s 11th Amendment immunity, because the law’s language does not explicitly provide a cause of action in federal court.

“Simply put, because the consent to suit provision does not specify the state’s intention to subject itself to suit in federal court, that provision cannot be read to waive the state’s 11th Amendment immunity,” Judge Robert B. King wrote for the 4th Circuit.

Pense’s attorney said Tuesday that no decision has been made on whether she and her client will seek review, either by the full 4th Circuit or the U.S. Supreme Court.

“We’re still reviewing the decision and considering what options we have,” added Susan L. Kruger, of Alan Lescht & Associates P.C. in Washington.

The Maryland Office of Attorney General said in statement Tuesday that “the 4th Circuit applied well-established federal standards to Maryland’s law and came to the right result.”

Pense’s claim of sexual-orientation bias under the state law accompanied his allegation of disability discrimination under the federal Rehabilitation Act, saying he was also fired because he has HIV. The federal statute enabled him to file in U.S. District Court and include his state law claim.

Though it dismissed Pense’s FEPA allegation, the 4th Circuit said he can still pursue his disability bias claim under the Rehabilitation Act.

In his complaint, Pense said he told the department he is gay and HIV positive in June 2015 when he was being investigated for having allegedly sexually harassed a female subordinate. The department cleared Pense of the harassment allegation but then fired him, according to the complaint.

The department, which denies the discrimination claims, moved for dismissal of the FEPA claim based on the 11th Amendment. Grimm denied the dismissal motion, prompting the department’s successful appeal to the 4th Circuit.

King was joined in the opinion by Judges Diana Gribbon Motz and James A. Wynn Jr.

The 4th Circuit rendered its decision in Michael Pense v. Maryland Department of Public Safety and Correctional Services, No. 18-1554.


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