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An end to Kameny burial stalemate?

Frank Kameny, gay news, Washington Blade

Frank Kameny died in October 2011 but his ashes remain in limbo due to a dispute between his estate and a local non-profit. (Washington Blade photo by Michael Key)

An attorney representing the estate of nationally acclaimed gay rights pioneer Frank Kameny said on Wednesday that a “tentative agreement” has been reached to end a dispute that has prevented Kameny’s ashes from being interred at D.C.’s Congressional Cemetery nearly two years after his death.

Christopher Brown, an attorney with the gay-owned law firm Ackerman Brown, said the tentative agreement was reached on July 9 with Helping Our Brothers and Sisters (HOBS), a local LGBT charitable group that bought a plot for the burial of Kameny’s ashes at Congressional Cemetery after soliciting donations from the community to pay for it following Kameny’s death on Oct. 11, 2011.

Brown’s comment came one day after Ackerman Brown’s client, Timothy Clark, Kameny’s longtime friend and heir to his estate, told the Blade that he understood that an agreement between the two parties over the cemetery plot had been reached.

“We reached an agreement on that so I’m going to keep the burial plot,” Clark said in a telephone interview.

“I just have to decide on when I want to have something,” he said in referring to a burial ceremony at the cemetery. “I just don’t know. But I’m open to any suggestions that anybody wants to have because that was Frank’s life. The gay community was Frank’s life. That’s what he fought for.”

HOBS and a group of Kameny’s friends and colleagues in the LGBT rights movement initially scheduled an interment ceremony for Kameny at the cemetery for March 3, 2012. But they abruptly cancelled it after the estate reportedly told the cemetery it would not release Kameny’s ashes until it obtained legal ownership of the burial plot from HOBS.

For more than a year, HOBS and Ackerman Brown have declined to publicly disclose specific details of the nature of the dispute between the two parties over the burial plot other than to say they were negotiating an agreement to enable HOBS to transfer ownership of the plot to the estate.

“[W]e would point out that HOBS has never stood in the way of or delayed the burial of Dr. Kameny’s ashes,” said HOBS President Marvin Carter in an email to the Blade earlier this month. “HOBS has made numerous proposals and overtures to the Kameny estate to have Dr. Kameny’s remains buried at Congressional Cemetery.”

Brown told the Blade in an email on Wednesday that the estate, which is in possession of Kameny’s ashes, also is interested in moving ahead with the burial.

“The estate has always been, and remains willing to work with gay community representatives who knew Frank Kameny in organizing a burial service and appropriate gravesite at which members of the community could pay tribute to Kameny,” Brown said in his email.

In response to a request from the Blade last month, HOBS on Wednesday released information about the money it raised and spent both for Kameny’s personal needs in the last years of his life and for expenses related to Kameny’s funeral and planned burial.

HOBS’s IRS 990 finance reports filed with the IRS for 2010 and 2011 – the most recent such reports publicly available for HOBS – don’t include specific information about money raised for Kameny-related projects.

But the reports show that HOBS’s income increased dramatically in 2010 and 2011 during a period when the non-profit, tax-exempt group and its supporters appealed to the LGBT community for Kameny-related donations — initially to help Kameny pay household expenses and property taxes and later for Kameny’s funeral and burial.

The 990 reports, which all tax-exempt organizations are required to file, show that HOBS’s income was $2,125 in 2008, the first year for which such figures are reported, and $6,544 in 2009. The reports show that in 2010, HOBS’s income rose to $61,480 and in 2011 its income increased to $115,440.

In an op-ed column published in the Blade just before the Thanksgiving holiday in November 2011, Carter discussed efforts by HOBS and other groups and individuals to arrange two separate memorial services for Kameny, one of which was held at the Carnegie Library building in downtown D.C.

“Thus far, with the generosity of many friends, we have covered expenses for Kameny’s viewing at Carnegie Library and his essential funeral costs, too,” which Carter later explained involved paying for Kameny’s cremation and the rental of a casket and the service of a funeral hearse for the viewing ceremony.

“In addition, we have now paid the deposit on a fitting, public gravesite for Kameny at the historic Congressional Cemetery,” he said in the op-ed. “For all who wish to help raise the remaining $4,000 anticipated; you may make your tax-deductible contribution online…or simply mail a check to HOBS…”

The Blade and other local publications also published stories on HOBS’s Kameny-related fundraising activities for the funeral and burial and efforts by HOBS to help Kameny prior to his death.

One effort organized by local gay activist Ben Carver in 2010 was billed as the “Buy Frank a Drink” campaign, which Carver promoted on a Facebook page.

HOBS’s 990 report for 2012, which would include that year’s income, has yet to be released by the charitable watchdog group Guidestar.com, which obtains 990 reports for nearly all U.S. non-profit groups each year from the IRS. HOBS’s 990 report for 2010 was filed in November 2011, and its 2011 report was filed in November 2012. This suggests that its 2012 990 report will likely be filed in November of this year.

The 2011 report shows that HOBS during that year spent $66,413 on “direct support to qualified individuals,” $20,222 on “mentoring programs,” and $11,605 on “educational programs.”

Those three programs, which came to a total of $98,240, accounted for the bulk of HOBS’s expenditures for that year. The 2011 report shows that all other expenses were under $4,000 and were for administrative and overhead expenses such as supplies ($3,727), board meetings ($1,007), Internet ($1,555), meals and entertainment ($505), and telephone ($1,494). More detail on those reported expenses wasn’t available.

Carter discussed HOBS’s mission in an email he sent the Blade on July 24, which also provided information about money HOBS raised and spent on Kameny-related projects.

Frank Kameny, Marvin Carter, Dan Choi, Washington Blade, gay news, HOBS, Helping Our Brothers and Sisters

The late Frank Kameny (left) standing next to Marvin Carter at a HOBS benefit dinner in 2010. (Washington Blade file photo by Michael Key)

HOBS “is an all-volunteer micro-charity that helps marginalized LGBT individuals in our community to meet short-term and often life-sustaining needs,” Carter said. “We focus on helping those who often do not fit the criteria for help from other organizations or agencies – filling gaps in human distress here in Washington, D.C.  A sizable portion of our work involves discrimination cases too, many involving torture and asylum,” said Carter, referring to cases noted on the group’s website in which HOBS assists LGBT foreign nationals seeking U.S. political asylum to escape persecution in their home country.

“Before his passing, HOBS assisted Dr. Kameny frequently with some of his essential needs, including transportation for doctor’s appointments, the use of a mobile phone, groceries and meals, urgent bathroom plumbing repairs, repair of his eyewear, and the payment of past property tax bills to prevent his home foreclosure – spending in total thousands of dollars in the years before his death,” Carter said.

Carter provided these figures and related information in connection with the contributions HOBS received and expenditures it incurred for Kameny-related projects in 2010 and 2011:

  • Contributions earmarked by donors for Kameny’s burial expenses totaled about $800.
  • Other donors “make clear that their donations may be used for HOBS’ general mission,” were silent about how to use the donations.
  • During this period, “approximately $15,000 was raised in connection with our general fundraising efforts.”
  • HOBS incurred expenses totaling approximately $8,500 related to the purchase of a cemetery plot for Kameny at Congressional Cemetery, cremation expenses and “other expenses of the funeral home (including rental of a casket and hearse for transporting Dr. Kameny’s ashes to the memorial service…and a gravesite marker reading ‘Gay is Good.’”
  • There was no surplus of funds from contributions for Kameny’s burial and memorial service efforts. HOBS used money from its general operating account to cover the Kameny funeral and burial expenses not covered by earmarked donations.
  • HOBS did not solicit funds for payment of Kameny’s property taxes in 2011. It did raise money for and contributed to Kameny’s property tax payments in 2010.
25
Jul
2013

U.S. Attorney challenges use of civil rights law

Peter TerVeer, gay news, gay politics dc

Peter TerVeer (Blade photo by Michael Key)

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 he’s 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 he’s gay, he suffered employment discrimination and harassment based on his gender, gender stereotyping and his religious beliefs, which he says didn’t 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 library’s 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 TerVeer’s work performance and created an unbearably hostile work environment after Mech learned TerVeer was gay.

The government’s 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.

“We believe that the allegations in the complaint are insufficient to substantiate a Title VII claim,” said Charles Miller, a spokesperson for the Justice Department’s Civil Division.

Miller pointed to an April 2012 ruling by the Library of Congress’s in-house equal employment opportunity division, which investigated TerVeer’s allegations of discrimination and harassment and dismissed an in-house complaint he filed in September 2011 on grounds that the allegations could not be substantiated.

“The Executive Branch is of course opposed to discrimination on the basis of sexual orientation, and this filing does not reflect any contrary policy,” Miller told the Blade.

But Christopher Brown of the D.C. law firm Ackerman Brown, which is representing TerVeer, said the government’s motion to dismiss the case “relies on legal precedent that excludes LGBT employees from protection under Title VII.”

Brown declined to comment further on the government’s arguments, saying TerVeer’s 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 government’s 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.

“I 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,” Nevins said. “Some court rulings have essentially said Title VII does not apply to sexual orientation.”

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.

TerVeer’s lawsuit says he also was targeted for retaliation after he filed his discrimination complaint with the library’s in-house EEO office, which is known as the Office of Opportunity, Inclusiveness and Compliance.

“Plaintiff’s discrimination and retaliation claims fall short,” 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.

“Plaintiff 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,” the motion to dismiss says. “But 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 employer’s actions.”

The motion to dismiss adds, “[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 — generally relating to an employee’s behavior, demeanor or appearance in the workplace — and allegations to support the claim that this non-conformity negatively influenced the employer’s decision … In this case, however, plaintiff fails to offer anything more than the conclusory statement that, as a result of his sexual orientation, ‘he did not conform to the defendant’s gender stereotypes associated with men under Mech’s supervision.’”

One civil rights attorney familiar with the case, who spoke on condition of anonymity, said the U.S. Attorney’s office was fulfilling its role in defending its client — the Library of Congress — and should not be faulted for arguing against TerVeer’s attempt to invoke protection from Title VII.

“The government’s argument that the complainant fails to allege sufficient facts to state a claim … are typical arguments that they’d make equally if the plaintiff were female or black rather than gay,” the attorney said.

The government’s motion to dismiss the case is based mostly on procedural and legal grounds rather than on the merits of TerVeer’s specific allegations of discrimination and retaliation.

The government’s motion cites legal and procedural grounds to seek the dismissal of a separate claim in the lawsuit that the firing violated TerVeer’s 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 employee’s 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 library’s Office of Opportunity, Inclusiveness and Compliance (OIC) that rejects TerVeer’s 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. Attorney’s office as “Exhibit D,” 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, TerVeer’s attorney, which the U.S. Attorney’s office submitted in court as part of Exhibit D.

“Based on the available evidence, the Office of Opportunity, Inclusiveness and Compliance (OIC) does not find sufficient evidence to support Complainant’s 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,” Magnus said in her letter.

In what potentially could be damaging to TerVeer’s lawsuit, Magnus notes that the OIC investigation into TerVeer’s discrimination and retaliation complaint included interviews of and testimony by five of TerVeer’s 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, “each of whom personally observed complainant’s 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].”

Brown, TerVeer’s attorney, declined to comment on the OIC ruling or its potential impact on the lawsuit.

The library’s 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.

02
Jan
2013