State employee argues to Va. Supreme Court that he was fired for being gay
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.
April 2, 2010; 1:33 PM ET
Categories: Ken Cuccinelli , Robert F. McDonnell , Rosalind Helderman
Save & Share: Previous: McDonnell, other governors receive letter threatening 'removal' if they don't resign
Next: UPDATED: Salazar: Lifting of oil drilling moratorium will allow for a 'look and see' off Va. coast
Posted by: michael_hamar1 | April 2, 2010 2:38 PM | Report abuse
Posted by: tidewaterlawyer | April 2, 2010 4:00 PM | Report abuse
Posted by: tidewaterlawyer | April 2, 2010 4:04 PM | Report abuse
Posted by: Menidia | April 2, 2010 4:10 PM | Report abuse
Posted by: Baltimore11 | April 2, 2010 4:42 PM | Report abuse
Posted by: DCFanatic | April 2, 2010 4:50 PM | Report abuse
Posted by: dcdoug | April 2, 2010 6:03 PM | Report abuse
Posted by: patjenks | April 4, 2010 9:18 AM | Report abuse
The comments to this entry are closed.