Plaintiff, V. Case No.; s'.jycML'S'^bloximages.newyork1.vip.townnews.com/richmond.com/... · adult...

JOHN Wl. MURPHY,

Plaintiff,

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION AUG - 8 20ie

DISTRICT COURTRICHMOND VA

V. Case No.; s'.jycML'S'^

ST. FRANCIS HOME, INC.,d/b/a SAINT FRANCIS HOME,

Defendant.

COMPLAINT

Plaintiff John M. Murphy, by counsel, for his Complaintagainst St. Francis Home,

Inc., d/b/a Saint Francis Home, states as follows:

NATURE OF THE ACTION

1. This is an action for damages under Title VII of the Civil Rights Act of

1964, as amended, for the unlawful employment termination of the Plaintiff bythe

Defendant.

2. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 1331 and 28

U.S.C. § 1343. This action is authorized and instituted pursuantto Section 703(a) of

Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e etseq. ("Title

VII").

Case 3:16-cv-00654-REP Document 1 Filed 08/08/16 of 17 PageID# 1

3. Venue is proper in this District because the employment practices alleged

to be unlawful were committed within the jurisdiction of the United States District Court

for the Eastern District ofVirginia and SFH maintains its only business operation in the

City of Richmond.

4. This is an action involving claims which are, individually, in excess of

$75,000, exclusive of costs and interest.

PARTIES

5. Plaintiff John M. Murphy is a 64-year old male who resides in Richmond,

Virginia, with many years ofexecutive and administrative employment experience in the

non-profit sector. In December of 2008 in Connecticut, Plaintiff legally married his male

partner, Jerry Carter, with whom he has lived in a committed relationship for over 30

years.

6. Defendant St. Francis Home, Inc., d/b/a Saint Francis Home ("SFH"), is a

non-profit corporate entity licensed by the Virginia Department of Social Services as an

adult home/assisted-living facility. SFH currently provides residential care to

approximately 123 elderly and disabled residents of limited means at its onlyfacility,

which is located in the City of Richmond.

7. SFH was originally founded in 1973 by the Roman Catholic Diocese of

Richmond, which continues to sponsor SFH. However, the great majority of revenue

supporting the activities of SFH is generated from auxiliary government grants and from

transfer by the individual residents oftheir checks from Social Security and the Virginia


Department ofSocial Services. The Catholic Diocese provides only a small portion of

the revenue supporting SFH.

8. SFH markets itself as "non-sectarian" in nature and, upon information and

belief, as few as 25% of the residents in 2015 identified themselves as Catholic.

9. In March of 2015, SFH was managed and governed by a 22-person

volunteer Board of Directors composed of laypersons. Bishop Francis X. DiLorenzo of.

the Roman Catholic Diocese of Richmond was listed as the Chairman of the Board, but

he played virtually no part in the operation, management and governance of SFH.

10. SFH is located at 65 West Clopton Street in the City of Richmond and has

continually been doing business in the City of Richmond, and has continuously

employed at least fifteen employees.

11. At all relevant times, Defendant SFH has continuously been an employer

engaged in an industry affecting commerce within the meaning of Title VII.

12. Defendant SFH was the PlaintifTs employer as it relates to these claims.

ADMINISTRATIVE PROCEEDING

13. On September 24, 2015, Plaintifftimely filed a Charge of Discrimination in

the Equal Employment Opportunity Commission against the DefendantSFH alleging

unlawful discrimination on the basis of sex in violation of Title VII by SFH.

14. After more than 180 days passed following the filing of the Charge of

Discrimination, the Plaintiff, by counsel, requested the issuance by the EEOC of a

Notice of Right to Sue.


15. On May 10, 2016, the EEOC issued a formal Notice of Right to Sue, which

was received by Plaintiff bymail on May 16, 2016. Acopy of the EEOC Notice of Right

to Sue is attached as Exhibit A.

16. Less than 90 days have passed since the Plaintiffs receiptof the EEOC

Notice of Right to Sue.

GENERAL FACTUAL ALLEGATIONS

17. On January 15, 2015, Plaintiff saw a posting on an internetexecutive job

search website for "Executive Director - Non Profit Organization." The contents of that

posting are attached as Exhibit B. The description for the Executive Director position

reflects exclusively secular management duties.

18. Plaintiff replied to the post and attached his resume.

19. On January 19, Plaintiff received an acknowledgment from Ms. Carolyn

Ramler that his resume had been received for an opening for Executive Directorof an

assisted living home.

20. On January 20, Plaintiff had an initial interview with Ms. Ramler by

telephone, during which she identified herself as an independent executive recruiter

retained by the SFH Board to fill the position of Executive Director at SFH, described as

an assisted living facility for seniors of limited financial means in Richmond.

21. Plaintiff was excited about this position because it provided stable income

and benefits and also allowed him to continue pursuing his passion to serve the indigent

and underprivileged population through a non-profit agency.


22. On January 22, Plaintiffhad a personal interview with IVIs. Ramler for 90

minutes. Ms. Ramler noted that the previous Executive Director had been dismissed in

November by the Board of Directors of SFH. Ms. Ramler indicated that the Board

wanted the new Executive Directorto be a leader and big-picture person who could

reach out to the corporate communityand help expand the Board. Ms. Ramler never

inquired as to whether Plaintiff was Catholic and stated that she was not legally

permitted to do so. She noted that only about 25% of the SFH residents identified as

Catholic and that being a Catholic was not a prerequisite for the Executive Director

position.

23. During Plaintiff's various discussions with Ms. Ramler, she gave him a job

description created by SFH for the Executive Director position. The job description is

attached as Exhibit 0. This job description reflects duties that are purely secular in

nature, and there is no reference whatsoever to any religious or spiritual duties.

24. The "Application for Employment" used by SFH at the time stated

immediately under the title; "Our policy is to provide equal employment opportunity to

all qualified persons without regard to race, creed, color, religious belief, sex, age,

national origin, ancestry, physical or mental disability, or veteran's status."

25. While itwas not a prerequisite for the Executive Director position, Plaintiff

had coincidentally been raised as a Catholic, had attended Catholic schools growing up

and served as an altar boy in the Diocese of Scranton, Pennsylvania. He also

graduated from the University of Notre Dame in 1975.

26. On January 30, Ms. Ramler called Plaintiff to advise him that the

Executive Committee of the Board was very impressed with Plaintiffs credentials and


her report of the interview. She noted that Plaintiff was among a small groupof

candidates the Executive Committee wanted to interview.

27. On February 6, Plaintiff interviewed with SFH Board of Directors President

Tina Neal and Board Vice President Sam Dibert. They confirmed that the Executive

Director would report directly to the Board President and the Executive Committee.

They sought an individual who would focus on leadership - broad oversight of the

organization, fundraising, major donor cultivation, and corporate outreach. President

Neal stated that the Board would not be consulting with Bishop DiLorenzo of the Roman

Catholic Diocese of Richmond about the hiring since the Board generally acted

autonomously. The interview lasted about 90 minutes and went very well. At no point

was there any discussion or reference to any disqualifying job criteria.

28. On February 19, Ms. Ramler requested that Plaintiff submit a list of

references and scheduled additional interviews for the following week. She indicated

that, in her view. Plaintiffwas the preferred candidate and had the skills and attributes

that the Board was seeking.

29. On February 26, the second round of interviews occurred. Plaintiff met

with administrator Richard Shelley who took him on a tour of SFH. Plaintiffwas then

interviewed by Board Secretary George Marget, Board member Maureen Gallihugh,

and Treasurer Kevin Muldowney. Both Mr. Marget and Mr. Muldowney are Richmond

attorneys. Board President Tina Neal and Board Vice President Sam Dibert were also

present. Ms. Gallihugh noted that she would like to see the new Executive Director

focus attention on the daily corporeal needs of the residents as well as enhancing the

infrastructure ofSFH. Mr. Marget noted that the Board did notwish to engage in the


time-consuming Executive Director searcii again and sought a candidate who would be

there at least five years. Heasked Plaintiff if Plaintiff had putdown permanent roots in

Richmond and intended to remain in the area a long time. Plaintiff indicated that he had

and that he intended to remain in the area and in this position for the foreseeable future.

30. At no time during any of the interviews referenced was there ever a

mention of sexual orientation or marital status whatsoever. The issue was not of

significance to any party involved, and itnever came up.

31. Plaintiff was informed that the Executive Director position was not religious

in nature. He would not perform any religious duties or functions whatsoever. He would

not be called upon to conduct any religious ritual, worship, or instruction at SFH. His

duties were secular in nature. He was to report to the volunteer Board of Directors.

32. On March 5, Ms. Ramler called Plaintiff to inform him that the Board

wished to offer him the Executive Director position. She mentioned that Plaintiff had

received stellar reviews from all five references that Ms. Neal had personally spoken to,

and that Plaintiff had passed the required pre-hire standard criminal background check.

The offer included annual compensation of $75,000, vacation, health care coverage, life

insurance. Board-matching 403-b retirement benefits, and other benefits. Plaintiff was

to receive a signing bonus of $5,000, payable six months after his starting date.

33. Ms. Ramlere-mailed Plaintiff the offer letteron March 5 signed by Board

PresidentTina Neal. Plaintiff signed it and faxed it back the same day. The

employment letter agreement is attached as Exhibit D.

34. On March 18, Plaintiff met with Board President Tina Neal at Bakers Crust

restaurant in Richmond for 90 minutes. They discussed each of the Board members,


senior employees, and certain on-going management issues. Slie indicated that the

Board would welcome Plaintiff's input regarding the organizational structure of SFH to

improve efficiencies. President Neal brought up the major fundraiser planned for May 2

entitled "Mandolay Night." She indicated that staff and spouses were invited to attend,

and Plaintiff was welcome to bring his wife. Plaintiff advised Ms. Neal that his husband

and partner of 30 years, Jerry Carter, was a clinical social worker and that they had a

life-long policy of not attending work events when one of them was responsible. Since

this was the first time this issue ever came up, Plaintiff asked Ms. Neal ifhis same-sex

marriage status was an issue. She shrugged and said itwas not a problem and would

not be an issue, stating; "This is 2015."

35. On March 19, Plaintiff was asked to attend the Executive Committee

meeting and was introduced to all present. Following the meeting, Plaintiff attended the

regular Board meeting. As Plaintiff was introduced to the group. President Neal stated

that she anticipated a great collaboration and hoped for a long, successful tenure. The

Board applauded. Plaintiff indicated his excitement at the new position.

36. March 23 was Plaintiff's first day of work as the Executive Director of SFH.

37. On Plaintiff's first day. Administrator Shelley handed him a copy of the

Saint Francis Home Employees' Handbook, which he had not previously seen.

Nowhere in that Handbook is marital status or sexual orientation even mentioned. In

fact, the Handbook recites the Mission Statement as: "Saint Francis Home is a non

profit and non-sectarian Assisted Living Facility established by the Catholic Diocese of

Richmond to serve older adults of limited means."

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38. During the eightwork days from March 23 through April 1, Plaintiff

engaged in a wide variety ofmeetings and activities including planning for the May 2

fundraiser, telephonecalls to potential sponsors, discussions with residents, and other

managerial tasks. There were absolutely no problems or complications during that

initial period, and Plaintiff was receiving very positive feedback from the residents and

the employees.

39. Sometime during that period, Director ofAdvancement, Ms. Embrey,

mentioned to Plaintiff that she would hold a place for Plaintiffs wife at the May 2

fundraiser. Plaintiff then advised her that he did not have a wife, butthat his spouse,

JerryCarter, typically did notattend Plaintiffs work events and that he likely would not

attend. Ms. Embreyapologized for making the assumption and shrugged offthe issue

as no problem.

40. Also during Plaintiff's first week of work, he had numerous friendly and

candid conversations with Ms. Regina Watson-Fields, SFH Office Business Manager,

who helped Plaintiff get oriented and was very respectful and accepting concerning his

same-sex marriage status.

41. On April 1, Plaintiff was precipitously terminated from his employment with

SFH.

42. On the morning of April 1, Plaintiff was informed by Administrator Shelley

that representatives of the Richmond Catholic Diocese would come to SFH to see him.

Plaintiff thought nothing ofthis at the time, assuming that the visit would be a courtesy

call to welcome and congratulate him on his new position. Prior to that day, nota single

representative of the Catholic Diocese had ever called Plaintiff or met with him.

9


43. On the morning of April 1, two lay executives from the Diocese - CFO

Michael McGee and Human Resources Officer Dorothy Mahanes - came to Plaintiff's

office. Mr. McGee stated: "We at the Diocese understand that you are a partner in a

same-sex marriage." Plaintiff confirmed that statement. Mr. McGee then bluntly

asserted that "same-sex marriage is antithetical to Roman Catholic church doctrine and

this makes you unfit and ineligible to be Executive Director of Saint Francis Home. We

are here to advise you that your employment is terminated effective today." Therewas

no further explanation.

44. Plaintiff reacted with shock and disbelief. Plaintiff stated to Mr. McGee

and Ms. Mahanes that his marital status had nothing whatsoever to do with his

qualifications for the position of Executive Director. Mr. McGee simply repeated his

prior statement. Plaintiff tried to remain calm, but he told Mr. McGee and Ms. Mahanes

that he felt completely blindsided by this visit and this pronouncement. Plaintiff asked if

he could speak directly to Bishop DiLorenzo and mentioned that Bishop DiLorenzo had

served as the auxiliary Bishop of the diocese in the Plaintiff's hometown of Scranton,

Pennsylvania. Ms. Mahanes indicated that itwas not the Bishop's policy to meet

regarding employment issues.

45. Plaintiff never received any termination letter. Plaintiff was only informed

that his terminationwas effective immediately and that he would be provided health

care coverage for the remainder of April only- a benefit to which he had already

contributed. Mr. McGee and Ms. Mahanes handed Plaintiff three press releases which

he had neverseen before, previously issued bythe Bishop's office on the topic ofsame-

sex marriage.

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46. Immediately after the termination, Plaintiff called his partner, Jerry Carter,

to share the devastating news with him. Jerry, who has a Masters in Social Work,

advised Plaintiff to go to the nurse's office since he was concerned about Plaintiffs

physical and emotionalwellbeing. Plaintiff did so. Plaintiff met with Ms. Nuckolls, RN,

who had already heard the news and expressed her support and regret. She took

Plaintiffs blood pressure, which was extremely high. While Plaintiff was in the office,

his primary physician called to find out if Plaintiff was okay, having heard about the

incident from Jerry.

47. Plaintiff returned to his office and sent an e-mail to the Executive

Committee recounting his shock at the unexpected and precipitous termination bythe

two Diocese representatives. The Plaintiffs email is attached as Exhibit E. Plaintiff

also telephoned all members of the Executive Committee and left voice malls.

48. Board President Neal called Plaintiff back first and expressed outrage at

the brutal and unfair way that Plaintiff had been treated. She mentioned that the

Executive Committee had met with Bishop DiLorenzo the previous day and that the

Bishop had insisted that the Executive Committee terminate Plaintiff on the grounds of

same-sex marriage. She Indicated that the Executive Committee refused to do so and

informed the Bishop that Plaintiff was doing an "awesome" job In the position. She

informed the Plaintiff that the Executive Committee was unanimous in their refusal to

terminate him. She said there were discussions about resignations from the Board.

49. Plaintiffnext received a phone call from Board Vice President Sam Dibert.

Mr. Dibert indicated that the termination was clearly discriminatory and affirmed how

much he abhorred such bigotry. He said the Bishop "tried to make us fire you, and we

11


unanimously refused." Mr. Dibert indicated that he would plan to visit the Bishop that

day and would resign permanently from the Saint Francis Home Board.

50. Attorney and Board Secretary George Marget called next. He stated that

the termination was a shock and surprise to him and that every member of the

Executive Committee supported the Plaintiff to the Bishop. He commented upon the

blatantdiscrimination involved. Mr. Marget resigned permanently from the Board within

two weeks.

51. Ms. Gallihugh called subsequently. She and the Plaintiffboth confirmed

that at no pointduring the interviews was there any discussion whatsoever of sexual

orientation or marriage as a qualifier for the Executive Director position.

52. Plaintiff next called the executive recruiter, Ms. Ramler, who was appalled

by the termination. She indicated that she was shocked and disgusted by the Bishop's

act of discrimination and bigotry. She indicated that she had never been directed to do

a search for "straight" or "non-same-sex married persons" and would never have

undertaken such a search on principle.

53. On April 2, President Neal called Plaintiff and informed him that she had

indeed met with the Bishop to try to persuade him to reconsider his decision. She

indicated he was intractable and added that she was sorryand was still outraged over

the Bishop's decision.

54. On April 3, Plaintiff received an e-mail from Dorothy Mahanes relating that

she had shared with Bishop DiLorenzo Plaintiff's request for a meeting, and the Bishop

refused to meet.

12


55. There is no question of causation. Saint Francis Home admits that the

sole basis for Plaintiff's termination as Executive Director was his marriage to another

man.

56. At no time priorto Plaintiffs hiring did any representative of SFH ever

indicate or even implythat Plaintiff's marital status, sexual orientation or the sex of his

spouse was an issue. At no time prior to Plaintiff's hiring as Executive Director did any

representative of SFH indicate that there was any prerequisite for the position that

related in any way to sexual orientation or marital status.

57. Since Plaintiff was terminated as Executive Director of SFH, he has made

substantial efforts to find suitable employment but has not been able to obtain

employment over the past sixteen months.

58. The actions of SFH have caused Plaintiff to suffer mental and emotional

distress, entitling him to compensatorydamages.

59. The United States Supreme Court ruled on June 26. 2015 in the case of

Obergefell v. Hodges, 135 S. Ct. 2584 (2015) that same-sex couples have a

fundamental right to marry underthe Due Process and Equal Protection Clause ofthe

Fourteenth Amendment of the United States Constitution. To be terminated from

employment due to the exercise ofthatfundamental constitutional right is antithetical to

the United States Constitution and the recent Supreme Court ruling.

60. On July 15, 2015, the Equal Employment Opportunity Commission issued

its Decision in the case ofBaldwin v. Foxx (Agency No. 2012-24738-FAA-03). The

EEOC concluded "that Complainant's allegations ofdiscrimination on the basis of

sexual orientation state a claim of discrimination on the basis of sex." The EEOC

13


further stated: "Therefore, Title VII similarly prohibits employers from treating an

employee or applicant differently than other employees or applicants based on the fact

that such individuals are in a same-sex marriage or because the employee has a

personal association with someone of a particular sex."

COUNT I: SEX DISCRIMINATION IN VIOLATION OF TITLE VII

61. Plaintiff incorporates by reference each and every allegation contained in

Paragraphs 1 through 60 as though set forth fully herein.

62. SFH has engaged in discrimination because of sex by terminating Plaintiff

from employment because he is in a same-sex marriage and is a gay man.

63. SFH engaged in sex discrimination arising from sex-based stereotyping as

enunciated by the U.S. Supreme Court in Price Waterhouse v. Hopi^ins, 109 S. Ct. 1775

(1989) and subsequent precedent because Plaintiff was terminated by the Bishop and

SFH based upon the belief that marrying someone of the same sex constitutes gender-

nonconforming behavior.

64. The termination of Plaintiff by SFH was motivated by the Plaintiff's sex

(male) in that the Plaintiff's conduct, by virtue of his same-sex marriage, did not conform

to sex stereotypes and norms about males to which Bishop DiLorenzo and SFH

subscribed: and in that Bishop DiLorenzo and SFH objected specifically to Plaintiffs

marriage to his male partner.

65. SFH has also engaged in associational or relational sex discrimination,

since Plaintiff was terminated from employment based upon the sex of his spouse

(male) to whom Plaintiff was lawfully married in Connecticut in 2008.

14


66. SFH has also engaged in sex discrimination based upon the sexual

orientation of the Plaintiffas a gay man.

67. The effect of the practices complained of above have been to deprive

Plaintiff ofequal employment opportunities and othen/vise adversely affect his status as

an employee because of his sex.

68. The unlawful employment practices complained of above were intentional.

69. The unlawful employment practices complained of above were done with

malice or with reckless indifference to Plaintiffs federally-protected rights.

70. The discrimination complained of herein affected the terms, conditions and

privileges of the Plaintiffs employment with SFH.

71. The acts and omissions of SFH described above constituted intentional

discrimination and unlawful employment practices based upon gender in violation of

Section 703(a)(1) of Title VII, 42 U.S.C. § 2000e-2(a)(1).

72. As a direct and proximate result of the conduct of SFH described above,

Plaintiff has suffered lost back pay, lost front pay, emotional distress, mental pain and

suffering, past and future pecuniary losses, inconvenience, mental anguish, loss of

enjoyment of life and other non-pecuniary losses, interest on pay, bonuses, and benefits

of employment. These damages have occurred in the past, are permanent and

continuing.

15


PRAYER FOR RELIEF

WHEREFORE, Plaintiff John M. IVIurpliy demands judgment against Defendant

St. Francis Home, Inc., d/b/a Saint Francis Home, for the following:

(a) Entryof judgment for the Plaintiff against SFH for all legally available

damages including appropriate back pay and benefits with prejudgment interest,

appropriate front pay and benefits, any other past and future pecuniary or economic

losses, compensatory damages and damages for emotional pain, suffering,

inconvenience, loss of enjoyment of life, humiliation, and loss of self-esteem in an

amount to be determined at trial anticipated to amount to $750,000;

(b) Judgment for the Plaintiff against SFH for appropriate punitive damages

for its malicious and reckless conduct described above in an amount to be determined

at trial;

(c) Judgment for Plaintiff against SFH for pre-judgment and post-judgment

interest;

(d) Judgment for Plaintiff against SFH for reasonable attorney's fees and all

expenses and costs of this action;

(e) Judgment against SFH permanently enjoining SFH, its officers, agents,

and employees from engaging in future violations of law enumerated herein; and

(f) That this Court grantsuch otherand further relief as is just and proper

under the circumstances.

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DEMAND FOR TRIAL BY JURY

Plaintiff hereby demands a trial by jury on all issues enumerated in this

Complaint.

Respectfully Submitted,

JOHN M. MURPHY

By: _Jy- •

H. Aubrey Ford. Ill (VSB No. 18691)CANTOR STONEBURNER FORD

GRANA & BUCKNER

7130 Glen Forest Drive, Suite 400

Richmond, VA 23226

Telephone: (804) 644-1400Facsimile: (804) 644-9205E-mail: [email protected]

Counsel for Plaintiff John IVI. Murohv

17

Of Counsel


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