Missouri Gov. Jay Nixon picked Brian May out of a list of three judicial candidates submitted by the 21st Circuit Judicial Commission. May has worked in the Nixon administration for six years. File photo
Missouri Gov. Jay Nixon picked Brian May out of a list of three judicial candidates submitted by the 21st Circuit Judicial Commission. May has worked in the Nixon administration for six years. File photo

Government & Politics

Discrimination case stirs criticism of Missouri Gov. Jay Nixon’s judicial appointment

By Jason Hancock

jhancock@kcstar.com

October 07, 2016 3:29 PM

Matthew Vacca filed a lawsuit in 2012 alleging his supervisors in the Missouri Department of Labor created a hostile work environment to force him out of his job over of his disability.

Vacca, who had served as an administrative law judge since 1992, has a form of muscular dystrophy.

Last year, a jury sided with Vacca, ordering the state to pay him $4 million in actual damages and $3 in punitive damages.

The jury also ordered his supervisor at the time — former deputy director of the Department of Labor Brian May — to personally pay $500,000 in damages to Vacca. The judge lowered that to $5,000, and the entire case is currently on appeal.

Despite last year’s hefty judgment, May was appointed this week by Gov. Jay Nixon to serve as a judge on the 21st Judicial Circuit in St. Louis County.

The decision by Nixon to put a longtime aide on the court is drawing concern from some who question whether May should have gotten the appointment while allegations of disability discrimination are still pending.

Cathy Brown, director of public policy and advocacy for the disability advocacy group Paraquad, said discrimination is a very real barrier to employment for people with disabilities.

“When making political appointments,” Brown said, “any allegation of discrimination based on disability, much less a court ruling, should be considered as seriously as an allegation or ruling of any other crime or misconduct.”

Republican state Rep. Joe Don McGaugh, an attorney from Carrollton who serves as chairman of the House civil and criminal proceedings committee, said the governor should have picked someone else for the open judicial seat.

“There are good people who get accused of things that didn’t happen. That could be the case here,” McGaugh said. “But there are a lot of well-qualified people in the legal profession that could have done this job that don’t have a discrimination judgment against them.”

May, who has served in the Nixon administration for six years, could not be reached for comment.

Asked whether the ongoing discrimination lawsuit factored in to his decision to appoint May, Nixon communication director Scott Holste said the 21st Circuit Judicial Commission submitted three names to the governor for consideration under the Missouri nonpartisan court plan, “and the governor appointed Brian May from among that group.”

Holste then pointed to the governor’s original statement upon May’s appointment, saying May had “many years of experience as an attorney and as a public servant” and “a great depth of knowledge that will serve him well as a circuit judge.”

Some, however, see May’s appointment as part of a pattern in the Nixon administration.

Vacca filed a discrimination complaint with the Missouri Commission on Human Rights in January 2011.

Five months after that complaint was filed, May left the Department of Labor and was appointed director of Nixon’s eastern Missouri office, a job May describes on his LinkedIn resume as representing the governor “in all governmental and political matters” in eastern Missouri.

Gracia Backer, a longtime Democratic lawmaker, filed a lawsuit alleging she was fired from her job in the Missouri Department of Labor because she complained to Nixon’s office that her boss — former Department of Labor Director Larry Rebman — was creating a hostile work environment and discriminating against older female employees.

On the same day Nixon fired Backer, he appointed Rebman to a six-figure job as an administrative law judge in Kansas City.

Two other women — Cindy Guthrie and Rita Terpstra — have also filed lawsuits alleging age discrimination in the Missouri Department of Labor.

The union representing state employees in Missouri called for the resignation of Veterans Commission Director Larry Kay after a Cole County jury this summer sided with former employee Pat Rowe Kerr, who sued alleging discrimination and harassment over her 2009 dismissal.

The state was ordered to pay Kerr $1.3 million in actual damages and nearly $1.6 million in punitive damages.

Nixon appoints members of the Veterans Commission, but he does not appoint its director. Kay already had the job when Nixon took office.

However, American Federation of State, County and Municipal Employees Council 61 President Danny Homan urged Nixon in August to join the call for Kay’s resignation, saying Kay received “a slap on the wrist for firing an employee on the basis of gender and age.”

The union declined to comment on the judicial appointment of May, and Nixon has never spoken publicly about the Veterans Commission lawsuit.

Over the last two years, juries have ordered the state to pay nearly $16 million in damages related to discrimination lawsuits against the executive branch. Those range from disability discrimination claims to allegations of age and gender discrimination and retaliation. Several of those verdicts are on appeal.

Dave Drebes, publisher of the subscription news service Missouri Scout, named May to his regular list of “who won the week” in Missouri politics Friday, noting that the longtime Nixon aide won a plum appointment despite a huge discrimination judgment against him.

“Loyalty,” Drebes wrote, “has its rewards.”

Jason Hancock: 573-634-3565, @J_Hancock

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