Three years ago Melissa Zarda sat in one of the front rows of a courtroom, a few feet away from a jury and a judge and attorneys on opposite sides of an anti-gay employment discrimination case.
From the stand she heard the words of her brother Don, explaining the events that led to him being fired from his job as a skydiving instructor on Long Island in New York. Shortly before, he had told a customer that he was gay, and when the customer complained to his boss, he was reprimanded for sharing “personal information” about his “escapades” – a homophobic distillation of an entire sexual orientation into behavior the boss portrayed negatively.
Melissa listened intently – but in many ways, it was a challenging ordeal.
While she was listening to her brother’s words, it wasn’t her brother himself delivering the testimony. Don had died the year before, unable to see his own employment discrimination case to its conclusion, unable to advocate for justice on his own behalf.
The person delivering the testimony was a third-party surrogate instructed to deliver statements from Don’s deposition, recorded years before, without emotion or personality.
“I wanted to be there for my brother, to be strong, and to show the jury that many people cared about Don – but it was hard” Melissa said about listening to the testimony. “It was so uncomfortable watching the jury process everything, especially the slanted things that the defense was saying. And hearing my brother’s words read by someone else – that was pretty tough.”
“It reminded you the entire time that he wasn’t there – that the whole reason that we had to have someone else read it was because he wasn’t there to do it himself.”
Ultimately, the jury ruled against Don. The anti-gay discrimination was upheld.
“It reminded you the entire time that he wasn’t there – that the whole reason that we had to have someone else read it was because he wasn’t there to do it himself.” – Melissa Zarda
Now the case is being considered by the U.S. Court of Appeals for the 2nd Circuit, which will hear oral argument in the case, Zarda v. Altitude Express, Inc., on September 26. The court, which will hear the case en banc (before every judge on the court, a very rare occasion), could become the second federal appellate court this year to recognize that Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on sex, also prohibits discrimination based on sexual orientation.
Melissa is looking forward to the argument but said her brother would have been surprised to see the attention his case has received. In July the Trump Administration’s Department of Justice filed a “friend-of-the-court” brief in the case, with no official prompting from the court. In the brief, the Department of Justice urged the 2nd Circuit to rule against employment protections for gay, lesbian, and bisexual people.
Now, Melissa – along with Don’s friend and former partner Bill Moore, who are co-executors of Don’s estate, and their attorney Gregory Antollino – are fighting for a ruling to benefit Americans across the 2nd Circuit, vindicate Don’s years of anguish over the discrimination he faced, and send a message that no one should face discrimination because of who they are.
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Melissa grew up with her brother Don in Kansas City, Missouri, alongside two other siblings and under the care of their mother.
“We were the closest in age, Donnie and me,” Melissa said, laughing that “He would be mad if everyone knew we called him Donnie. We fought like cats and dogs, like all little kids do at that age.”
Don was seven years older than Melissa, and in many ways she looked up to and admired him. “We were pretty tight – he was a protector, and one of the smartest people I’ve ever known. And I’m not just saying that because he’s my brother.”
Don came out as gay to Melissa and her family when he was a little older, in his late 20s. The family welcomed him with open arms, and while Don was often away from his family geographically, he always had them close at heart.
Melissa lives in Kansas City, not far from where she grew up. She works as a web and graphic designer and is involved in the local animal welfare community, volunteering for many nonprofit organizations in the area.
She has been married to her husband for just over ten years now. At the wedding, her brother Don walked her down the aisle.
“Our dad passed away in 1982, so Don was the next best person to walk me down the aisle,” Melissa said. “He was really proud of me, and I think he was honored that I asked him to give me away. I remember that he looked absolutely dashing that day.”
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Don enjoyed bringing the family together around skydiving – and every time he returned from one of his adventures, he showed his siblings and mom the latest images and videos he had taken – “crazy stuff,” Melissa called it. “He was so into skydiving.”
“One of my favorite memories was when he surprised my mom with a jump,” Melissa remembered. “I told her we were going shopping, but instead drove her to the airport. Don met us there with a videocamera in hand so he could capture the whole thing, and he took her on a tandem jump. We got to ride up with them in the plane and watch them exit. He really liked sharing his passion with us.”
Anyone who knew Don understood how deeply he cared about skydiving and how seriously he took his work, Melissa explained. She’s happy that she got a chance to see him fall in love with the work.
“I remember the night before his first jump, and he was terrified,” she said. “And then right after the jump, he was hooked. He went from being terrified to just changing as a person, becoming so into this. He wouldn’t talk about anything else – being in the air, skydiving, flying, getting his pilot’s license, airplanes. He even got his BS degree from an aeronautical university. Flying was absolutely everything to him.”
Shortly after his first jump, Don began to focus on skydiving almost completely. He got every certification he could get and began packing chutes for jumps, learning how to be a tandem master, and building each experience on top of the other.
“He was such an extreme perfectionist – everything was perfect, everything he worked on in all aspects of his life,” Melissa said. “The chutes were packed perfectly, the parachutes were stored perfectly, and he was by the book on everything. He was definitely who you would want to jump with if you were nervous or afraid. He could do it in his sleep.”
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The last time Melissa saw Don was in Dallas, when she flew down to help Don celebrate the birthday of Bill Moore, his longtime friend and former partner. It was a big event, with all of Bill and Don’s friends there to celebrate, and Melissa was thrilled to meet so many of them.
“It was such a wonderful night, and I’m so grateful I got to spend that time with him,” Melissa said. “Don was so nice, doting on me because I was at this big party where I didn’t know anyone else, and he was very careful to make sure I wasn’t alone and that I had people to talk to. We had so much fun that we went to sleep really late and we both overslept – I actually almost missed my flight.”
Melissa was glad that Don and Bill were in each other’s lives. “I loved seeing Don with Bill,” Melissa said. “When I first met Bill, I immediately adored him – he was like another brother. I liked seeing Donnie so happy and comfortable with being himself.”
A few months later, in October 2014, while she packing up her car to head out of town for the weekend, Melissa’s phone rang. She looked down and saw Bill’s number, and she immediately knew something was wrong.
“I knew if Bill was calling me out of the blue early on a Saturday morning, that it would be terrible news – that something bad had happened to Donnie,” she said.
The day before, while attempting a BASE wing suit jump in Switzerland, her brother had an accident and died on impact.
Melissa’s mind raced. “I just remember crying and trying to make sense of it all. I was trying to think about how I was going to tell Mom. And I realized at that moment that I needed to call my sister, and that she was my only sibling left.”
Melissa and her family planned a memorial service for later in the month in Kansas City, and Bill planned a second service in Dallas. Friends from around the world poured in their condolences. A memorial page on Facebook helped all of Don’s friends, many who lived in other countries, mourn.
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Melissa was named co-executor of Don’s will, alongside Bill. One of the open questions was what to do with Don’s employment discrimination case, languishing in court in the time before a proposed trial.
“I had no question that I wanted to help and continue the case,” Melissa said. “This case was so important to Don.”
Together with Bill, she worked with Don’s attorney, Greg Antollino, to file paperwork and save the case, with the estate taking over in Don’s place. And while a jury ruled against Don in 2015 and a panel of the 2nd Circuit Court of Appeals ruled against him in 2017, the full membership of the 2nd Circuit agreed to hear the case earlier this summer. Finally the 2nd Circuit is allowing the opportunity to revisit its long outdated precedent on whether Title VII covers sexual orientation discrimination. The appellate court stands to finally overturn an anti-gay precedent set in 2000, before same-sex couples had the freedom to marry in any state.
“Fair is fair – and that’s why Don was so upset about being fired just for his sexual orientation. To right a wrong would have meant the world to him.” – Melissa Zarda
“We talked about how it was just so ludicrous, so ridiculous that this happened to him,” Melissa said, recalling her conversations with Don while he was alive.
“When Donnie was challenged with something unfair, he would fight hard against it,” she said. “He would call and demand justice, even if it was something as stupid as making sure his cable bill was accurate. If something wasn’t fair, it pissed him off – and he really felt that he was unfairly fired. Toward the end of his life, it was so clear the toll that this ordeal had taken on him. It was so evident.”
Melissa’s goals for the case are clear – “I want the Civil Rights Act of 1964 to include gay people. That law was meant to prevent discrimination – period. I couldn’t even believe it that LGBT people were not protected at the federal level – I was blown away. I just assumed that our country already afforded these basic protections to people.”
“Continuing this case was the only way I could honor my brother,” Melissa said. “It was so important to him and it would have meant everything to him. Fair is fair – and that’s why Don was so upset about being fired just for his sexual orientation. He wanted everything to be just – and that sounds obvious, but it’s true. To right a wrong would have meant the world to him.”