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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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District of Columbia

AIDS Healthcare Foundation celebrates opening of new D.C. healthcare center

Ribbon-cutting marks launch of state-of-the-art facility on Capitol Hill

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AHF’s new healthcare center is located at 650 Pennsylvania Ave., S.E. (Washington Blade photo by Lou Chibbaro, Jr.

The AIDS Healthcare Foundation, the world’s largest HIV/AIDS healthcare organization with its headquarters in Los Angeles, held a ribbon-cutting ceremony on Sept. 27 to mark the official opening of its Capitol Hill Healthcare Center.

The new center, which AHF describes as a state-of-the-art facility for the holistic care and treatment of people with HIV as well as a site for HIV prevention and primary care services, is located at 650 Pennsylvania Ave., S.E.  a half block away from the Eastern Market Metro station.

A statement released by AHF says the Capitol Hill Healthcare Center will continue AHF’s ongoing delivery of “cutting-edge medical care and services to patients regardless of insurance status or ability to pay.” The statement adds, “The site also features a full-service AHF Pharmacy and will host Wellness Center services on Saturdays to offer STI testing and treatment.”

The statement was referring to the testing and treatment for sexually transmitted infections. The D.C. Department of Health has said the highest number of STIs in the city have been reported for men who have sex with men.

Mike McVicker, AHF’s Regional Director for its D.C., Maryland, and Virginia facilities, said the Capitol Hill center began taking patients in October of 2021 as AHF transferred its operations from its facility on Benning Road, N.E. about two miles from the Capitol Hill site. McVicker said the Benning Road site has now been closed.

AHF’s second D.C. medical center is located downtown at 2141 K St., N.W. AHF operates three other extended D.C.-area health care centers in Falls Church, Va., Temple Hills, Md. and Baltimore.

“Our Capitol Hill Healthcare Center has no waiting room, so patients immediately are escorted to treatment rooms and serviced from a centrally located provider workstation,” McVicker said. “The goal is to maximize efficiency using this patient-centered model to improve health outcomes and increase retention in care.”

McVicker told the Blade the AHF Capitol Hill center is currently serving 585 patients and has a staff of 10, including Dr. Conor Grey, who serves as medical director. He said a separate team of five staffers operates the Saturday walk-in center that provides STI services as well as services related to the HIV prevention medication known as PrEP.

“I’m very excited to be a part of this team,” Dr. Grey said at the ribbon-cutting ceremony, which was held in a courtyard outside the Capitol Hill office building where the AHF center is located. About 50 people, including D.C. government officials, attended the event.

“This is a beautiful thing to celebrate,” Grey said. “So, I’m very happy to enjoy the day with all of you, and looking forward to a bright, productive future working together and fighting a common enemy that has unfortunately been with us.”

Others who spoke at the event included Tom Myers, AHF’s Chief of Public Affairs and General Counsel; Toni Flemming, Supervisory Public Health Analyst and Field Operations Manager for the D.C. Department of Health’s HIV/AIDS, Hepatitis, STD, and Tuberculosis Administration (HAHSTA), and Dr. Christie Olejeme, Public Health Analyst for HAHSTA’s Care and Treatment Division.

Also speaking at the event was Japer Bowles, director of D.C. Mayor Muriel Bowser’s Office of LGBTQ Affairs.

Bowles called the AHF Capitol Hill center “another pivotal resource” for the LGBTQ community as well as for the city.

“We know, as has been previously stated, a low-barrier HIV prevention support is pivotal to the mayor’s mission of eliminating HIV infections in the District of Columbia and the region,” Bowles told the gathering.

“So, I’m very excited to see more services specifically provided to those in the Southeast and Northeast quadrants of our District,” he said, referring to the AHF Capitol Hill center. “This is a great moment for our community, but also for D.C. as a whole.”

In its statement released this week announcing the official opening of the Capitol Hill Center AHF notes that currently, 11,904 D.C. residents, or 1.8 percent of the population, are living with HIV. It points out that HIV disproportionately impacts Black residents, who make up about 44 percent of the population but comprise nearly three-quarters of the city’s HIV cases.

AHF official Myers said the Capitol Hill center will join its other D.C.-area facilities in addressing the issue of racial disparities related to HIV.

“Our treatment model helps eliminate barriers for those already in care, those who may not know their HIV status, and those living with HIV who may not currently be in care,” he said.

AHF says in its statement that it currently operates more than 900 healthcare centers around the world in 45 countries including 17 U.S. states. It has more than 1.7 million people in care, according to the statement. Founded in 1987, the organization has also taken on the role of public advocacy for federal and local government programs in the U.S. to address the HIV/AIDS epidemic, including efforts to lower the costs of HIV drugs.

During its work in the late 1980s and early 1990s AHF emerged as a strong advocate for addressing the special needs of gay and bisexual men who were hit hardest by HIV/AIDS at the start of the epidemic.

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District of Columbia

Georgetown University hosts panel on transgender, nonbinary issues

Lawmakers from Mont., Okla. among panelists

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Oklahoma state Rep. Mauree Turner speaks at Georgetown University on Sept. 26, 2023. (Photo by Sydney Carroll)

A panel on transgender and nonbinary issues took place at Georgetown University on Tuesday.

The panel included Montana state Rep. Zooey Zephyr and her fiancée, journalist Erin Reed, who are both trans, and nonbinary Oklahoma state Rep. Mauree Turner. Charlotte Clymer was also on the panel that Amanda Phillips, a nonbinary Georgetown professor, moderated. 

The panel began with a discussion about anti-trans laws that have been enacted across the country.

Reed said the Alliance Defending Freedom and the American Principles Project developed a strategy in response to North Carolina’s now repealed law that banned trans people from using public restrooms consistent with their gender identity. 

They focused on states that are more “business-friendly and therefore harder to boycott, and started with sports. Reed said bans on gender-segregated sports put an “asterisk on [trans] identity” that made further attacks possible.

Clymer spoke on attitudes towards trans policies. 

She referenced a survey that asked Americans if they supported nondiscrimination protections for LGBTQ individuals. Around 75 percent of respondents, including almost half of Republicans, said yes. Clymer said the next question that asked if such protections exist concerns her.

Roughly half of respondents said yes. 

While there are two U.S. Supreme Court rulings — Obergefell and Bostock — that extended marriage rights to same-sex couples and employment protections to LGBTQ people respectively, Clymer noted there are no federal protections based on sexual orientation and gender identity.

Turner and Zephyr spoke about being censured for defending trans rights. 

Oklahoma lawmakers in March censured Turner after they refused to turn into the authorities a trans person who had allegedly assaulted a state trooper. 

Turner said in Oklahoma, where there is no public debate, and politicians are openly anti-trans, residents are fighting against an “apathetic” and “heinous” legislature. On the topic of activism, they said being a “truth teller,” and saying “absolutely not” is “what got [them] censured.”

Zephyr’s censure was in April after she criticized a bill to restrict gender-affirming health care in Montana. The protests that followed stemmed from trans issues, but Zepher said they were about much more. 

“The protests […] were about recognizing that when you silence a legislator, you take away representation from their constituents,” she said. “That fight became a larger fight about democracy.” 

From left: Erin Reed and her fiancée, Montana state Rep. Zooey Zephyr, speak at Georgetown University on Sept. 26, 2023. (Photo by Sydney Carroll)

The panelists talked about mental health and addressing it.

Turner said that being the representation they needed keeps them going. 

“I didn’t think I was going to make it through middle school,” they said. “Representation matters for so many people […] if you can aid in being that representation, being that force that helps somebody else keep going, that is one of the most powerful experiences.” 

The panel agreed that finding community is important to mental health. 

“Sometimes our best activism is finding our community,” Reed said. 

The panel also spoke about queer joy and strength. 

“Queer joy is the thing they can’t take away,” Zephyr said. 

Reed talked about photos of activists who were organizing before the Stonewall riots in 1969; they were smiling and enjoying their community. 

“The queer story is a story of not just surviving in the margins but thriving in the margins,” Reed said.

Turner added “trans lives aren’t just lives worth fighting for, they are lives worth living.”

A self-described “journalist” who didn’t identify himself or his outlet asked the panel, “What is a woman?” Clymer turned the question back to him, and he said it “comes down to genetics.”

Clymer began to explain that chromosomes don’t always define sex. The audience member began to argue and ignored an event organizer who was asking him to leave. Security promptly escorted him out. 

Reed continued Clymer’s point that even biological sex is difficult to define. 

“Last year, 15 different state legislators tried to define sex, did you know that none of them managed to do so in a way that was scientifically correct?”

The panelists also offered advice to allies. 

Clymer said treading about trans issues and being informed about them is a great start. 

“You’ve got to step up,” she said.

Turner said allyship goes beyond relationships, and into the realm of being uncomfortable. 

“Allyship is synonymous with action and moving forward,” they said.

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Rehoboth Beach

Rehoboth Beach theater announces new managing director

Clear Space hires Joe Gfaller after national search

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Joe Gfaller starts his new role in November.

Rehoboth Beach’s Clear Space Theatre Company announced Tuesday that its board of directors has unanimously selected Joe Gfaller to join the company as managing director after a national search. 

Gfaller, who currently serves as managing director for Metro Theater Company in St. Louis, will join Artistic Director David Button as co-leader at CSTC, which marks its 20th anniversary in 2024.

“I am thrilled at the opportunity to help Clear Space Theatre Company grow its civic and philanthropic footprint as it begins a third decade of serving the community in coastal Delaware,” Gfaller said.

“Rehoboth is a special place to all who call it home, both year-round and seasonally. It is an extraordinary honor to work with such a creative and dynamic team as the CSTC staff and board to help the company grow to represent and reflect the fullness of this community.”

At Metro Theater Company, which is St. Louis’s primary professional theater for youth and families, Gfaller guided campaigns that helped grow the company’s revenues by 40% over four years, according to a release from Clear Space.

“Joe brings a wide range of theater experiences to the position and is sure to make an immediate impact on the company,” said Clear Space Board chair Laura Lee Mason. “His impressive track record and visionary leadership will undoubtedly elevate Clear Space to new heights. Joe shares our dedication to providing the community with outstanding education and theatrical experiences, and we look forward to collaborating with him to achieve those artistic aspirations.”

CSTC Artistic Director David Button added, “I look forward to Clear Space Theatre Company’s growth alongside Joe Gfaller. Not only will Clear Space benefit from his talent, but so will the community and state arts industry as a whole.”

Gfaller will begin full time in Rehoboth Beach in mid-November. During an October visit for the opening of “Young Frankenstein” at CSTC on Oct. 13, there will be opportunities for the public to meet him during the CAMP Rehoboth Street Festival on Oct. 15. He will be joined by his husband Kraig and their two dogs, Sprout and Emmit.

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