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McCaskill’s lawsuit tossed

Timothy Kincaid

May 6th, 2014


Before there was controversy around Mozilla’s appointment of Brendan Eich to the position of CEO, there was Angela McCaskill. She too found controversy with her name attached to a public campaign to take away same-sex marriage rights, Maryland’s Question 6.

In some ways the situations were similar.

Like Eich, McCaskill held a high-level position at a well-known organization. She too refused to specifically state her personal views. And both had associates and underlings who were offended by their action.

But there were also differences.

McCaskill’s position as Chief Diversity Officer at Gallaudet, a Washington, D.C. university for deaf and hard of hearing students, required that she work as an advocate for gay students. She did not give to the campaign – that we know of – but publicly signed a petition to bring the right to marry to a vote after a fiery sermon from her pastor denouncing same-sex marriage. And while Eich resigned, McCaskell was put on a paid suspension before being eventually reinstated (McCaskell’s attorney insists that she was demoted and that she has less access to the Dean.)

There was also one more significant difference. The organizers of the campaign for legal same-sex marriage, along with the Governor and other supporters, called for Gallaudet to reinstate McCaskill and insisted that her support of the vote was a free speech issue.

We strongly disagree with the decision to put the chief diversity officer on leave and hope she is reinstated immediately,” Levin said in his statement. “Everyone is entitled to free speech and to their own opinion about Question 6, which is about treating everyone fairly and equally under the law.”

Here at Box Turtle Bulletin, Jim Burroway denounced the school’s action and hoped for resolution.

Gallaudet students and faculty have a right to ask McCaskill some very hard questions. McCaskill owes them, as their Diversity Officer, honest answers and probably an apology, depending on her explanations. What she did deserves scrutiny. But an undeniable and fundamental feature of anything resembling diversity, it seems to me, must include dialogue and conversation, especially when these situations arise in an academic setting and especially in McCaskill’s case where she has established a strong track record in supporting the campus’s LGBT population. Hurwitz’s rash action has clumsily blocked all of that.

I agreed in principle with Jim that McCaskill had a right to her political opinions, but felt that the school may have been judicious in creating a cooling off period.

I think it is in the best interest of Gallaudet – and gay students, and Dr. McCaskill – that she relinquish diversity duties until after the election and things cool off and that her path forward be determined at that time. If marriage equality passes she will have an excellent pathway to putting this behind her. If not, it may be more difficult to regain the trust of gay students who will feel that society has chosen yet another realm in which to reject, deny, and alienate them and may be less ready to trust someone who played a part in making that happen.

McCaskill certainly didn’t contribute to any cooling off. She held a press conference denouncing her employer as being intolerant and allowed her story to be used as an attack ad on supporters of equality (her attorney said she’d rather the ad not run but she did not denounce it or criticize those who ran it).

As time went on and McCaskill became ever more the victim (never, to my knowledge, acknowledging that the supporters of same-sex marriage had come to her defense), I became concerned whether she had either the capacity or the will to fulfill her tasks as advocate for gay students.

And, after her reinstatement in January 2013, it seems that she made little to no effort to address the concerns of gay students at Gallaudet.

In March she slipped into the back of an LGBT event at the school, leaving students feeling dismayed and awkward. (deafqueer)

“I don’t understand why she came,” one Gallaudet student told Planet DeafQueer. “There has been no apology and no dialogue. Does she think we’re just going to forget and move on?”

CNAAnother student told Planet DeafQueer that he was pissed off. “She shouldn’t have been there,” he said. “Not until she makes amends. I felt like she was invading my space.”

She followed the meeting with a letter to the school in which she phrased the situation thusly:

In late October, I exercised my right to sign a petition which resulted in a wide range of feelings, concerns, and reactions across campus.

The letter did not speak at all about or to the gay Gallaudet students, causing students to express more dismay.

I don’t know much of her efforts since that time of reconciliation. None have been reported. I hope that either Dr. McCaskill steps up to this task or that alternate support has been established for them in the department, as reasons remain to question her devotion to their advocacy.

Though she was reinstated to her position, McCaskill sued the school for a gamut of discrimination claims, including discrimination based on race, religion, sexual orientation, marital status and political affiliation. She also sued for defamation and negligent hiring.

In addition, she sued the coworker who discovered her name on the petition, and the coworker’s partner, saying that they criticized her religion, defamed her as “anti-gay” and that consequently the school “intentionally or negligently caused her emotional distress.”

Now the judge has tossed out McCaskill’s case. Well, to the extent she made one. (Courthouse News)

U.S. District Judge James Boasberg dismissed McCaskill’s complaint in its entirety for failure to state a claim.

“It is difficult to make out precisely what protected activity plaintiff thinks prompted her suspension and demotion,” the April 14 ruling states. “In her complaint, she alleges that defendant violated the [District of Columbia Human Rights Act] by retaliating against her ‘on account of her exercising or enjoying her right to be free from unlawful discrimination.’ At first, one might think plaintiff is claiming that she faced retaliation for complaining that she had been discriminated against. In the next paragraph of her complaint, however, McCaskill alleges that the ‘protected activity’ in which she was engaged was ‘signing [the] legislative initiative’ and ‘expressing herself as a married, heterosexual, African-American, Christian woman/voter, who, through prayer and worship, searched for a means to enlighten Maryland voters on the issue of same-sex marriage in such a way to foster discourse, tolerance, and respect for the democratic process.'”

The judge concluded: “This, quite simply, is not the sort of ‘protected activity’ contemplated by the statute.”

Boasberg also dismissed McCaskill’s claim of a hostile work environment, stating that McCaskill – who said in her complaint that Bienvenu threatened her “with her sign-voice elevated” – “offered no facts to support the contention that such alleged mistreatment was due to her membership in any protected class.”

Her attorney has said that he may refile.

Comments

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Hue-Man
May 6th, 2014 | LINK

I believed she put herself in an untenable position at the time and see nothing to change my position. How could she speak up for diversity when she was speaking up for suppressing the rights of fellow citizens (including students who may have had their rights limited)?

I’ll give her the benefit of the doubt and blame the ridiculous lawsuit on an over-eager attorney. That she allowed it to proceed displays a singular lack of good judgment.

Soren456
May 7th, 2014 | LINK

Gallaudet was protecting itself—a thing that it has a genuine corporate obligation to do.

Were the school ever sued on an issue of discrimination, her testimony as chief enforcer and advocate would be dangerously impeachable.

If she could be shown to be unaware of, or indifferent to the gears and mindsets of discrimination—as signing that petition suggests she is—that fact would add huge and wholly unwelcome difficulty to the school’s defense of itself.

Worse, it would add credibility (perhaps deserved) to a plaintiff’s case.

Having discovered this about McGaskill, Gallaudet had both the right and the obligation to protect itself. And it did.

Lord_Byron
May 7th, 2014 | LINK

Just curious, but when was political affiliation added as a protected class? If it’s not a protected class you can’t sue for discrimination based on that.

Eric Payne
May 7th, 2014 | LINK

Lord_Byron asks:

Just curious, but when was political affiliation added as a protected class? If it’s not a protected class you can’t sue for discrimination based on that.

Political affiliation is not a protected class, per se, but I believe what McCaskill may have been trying to do, ultimately, was to shoe-horn political affiliation into a First Amendment (Freedom of Speech) issue. While affiliation is not protected, speech is… and her political affiliation helps determine what she says and believes, ergo, affiliation is protected. Boas berg was right to toss her case. Allowing it to continue, even if she lost at trial, could have opened the barn doors and upended employment law — courts could have been inundated with claimants who had no “loss;” litigants who had no reassignment of duties, change in title nor change in compensation — but who just felt like, maybe, they’d been punished.

I am troubled, though, by a “diversity officer” who is not cognizant of the circumstances of the minority groups over which she has charge; I’m very uncomfortable with students who now feel intimidated by her presence at their group’s meetings, though her attendance at those meetings is not inappropriate for her “Diversity Officer” position.

Perhaps, for this school year (and, maybe, next year, since this year is pretty much over), when attending a meeting of any of the school’s gay groups, McCaskill should have another administrator/faculty member, of the groups’ choosing, attend with her?

Victor
May 7th, 2014 | LINK

Ignoring for the moment that she is black… If McCaskill had signed onto anything that could be construed as racist or anti-Semitic this entire conversation would not be happening: she would have been canned and not reinstated. It is only when these matters of “exercising their right to free speech” denigrate or call into question the rights of LGBT people that accommodating bigotry is open for discussion. I, for one, am sick of it. Being gay is not an optional political position – it is an immutable part of the human condition. The very idea that anyone – especially another gay person – thinks it is OK to tolerate someone else’s intolerance of them is an outrage. For a black woman, especially, to ignore the role Christianity itself played in this nation’s history of subjugation reveals a disturbing myopia that makes her unfit to serve in any position where the protection of “diversity” weighs in the balance.

Eric Payne
May 7th, 2014 | LINK

Victor,

You are 100% correct! and I am ashamed of myself for falling into a different way of thinking.

If McCaskill had been white, and signed a petition to repeal the Civil Rights Act, or to renew a form of “literacy test” for citizens to qualify to vote, she’d have been unemployed the moment that became known. That she is, herself, a member of two minority groups doesn’t lessen her responsibility; she should, instead, be seen as what she truly is: an officer of the public trust who betrayed that trust for personal reasons, and be treated accordingly.

Bose in St. Peter MN
May 7th, 2014 | LINK

Hampered by not knowing more of the details, it still seems to me that Gallaudet was genuinely patient with its suspension. What is apparent is that an officer was refusing to follow basic policies and procedures which the holder of the office was required to know and carry out. Instead, meetings and private dialog were avoided while press conferences were called.

No employee, much less an executive, gets to presume that they are immune from suspension (with pay, sometimes). Questions that come up, even if later found to be without merit, need to be answered.

I’m glad this was resolved with Dr. McCaskill retaining a senior position. As a diversity professional, she will also stand among her peers like Mark Regnerus among his — a tale of how things can go wrong, and continue to be mismanaged over time.

Regan DuCasse
May 7th, 2014 | LINK

Great comments all. Victor is correct about Galludet having the need to review their legal options regarding an office on their staff.
Especially in the position she had that required trust from all the students they serve.
More importantly, the fact that she’s been reinstated and no further repercussions occurred has NOT been reported by anti gay media.
They keep talking about her case as if she was fired and remains so.
This is an egregious omission of FACTS and introspection when it comes to people whose employment serves a VARIETY of individuals, and there is no room for bias of any of them.

And to Eric’s point, I’m sick to death of exemptions being made when it comes to bias against gay people.
When, if these same sentiments were expressed about Jews, or blacks (exceptional as vulnerable minorities with a legacy of discrimination already), then being fired wouldn’t be seen as wrong.
Bigotry against gay people shouldn’t be demanded as a right.
Let alone treated as ‘simply a matter of free speech’.
We know that there are certain kinds of speech dangerous to the same minorities over and over again.
The consequences of which betray things that are unacceptable anywhere else.

The Lauderdale
May 7th, 2014 | LINK

“She followed the meeting with a letter to the school in which she phrased the situation thusly:
‘In late October, I exercised my right to sign a petition which resulted in a wide range of feelings, concerns, and reactions across campus.’
The letter did not speak at all about or to the gay Gallaudet students, causing students to express more dismay.
I don’t know much of her efforts since that time of reconciliation. None have been reported.”

I looked at that letter (http://planet.deafqueer.com/mccaskill-addresses-gallaudet-campus-community/), and she said there were to be three meetings for discussion in March, including one with LGBTQ students. I wonder how they went down. Can’t really find any kind of followup.

Jay
May 7th, 2014 | LINK

Have the BTB boys rushed to sign the petition on her behalf? She just signed a petition. As far as I know, she didn’t donate $1000 to deny Marylanders the right to marry.

NancyP
May 8th, 2014 | LINK

The fact that she is suing a co-worker – and the co-worker’s partner (!) – for seeing her name on a public petition is pretty ridiculous. She has created her own “hostile work environment”.

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