Franklin Savage v. State of Maryland
Opinion
*265 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 *266 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. 59. Savage was fired from his position with the Pocomoke City Police Department ten days later.
*267 B.
Savage, along with his co-plaintiffs, filed suit against multiple defendants in federal court, seeking damages and attorney's fees as well as declaratory and injunctive relief. Savage sued Oglesby in his personal capacity, alleging violations of his civil rights under
Oglesby moved to dismiss the claims against him or, in the alternative, for summary judgment. The district court granted Oglesby's motion. Without elaborating further, it held that Savage's claims against Oglesby "are barred by the doctrine of absolute prosecutorial immunity." J.A. 206.
In response, Savage amended his complaint to add Title VII claims against the State of Maryland, based on the same factual predicate as his claims against Oglesby. As Oglesby's employer, Savage alleged, the State was liable for Oglesby's unlawful acts. Savage acknowledged that Pocomoke City, and not the State of Maryland, "constitutes [his] employer for purposes of Title VII." J.A. 268. But his retaliation claim against the State could go forward, he claimed, under a third-party interference theory: The State, though not his employer, unlawfully interfered with his employment relationship with Pocomoke City when Oglesby retaliated against him for complaining about race discrimination.
The State moved to dismiss or, in the alternative, for summary judgment with respect to this retaliatory interference claim. According to the State, Oglesby's absolute immunity should extend to the State in an action based entirely on the same conduct for which Oglesby was immune. And in any event, the State argued, Savage could not state a claim under Title VII's anti-retaliation provision, which permits suits only against a plaintiff's employer-here, Pocomoke City-and not against third parties like the State. The district court denied the State's motion without discussion.
So that he could seek immediate appeal of Oglesby's dismissal from the case, Savage sought and was granted partial final judgment as to Oglesby. The State, too, wanted an immediate appeal, and the district court obliged by certifying for interlocutory appeal its order denying the State's motion to dismiss or for summary judgment. This court granted the State permission to appeal, and we now have before us timely filed interlocutory appeals by both Savage and the State.
II.
We begin with the district court order dismissing Oglesby from the case
*268
based on absolute prosecutorial immunity. We review that order de novo, accepting all of Savage's factual allegations as true and drawing all reasonable inferences in his favor.
Singer v. Reali
,
A.
In
Imbler v. Pachtman
,
Given these costs, however, the Court has been careful to limit the scope of a prosecutor's absolute immunity. Because prosecutorial immunity "safeguards the process, not the person," it applies only to conduct that is " 'intimately associated with the judicial phase of the criminal process.' "
Nero v. Mosby
,
When a prosecutor is functioning as an advocate for the State, it is clear that his or her actions are "intimately associated with the judicial phase of the criminal process" and thus protected by absolute immunity.
See
Imbler
,
B.
We apply these principles, first, to Savage's allegation that Oglesby unlawfully created a hostile work environment during the April 2014 trial-preparation meeting. According to Savage, Oglesby violated his civil rights when he gratuitously read aloud potential trial evidence, in the form of letters from suspects, using the word "Nigga." We conclude that Oglesby was acting within his role as advocate during the trial-preparation meeting, entitling him to absolute immunity from damages liability on Savage's claim.
The Supreme Court has made clear that "the duties of the prosecutor in his role as advocate for the State involve actions preliminary to the initiation of a prosecution and actions apart from the courtroom."
Buckley
,
Given this settled understanding, it is clear that Oglesby was functioning as an advocate for the State when he engaged in the conduct alleged by Savage. On Savage's own account, the purpose of the April 2014 meeting was "preparing for ... trial,"
see
Buckley
,
Savage's contrary argument rests on his allegation that it was "unnecessary" for Oglesby to read aloud and verbatim the letters he provided in order to assess their potential as trial evidence. J.A. 48. But how evidence should be evaluated is exactly the kind of professional judgment call that prosecutorial immunity is designed to
*270
protect.
See
Van de Kamp
,
C.
We turn next to Savage's allegation that Oglesby violated his First Amendment rights by retaliating against him for speaking out after the April 2014 meeting. According to Savage, after Oglesby learned of his complaint to the Maryland Attorney Grievance Commission, he "prohibited [him] from testifying on any case [he] investigated" in "direct retaliation," and falsely accused Savage of dishonesty in the letter he sent to City officials announcing that decision. J.A. 69. As a result, Savage alleges, he was unable to "execute his job duties."
1.
Decisions regarding witness testimony-which witnesses to call, whether potential witnesses are credible, and how to proceed in the face of credibility questions-are a core prosecutorial function, directly tied to the conduct of a criminal trial. This is clear from
Imbler
itself, holding that prosecutors are absolutely immune from claims that they knowingly presented false testimony at trial: Because "[t]he veracity of witnesses in criminal cases frequently is subject to doubt," the Court explained, the integrity of the criminal process would suffer if "prosecutors were hampered in exercising their judgment as to the use of such witnesses by concern about resulting personal liability."
Imbler
,
That is especially so when, as here, assessments of witness credibility are tightly intertwined with determinations about which cases to charge. The alleged decision to which Savage objects is not only that Savage would not be called as a witness; it is also that Oglesby would dismiss instead of prosecuting cases in which Savage's account could not be corroborated.
See
J.A. 187 ("If we are unable to independently corroborate [Savage's] testimony and therefore must rely solely on his word, the likely outcome will be a dismissal of the case."). And whether to "initiat[e] a prosecution," of course, is in the heartland of the prosecutorial discretion covered by absolute immunity.
See
Burns v. Reed
,
*271
Applying these principles, the Ninth Circuit held in
Roe v. City and County of San Francisco
,
We agree with
Roe
, and with the other cases reaching the same conclusion.
See, e.g.
,
Harrington v. Almy
,
That result is consistent with-indeed, compelled by-the long line of cases holding prosecutors absolutely immune from claims that they have failed to meet their obligations to disclose exculpatory evidence,
see
Brady v. Maryland
,
Savage argues, in effect, that this is the wrong lens through which to see his case. His case, he urges, is not about "the judicial phase of the criminal process,"
see
Imbler
,
We cannot agree. That a judgment about witness credibility or which cases to try has negative employment consequences-even readily foreseeable ones-does not change the underlying nature of that judgment; the immunity analysis focuses on the prosecutorial conduct in question, and "not on the harm that the conduct may have caused."
Buckley
,
Most important, the Supreme Court has clarified that even if all or some of the conduct complained of by Savage could be categorized as employment-related and hence "administrative," it still would be protected by absolute immunity. In
Van de Kamp
, the Court considered whether prosecutors could be sued for non-disclosure of
Giglio
impeachment material that allegedly resulted from their failure to train and supervise attorneys properly or to collect potential impeachment material about informants.
It remains the general rule, of course, that prosecutors will not be entitled to absolute immunity when acting in their administrative capacities as employers.
See
Van de Kamp
,
2.
In pressing his contrary arguments, Savage does not differentiate Oglesby's September 2014 letter to City officeholders from his alleged October 2015 phone conversation with the City Manager, instead treating them together as " ultra vires statements to Pocomoke City officials" that are not entitled to prosecutorial immunity. Savage Opening Brief at 20. For the reasons given above, we disagree. And to the extent Savage can be understood to argue that his case should proceed because the phone conversation, in particular, lacks the required connection to the criminal trial process, we again must disagree.
Critically, Savage's own complaint does not identify the phone conversation-more specifically, the part of the conversation in which Oglesby purportedly recommended that Savage be terminated-as having any independent significance, apart from Oglesby's protected conduct in prohibiting Savage's testimony and explaining that decision to City officials. Count IV of the complaint, for First Amendment retaliation, identifies two and only two actions taken by Oglesby in alleged retaliation for Savage's public statements about the April 2014 trial-preparation meeting: Oglesby "prohibited ... Savage from testifying," and Oglesby sent City officials a September 2014 letter announcing that decision and "falsely accusing ... Savage of lying." J.A. 69. It was those two actions, Savage alleges, that effectively made it impossible for him to fulfill his job functions, because "[t]estifying at trial in criminal prosecutions was a vital part of [his] duties as a police officer."
D.
Finally, Savage argues that even if Oglesby is entitled to absolute prosecutorial immunity, the district court erred in dismissing Oglesby from the case entirely. Prosecutorial immunity is an immunity from damages liability only.
See
Imbler
,
Oglesby, unlike other defendants in this case, was sued only in his personal capacity, not his official capacity, and it is clear from the complaint that the only relief sought against him is money damages arising from past conduct. Savage has not alleged that he faces a "real and immediate
*275
threat of future injury" from Oglesby, as would be required for entry of prospective injunctive or declaratory relief under § 1983 ; continuing "emotional consequences" from Oglesby's prior acts are not enough.
See
City of Los Angeles v. Lyons
,
III.
We turn next to the State's appeal of the district court order denying its motion to dismiss or for summary judgment. Again, we review the order de novo, taking Savage's factual allegations as true and drawing all reasonable inferences in his favor.
As noted above, once Oglesby was dismissed from the case, Savage amended his complaint to add the State as a defendant, based on the same factual predicate alleged against Oglesby, on the theory that the State is vicariously liable for Oglesby's actions. As a general rule, the Eleventh Amendment immunizes the states from vicarious liability for the acts of state employees like Oglesby. But Savage brought his action against Maryland under Title VII, which abrogates that immunity for suits against a state in its capacity "as employer."
See
Fitzpatrick v. Bitzer
,
The State resists what it views as an "end run" around its State's Attorney's absolute prosecutorial immunity: According to the State, if Oglesby is absolutely immune for his conduct, then so, too, should the State be immune as to claims arising from exactly the same factual allegations. And in any event, the State argues, Savage cannot state a claim for Title VII retaliation. Title VII's anti-retaliation provision makes it unlawful for "an employer to discriminate against any of
his employees
or applicants for employment," 42 U.S.C. § 2000e-3(a) (emphasis added), and according to the State, that plain text precludes a suit by non-employee Savage against the State of Maryland. Indeed, the State argues, because the abrogation of state sovereign immunity must be clear and unequivocal,
see
Bd. of Trs. of Univ. of Ala. v. Garrett
,
The parties have focused their briefing on these difficult and broadly consequential questions, but we decline to reach them here. This claim can be resolved on the narrower and more straightforward ground-also pressed by the State-that even assuming the State could be liable to Savage under Title VII's anti-retaliation provision for Oglesby's conduct, Savage has failed to make out a Title VII retaliation claim based on that conduct. For that reason alone, Savage's claim should be dismissed.
See
Strawser v. Atkins
,
The elements of a Title VII retaliation claim are familiar. In order to state a prima facie claim of Title VII retaliation, Savage must allege facts establishing that he engaged in protected activity, that his employer took an adverse employment action against him, and that there was a causal link between those events.
See
Foster v. Univ. of Md.-E. Shore
,
In
Clark County School District v. Breeden
,
The same reasoning applies to this very similar case. Again, we have the reading aloud of offensive material from a document at a work meeting; the document is germane to the meeting at which it is read; and dealing with such documents is part of the complaining employee's job. Indeed, Savage's own factual allegations make clear that "the ordinary terms and conditions" of his employment required at least some exposure to the documents and offensive language at issue, given that it was Savage himself who brought the letters to the meeting and presented them to Oglesby for review. If anything, the conduct alleged here is even more fully a part of the job than the conduct in
Breeden
: In
Breeden
, the plaintiff's supervisor not only read aloud but also commented on and, with another employee, laughed about the sexually explicit material in the report,
In arguing to the contrary, Savage reminds us that the racial slur read by Oglesby is particularly odious, and "pure anathema to African-Americans."
Spriggs v. Diamond Auto Glass
,
But context matters, as
Breeden
instructs, and the question is whether use of a racial epithet has created a "racially
hostile
" work environment.
IV.
For the reasons given above, the judgment of the district court is affirmed in *278 part and reversed in part, and we remand for further proceedings consistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
We quote here from the full text of Oglesby's September 2014 letter, which, though not an exhibit to Savage's complaint, was attached by Oglesby to his responsive motion. Because Savage's complaint refers to (and indeed quotes) the letter, we may consider it in deciding whether Savage has stated a claim.
See
Anand v. Ocwen Loan Servicing, LLC
,
Savage also alleged that Oglesby participated in a civil conspiracy interfering with his civil rights. To the extent that claim incorporates any allegations separate and apart from Savage's allegations of hostile work environment and retaliation, it is not separately argued in Savage's appeal, and we need not address it further here.
See
Edwards v. City of Goldsboro
,
In granting Oglesby's motion to dismiss or, in the alternative, for summary judgment, the district court did not specify whether it was granting the motion on the pleadings or in light of evidence attached to Oglesby's motion and reply. But because Savage had filed an affidavit identifying additional discovery that would be necessary before deciding whether summary judgment was warranted, a grant of summary judgment might have been improper.
See
Greater Balt. Ctr. for Pregnancy Concerns, Inc. v. Mayor & City Council of Balt.
,
Savage's retaliation claim against Oglesby in his personal capacity is brought under the First Amendment, not Title VII, and so does not require Savage to establish this form of "protected activity." Accordingly, this defense to Savage's Title VII claim against the State does not apply to his claim against Oglesby, which we have resolved instead on absolute immunity grounds.
We note that this is not the only occasion on which Savage and his two co-plaintiffs allege that they were confronted by racial epithets and other forms of racial harassment during the full course of their employment with Pocomoke City and the Criminal Enforcement Team, at the hands of multiple defendants to this action. As we noted at the outset, we deal here only with plaintiff Savage's claims arising from the conduct of defendant Oglesby-a small part of that broader litigation-and Savage does not allege any other instance in which Oglesby voiced racial epithets or otherwise created a hostile work environment. We of course express no view as to the merits of the plaintiffs' other claims, which remain pending before the district court.
Reference
- Full Case Name
- 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, 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.
- Cited By
- 65 cases
- Status
- Published