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U.S. Attorney challenges use of civil rights law

Government defends Library of Congress in firing of gay employee

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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.

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Maryland

Lesbian candidate loses Hyattsville City Council race by 17 votes

Final results show low turnout in special election to fill vacant seat

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Lisbeth Melendez Rivera lost her race by just 17 votes.

Lesbian activist and diversity consultant Lisbeth Melendez Rivera lost by just 17 votes in a three-candidate special election on Tuesday to fill a vacant seat on the Hyattsville, Md., City Council.  

In what it said on Wednesday afternoon were the final certified results, the Hyattsville Board of Supervisors of Elections posted on its website that candidate Emily Strab had 280 votes, Melendez Rivera had 263 votes, and candidate Kelly Burello had 152 votes. Three votes were cast for write-in candidates, the election board posting said.

The Ward 2 seat on the 10-member Hyattsville Council in the Prince George’s County suburban city became vacant when the incumbent Council member, Robert Croslin, won election as mayor.

Melendez Rivera currently operates BQN Consulting, a firm she created to provide support services related to organizing, training and capacity building, according to the firm’s website. The website says that from 2014 to 2017 she served as Director of Latinx & Catholic Initiatives for the Human Rights Campaign, the D.C.-based national LGBTQ advocacy organization.

“I congratulated Emily,” Melendez Rivera told the Washington Blade Wednesday morning.

At that time, she said she remained hopeful that just a small number of mail-in ballots that may not have been counted on Tuesday night might emerge in her favor when the election board conducted its final tally of the votes later in the day on Wednesday or early Thursday.

But the final count released Thursday afternoon was identical to the preliminary count released Tuesday night, with winning candidate Strab receiving just 17 more votes than second-place finisher Melendez Rivera.

Melendez Rivera said she portrayed herself as the most progressive of the three candidates running for the nonpartisan City Council seat in a city that many consider to be one of the most progressive jurisdictions in the Washington metro area. Residents starting at age 16 and non-citizen immigrants are allowed to vote in local elections.

Like Melendez Rivera, Strab, a former teacher and school administrator, and Burello, who has worked as a workplace diversity trainer, each expressed support for Hyattsville’s diverse population, including racial minorities and immigrants.

The 698 total votes cast for the candidates plus what the election board lists as 3 “under votes” brought the total vote to 701 in the special election. That’s considered a low turnout for the Ward 2 election district that has a little over 2,000 registered voters.

Melendez Rivera said she plans to run again for the Ward 2 Council seat. The Hyattsville Council consists of two members for each of the city’s five wards. The second of the two Ward 2 Council seats is up for election in 2023, but Melendez Rivera said she will not run if the incumbent, Danny Schaible, decides to run for re-election.

“But I will definitely run in 2025,” she said, against then incumbent Strab, if Strab runs for re-election in 2023.

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Comings & Goings

Conner promoted to manager of Scott Circle Communications

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Robert Conner

The Comings & Goings column is about sharing the professional successes of our community. We want to recognize those landing new jobs, new clients for their business, joining boards of organizations and other achievements. Please share your successes with us at: [email protected].

Congratulations to Robert Conner, promoted to manager of Scott Circle Communications. On his promotion Conner said, “I’m proud to be promoted to manager of Scott Circle Communications. Our clients are all mission-driven. I am fortunate to use my expertise to help clients communicate complex and urgent information to the public in order to help people learn about new research relating to their health, and the society around them. As an activist fighting for equality and LGBTQ causes, my daily work at Scott Circle Communications aligns with my overarching life goal of using communication to benefit the greater good by writing clearly to bridge misunderstandings.” 

Conner previously worked at SKDKnickerbocker in D.C. Prior to that he had been an intern in the office of Sen. Bob Casey (D-Pa.).  He has had a number of speaking engagements with the Public Relations Society of America (PRSA) and received a bronze Bulldog Award for Best Media Relations Campaign 2022. He served as chair of the volunteer engagement committee of the Human Rights Campaign in Greater Philadelphia.

Conner earned his bachelor’s degree in political science from Swarthmore College, Swarthmore, Pa.

Congratulations also to Christopher Rudolf who joined Atlantic Shores Sotheby’s International Realty in Ocean City, Md. Rudolph is a licensed Realtor in Maryland and Delaware specializing in the beaches and coastal areas of Worcester County, Md., and Sussex County, Del. He said, “I have been assisting buyers and sellers of real estate in our area since 2015. I thoroughly enjoy helping people achieve their dreams of coastal property ownership. The Maryland/Delaware seashore is a very cool place that I like to call home, and teaching people about the history and attractions of the region is a lifelong passion of mine.”  

In addition to real estate in the warm months, Rudolf works part-time as a manager at The Kite Loft of Ocean City. He was appointed to the Ocean City Board of Zoning Appeals in 2013 by Ocean City Mayor Rick Meehan, and recently was elected chair of the board.  

He earned his bachelor’s degree in political science from Salisbury University in Maryland.  

Christopher Rudolf
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Maryland

Lesbian candidate trails by just 17 votes in Hyattsville Council race

Election board mum on whether all ballots are counted

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Lisbeth Melendez Rivera (Photo courtesy of the Melendez Rivera Campaign)

Lesbian activist and diversity consultant Lisbeth Melendez Rivera was behind her closet rival by just 17 votes on Tuesday night in a three-candidate special election to fill a vacant seat on the Hyattsville, Md., City Council.

In what it said were the unofficial results of the special election, the Hyattsville Board of Supervisors of Elections posted on its website that candidate Emily Strab had 280 votes, Melendez Rivera had 263 votes, and candidate Kelly Burello had 152 votes. Three votes were cast for write-in candidates, the election night posting said.

“Results are unofficial until certified by the Board of Supervisors of Election,” the posting said. The certification was scheduled to take place at 1 p.m. Thursday, Oct. 6.

The online posting of the results did not say whether there were any outstanding votes from absentee or mail-in ballots. A spokesperson for the election board couldn’t immediately be reached Tuesday night or Wednesday morning.

The Ward 2 seat on the 10-member Hyattsville Council in the Prince George’s County suburban city became vacant when the incumbent Council member, Robert Croslin, won election as mayor.

Melendez Rivera currently operates BQN Consulting, a firm she created to provide support services related to organizing, training and capacity building, according to the firm’s website. The website says that from 2014 to 2017 she served as Director of Latinx & Catholic Initiatives for the Human Rights Campaign, the D.C.-based national LGBTQ advocacy organization.

“I congratulated Emily,” Melendez Rivera told the Washington Blade Wednesday morning.

 “Have I said this is the end? No, because I want to wait until tomorrow at 1 to see the outcome,” she said.

“What I know is everything that was available to them was counted as of 9:30 last night,” she said, referring to the election board. “There is a process today. They will do a last check of the mail to see if anything was postmarked before 8 p.m. last night,” Melendez Rivera said in referring to possible additional mail-in ballots.

Melendez Rivera said she portrayed herself as the most progressive of the three candidates running for the nonpartisan City Council seat in a city that many consider to be one of the most progressive jurisdictions in the Washington metro area. Residents starting at age 16 and non-citizen immigrants are allowed to vote in local elections.

Like Melendez Rivera, Strab, a former teacher and school administrator, and Burello, who has worked as a workplace diversity trainer, each expressed support for Hyattsville’s diverse population, including racial minorities and immigrants.

The 698 total votes cast in the special election as of Tuesday night is considered a low turnout in the Ward 2 election district, which has a little over 2,000 registered voters.

This story will be updated when new information becomes available.

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