May 25, 2007  |  By: LOU CHIBBARO J  | COMMENTS     

The D.C. government has opted not to appeal an April decision that a local Superior Court judge had found “substantial evidence” that the city’s Fire and Emergency Medical Services Department engaged in discrimination and harassment against a lesbian it hired in 2003.

The deadline for the appeal passed last week. Attorneys and activists involved with the case announced this week that a ruling had been delivered. They said they wanted to wait to see if the government appealed before discussing it.

In the April 3 decision, Judge Geoffrey Alprin ruled that high-level officials at the department appear to have subjected lesbian activist and diversity training specialist Kenda Kirby to a hostile work environment based on her sexual orientation, gender and personal appearance.

Alprin’s ruling also found that the department has a history of anti-gay and anti-transgender bias.

“The sum of this evidence supports findings of a history and culture of homophobia and sexism in D.C. Fire and Emergency Medical Services,” Alprin wrote in his 13-page decision. “This ethos, which characterized Petitioner’s work environment, created impediments to her responsibilities and cover for her colleagues to belittle her,” Alprin wrote.

Alprin overturned an earlier ruling by the city’s Office of Human Rights, which found no probable cause for a 2004 complaint Kirby filed with that agency. The office said she presented insufficient evidence to show she had been subjected to bias and retaliation because of her sexual orientation.

In the 2004 complaint, Kirby charged that officials questioned whether she should be allowed to use the men’s or women’s restrooms, undercut her authority to seek funding for her diversity training work and retaliated against her for raising concerns about her overall treatment at the department.

She also charged that high-level officials failed to adequately investigate the use of department computers by unidentified firefighters, who posted derogatory messages about her personal appearance on a firefighters’ chat room.

Alprin remanded the case back to the Office of Human Rights and ordered the office to continue its process for investigating the case as if it had found probable cause of discrimination and retaliation against Kirby.

Office Director Gustavo Velasquez said department procedures now call for Kirby and the Fire and EMS Department to enter into a conciliation process, with the goal of reaching a voluntary settlement. If a settlement cannot be reached, the department will retain an independent hearing examiner to conduct a hearing and Velasquez eventually would issue a decision on the case, he said.

Barrett Brick, president of the Gay & Lesbian Activists Alliance, called on Mayor Adrian Fenty to order city attorneys to offer “a just and speedy settlement with Kenda Kirby so that the case does not drag on any further.”

Mindy Daniels, Kirby’s attorney, said Kirby will seek some form of compensation for damages she received, including damage to her reputation from the derogatory Internet postings. The department did not renew Kirby’s one-year contract, even though activists who supported her believe the department initially intended to keep her on longer. Daniels said Kirby isn’t seeking reinstatement.

Allen Atter, a spokesperson for the Fire and EMS Department, said the department never comments on pending litigation.

Gay and transgender activists will likely hail Alprin’s decision as a vindication of their assertions since 1995 that pervasive anti-gay and anti-transgender bias within the Fire and EMS Department has hampered its ability to provide proper services to gays and transgender residents, both as department employees and as citizens in need of emergency services.

Activists expressed outrage over the Kirby case because the department had hired her in February 2003 as a training specialist to implement its Tyra Hunter Human Diversity Training program.

Officials created the program at the request of gay and transgender activists in honor of Hunter, a transgender woman who died in 1995 from injuries sustained in a car crash following allegations that a firefighter refused to treat her at the scene of the crash.

GLAA has said the Tyra Hunter diversity training program has never been fully implemented. The group has pointed to statements by Kirby that funding cuts in the department prompted a delay completing the program.

“They blocked her at every turn,” said GLAA official Craig Howell, who described the program as being “very superficial” on gay and transgender issues.

Department spokesperson Atter said the training program had been up and running in recent years but he was not sure of its current status. He said he would make inquires with department officials but didn’t get back by press time.