Fired worker soaks in Supreme Court case mirroring his own discrimination battle

By J. Freedom du Lac
Washington Post Staff Writer
Wednesday, December 8, 2010; 12:48 AM

Legal dramas don't do much for Kelly Ashley, who would much rather listen to Lynyrd Skynyrd and Peter Frampton at very high volume than watch "Law and Order: Los Angeles" or read some John Grisham legal thriller.

"I'm not really into law or nothing," he said. (Classic rock and car stereos, on the other hand . . .)

But on Tuesday, Ashley, 28, of Alexandria, skipped work to visit the Supreme Court to watch the prequel to his own legal drama.

The justices were hearing arguments on Thompson v. North American Stainless , a case that raises the same legal question as Ashley's own federal lawsuit against his former employer, Brown's Mazda of Alexandria.

Brown's fired Ashley last year from his $8-an-hour job just days after his then-fiancee, Heather Barb, filed a pregnancy-discrimination suit against the dealership, where she had also worked. Ashley then filed suit against the dealership's parent company, Brown's Buick Inc., in U.S. District Court in Alexandria, claiming that he had been fired in retaliation for his fiancee's lawsuit.

Ashley's case is on hold until the high court rules on Thompson, said Ashley's attorney, Simon Sandoval-Moshenberg. The case asks whether Title VII of the Civil Rights Act of 1964 forbids an employer from punishing the spouse or fiance of an employee who complains about an unlawful employment practice. (Eric Thompson was fired by North American Stainless in Kentucky after his then-fiancee filed a gender-discrimination charge with the Equal Employment Opportunity Commission.)

"Kelly is just waiting to see if there's anything at all he can do about what happened to him," said Sandoval-Moshenberg.

Brown's hired Ashley in January 2007 to detail cars. Barb was hired two months later as a receptionist. That October, she became pregnant with Ashley's child. Several months later, while recovering from a procedure to stitch her cervix closed ("she can't carry full term," Ashley said), Barb lost her job.

She complained to the EEOC and, shortly after the birth of their daughter, Kayla, Barb filed her lawsuit. Her fiance was fired five days later.

"I'd never given them a reason to," Ashley said. "But when I walked out the door, I knew why. I was furious."

Barb's suit was settled out of court (terms are confidential and she's prohibited from discussing the case). Ashley filed suit in July, a month before he and Barb were married. An attorney for Brown's Buick, the Richmond company that owns Brown's Mazda, did not respond to requests for comment.

At the Supreme Court, Ashley sat near the back of the imposing courtroom wearing black slacks, work boots and a gray hoodie. ("I don't have clothes like this," he said, gesturing to his lawyer's pinstriped suit.)

Ashley, who now works in the parts department at Sheehy Honda, a few yards up Richmond Highway from Brown's, had the sense that the arguments weren't going particularly well for Thompson and Deputy Solicitor General Leondra Kruger.

Justice Samuel A. Alito Jr. wondered where to draw the line on which employees deserve protection. Good friends? Lunch companions? Exes? "Put yourself in the shoes of the employer," Alito said.

Justice Ruth Bader Ginsburg said something about the Americans with Disabilities Act , and a lawyer referred to "1121(b)(4)" - and Ashley's head began to spin.

"I didn't understand what that was," he said. "I just knew it had something to do with law."

There was talk about the definition of aggrieved and more than a few Title VII hypotheticals, none of which had anything to do with anybody who was fired after their pregnant fiancee was fired by the same employer.

Ashley was disillusioned. He'd been under the impression that because the facts of the two cases were similar, his case might come up - even though his case was not before the court.

"They never really talked about me," Ashley said. "I'm not giving up. But I got a bad vibe about it."

Sandoval-Moshenberg, who sat by Ashley's side, was more optimistic, though he wondered why "A lot of the justices were concerned with what the employers were supposed to do. Nobody asked what [people like] Kelly Ashley are supposed to do."

With more questions than answers, Ashley headed home.

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