The United States Attorney for the District of Columbia filed court papers on Dec. 17 arguing that a gay man, who sued the Library of Congress for firing him because of his sexual orientation, failed to show heâs entitled to protection under Title VII of the U.S. Civil Rights Act of 1964.
The court filing by U.S. Attorney Ronald C. Machen Jr., who was appointed by President Obama, places the Obama administration in the awkward position of opposing a gay discrimination claim under Title VII.
In a lawsuit filed against the Library of Congress in August 2012, former management analyst Peter TerVeer, 30, says he was fired from his job after being harassed and humiliated for more than a year by a supervisor who repeatedly quoted biblical passages condemning homosexuality.
The lawsuit charges that although TerVeer was targeted because heâs gay, he suffered employment discrimination and harassment based on his gender, gender stereotyping and his religious beliefs, which he says didnât conform to those of supervisor John Mech.
Title VII of the famed 1964 Civil Rights Act bans discrimination based on race, religion, ethnicity, gender and, according to recent court rulings, gender identity, but not sexual orientation by itself.
According to the lawsuit, TerVeer and Mech had a cordial working relationship from the time TerVeer was hired in February 2008 as a management analyst in the libraryâs Auditing Division. It says TerVeer received high performance ratings and two promotions between 2008 and 2010.
The lawsuit says Mech allegedly became hostile and unfairly critical of TerVeerâs work performance and created an unbearably hostile work environment after Mech learned TerVeer was gay.
The governmentâs filing of a motion to dismiss the case on legal and procedural grounds comes at a time when gay rights attorneys are seeking to persuade courts to treat anti-gay discrimination as a form of sex discrimination protected under Title VII.
âWe believe that the allegations in the complaint are insufficient to substantiate a Title VII claim,â said Charles Miller, a spokesperson for the Justice Departmentâs Civil Division.
Miller pointed to an April 2012 ruling by the Library of Congressâs in-house equal employment opportunity division, which investigated TerVeerâs allegations of discrimination and harassment and dismissed an in-houseÂ complaint he filed in September 2011 on grounds that the allegations could not be substantiated.
âThe Executive Branch is of course opposed to discrimination on the basis of sexual orientation, and this filing does not reflect any contrary policy,â Miller told the Blade.
But Christopher Brown of the D.C. law firm Ackerman Brown, which is representing TerVeer, said the governmentâs motion to dismiss the case ârelies on legal precedent that excludes LGBT employees from protection under Title VII.â
Brown declined to comment further on the governmentâs arguments, saying TerVeerâs legal team prefers not to comment in detail on pending litigation.
Greg Nevins, supervising attorney for the gay litigation group Lambda Legal Defense and Education Fund, which is monitoring the TerVeer case, said the governmentâs motion to dismiss appears to be arguing that TerVeer did not present sufficient evidence to show that his supervisor targeted him for discrimination because TerVeer displayed mannerisms or behavior of a stereotypical gay man, which some might view as being effeminate.
âI think what the U.S. Attorney is saying here is a masculine gay man or a feminine lesbian would not be covered under Title VII,â Nevins said. âSome court rulings have essentially said Title VII does not apply to sexual orientation.â
In a landmark ruling last April, the U.S. Equal Employment Opportunity Commission declared that transgender people are protected against job discrimination under Title VII because bias against their gender identity is equivalent to sex discrimination. The EEOC ruling followed several appeals court decisions holding that transgender people were protected under Title VII.
Lambda Legal and other LGBT advocacy organizations say they hope to persuade courts that gay men and lesbians enjoy Title VII protections. They argue that sexual orientation discrimination is also linked to gender role stereotyping and bias, regardless of whether the victim is perceived as masculine or feminine.
TerVeerâs lawsuit says he also was targeted for retaliation after he filedÂ his discrimination complaint with the libraryâs in-house EEO office, which is known as the Office of Opportunity, Inclusiveness and Compliance.
âPlaintiffâs discrimination and retaliation claims fall short,â Machen and two other government attorneys argue in their Dec. 17 motion seeking to dismiss the case, which was filed in U.S. District Court for the District of Columbia.
âPlaintiff alleges that he was subject to harassment after his employer learned that he was gay, and he presents his claim as one of non-conformity with sex stereotypes,â the motion to dismiss says. âBut the detailed allegations in the complaint do not provide what courts have held is required to show that sex stereotyping was the cause of his employerâs actions.â
The motion to dismiss adds, â[C]ourts have generally required plaintiffs to set forth specific allegations regarding the particular ways in which an employee failed to conform to such stereotypes â generally relating to an employeeâs behavior, demeanor or appearance in the workplace â and allegations to support the claim that this non-conformity negatively influenced the employerâs decision âŠ In this case, however, plaintiff fails to offer anything more than the conclusory statement that, as a result of his sexual orientation, âhe did not conform to the defendantâs gender stereotypes associated with men under Mechâs supervision.ââ
One civil rights attorney familiar with the case, who spoke on condition of anonymity, said the U.S. Attorneyâs office was fulfilling its role in defending its client â the Library of Congress â and should not be faulted for arguing against TerVeerâs attempt to invoke protection from Title VII.
âThe governmentâs argument that the complainant fails to allege sufficient facts to state a claim âŠ are typical argumentsÂ that theyâd make equally if the plaintiff were female or black rather than gay,â the attorney said.
The governmentâs motion to dismiss the case is based mostly on procedural and legal grounds rather than on the merits of TerVeerâs specific allegations of discrimination and retaliation.
The governmentâs motion cites legal and procedural grounds to seek the dismissal of a separate claim in the lawsuit that the firing violated TerVeerâs Fifth Amendment constitutional right to due process and equal protection under the law.
In addition, it cites procedural grounds to call on the court to dismiss separate claims in the lawsuit that the library violated the Library of Congress Act, which bans discrimination based on factors unrelated to an employeeâs ability to perform his or her job; and an internal library policy banning sexual orientation discrimination.
Library investigation finds no substantiation of discrimination
The motion to dismiss releases publicly for the first time the April 26, 2012 ruling by the libraryâs Office of Opportunity, Inclusiveness and Compliance (OIC) that rejects TerVeerâs allegations on grounds that they could not be substantiated or proven.
The 14-page ruling by the OIC, which was filed in court by the U.S. Attorneyâs office as âExhibit D,â was based on an in-house library investigation into a discrimination complaint filed by TerVeer on Nov. 9, 2011, according to OIC acting supervisor Vicki Magnus.
Magnus discusses the findings in an April 26 letter to Brown, TerVeerâs attorney, which the U.S. Attorneyâs office submitted in court as part of Exhibit D.
âBased on the available evidence, the Office of Opportunity, Inclusiveness and Compliance (OIC) does not find sufficient evidence to support Complainantâs allegations that he was discriminated against based on religion, sex, and reprisal, and that he was subjected to sexual harassment and a hostile work environment in his meetings with supervisors regarding performance and in actions taken by supervisors regarding his performance,â Magnus said in her letter.
In what potentially could be damaging to TerVeerâs lawsuit, Magnus notes that the OIC investigation into TerVeerâs discrimination and retaliation complaint included interviews of and testimony by five of TerVeerâs co-workers. Each of the five testified that they personally observed less than satisfactory work performance by TerVeer, according to the OIC ruling.
In his complaint, TerVeer accuses his immediate supervisor, John Mech, and a higher level supervisor, Nicholas Christopher, of giving him a lower job performance rating based on anti-gay bias.
The five co-workers, âeach of whom personally observed complainantâs performance, fully support the reasons presented by management justifying their decision to issue complainant poor performance ratings and to deny complainant a [performance based salary increase].â
Brown, TerVeerâs attorney, declined to comment on the OIC ruling or its potential impact on the lawsuit.
The libraryâs official reason for firing TerVeer was his failure to report to work after a leave of absence he requested and received permission to take had expired. TerVeer told reporters in a news conference in April that his doctor and therapist urged him to take a leave from work after the hostile work environment he said Mech created caused him to suffer severe emotional distress.
He said the library refused to grant his request to be transferred to another office under another supervisor, making it impossible for him to return to work.