The Fourth Circuit Court of Appeals concluded that Maryland’s employment discrimination statute (FEPA), Md. Code Ann., St. Gov’t § 20-601 et seq., does not waive the State’s immunity to be sued in federal court under that law for alleged employment discrimination, harassment and/or retaliation. In Pense v. Maryland Dept’ of Public Safety and Correctional Services, No. 18-1554 (4th Cir. June 11, 2019), the appellate court concluded that the State has not waived the protection of the Eleventh Amendment, and therefore, reversed and remanded the trial court’s decision for the dismissal without prejudice of Mr. Pense’s FEPA claims.
Mr. Pense worked for the Dep’t of Public Safety for seventeen years. In April 2015, a female employee accused him of sexual harassment. In June 2015, during his interview during the investigation into her claim, Mr. Pense disclosed that he was homosexual and HIV-positive. Two hours later he was placed on administrative leave. Within two weeks, and despite the conclusion that Mr. Pense did not sexually harass the complaining employee, Mr. Pense was fired.
Mr. Pense sued the State in federal court for a variety of claims, including under FEPA for his discriminatory discharge, alleging both sexual orientation and disability discrimination. The Dep’t of Public Safety moved to dismiss the FEPA claims on Eleventh Amendment immunity grounds. The District Court of Maryland issued its Immunity Decision and ruled that the State had waived sovereign immunity as to the FEPA claims in both state and federal court.
The Dep’t appealed that Immunity Decision, and through a variety of motions filed by the parties, the district court issued a Stay Order noting it had uncovered authority not previously cited by the Dep’t suggesting that the State does have a strong argument in support of not having waived Eleventh Amendment immunity. Mr. Pense filed an appeal for interlocutory review of the Immunity Decision.
The Fourth Circuit focused on the difference between a State’s waiver of immunity to suit in state court versus that in federal court, noting that a “State does not consent to suit in federal court merely by consenting to suit in the courts of its own creation.” A State waives its Eleventh Amendment immunity only where stated by “the most express language” or by “such overwhelming implication from the text” that leaves no room for any other reasonable interpretation.
The Fourth Circuit relied upon FEPA’s consent and venue provisions to conclude that the State’s Eleventh Amendment immunity was not waived. The consent provision states: “The State . . . may not raise sovereign immunity as a defense against an award in an employment discrimination case under this title.” Section 20-903. The venue provision confirms that a FEPA action “shall be filed in the circuit court for the county where the alleged unlawful employment practice occurred.” Section 20-1013(b). Because the consent to suit does not specify the State’s intent to subject itself to suit in federal court, the Fourth Circuit could not read the statute to waive the State’s Eleventh Amendment immunity. Because there was not express consent to suit in federal court, the Dep’t was entitled to the protection of the Eleventh Amendment with respect to Pense’s FEPA claims.