Mar 13, 2009  |  By: Chris Johnson  | COMMENTS     

A man who says he was forced to resign from his state job in Virginia because he’s gay has been told he has no recourse under state law to pursue a complaint — even though the governor issued an executive order to protect employees against such discrimination.

Michael Moore, a former resident of Martinsville, Va., filed a petition in 2006 with Virginia’s Department of Human Resource Management, alleging the Virginia Museum of Natural History forced him to give up his job earlier that year because he’s gay.

Virginia has no law barring employment discrimination based on sexual orientation, but Gov. Tim Kaine (D) in 2006 issued an executive order barring such discrimination against state workers. Employees working for the Virginia Museum of Natural History receive this protection because the museum is a state-run organization.

But the state attorney general’s office issued a pleading Feb. 24 that says Kaine’s directive “by itself, does not provide a cause of action” in the case and Moore’s petition should be dismissed.

“Sexual orientation is not a protected classification under either state or federal law,” the pleading says. “Attempts to make sexual orientation a protected category under the Virginia Human Rights Act have been continually and consistently rejected by the General Assembly.”

Moore, 30, said he was “pretty disappointed” in the decision, especially after waiting more than two years for a determination.

“I hoped that maybe the museum and the attorney general’s office would come to some sort of logical conclusion,” he said. “I think an injustice has been done and somebody needs to be held accountable for their actions.”

Moore has sought $25,000 in compensatory damages against the museum and punitive damages of $100,000, according to the pleading. But the pleading says that “recovery against the Commonwealth, its agencies or employees, is strictly limited to those opportunities for recovery set out by law.”

Michael Hamar, who’s gay and serves as Moore’s attorney, said the determination raises questions about why Virginia’s Department of Human Resource Management spent two years investigating the matter and why the museum cooperated with the investigation during that time.

Michael Salster, a department spokesperson, declined to comment on the investigation or the pleading.

The pleading also says that the state department and the museum deny Kaine’s executive order was violated, although the department acknowledges the museum took “inappropriate consideration” of Moore’s sexual orientation.

“While [the department’s] findings are that there may have been some inappropriate consideration given to Moore’s sexual orientation by the museum,” the pleading says, “the museum nevertheless had independent and valid reasons for terminating his employment.”

Gordon Hickey, a Kaine spokesperson, wouldn’t respond directly to the attorney general’s pleading and would only discuss the governor’s commitment to his executive order.

Hickey said Kaine “feels strongly about the executive order prohibiting sexual orientation as a cause for any … job action, and he stands by the order.” Hickey declined further comment.

The pleading is not the first time that the Virginia attorney general’s office has challenged Kaine’s directive. In 2006, then-Attorney General Bob McDonnell issued an opinion saying the executive order is unconstitutional.

The pleading is dated after Feb. 20, when McDonnell resigned as attorney general to run for governor in the November election. While Jake Belue, an assistant attorney general, put his name to the statement, the pleading also lists the name of McDonnell as attorney general.

Belue and Tucker Martin, a spokesperson for the McDonnell campaign, referred questions on the pleading to the attorney general’s office, which didn’t respond to a request for comment.

Hamar said an appeal is pending in Martinsville Circuit Court, but that he’s “not really sure” when the court would take action on the appeal.