Judges on the panel also used the occasion to point to “the elephant in the room” - the state’s sovereign immunity claim in a case removed from state court. District Judge Jane Magnus Stinson also granted summary judgment for the defense on that basis in , 12-3207.
“We agree with the district court that Hester’s evidence could not support a finding that the Department’s action was motivated by race or gender,” Circuit Judge Diane Wood wrote for the unanimous panel. Hester, a white man in his 50s, had twice been passed over for promotions, including once by a much younger female colleague.
But Wood wrote that Hester’s employer had documented ample evidence of performance-related cause for termination and discipline. “Hester has provided no reason for suspecting that these negative assessments were pretextual.”
Wood wrote that the court was affirming on that basis because it was straight-forward, but the ruling dodged sovereign immunity questions that she noted have divided circuits around the nation.
“These cases raise a number of interesting questions: is it correct to distinguish between immunity from suit and immunity from a forum? May a state court, consistently with Testa v. Katt, 330 U.S. 386 (1947), refuse to entertain a case based on federal law when the state has an analogous statute that differs only in the remedies afforded? Are the rules different when the state freely chooses the federal forum by removing? What if the state not only removes, but it files a counterclaim?” Wood wrote.
“To the extent that Hester might have been seeking injunctive relief, did the district court act too hastily in assuming that Indiana’s sovereign immunity would also bar that aspect of his case, despite Ex parte Young, 209 U.S. 123 (1908)?
“Rather than plunge into those delicate topics in a case where the answers ultimately do not matter, we are content to save them for another day,” Wood wrote.