Washington Blade - September 11, 2009
Chris Johnson, Washington Blade | Rebecca Armendariz

A Virginia court has ruled in favor of a gay man who says he was fired from his job at TGI Friday's because he's HIV-positive.

Alexandria Circuit Court Judge Nolan Dawkins handed down the decision the decision Sept. 2, affirming the unanimous decision reached by the Alexandria Human Rights Commission.

The commission last year determined that the TGI Friday's in Alexandria violated the city's Human Rights Code by firing James McCray of a Woodbridge, Va., because of his HIV status.

McCray, who worked at TGI Friday's for five years, said he disclosed he's HIV-positive in 2006 to the Director of Operations Robert D'Anna, who responded with a look of shock. McCray said he was dismissed from his position as general manager the next day.

Carlson Restaurants, which owns TGI Friday's, contested the commission's decision in court, but Dawkins ruled against the company.

"The Commission had the benefit to hear the testimony of the witnesses, weigh their credibility, their interest in the outcome of the case, if any, and determine the case on those and other factors deemed relevant," Dawkins wrote. "Considering the oral arguments and additional evidence offered on appeal of this matter, this Court cannot find that the decision of the Commission substantially violated the petitioner's rights."

The commission recommended that Alexandria City Manager James Hartmann issue a $5,000 fine against TGI Friday's for violating the Human Rights Code. In a letter dated Sept. 17, 2008, Hartman agreed to levy a fine against Carlson Restaurants, but said he would only collect the fee after the Circuit Court made a decision in the case.

Tony Castrilli, spokesperson for the city of Alexandria, said he didn't immediately know whether Hartmann would collect the fine.

While McCray said he was fired because of his HIV status, TGI Friday's contested he was dismissed because he lied to D'Anna about how a contractor, Loyal Services, provided services to the restaurant's bathrooms free of charge. According to McCray's affidavit, he wanted to explain that Loyal charged for supplies but not services, but he couldn't do so before

D'Anna cut him off and left.

In the ruling, Dawkins dismisses the allegation that TGI Friday's fired McCray because he lied, noting that D'Anna should have been familiar with how Loyal provided services to other restaurants under his jurisdiction.

"The restaurant's relationship with Loyal Services was known or should have been known by the corporation," Dawkins writes. "The court can find no motive to lie considering the fact that McCray regularly submitted invoices for payment to the corporation."

Michael Horwatt, McCray's attorney, said he and his client were "gratified and grateful" that the Alexandria City Attorney's Office and the Human Rights Commission stuck to their position in this case.

"Public hearings are a rarity in local human rights commissions," Horwatt said. "Circuit court affirmations of a human rights commission's authority and decision are even rarer."

Horwatt said he and his client intend to ask the U.S. Equal Employment Opportunity Commission to prosecute the case in federal court under Title VII of the Civil Rights Act "because of the case's importance to the hospitality industry in general and the restaurant industry in particular."

Jean Niebauer, director of the Office of Human Rights, said she was "pleased" with the court's decision and noted it was "consistent with those of this office and the commission."

"Members of the Human Rights Commission take their duties under the Alexandria Human Rights Code very seriously," she said.

Amy Freshwater, a Carlson Restaurants spokesperson, said her company was "aware the ruling" and believed "the commission was wrong in [its] initial decision."

She said Carlson Resturants has not yet been made a decision regarding whether it will appeal the decision to a higher court.
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