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.
No. 17-1636; No. 17-1779; No. 17-1989
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
Decided: July 13, 2018
PUBLISHED. 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)
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 17-1636
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.
No. 17-1779
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.
No. 17-1989
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.
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)
Argued: March 20, 2018 Decided: July 13, 2018
Before WYNN, FLOYD, and HARRIS, Circuit Judges.
Affirmed in part, reversed in part, and remanded by published opinion. Judge Harris wrote the opinion, in which Judge Wynn and Judge Floyd joined.
ARGUED: Jennifer L. Katz, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellant/Cross-Appellee. Dennis A. Corkery, WASHINGTON LAWYERS COMMITTEE FOR CIVIL RIGHTS & URBAN AFFAIRS, Washington, D.C., for Appellee/Cross-Appellant. ON BRIEF: Brian 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,
PAMELA HARRIS, Circuit Judge:
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
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.
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
A.
In Imbler v. Pachtman, 424 U.S. 409, 430–32 (1976), the Supreme Court held that prosecutors are absolutely immune from damages liability when they act as advocates for the State. That decision rests on an “important public policy” justification. Carter v. Burch, 34 F.3d 257, 261 (4th Cir. 1994). “The ‘public trust of the prosecutor‘s office would suffer’ were the prosecutor to have in mind his ‘own potential’ damages ‘liability’ when making prosecutorial decisions – as he might well were he subject to
“genuinely wronged” without a remedy against prosecutors acting for malicious or unlawful purposes. Imbler, 424 U.S. at 427. But the importance of shielding prosecutorial decision-making from the influence of personal liability concerns, the Court concluded, outweighed that harm. See Carter, 34 F.3d at 261 (describing Imbler‘s reasoning).
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, 890 F.3d 106, 117–18 (4th Cir. 2018) (quoting Imbler, 424 U.S. at 430–31). In deciding whether an action meets that standard, we apply a “functional approach,” looking to “‘the nature of the function performed,’ without regard to ‘the identity of the actor who performed it.‘” Id. at 118 (quoting Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993)). And we focus on the “conduct for which immunity is claimed, not on the harm that the conduct may have caused or the question whether it was lawful.” Buckley, 509 U.S. at 271.
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, 424 U.S. at 430–31. The Court has distinguished those advocacy functions from administrative or investigative functions that a prosecutor also may perform, and to which absolute immunity may not extend. See Van de Kamp, 555 U.S. at 342 (“The Court made clear that absolute immunity may not apply when a prosecutor
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, 509 U.S. at 272 (quoting Imbler, 424 U.S. at 431 n.33). So even if, as Savage alleges, the April 2014 meeting “was held prior to any charges being filed against the potential defendants who wrote or were referenced in the letters read by Oglesby,” J.A. 48–49, that would not bring it outside the scope of Oglesby‘s advocacy role. Instead, the Supreme Court expressly defines that role to encompass “acts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial,” Buckley, 509 U.S. at 273 (emphasis added) – including, specifically, the “professional evaluation of the evidence assembled by the police and appropriate preparation for its presentation at trial,” if and when a case is prosecuted. Id.; Imbler, 424 U.S. at 431 n.33 (“Preparation, both for the initiation of the criminal process and for a trial, may require the obtaining, reviewing, and evaluating of evidence.”).
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, 509 U.S. at 273: Savage met with prosecutors from the State‘s Attorney‘s office in order “to discuss an upcoming case” on which he was the arresting officer. J.A. 109. And then (still according to Savage), Savage himself gave Oglesby the letters so that the prosecutors could “decide if they were going to use them in the upcoming court case,” id. – precisely the “professional evaluation of the evidence assembled by the police” contemplated by Buckley. See 509 U.S. at 273. Finally, after “read[ing] the letters verbatim line for line,” Oglesby asked for “copies of the letters so that he could use them for trial.” J.A. 109 (emphasis added). What Savage is describing, in his own words, is a paradigmatic example of a prosecutor‘s evaluation of evidence in preparation for trial, squarely within the zone of prosecutorial immunity.
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
C.
We turn next to Savage‘s allegation that Oglesby violated his
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, 424 U.S. at 426. Instead, decisions about “which witnesses to call” are among the “sensitive issues” that prosecutors must address in their capacity as advocates as they prepare for trial, fully shielded by immunity. Id. at 430 n.33.
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, 500 U.S. 478, 486 (1991) (quoting Imbler, 424 U.S. at 431).
We agree with Roe, and with the other cases reaching the same conclusion. See, e.g., Harrington v. Almy, 977 F.2d 37, 42 (1st Cir. 1992) (absolute immunity applies to prosecutor‘s decision not to charge cases initiated by particular officer); Barnett v. Marquis, 16 F. Supp. 3d 1218, 1222–23 (D. Or. 2014), aff‘d, 662 F. App‘x 537 (9th Cir. 2016) (absolute immunity applies to prosecutor‘s decision not to use police officer as witness based on credibility concerns); Neri v. Cty. of Stanislaus Dist. Attorney‘s Office, No. 1:10-CV-823-AWI-GSA, 2010 WL 3582575, at *8 (E.D. Cal. Sept. 9, 2010) (absolute immunity applies to prosecutor‘s decision to “Brady-list” officer, i.e., refuse to use him as trial witness based on credibility concerns). In each of these cases, the prosecutor‘s decision, conveyed to the officer‘s employer, meant that the officer no longer could perform the basic functions of the job, leading to predictably negative employment repercussions. Harrington, 977 F.2d at 38–39; Barnett, 16 F. Supp. 3d at 1221; Neri, 2010 WL 3582575, at *2. And in each, the officer alleged that the prosecutor‘s decision in fact was driven by retaliatory or malicious motives. But whether or not that was so, the courts concluded, was “immaterial” to the immunity analysis. See Barnett, 662 F. App‘x at 539. What mattered is that the prosecutors’ actions involved assessments of witness credibility and judgments about which cases to prosecute, directly connected to the judicial phase of the criminal process and thus protected by absolute immunity. See Harrington, 977 F.2d at 40–41; Neri, 2010 WL 3582575, at *5.
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, 373 U.S. 83 (1963),
or material affecting the credibility of a state witness, see Giglio v. United States, 405 U.S. 150 (1972). Because assessments of evidence and witness credibility “require legal knowledge and the exercise of related discretion” that is “directly connected with the conduct of a trial,” prosecutors enjoy absolute immunity from claims that they should have identified witness credibility issues and then shared that information with defendants, Van de Kamp, 555 U.S. at 343–44 (failure to disclose Giglio impeachment material protected by prosecutorial immunity), or that they should have identified evidence as exculpatory and then provided it to the defense, Imbler, 424 U.S. at 431 n.34; see also Neri, 2010 WL 3582575, at *6 (listing court of appeals cases). The same rule must apply when, as here, a prosecutor cites an effort to comply with his disclosure obligations in making an adverse credibility determination about a state witness and declining to put that witness on the stand or to prosecute cases that turn on his testimony. See J.A. 187 (Oglesby‘s letter to City officials). Otherwise, we would be left with a lopsided immunity that provides full protection when a prosecutor ignores credibility concerns regarding a state witness, but withholds protection when he does not. That kind of “asymmetrical” prosecutorial immunity would be worse than none at all, creating the risk that prosecutors’ decision-making could be skewed systematically in one direction – against taking steps to address credibility concerns – by fear of damages liability. See Harrington, 977 F.2d at 41 (“The asymmetrical availability of immunity . . . should not be a factor which induces a prosecutor to choose to initiate questionable prosecutions relying upon witnesses the prosecution does not believe credible in order to avoid liability for declining to prosecute.”); cf. Neri, 2010 WL 3582575, at *6 (immunity must
protect equally prosecutorial decisions to disclose and to withhold potential Brady material).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, 424 U.S. at 430, but about employment: By refusing to call him as a witness or to prosecute his cases, and then describing that decision to City officials as resting on veracity concerns, Oglesby effectively made it impossible for him to do his job. And absolute immunity is not available to prosecutors when they make employment decisions, Savage contends, because those are “administrative” rather than advocacy functions. See Van de Kamp, 555 U.S. at 342 (“[A]bsolute immunity may not apply when a prosecutor is not acting as “an officer of the court” but is instead engaged in other tasks, say, investigative or administrative tasks.“); Forrester v. White, 484 U.S. 219, 229–30 (1988) (holding that absolute immunity does not shield judges’ employment decisions and noting that “no one suggests” a prosecutor‘s decision to fire an assistant attorney would be entitled to absolute immunity).
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, 509 U.S. at 271. Nor does the effect on Savage‘s career do anything to distinguish this case from all the others, discussed above, in which courts apply absolute immunity when police officers lose their jobs or suffer other adverse actions because their employers are informed by prosecutors that they no longer will be used as witnesses. See, e.g., Roe, 109 F.3d at 582; Barnett, 16 F. Supp. 3d at 1221, 1223.
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. 555 U.S. at 338–39. The Court recognized that the functions in which the defendant- prosecutors were engaged — training, supervision, and information-systems management — were “administrative” in nature. Id. at 343–44. But because they also were “directly connected with the conduct of a trial” and required the exercise of legal discretion, the Court concluded, id. at 344, they remained protected by absolute immunity: “The management tasks at issue . . . concern how and when to make impeachment information available at a trial. They are thereby directly connected with the prosecutor‘s basic trial advocacy duties.” Id. at 346. The same “direct connection” to the trial process and the prosecutor‘s role as advocate is present here. Even if we were to categorize Oglesby‘s alleged actions — in particular, his communications with City officials about Savage‘s status — as “administrative” or “managerial,” they would remain inextricably linked with the underlying assessment of Savage‘s credibility and discretionary judgment about how best to respond. See Neri, 2010 WL 3582575, at *7 (assuming act of putting officer‘s name on “Brady List” of officers who will not be called to testify is “administrative,” but holding that absolute immunity applies under Van de Kamp).
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, 555 U.S. at 344 (suggesting that “unlawful discrimination in hiring employees”
is administrative task outside the scope of absolute immunity). It is only “a certain kind
of administrative obligation — a kind that itself is directly connected with the conduct of a
trial,” like Oglesby‘s communications with the City regarding his assessment of Savage
as a potential trial witness — that calls for the protections of absolute immunity. See id.
And we agree with Savage that not every action a prosecutor might take against a police
officer who has been barred from testifying will be covered by absolute immunity. Even
in that context, if a prosecutor‘s alleged conduct cannot be connected to discretionary
judgments about which witnesses to call and which cases to prosecute, then absolute
immunity will not apply. For instance, insisting that a former investigator, even after he
has found new employment, be barred from working on any stage of an investigation,
regardless of whether he will be a potential witness or his testimony is corroborated, may
lack the requisite connection to the judicial process to bring it within the ambit of
absolute immunity. See Botello v. Gammick, 413 F.3d 971, 977–78 (9th Cir. 2005)
(holding that absolute immunity does not extend to “dictating to [new employer] how
future criminal investigations should be conducted and staffed“); see also Mikko v. City
of Atlanta, 857 F.3d 1136, 1143 (11th Cir. 2017) (holding that absolute immunity does
not extend to prosecutor‘s efforts to “prevent a witness from testifying in a case handled by a different prosecutor, from a different office, in a different jurisdiction“). But when,
as here, the alleged prosecutorial conduct involves the
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.” Id. Nowhere does Savage allege that the phone conversation of a year later (described in his factual allegations and incorporated into each count of the complaint) was a separate act of retaliation, also caused by his objections to the meeting. Nor does he allege that Oglesby‘s purported employment recommendation during that conversation — as opposed to Oglesby‘s continued refusal to allow his testimony, which already, on his own telling, had rendered him unable to perform his job duties and relegated to purely administrative tasks, J.A. 60 — played any independent causal role in his termination. Accordingly, Savage‘s allegations regarding the purported retaliatory nature of the September 2014 letter and the October 2015 phone conversation rely on the same shielded conduct discussed above, and therefore fail to state a plausible claim for retaliation.
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, 424
U.S. at 431. Thus, Savage contends, the district court should have allowed claims for
declaratory and injunctive relief against Oglesby to proceed. We disagree. 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
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
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
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
The elements of a
In Clark County School District v. Breeden, 532 U.S. 268, 271 (2001) (per
curiam), the Supreme Court held that “[n]o reasonable person could have believed” that
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, 532
U.S. at 269–71, whereas Oglesby, according to Savage, read the letters verbatim with no
editorial comment, stopping only to ask whether he was offending anyone. In this
context, and in
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, 242 F.3d 179, 185 (4th Cir. 2001). We do not doubt that for a moment. And
we have held that even a single incident in which that epithet or one like it is directed at
an employee may be “severe enough to engender a hostile work environment” in
violation of
But context matters, as Breeden instructs, and the question is whether use of a
racial epithet has created a “racially hostile” work environment. Id. (emphasis added);
see id. at 184 (“We are, after all, concerned with the ‘environment’ of workplace hostility
. . . .“). And while the employer in Spriggs used racial epithets in his own voice and to
express his own insults, id. at 182, and the employer in Boyer-Liberto directed epithets at
the plaintiff to “cap explicit, angry threats that she was on the verge of utilizing her
supervisory powers to terminate [the plaintiff‘s] employment,” 786 F.3d at 280, this case
is decidedly different. 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. Instead, he was reading the word “Nigga” aloud from letters written by
criminal suspects, presented to him by a police officer in the course of a trial-preparation
meeting. In that distinct context and without more, no inference of a racially hostile
environment can be drawn, and it would not be reasonable to believe that a
IV.
For the reasons given above, the judgment of the district court is affirmed in
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED