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Court Side-Steps Ruling on State Immunity for Age Discrmination Claims

On December 12, 2005, the Court of Appeals issued a decision that side-stepped the important question of whether a local school board was immune when sued by an employee for age discrimination, in the case of Norville v. Anne Arundel County Board of Education, No. 6, Court of Appeals of Maryland, September Term 2005; 160 Md. App. 12, 36, 862 A.2d 477, 491 (2004).
If the school board is an “arm of the state,” then the board would have a broad grant of sovereign immunity from employee federal claims under the 11th Amendment.  The PJC, the ACLU of Maryland, the Metropolitan Washington Employment Lawyers Association, and the Maryland Disability Law Center filed an amicus brief with the Court of Appeals arguing that under the appropriate analysis, county boards of education in Maryland are not “arms of the state,” and thus should be subject to discrimination claims based on federal law.
As noted in the Daily Record article below, the Court of Appeals ruled against the plaintiff on grounds that the case had already been decided in a prior lawsuit, and thus did not reach the immunity issue. PJC Legal Director Debra Gardner explains the case and result in the article.  The PJC would like to salute 2003-04 Murnaghan Fellow Joshua Auerbach, 20004-05 Murnaghan Fellow Beth Mellen Harrison; and Deborah Jeon of the ACLU of Maryland for their tremendous efforts in this case.
Court sidesteps school board immunity question

December 13, 2005
Daily Record Legal Affairs Writer

In a closely watched case, the Court of Appeals has passed up a chance to decide whether local school boards can be sued in state court for allegedly violating federal law, and if so, whether damages in such suits are capped at $100,000.
The state’s top court, in an opinion filed yesterday, decided instead that former school employee David Norville was barred from suing the Anne Arundel County Board of Education under the federal Age Discrimination in Employment Act in state court, because the federal court in Maryland had already dismissed Norville’s ADEA claim with prejudice.
After the Anne Arundel Circuit Court dismissed Norville’s claims and he appealed, the Court of Special Appeals decided that school boards are an arm of the state, which would have given the board sovereign immunity, under the 11th Amendment, from Norville’s federal claim. However, the intermediate appellate court also held that a state law waived school boards’ sovereign immunity defense on claims under $100,000, allowing Norville’s suit to go forward.
Both sides asked the Court of Appeals for review.
Yesterday’s decision means that Norville may not sue the board, but it also vacates the Court of Special Appeals’ decision that the school board is an arm of the state, said Debra Gardner, legal director of the Public Justice Center, which filed an amicus curiae brief supporting Norville.
“The outcome is certainly unfortunate for Mr. Norville himself, but the primary legal question in the case is left for another day, and the Court of Appeals has specifically said that the Court of Special Appeals’ opinion in the case is now longer in effect,” Gardner said. “So we’ve got a clean slate.”
But senior assistant county attorney Andrew J. Murray of Anne Arundel, who argued the case for the school board, said he thinks the court suggested in its opinion that the federal court had properly tossed out Norville’s suit.
“If I read the opinion correctly, it appears that they’ve left open for another day whether a local board of education, when sued under the ADEA, can effectively raise the defense of 11th Amendment immunity, but it did seem to credit the federal court’s ruling on that in our favor,” Murray said.
Writing for the court, Judge Irma S. Raker explained the principle of res judicata, or claim preclusion, applied because the parties in the state and federal lawsuits were the same, the claims were based on the same cause of action and there was a final judgment in the federal case.
The holding was unanimous, although Chief Judge Robert M. Bell joined in the judgment only.
Options limited
David C. Slade, who represented Norville, said he was surprised and disappointed in the holding. Raker wrote of the court’s right to invoke res judicata even if neither party mentions it, and Slade said none of them asked him questions about claim preclusion during oral arguments in September.

“It was an issue that wasn’t broached, and they allowed a federal court to tell the state court what’s a state agency,” he said.

Had the court ruled against Norville on the sovereign immunity issue, he could have taken the issue to the U.S. Supreme Court, Slade said. Instead, there is now “very little” Norville can do.

He called the decision “sad” for state employees. David Rocah of the American Civil Liberties Union of Maryland, which also filed a brief in support of Norville, agreed.

“Here’s an important issue here crying out for appellate resolution, and it’s disappointing that the Court of Appeals chose not to resolve it,” said Rocah, a staff attorney with the ACLU.

Norville, a media production specialist, sued the board for age discrimination after he was fired in 1998.

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