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State employee argues to Va. Supreme Court that he was fired for being gay

Rosalind Helderman

Whenever Gov. Bob McDonnell discusses the issue of discrimination protections in the state workforce, one thing he is always quick to mention with pride is that there have been very few allegations of discrimination on any grounds in the state workforce in recent years.

And he is probably right -- such allegations may be rare. But they are not unheard of.

Take, for instance, the case of Michael Moore (not the filmmaker). This Moore contends he was forced to resign from his position as at the Virginia Museum of Natural History in Martinsville in 2006 because he is gay. The Virginia Supreme Court heard an oral petition from his attorney to review his case just this week.

Moore probably has only a limited chance at legal success. His case was dismissed by a circuit court in Martinsville and the Supreme Court justices might well decide the case entirely on jurisdictional grounds. Moore was a probationary employee at the time he was forced to resign, and it appears that as a probationary employee, he had less access to grievance procedures than would a full-time staffer.

But the facts of Moore's experience, as well as some of the legal arguments that have been made in the case by the attorney general's office, first under McDonnell and then under Bill Mims, would be interesting to those who have been closely following the discrimination issue.

For one thing, Virginia's Department of Human Resource Management found in January 2009 that Moore's sexual orientation was indeed a factor in the ending of his employment. But it found that other issues related to his job performance also played a role, and therefore he was not due back his job. You can read more about the department's finding on page 25 of this appendix to the suit.

Interestingly, the attorney general's office has consistently argued that the Executive Order former Gov. Tim Kaine (D) signed in 2006, which barred discrimination on the grounds of sexual orientation, did not give Moore a "cause of action" to sue in court.

Here's what assistant attorney general Jake Belue wrote in court filing in March: "The Executive Order creates no cause of action and it is not an expression of state legislative policy. Instead it is an executive directive to state agencies not to discriminate in their hiring practices based upon sexual orientation."

And that argument seems to have been accepted by a Martinsville judge, who dismissed the case in part because he found that Moore had no a cause of action.

That's intriguing, since the reason McDonnell gave for not reissuing Kaine's executive order was that it had indeed provided employees a "cause of action" to sue over discrimination on the basis of sexual orientation. He said that kind of legal protection could only be extended by the General Assembly. But McDonnell has argued that he could issue a nonbinding "executive directive" offering gays workplace protections because that course of action would not provide them access to courts.

Belue's choice of words certainly muddies the water for those trying to figure out what, exactly, is the difference between the Executive Order that McDonnell repealed and the Executive Directive that he embraced.

Here's another interesting wrinkle to the case.

In the nonbinding executive directive McDonnell issued on the topic after controversy erupted when sitting Attorney General Ken Cuccinelli told colleges and universities that they did not have the authority to include sexual orientation in their nondiscrimination policies, McDonnell indicated that he believed gays were federally protected against discrimination by the 14th amendment of the U.S. constitution. But in Belue's March filing, on behalf of the attorney general's office, he rejected exactly that argument from Moore, writing that the Equal Protection Clause is "irrelevant to the category of sexual orientation" and "overruled ... in public employment" by a 2008 Supreme Court case.

All of this is fairly far into the legal weeds. Any legal eagles out there care to offer some thoughts? Please do so in the comments section.

By Rosalind Helderman  |  April 2, 2010; 1:33 PM ET
Categories:  Ken Cuccinelli , Robert F. McDonnell , Rosalind Helderman  
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Nice job at pointing out the inconsistency between the AG's office (which McDonnell headed when the matter began) and Executive Directive 1 (2010). The Governor obviously cannot have it both ways. If the AG office is correct, his Executive Directive is worthless and was nothing more than a PR stunt.

Posted by: michael_hamar1 | April 2, 2010 2:38 PM | Report abuse

Moore's problem is that he was a probationary employee and an employee at-will at that (i.e. he had no contract with the museum for a specific term). Thus, while an administrative investigation by the state did in fact find that sexual orientation prejudice was a factor in his dismissal, it also found that he was subject to being dismissed for cause (and as an at will employee for "no cause"). He contends that the stated cause was pretextual, and it may have been, but that was not how the hearing officer saw it. When he went to court to get this decision reviewed, however, he ran up against a provision of the law that says probationary employees can't appeal a decision from an adminstrative review. His lawyer says that by denying him review, this violates due process. The problem is that the denial of review is not based on his sexual orientation, but on his status as a probationary employee, which is not a "suspect category." Moreover, as an at-will employee, Moore could pursue a wrongful discharge case only for a "strongly held public policy" found in a statute (as stated by the Virginia Supreme Court in prior cases). Whether an executive order or directive could also provide that policy exception to at-will employment is debatable and the Court might have decided to look at this issue. But unfortunately while Moore's appeal was pending, the General Assembly flatly turned down an amendment to the Human Rights Act to include sexual orientation. That effectively ties the Court's hands on the issue of whether an at-will employee can sue for wrongful termination on those grounds (because, in Virginia, the General Assembly trumps the Governor on such matters; if the legislature has refused to create a cause of action, then the Courts will not, indeed cannot, say that the Governor nonetheless has done so). I am not unsympathetic to Moore, but I don't think it would be prudent of the Court to hear his appeal, since the law is simply not on his side and won't be until there is a shift in power in the General Assembly.

Posted by: tidewaterlawyer | April 2, 2010 4:00 PM | Report abuse

And, BTW, of course McDonnell's directive was a publicity stunt. The Governor is letting the AG be the attack dog while he makes meaningless gestures to pander to the moderate wing of his party and the center . . . he clearly has is eyes on the VP or maybe even the top slot for the 2012 nomination.

Posted by: tidewaterlawyer | April 2, 2010 4:04 PM | Report abuse

Boy, Tidewater. That's the best analysis of an issue that I've seen in the Post for years. Thanks!

Posted by: Menidia | April 2, 2010 4:10 PM | Report abuse

Our firm fired 24 support staff in one day soley for economic reasons. All employees here are 'at will' and can be fired with no warning whatsoever. Most of those fired on that horrible day were middle-aged women, some with health issues. None could sue for discrimination. HR can do whatever it wants whenever it wants. I was once fired from a job on my first anniversary date because the firm didn't want to give me a performance raise. They'd just fire me and hire somebody else at the same salary. They could keep that action going for years and years as long as they could hire fresh replacements.

Posted by: Baltimore11 | April 2, 2010 4:42 PM | Report abuse

No one should be fired for being happy!!!

Posted by: DCFanatic | April 2, 2010 4:50 PM | Report abuse

Really, 127 pages? Too lazy to just cut and paste?

Posted by: dcdoug | April 2, 2010 6:03 PM | Report abuse

The best way to avoid discrimination and hostile workplaces is by doing research about potential bosses on sites like eBossWatch.

Posted by: patjenks | April 4, 2010 9:18 AM | Report abuse

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