No Justice But Only Elections As Gay Prison Officer had to Settle Lawsuit
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| Notice Justice is made of gold |
LANSING — Elections have consequences.
And Thursday's settlement of a federal lawsuit brought by a former Michigan corrections officer, who is gay, demonstrates that.
Ashley Menchaca, who worked at Woodland Center Correctional Facility in Whitmore Lake, alleged she was subjected to a range of verbal taunts and harassment, assigned one of the worst jobs in the prison, and subjected to a series of investigations for alleged rules violations that were either unfounded or arose from selective or retaliatory enforcement.
As demonstrated by this week’s oral arguments in the Supreme Court of the United States, federal civil rights laws do not offer explicit protections against discrimination based on sexual orientation.
Last September, former Attorney General Bill Schuette, a Republican, moved to dismiss that portion of Menchaca’s lawsuit against the Michigan Department of Corrections, arguing no such legal protections exist.
But in March of this year, before the judge had ruled on Schuette's motion, new Attorney General Dana Nessel, a Democrat, ordered the motion withdrawn.
The legal move by Nessel — Michigan's first openly gay attorney general — was consistent with an executive directive issued in January by Democratic Gov. Gretchen Whitmer. Whitmer, who like Nessel took office on Jan. 1, embraced a ruling by the Michigan Civil Rights Commission that said the ban on discrimination on the basis of "sex" set out in the state Elliott-Larsen Civil Rights Act also bars state employees from being discriminated against on the basis of sexual orientation or gender identity. Whitmer's move went beyond actions taken by her predecessor, Republican Gov. Rick Snyder.
On Thursday, Menchaca, who resigned her job in May 2017 over the alleged harassment, settled her suit for $135,000.
Menchaca's settlement is at the low end of the range of five other 2019 settlements or judgments reported on by the Free Press arising from lawsuits against the Corrections Department.
Andrew Laurila, Menchaca's attorney, said the relatively small amount of the settlement had less to do with the unsettled state of the law regarding discrimination based on sexual orientation and more to do with how difficult it is to prove "constructive dismissal" when an employee resigns due to discrimination, harassment and retaliation, rather than getting fired.
A captain who allegedly made disparaging remarks about LGBT people ordered that the cushioned chair Menchaca and other officers used while working the gate be replaced with a hard stool -- but only when Menchaca was on duty -- the suit alleged.
"This made the plaintiff's shift unbearable as the stool was uncomfortable to sit in and the plaintiff was required to sit in it for long periods of time with no back support," the suit alleged.
"During other individuals' shifts ... they would roll back out the cushioned chair, thus making the plaintiff the only individual required to sit on the stool."
Working the gate, which meant long hours in the same spot and complications getting relief for restroom breaks, is considered a punishment post in the prison system, the suit alleged.
Menchaca filed a formal complaint about the captain in April 2017.
However, "when Ashley complained about some of these acts of bullying, it escalated," Laurila said. With the vast number of work rules in the state prison system, "you can write someone up for almost anything."
Kelly Rossman-McKinney, a spokesman for Nessel, said discrimination based on sexual orientation was not the only allegation Menchaca made against the department, so removing the legal challenge to that count alone did not mean Menchaca would prevail in the case.
In fact, the Attorney General's Office under Nessel continued to fight the case, based on both the law and the alleged facts. The office argued in a July motion for summary judgment that Menchaca could not show she had been "constructively discharged," and couldn't show a causal connection between the alleged discrimination and the alleged retaliation, among other defenses the office argued against the suit.
Thursday's settlement arose from talks with a court-appointed conciliator, Laurila said.
"We consider the cost of litigating in settling any case," Rossman-McKinney said.
"Both this department and the MDOC denounce discrimination," she said.
By Paul Egan: 517-372-8660 or pegan@freepress.com.
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