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High Court asked to dismiss discrimination case

CHARLESTON, W.Va. - Days before a scheduled trial, the attorney for a Charleston community center accused of firing a woman because they believed she was a lesbian has asked the state Supreme Court to dismiss the case.

Jessica A. Hudson, 34, of Charleston sued the Bob Burdette Center, claiming the organization offered her a job as the executive director and then rescinded the offer after they discovered information leading board members to believe she was a lesbian.

Members of the center's board said they fired Hudson because she misrepresented herself in her resume and during interviews.  

Kanawha Circuit Judge Carrie Webster denied a motion to dismiss all of the counts in the lawsuit on Oct. 25. Webster did dismiss an allegation that the West Side community center discriminated against Hudson because of her sexual orientation.

Sexual orientation is not a protected class under the state Human Rights Act.

However, Webster ruled that the case could go to trial on the allegation that the center discriminated against Hudson based on gender stereotyping.

Hudson's attorney, Rick Brown, argued that the Bob Burdette Center fired Hudson because a woman dating another woman does not fit into their beliefs of how a female should act.

Webster also ruled that Hudson's claim that the center intentionally caused her emotional distress also could go to trial.

However, Bob Burdette Center attorney Dave Mincer is asking the state Supreme Court to dismiss the claims because sexual orientation is not a protected class under the West Virginia Human Rights Act.

Mincer filed the motion with the state Supreme Court on Wednesday.

Mincer addressed Hudson's claim that she was discriminated against based on gender stereotyping in his petition to the court.

"Hudson argued that the defendants rescinded their job offer to her only after forming an illegal perception that 'real women do not have relationships with other women,' " Mincer writes in his petition.

"A prohibition against gender-based stereotyping is just as absent from the West Virginia Human Rights Act as a direct prohibition against discrimination based on sexual orientation," Mincer added in his petition.

Mincer, who did not return calls seeking comment on the matter, also claims Webster's ruling to deny his motion to dismiss was an attempt to "get around the well-settled law of West Virginia that sexual discrimination is not unlawful by recharacterizing sexual orientation discrimination as gender-based discrimination."

This perspective would create a new issue of law "that has not previously been presented to this Court or addressed by it," Mincer writes to the Supreme Court.

Brown declined to comment on the matter now before the highest court in the state.

However, in his response to the petition, Brown argues that courts around the country are finding that a U.S. Supreme Court case from 1989 dealing with gender-based discrimination does apply to cases similar to Hudson versus the Bob Burdette Center.

Brown argues there is neither law nor court ruling in West Virginia that states gender stereotyping cannot apply to cases of discrimination.

 However, in his petition, Mincer argues that the 1989 U.S. Supreme Court case does not apply to this situation because it dealt with a woman who was discriminated against because she was too "macho" and not because of her sexual orientation.

Webster also refused to dismiss a count that the center's decision to fire Hudson violated public policy. Charleston has a city ordinance that prohibits discrimination based on sexual orientation.

However, Mincer argues that applying an ordinance of one city in West Virginia to the entire state is "illogical."

In his petition, Mincer claims that Webster's decision to deny the motion to dismiss the case "manifests a persistent disregard for both procedural and substantive law."

Mincer also claims that Webster's delay in issuing an order on her ruling denying the motion to dismiss prevented him from seeking the state Supreme Court's intervention until Wednesday.

Webster heard arguments on the motion to dismiss on Oct. 17. However, she did not rule on the issue at that time. She told the attorneys she needed more time to consider the matter and would rule on Oct. 24. That timeline then was extended to Oct. 25.

Mincer requested a delay in the case to give him time to file the motion with the Supreme Court. Webster denied the motion to delay but did not provide Mincer with an order indicating the motion had been denied or explaining her reasoning, he said in his petition to the Supreme Court.

This is in direct conflict with the Supreme Court's instructions that all orders should be "sufficiently detailed with findings to allow for judicial review," his petition says.  

Jury selection is scheduled for Monday with the trial slated to start on Wednesday.

Webster could not be reached for comment.

Contact writer Paul Fallon at paul.fallon@dailymail.com or 304-348-4817. Follow him at www.twitter.com/PaulBFallon. ;  

 


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