University Times

Acknowledging his de- cision would not be easy, a judge delayed ruling on a motion by Pitt's attorneys to dismiss a 4-year-old civil suit filed against the University.

"I'm bouncing around here, one side to the other," Allegheny County Court of Common Pleas Judge Robert C. Gallo told lawyers at an oral arguments hearing March 3. "These are all compelling arguments."

Pitt is fighting a 1996 complaint filed with the Pittsburgh Human Relations Commission (HRC) by Deborah Henson, a former legal writing instructor here. Henson alleges that Pitt violated the city's 1990 anti-discrimination ordinance by denying health insurance benefits to her lesbian partner. Six current staff members have joined Henson in what is now a class action suit.

In December, the University asked Judge Gallo for a preliminary injunction to end the lawsuit. Both sides argued their cases in briefs filed with Gallo's office in January, after which the judge asked them to make oral arguments. (See University Times, Jan. 20.) Among the issues argued at the March 3 hearing were whether the HRC or Common Pleas Court had jurisdiction in the case and whether passage of a tack-on amendment by the state legislature last November rendered the civil suit moot.

In seeking an injunction, Pitt named the HRC as a defendant, saying the commission did not have jurisdiction because the University is exempt from the city ordinance under which the civil suit was filed.

Attorney Paul Manion, representing Pitt, cited legislation passed by the Pennsylvania state legislature last November that says in part: "An ordinance adopted by a municipality which requires, or the effect of which is to require, the provision of health insurance or other employee health care benefits shall not apply to a state-owned or state-related college or university."

Manion said the legislation was intended to protect Pitt and other state-related universities from being compelled to offer same-sex partner health benefits, and that the law renders void all city ordinances with that effect. He added that Pitt's current health benefits policy is not discriminatory.

"The University has provided and continues to provide benefits to all employees, but no domestic partners, of homosexuals or heterosexuals," Manion said. "This is purely an issue of law. The principal argument of the complainants is that this court has no jurisdiction. This court obviously has jurisdiction in a matter of law. We submit that the University has a clear right to relief and is entitled to this injunction."

HRC assistant solicitor Kevin Trower responded, "That statute doesn't affect our charge to investigate discrimination in employment."

But Gallo asked Trower if the HRC was questioning his authority to interpret that legislation as it applied to this case.

Trower said, "No. We're just saying you won't find any ordinance that requires [granting] benefits."

Byrd Brown, chief solicitor for the HRC, added, "This court has the jurisdiction, but should you exercise that jurisdiction at this time?" Brown pointed out that the HRC had denied two motions to dismiss by Pitt over the course of the civil suit, including one dismissal after the November legislation.

"The HRC ruled denial of the motions to dismiss without prejudice," Brown said. "We did that because nothing has been found yet. We had a hearing scheduled Feb. 8 and this probably would have been ruled on by now. The proceeding has gone on: Should it be stopped after deposing plaintiffs, but not trustees? When you are exercising your discretion consider that the record is incomplete. I would hope the [HRC hearing] process would go on."

Manion argued that continuing the HRC proceedings would force the University to waste money in defending against a case with no legal merit, and that such proceedings will disrupt the functions of Pitt officials and trustees.

But ACLU attorney Roslyn Litman, representing Henson, said Pitt has failed to demonstrate that the HRC proceedings threaten the University with "irreparable harm." She said such a threat is required by law to obtain a preliminary injunction.

"They say: 'We're going to have irreparable harm because we're going to have to go before a hearing,'" Litman argued.

"Your honor, everyone in every law suit [could say that]. They're saying the trustees will be embarrassed? Well, only if they discriminated. They're asking you to short-circuit the HRC. It's an extremely dangerous precedent."

Litman said that should the HRC find that Pitt discriminated, remedies other than forcing the University to grant same-sex partner health benefits, including back pay, damages and legal fees, could be invoked. "And these are quantifiable, in what was lost, what lawyers' fees are. We're asking for relief, not benefits," she said.

Pitt still has legal recourse to challenge any HRC findings in Common Pleas and other courts, Litman added.

Gallo summarized some of the arguments by saying Pitt was asking him to apply his authority now and that lawyers representing the HRC and Henson were saying: "'I'm minding their business. The courts should stay out of it.' They're saying 'Let us do it, and then the courts can do it.'"

Until Judge Gallo rules on Pitt's motion for a preliminary injunction against further prosecution, city Human Relations Commission proceedings in the case remain on hold.

According to a spokesperson in Gallo's office, the judge has not set a date for ruling. Lawyers for all sides will receive the ruling in writing, the spokesperson said.

–Peter Hart