In a little-noticed development, a gay man last September considered settling a potentially groundbreaking gay rights lawsuit he filed in 2012 that accuses the Library of Congress of violating the U.S. Civil Rights Act of 1964 by allegedly firing him because of his sexual orientation and gender.
Court records show that Peter TerVeer, 32, a former Library of Congress management analyst, agreed to enter a 45-day period of court supervised mediation with the library for “the exploration of the possibility of a settlement.”
Gay rights attorneys consider the case important because a ruling affirming that anti-gay employment discrimination is a form of sex discrimination and is covered under the famed 1964 Civil Rights Act, as TerVeer maintains in his lawsuit, could potentially lead to full employment non-discrimination protection for lesbians and gays nationwide.
With Congress unlikely to pass legislation banning employment discrimination based on sexual orientation or gender identity anytime soon, LGBT rights attorneys have turned to the courts to secure these protections.
Court rulings have already held that the 1964 Civil Rights Act protects transgender people from employment discrimination under the act’s provision banning discrimination based on gender.
According to legal experts, a settlement through which TerVeer could receive a monetary payment from the government for damages would not result in a court precedent needed to bring about coverage of sexual orientation under the 1964 Civil Rights Act’s provision known as Title VII.
No document or docket entry specifically disclosing the outcome of the mediation in TerVeer’s case has been filed in the United States District Court for the District of Columbia, where the case is pending.
But the docket shows that on Nov. 21 – three weeks after the mediation period was scheduled to end on Oct. 27 – the lawsuit’s information gathering procedure known as discovery resumed, indicating that no settlement was reached and the case is moving forward to trial.
William Miller, a spokesperson for the Office of the United States Attorney for the District of Columbia, which is representing the library, and Christopher Brown, an attorney with the D.C. law firm Ackerman Brown, who’s representing TerVeer, each declined to comment on the mediation and why a settlement was not reached.
“This firm does not comment on pending litigation when the inquiry seeks issues involving attorney/client communications, or issues involving case strategy,” Brown told the Washington Blade in an email.
Miller, who declined to offer a specific comment on the TerVeer case, said his office has a longstanding policy of deciding on a case-by-case basis whether to enter into settlement negotiations in all of its civil cases.
“Settlement discussions can take place at any stage of civil litigation,” he said. “We frequently will engage in settlement negotiations and/or mediation, and settlements can sometimes involve monetary payment, depending upon the nature of the plaintiff’s claims,” Miller said.
“The fact that they’ve resumed discovery and it’s been months now since the mediation was supposed to end, I think that’s pretty good evidence that the mediation did not succeed,” said Arthur Spitzer, legal director of the ACLU of the National Capital Area. “They could always try again,” Spitzer added.
Spitzer and Jon Davidson, national legal director of Lambda Legal, an LGBT rights litigation organization, each said that the needs of an individual client sometimes must take precedent over the desire to advance a cause.
“Frequently the clients agree to take into consideration the bigger goals of not just what happens to them but they’re very interested in trying to ensure that what happened to them doesn’t happen to other people and trying to bring about law reform through their case,” Davidson said.
“But sometimes, particularly if cases drag on, people decide they want to move on with their lives or they could use the money if they were fired or various other things,” he said. “So sometimes considerations change; it really is the client’s decision on that regard.”
Brown, TerVeer’s attorney, issued a follow-up email saying that in a general sense mediation is sometimes used “as an additional discovery tool to determine what position the opposing party will present in future depositions or ultimately at trial.” He added, “Mediation helps litigants more fully understand evidence that is likely to surface in the case and can be helpful in preparation for trial.”
Davidson noted that Lambda Legal filed an amicus, or friend of the court, brief in the TerVeer case opposing a motion by the government calling for the case to be dismissed on grounds that TerVeer lacked legal standing under Title VII of the Civil Rights Act of 1964.
Ackerman Brown filed a similar brief opposing dismissal, arguing that TerVeer’s boss at the library subjected TerVeer to illegal sex discrimination – which is covered under the civil rights act – by gender stereotyping him as a gay man.
In a 34-page opinion handed down on March 31, 2014, U.S. District Court Judge Colleen Kollar-Kotelly denied the government’s motion to dismiss the case.
“As Plaintiff has alleged that Defendant denied him promotions and created a hostile work environment because of Plaintiff’s nonconformity with male stereotypes, Plaintiff has met his burden of setting forth a ‘short and plain statement of the claim showing that the pleader is entitled to relief’ as required by Federal Rule of Civil Procedures,” Kollar-Kotelly said in her ruling.
Brown and Davidson said at the time that Kollar-Kotelly’s ruling was an important preliminary victory for TerVeer because it cleared the way for the case to move forward to trial. Other legal observers said the judge appeared inclined to rule in favor of TerVeer if he could prove he was fired because of his sexual orientation rather than unsatisfactory work performance, as claimed by the Library of Congress.
In his lawsuit, TerVeer charges that he was fired after being harassed and humiliated by his supervisor, John Mech, whom TerVeer says repeatedly quoted biblical passages condemning homosexuality. The lawsuit says Mech created a hostile work environment causing TerVeer to suffer emotional distress and made it impossible for him to continue to work under Mech’s supervision.
Mech and library officials have declined to comment on TerVeer’s allegations, saying they are bound by a Library of Congress policy of not discussing pending litigation.
However, the U.S. Attorney’s Office last year entered into the court record a finding by an investigation into TerVeer’s allegations conducted by the library’s in-house, non-discrimination unit saying the allegations could not be substantiated.
Meanwhile, in a related development, the Library of Congress Gazette, an in-house publication, included an announcement in its Jan. 30, 2015 edition saying Mech received a temporary promotion from senior lead auditor to the position of assistant inspector general for audits at the library’s Office of the Inspector General.