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Judge: Firing by state was improper, gay employee faced discriminationMinimize

April 30, 2012 - Courier-Journal

The Kentucky Cabinet for Health and Family Services fired a gay employee for sending inappropriate emails, but allowed a heterosexual worker who did the same thing to go unpunished, a federal judge has found.

U.S. District Judge John G. Heyburn II said that and other evidence showed the cabinet actually fired Milton Elwood Stroder because of his sexual orientation, in violation of his state and federal constitutional right to equal protection.

In a nine-page opinion, Heyburn said the discrimination against Stroder stood out because inappropriate Internet use within the cabinet was “rampant” and “staggering.” He said that included “candid photos of scantily clad obese women in various public settings.”

Gay-rights advocates hailed the ruling, which was issued last week, and Stroder said he felt vindicated.

“It is difficult to be the object of personal prejudice,” he said in an interview Monday.

Heyburn found that Stroder was fired in 2009 for sending personal emails that mentioned his partner and referred to other gays with slang terms such as “queen” and “princess.”

But the cabinet took no action against Shannon Duncan, who also sent personal emails around the same period, as well as a chain letter to other employees titled “Pampered Chef,” which showed naked men with pots and pans “strategically placed to conceal their genitals.”

Jill Midkiff, a cabinet spokeswoman, said it opposes “discrimination of any nature and enforces all nondiscrimination policies.” She said the cabinet “respectfully disagrees” with the court’s opinion and is considering options regarding an appeal. She also said that excessive or inappropriate use of the Internet and email in violation of its policies can lead to corrective or disciplinary action, including termination.

Stroder is not eligible for back pay or damages because the state has sovereign immunity, but Stroder will ask Heyburn to order his reinstatement, said David Leightty, Stroder’s lawyer.

Executive order

Kerri Richardson, a spokeswoman for Gov. Steve Beshear, issued a statement saying that he was not aware of the facts of the case but is “opposed to discrimination in all forms.”

The statement noted that Beshear issued an executive order in 2008 that prohibited discrimination in hiring and firing in state government based on several factors, including sexual orientation.

“The Cabinet for Health and Family Services operates pursuant to that policy and will review this opinion carefully before considering further legal options,” the statement said.

Chris Hartman, director of the Fairness Campaign, an advocacy group, said he hopes the state drops its defense of the lawsuit and forgoes an appeal, in light of the executive order.

Defending against Stroder’s suit, the cabinet denied that it discriminated and said it was just happenstance that he was terminated on his last day as a probationary employee, while Duncan’s case was not processed until a few days later, after she became a permanent employee. By that time Duncan could not be be fired because of additional rights afforded to such workers.

But Heyburn said the evidence at a two-day March trial showed that Stroder’s supervisors rushed his case through so he could be fired without a reason or a right to a hearing. Both employees started the same day, held the the same job — adjudicator — and were set to finish their one-year probation on July 31, 2009.

Supervisor's emails
Heyburn cited emails from one supervisor marked “high importance” in which she said Stroder’s “data is needed immediately because the state would like to be able to terminate the employee while in his probation period.”

Heyburn noted that “no similarly urgent correspondence” was produced regarding Duncan.

National experts on gay rights, including Brian Moulton, legal director of the Washington-based Human Rights Campaign, said a number of federal courts have issued similar decisions, although Leightty said he believes the ruling for his client was the first in Louisville.

Stroder is now working as a medical case manager for patients with AIDS and HIV and will have to make a “difficult decision” on whether he wants to return to an agency that fired him, Leightty said.

Michael Aldridge, executive director for the American Civil Liberties Union of Kentucky, applauded the ruling but noted that only employees of government agencies can bring cases alleging unequal protection under the constitution.

He said the case points to the need for a statewide law that would protect gays from discrimination in private workplaces as well as in housing and public accommodations. Such protections are now offered only in Louisville, Lexington and Covington.

Martin Cothran, an analyst for the Family Foundation of Kentucky, which opposes gay rights and gay marriage, said Heyburn failed to cite “a single piece of evidence” that Stroder was discriminated against because he was gay.

“If this were a case where the employee was a Christian, would the court have automatically assumed that it was the employee’s religion that got him fired?” Cothran asked. “We doubt it.”

Focus on gays
But Heyburn found that when the cabinet suddenly began to enforce its Internet policy in 2009, the cabinet focused disproportionately on gays and “more particularly, friendly homosexual bantering within emails.”

Four of the first five people sanctioned, including Stroder, were gay, Heyburn said.

Under the law, once Stroder showed he was treated differently than Duncan, the cabinet had to show it had a legitimate, nondiscriminatory reason for firing him. Heyburn said violating the Internet policy could be such a reason, but Stroder proved it was just a pretext.

While the cabinet disciplined others, including heterosexuals, for violations, most of those sanctions were imposed after he filed his suit or involved more flagrant violations, such as viewing pornography or bestiality.

Heyburn said the evidence suggests that Stroder’s supervisor “was determined to act on Stroder based on the homosexual nature of his email, leaving the court to disbelieve” that she decided to proceed with his termination first “as a matter of mere happenstance.”

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