Court ruling in Kirby case 04/03/07
Fighting for Equal Rights Since 1971
P. O. Box 75265
Washington, D.C. 20013
Tuesday, May 22, 2007
Craig Howell (Gay and Lesbian Activists Alliance)
Mindy A. Daniels, Esq. (Kirby’s attorney)
GLAA Urges District to Settle with EEO Expert Wronged by FEMS
Judge Found Probable Cause Against D.C. Fire Department Top Brass
Washington, DC—The Gay and Lesbian Activists Alliance (GLAA) celebrated an April 3rd Opinion by D.C. Superior Court Judge Geoffrey M. Alprin finding probable cause against D.C. Fire & Emergency Medical Services personnel, including top management. Alprin’s ruling reversed an Office of Human Rights decision and remanded the case. The case was brought by former FEMS EEO Expert/Training Specialist Kenda Kirby and raised issues of a hostile work environment and discrimination based on sex/gender, sexual orientation/gender identity and personal appearance/physical characteristics.
Kirby had been hired to implement the Tyra Hunter Human Diversity Training Series, which was created as part of the 2000 settlement over the wrongful death in 1995 of Tyra Hunter, a transgender woman who died from injuries sustained in an auto-pedestrian accident.
Gay and Lesbian Activists Alliance (GLAA) President Barrett Brick said, “FEMS management willfully blocked the Tyra Hunter Training that they had pledged to conduct. This culture of bias and corruption is absolutely unacceptable. We urge Mayor Fenty to order a just and speedy settlement with Kenda Kirby so that the case does not drag on any further. DC law is clear, as Judge Alprin’s ruling affirms. Emergency responders are paid to serve people from all walks of life in their times of crisis, not indulge in taxpayer-funded discrimination. GLAA is eager to work with new Fire Chief Dennis Rubin to move the Department forward.”
On May 15, 2003, Kirby found printouts in her work mailbox of web-postings containing numerous gender-based derogatory references to Kirby. The postings were later found to have been posted from DC government computers and on agency time. Kirby reported the incident to her chain of command as well as then-FEMS Diversity Management Officer Fredreika Smith, General Counsel Theresa Cusick, and then-Fire Chief Adrian H. Thompson. Although Kirby’s immediate supervisor, Deputy Fire Chief Michael L. Smith initiated an investigation into the incident, he was ordered to stop. Judge Alprin found substantial evidence to support Kirby’s claims against Chief Thompson, Fredreika Smith and Theresa Cusick.
The Opinion states, “Apart from ‘the Watch Desk Forums’ incident and its aftermath, Petitioner cites several other events that demonstrate a hostile work environment.” Among them, Kirby cites blockage by former FEMS Diversity Management Officer Fredreika Smith of resources and procurements necessary for delivery of the Tyra Hunter Training. The court also found that Smith retaliated against Kirby.
Judge Alprin also found probable cause of retaliation against current FEMS General Counsel Theresa Cusick after the complaint was filed at the Office of Human Rights. The court also found that in making a no probable cause determination, “The OHR failed to take into account substantial evidence in the record that attests to the severity and pervasiveness of the harassment to which Petitioner was subjected.”
Moreover, the court found, “The record reflects that this constant stream of hostility manifested itself in a number of ways … The sum total of this evidence supports findings of a history and culture of homophobia and sexism in the D.C. FEMS. This ethos, which characterized Petitioner’s work environment, created impediments to her responsibilities and cover for her colleagues to belittle her.”
Kirby’s attorney, Mindy Daniels, reports that the District had 30 days to appeal the decision and that no appeal was reported. Daniels stated, “It took a long time in coming, but big trees fall slow.” The court ordered OHR to reverse the determination of no probable cause and remanded the case for further proceedings. Kirby expressed appreciation for the support of her family, community and Fire and EMS personnel. “This case sends an important message: No one should be harassed or targeted with crime simply because of who they are, or who they’re perceived to be.” Kirby stated. “I hope the judge’s ruling helps others and I hope the Fire Department can change from the top down.”
GLAA President Brick, in addition to urging a prompt settlement by the city, called on Mayor Fenty and Chief Rubin to renew the District’s commitment to fully resource and implement the Tyra Hunter Human Diversity Training Series. Brick further called for re-authorization and support of the Lesbian, Gay, Bisexual, Transgender, and Allies-FEMS Advisory Committee with oversight of the Tyra Hunter Training. Brick stated that all D.C. government agencies should implement high quality cultural competency training.
The Gay and Lesbian Activists Alliance of Washington, DC, is a local, all-volunteer, non-partisan, non-profit political organization, founded in 1971 to advance the equal rights of gay men and lesbians in Washington, DC. GLAA is the nation's oldest continuously active gay and lesbian civil rights organization. More information is available at http://www.glaa.org