WEDNESDAY, DECEMBER 8, 2010
KLMNO
EZ SU POLITICS & THE NATION A visit to law school Fired worker soaks in Supreme Court case that mirrors his own discrimination battle BY J. FREEDOM DU LAC L
egal dramas don’t do much for Kelly Ashley, who would much rather listen to
Lynyrd SkynyrdandPeterFramp- ton at very high volume than watch “Lawand Order: Los Ange- les” or read some John Grisham legal thriller. “I’mnot really into lawor noth-
ing,” he said. (Classic rock and car stereos, on the other hand . . .) But on Tuesday, Ashley, 28, of
Alexandria, skipped work to visit the Supreme Court to watch the prequel to his own legal drama. Thejusticeswerehearing argu-
ments on Thompson v. North American Stainless, a case that raises the same legal question as Ashley’s own federal lawsuit against his former employer, Brown’sMazda of Alexandria. Brown’s fired Ashley last year
from his $8-an-hour job just days after his then-fiancee, Heather Barb, filed a pregnancy-discrimi- nation suit against the dealer- ship, where she had also worked. Ashley then filed suit against the dealership’s parent company, Brown’s Buick Inc., in U.S. Dis- trict Court in Alexandria, claim- ing that he had been fired in retaliation for his fiancee’s law- suit. Ashley’s case is on hold until
the high court rules on Thomp- son, saidAshley’s attorney, Simon Sandoval-Moshenberg. The case asks whether Title VII of the Civil Rights Act of 1964 forbids an employer from punishing the spouse or fiance of an employee who complains about an unlaw- ful employment practice. (Eric Thompson was fired by North American Stainless in Kentucky after his then-fiancee filed a gen- der-discrimination charge with the Equal Employment Opportu- nity Commission.) “Kelly is just waiting to see if
there’s anything at all he can do about what happened to him,” said Sandoval-Moshenberg. Brown’s hired Ashley in Janu- ary 2007 to detail cars. Barb was
JUANA ARIAS FOR THE WASHINGTON POST
KellyAshley, right, and lawyer Simon Sandoval-Moshenberg, are watching the high court with interest. There was talk about the defi-
hired twomonthslater as a recep- tionist. That October, she became pregnant withAshley’s child. Sev- eral months later, while recover- ing from a procedure to stitch her cervix closed (“she can’t carry full term,” Ashley said), Barb lost her job.
She complained to the EEOC
and, shortly after the birth of their daughter, Kayla, Barb filed her lawsuit. Her fiance was fired five days later. “I’d never given them a reason
to,” Ashley said. “But when I walked out the door, I knewwhy. I was furious.” Barb’s suit was settled out of
court (terms are confidential and she’s prohibited from discussing the case). Ashley filed suit in July, a month before he and Barb were married. An attorney for Brown’s Buick, the Richmond company that ownsBrown’sMazda, did not respond to requests for comment. At the Supreme Court, Ashley sat near the back of the imposing
courtroom wearing black slacks, work boots and a gray hoodie. (“I don’t have clothes like this,” he said, gesturing to his lawyer’s pinstriped suit.) Ashley, who now works in the
parts department at SheehyHon- da, a few yards up Richmond Highway from Brown’s, had the sense that the arguments weren’t going particularly well for Thompson and Deputy Solicitor General Leondra Kruger. Justice SamuelA. Alito Jr. won-
dered where to draw the line on which employees deserve protec- tion. Good friends? Lunch com- panions? Exes? “Put yourself in the shoes of the employer,” Alito said. Justice Ruth Bader Ginsburg
said something about the Ameri- cans with Disabilities Act , and a lawyer referred to “1121(b)(4)” — and Ashley’s head began to spin. “I didn’t understand what that
was,” he said. “I just knew it had something to do with law.”
nition of aggrieved and more than a fewTitle VIIhypotheticals, none of which had anything to do with anybody who was fired after their pregnant fiancee was fired by the same employer. Ashley was disillusioned. He’d
been under the impression that because the facts of the two cases were similar, his case might come up — even though his case was not before the court. “They never really talked
about me,” Ashley said. “I’m not giving up. But I got a bad vibe about it.” Sandoval-Moshenberg, who
sat by Ashley’s side, was more optimistic, though he wondered why “A lot of the justices were concerned with what the employ- ers were supposed to do. Nobody asked what [people like] Kelly Ashley are supposed to do.” With more questions than an-
swers, Ashley headed home.
dulacj@washpost.com
Woman complains to EEOC; fiance fired
HE SAYS ITWAS RETALIATION
Justicesmust decide if he is covered by Title VII
BY ROBERT BARNES Eric Thompson thinks his fir-
ing was more than coincidence: Threeweeks afterhis fiancee filed a discrimination complaint against theirmutual employer, he got a pink slip. If it had beenMiriamRegalado
— his fiancee, now wife — who had been fired, she would have been protected by federal laws that keep employers from dis- missing workers who allege ille- gal actions. Butwhat about Thompson? That was the question before
the Supreme Court on Tuesday, and justices seemed to think it defied an easy answer. Thompson complained about
his 2003 firing to the Equal Em- ployment Opportunity Commis- sion, which gave him the go- ahead to file suit against his for- mer employer, North American Stainless, contending that he too was protected by Title VII of the CivilRightsAct of 1964. But a federal appeals court said
he was not covered because he personally “did not oppose an unlawful employment practice, make a charge, testify, assist or participate in an investigation.” TheObamaadministrationdis-
agreeswith the lower court and is supporting Thompson. “When an employer fires an
employee as a means of retaliat- ing against a relative or close associate who has filed an EEOC charge, the employee who has been fired is entitled under Title VII to go to court and seek appro- priate remedies,” said Leonda R. Kruger, a deputy solicitor general. But the law doesn’t say that,
answered Leigh Gross Latherow, an attorney for North American
Stainless. It protects the person whofiledthe complaint,not those on the sidelines, the company said. Latherow said Thompson was
fired because of his job perfor- mance and a cheeky memo he wrote to superiors complaining about his pay.He did notmention his fiancee’s discrimination com- plaint, she said. Thompson’s attorney said the
purpose of the lawis tomake sure a company cannot use the threat of firing someone to keep employ- ees from complaining about ille- gal practices. That includesmem- bers of a person’s family or their close associates, saidEric Schnap- per, who is also a University of Washington lawprofessor. “They
singledoutMs.Regalado
and Ms. Regalado’s fiance,” Schnapper said. “They didn’t go fire anybody else’s fiance.” But Justice Samuel A. Alito Jr.
wondered if the betrothed were included, how far would the law extend. “Does it include simply a good
friend?”he asked. “Does it include somebody who just has lunch in the cafeteria every day with the person who engaged in the pro- tected conduct? Somebody who once dated the person who en- gaged in the protected conduct?” Schnapper said the person
fired would have to prove the intent was to punish the person who complained. And then the person would have to show that the retaliatory action was serious enough to dissuade a reasonable person fromfiling a complaint. JusticeAntoninScaliaputhim-
self in the role of employer, saying hewouldwant a clear rule onwho he “had to treatwith kid gloves.” But Kruger said it would be
impossible for the court to set a “hard-and-fast rule” for all possi- bilities. Instead, shesaid, it should employ a rule it has set in other cases in identifying action that would have an adverse impact on the personmaking the complaint. The case is Thompson v. North
American Stainless.
barnesb@washpost.com
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THREE CUPS OF TEA STONES INTO SCHOOLS
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ONE ORDINARY PERSON…REALLY CAN CHANGE THE WORLD.”—Tom Brokaw
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