Judge Rules State Agency Fired Employee Based Soley On Sexual Orientation

May 1, 2012

LOUISVILLE, Ky.  -- A Kentucky agency discriminated against and improperly fired an employee because he's gay while allowing a heterosexual employee who committed similar policy violations to keep her job, a federal judge has ruled.

U.S. District Judge John G. Heyburn II in Louisville found that the Kentucky Cabinet for Health and Family Services dismissed Milton Elwood Stroder from his job in 2009 for a violation of the cabinet's email policy.

"This is unfair and unequal treatment," Heyburn wrote in the nine-page ruling issued last week.

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." Heyburn noted that the cabinet didn't take 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."

In both cases, Heyburn wrote, the emails violated the cabinet's policy on Internet use.

The cabinet denied that it discriminated against Stroder and said it was coincidence that Stroder was fired on his final day as a probationary employee. Duncan's case wasn't processed until a few days later, after she became a permanent employee and could not be fired because of additional rights afforded to such workers.

Jill Midkiff, a spokeswoman for the Cabinet for Health and Family Services, said the agency "respectfully disagrees" with Heyburn's decision and is weighing an appeal.

"The Cabinet opposes discrimination of any nature and enforces all nondiscrimination policies, both written and implied," Midkiff said.

The Courier-Journal first reported on the decision Tuesday.

Heyburn cited evidence from a two-day trial in March showing 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 same job - adjudicator - and were set to finish their one-year probationary periods on July 31, 2009.

Emails from one supervisor were marked "high importance" and said Stroder's computer "data is needed immediately because the state would like to be able to terminate the employee while in his probation period."

The supervisors had "no similarly urgent correspondence" regarding Duncan, Heyburn wrote.

Heyburn concluded that when the cabinet suddenly began enforcing its Internet policy in 2009, officials focused disproportionately on gays and "more particularly, friendly homosexual bantering within emails."

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

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 wrote that violating the Internet policy could be such a reason, but Stroder proved it was just a pretext.

Heyburn wrote that 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."

Stroder is now working as a medical case manager for patients with AIDS and HIV and will have to decide if he wants to return to the cabinet, said his attorney, David Leightty.

Heyburn set a May 15 deadline for Stroder to file for sanctions or to get his job back.