Causation vs. Correlation: Kimmel vs. Gallaudet
By Shane Feldman on Tue 12 Jun 2007 |
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Dr. Karen L. Kimmel, the Dean of the College of Liberal Arts, Sciences, and Technologies since June 2004 and a fully tenured Associate Professor in the Department of English at Gallaudet University has sued Gallaudet for employment discrimination, based on a variety of reasons, including “not deaf enough”. The complaint defines “Deaf Culture” as those who value “…only native ASL signers, particularly Deaf offspring of Deaf parents…” Kimmel claims that she is not considered part of “Deaf Culture” because her family, which consists of some deaf members, does not use sign language. The lawsuit goes on to rehash what we already know about the Gallaudet protest and its aftermath.
Although most have probably heard about this lawsuit, there is little discussion on Gallaudet’s insightful motion to dismiss. They pounce on perceived flaws in Kimmel’s suit. One problem with Kimmel’s lawsuit, Gallaudet argues, is a common logical fallacy known as post hoc, ergo propter hoc, which translated means, “After this, therefore because of this.” In other words, correlation does not equal causation. It would be incorrect to state that if event A happened before event D, then A was the cause of D. Just because events A and D are close in time or space does not mean that one has caused the other. An actual example is:
Roosters crow just before the sun rises.
Therefore, roosters crowing cause the sun to rise.
Other weaknesses in Kimmel’s suit include the inability to demonstrate discrimination because of her disability. Gallaudet argues that “not Deaf enough” should not be defined as a disability, but more rather be used as a descriptor of a cultural and social conflict. As for Kimmel’s defense that she was protecting minority students, Gallaudet contends that under law, Kimmel cannot claim discrimination due to her opposition to the implementation of a non-discriminatory policy. Gallaudet also contests the idea that Kimmel’s support for Dr. Jane Fernandes and minority students are “protected” by the law. Finally, Gallaudet states that there is no contract in place with Kimmel so they are not obligated to provide a specific percentage merit increase which Kimmel claims was “normally” 6%.
I have many questions, here are a few of them: What evidence does Kimmel have that she was treated unfairly when given a 3% rather than 6% merit increase? Was this merit increase disproportionate with other employees at Gallaudet? Does not being included in several meetings constitute a hostile work environment? Which specific individuals are discriminating Kimmel? Hopefully we will find out should this case proceed to trial.
One wonders if Dr. Fernandes could have a stronger case using a similar legal strategy in Kimmel’s suit. Where Kimmel may have difficulty proving casualty, there is no question that Fernandes was removed as a result of the Gallaudet protest. If Dr. Fernandes filed a lawsuit against Gallaudet would she have been victorious? If so, how would the outcome have changed Gallaudet?
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44 Comments
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Given the financial straits the protest placed Gallaudet in, and how many programs are suffering funding freezes or cuts, it should come as no surprise to Kimmel that raises might not be as high this year as they used to be. Unless she can prove she was singled out to be denied her usual raise, then this point is silly.
I also agree freedom of speech in employment settings is a different animal from freedom outside the workplace. You represent your employer and do not have the same broad brush permissions as you do at home.
I wonder if this is Fernandes’s testing of the waters. She and Kimmel are good pals, and maybe she is seeing how this one plays out to fine tune her own forthcoming suit (not that I blame her one iota! Fernandes got screwed.)
I’m fairly sure that JKF got a nice severance package along with her dismissal. After all she gave up a position to become president designate.
She still has tenure in the ASL/deaf studies dept. (despite never having taught an actual university course until Freshman Year Seminar last fall). Her returning as a professor would make for a fascinating scenario.
Agreed!! She’s a fine woman, but to return to a place that has made it clear (rightly or wrongly) that you’re not wanted takes balls…and a huge dose of denial. Should be interesting to watch how that all plays out. Maybe a new crop of students will allow the collective memory to fade and give the woman a fighting chance. Then again, maybe career troublemakers who shall not be named will never let the woman alone. See, see…
Wondering why there’s been no talk of Fernandes returning to teach? Wonder if it is just the calm beofe the storm? Wonder if it is a strategy for Kimmel to file just so Fernandes can foresee how her own lawsuit might go.
However, if she did accept a severance package, I assume there is a stipulation that Fernandes cannot sue Gallaudet. Too bad Gallaudet did an oversight as to give the same severance package to Kimmel.
I think Dr. Fernandes may have learned her lesson. Keeping her cards close to her vest leaves less time for people to dig dirt up out of malice and try to destroy her (again) before she’s even set foot on campus. You know how the deaf community is…get a piece of news and somehow it gets all out of context and people get hurt by words flung (or signed) left and right. Smart lady to keep her plans to herself. Regardless of how “horrible” an administrator people peg her to be, how cold or unethical or what have you, she did not deserve the round kick to the balls she got as a result of the protest. I’m not saying she was an angel. Hell no. She’s pissed me off, too, personally. However, I will always feel the community owes her a serious apology for the antics of a few that could have been reined in to a more respectful and respectable level of dialogue befitting a university and the leaders of tomorrow. Ah…rant over…this blog is not about JKF…so I digress.
Gallaudet had no contract with Kimmel? Then how does employment work there?
Copied and pasted from the motion to dismiss:
The Introduction to the [Gallaudet] Manual explicitly states:
“The Administration and Operations Manual is a resource document; it is in no way a contract of employment and should not be relied upon as such.”
See Exhibit 4 (Manual Introduction). Moreover, in Section 4.32 of the Manual, Gallaudet expressly states: “The University does not have a contract of employment with any of its staff employees.” See Exhibit 5 (Section 4.32 Termination).
As held by the District of Columbia Court of Appeals, such language is “sufficient explicit to preclude the creation of implied contractual obligations as a matter of law.” Boulton, 808 A.2d at 505. Accordingly, plaintiff’s breach of contract claim based on a policy found in the Manual must be dismissed as a matter of law.
Then how does tenure fit into the picture? Is tenure a contract?
Staff employees are entirely apart from the professoriate.
Interesting, that’s something new to me. I thought the position of Dean wouldn’t be staff.
As for the rest of the lawsuit, in my layman’s opinion, Kimmel has a weak case.
If she can prove a pattern of not including her in meetings in the past six months that were vital to her job, then she *might* be able to prove that she was in a hostile work environment. It takes more than that to really convince people, though.
A friend told me, and I believe her, since she’s a working professional, that a 3% increase in salaries is the average nationally. And Kimmel got an increase, instead of none, so I don’t see how that’s discriminatory and hostile.
And the part about the Deaf Culture thing just makes me aghast. She has to prove a pattern of people being hostile to her because of her signing ability and so on. That part, I believe, she will have a very, very difficult time proving, because from what I’ve read, SHE was hostile to people, not the other way around. Not only that, but when you consider who the president of the University is and what he’s done thus far… It’s gonna be an uphill battle for her.
As for Dr. Fernandes - she does have a stronger case, like you said, Shane. But she should’ve filed suit immediately after being fired. I don’t think this is testing the waters for her… It may be proof of the protesters’ complaints that JKF using others to do her dirty work, though.
Unless things have changed very much, from what I understand, JKF had a severance payment of $1 or $2 million. Any halfway competent attorney for Gallaudet would have insisted that she release the university from any and all claims resulting from her termination by the BoT in exchange for that severance payment.
DP writes:
“That part, I believe, she will have a very, very difficult time proving, because from what I’ve read, SHE was hostile to people, not the other way around.”
Should Fernandes file a lawsuit, her case would be as weak as that of Kimmel in that her hostile attitude towards stakeholders was one of two primary reasons for the GFU protest. The other primary reason would also weaken Fernandes’s case in that the risk for GU’s MSA is deeper due to the ineffective leadership of Fernandes from 2000 to 2006.
I don’t think JKF’s case would be as equally weak as Kimmel’s. I do think JKF’s case would be weak, in light of all the findings ever since January. But JKF was forced out because of the protests, and she made unpopular decisions during her tenure as provost, and she did have a good career record.
Where’s Kimmel’s? I haven’t heard about the outstanding things she’s accomplished, versus JKF’s. We know what JKF’s done. She’s done some good things, whether we want to admit it or not.
With Kimmel, in her lawsuit, she doesn’t present her accomplishments, and one major component of her lawsuit is her complaining she only got a 3% increase in her salary. It doesn’t make her look very sympathetic.
JKF knew how to make herself look sympathetic to the public… Kimmel on the other hand, does not.
Interesting. If Dr. Fernandes sued Gallaudet and the case went to trial, would a hearing jury be sympathetic to her case and the “not Deaf enough” argument? I think the public reaction to the Gallaudet protests could indicate how the jury reacts. Then again, as Gallaudet argues, Kimmel’s claim may not hold water under the the law.
Jane Fernandes probably would have had a stronger case than KK. She would have that famous picture of the sign saying “she’s not deaf enough” (don’t forget the other one “she doesn’t say hi”), but more importantly the Board’s initial arguments that she was best qualified. The Board repeatly said she was best qualified for the job and that is basically the defense an employer uses in an EEO complaint. For the Board to turn around, say oops, and put a male in the job (note that Davila doesn’t call himself interim any more) wouldn’t go across too well after THEY called her the best qualified - for months. No wonder they settled.
MJ,
I don’t think there was a poster that said “she’s not deaf enough”. The “hi” poster is definitely well-documented though.
Somewhere there was a poster that said that - and people made the comments to the press - even though they tried to retract/deny it when they realized it didn’t come across very well. Nonetheless she could probably prevail on sex discrimination. The pictures would probably just paint a sympathetic scenario for her.
Shane, I think that a jury would be sympathetic to her ‘Not Deaf Enough’ argument, but really, you need more than just that to have a jury vote in your favor. Because it’s both about your perception of the accuser and accused, and what the law says.
Where’s the edit button where I need it? :P
To clarify the 2nd sentence of my comment right above: The jury has to follow the law, but it’s always helpful to present yourself sympathetically to the jury because there’s often mitigating circumstances that might not be in your favor. So when you’re a sympathetic figure, it helps in that regard.
There was no poster, “not Deaf enough.” Rather, it was in The Washington Post from where the world first heard “not Deaf enough.” A reporter asked JKF
why GFU protesters protested.
To which she replied, “not Deaf enough.” It took me several
months before I came into full realisation that JKF’s reply
was purely and simply a
Freudian slip.
Why did I consider it as a
Freudian slip? There was a contradiction between what
JKF said to the public in
2006 and 1983 (23 years ago).
She said to the public in
2006 that she was BORN deaf
whereas she said below a poem,
“Pink Flamingo,” published in
“Gallaudet Today” (Spring
1983, p. 33) that she was
born HEARING and lost her
hearing at the age of FOUR.
Why JKF changed her version about her hearing status is beyond
my comprehension. Defensive
mechanism, probably.
Shane, where is the original source links? I”m curious about Gallaudet’s arguement to dismiss the motion.
The link to the lawsuit:
http://dockets.justia.com/dock.....id-125382/
I hyperlinked the word “sue” in my blog, but I can see how it would be overlooked.
But don’t you need to log in?
Yes, you need to register for a PACER account (which gives you electronic access to many documents filed in district courts across the states). Their current rate is 8 cents per page.
Shane - thanks for publishing this. I’ve been waiting to see some blog/vlog discussion of the topic. The view around my department, at least, is one of disbelief. $12 million?!? Some have speculated the lawsuit is a way for Kimmel to get leverage to keep her position as Dean of CLAST. She’ll always have tenure in the English department at Gallaudet, so she’s not really out of a job.
$12 million is simply more of a bargaining tool than an actual price. I would suspect that KK would walk away for $1 or $2 million.
However, getting that money in the first place is another thing altogether. From what I have seen, her claims, as others have pointed out, appear to have no legal foundation.
Gallyprof,
The lawsuit is leverage? I would imagine that the work environment becomes *more* hostile towards Kimmel regardless of the outcome of the suit. Why would she want to stick around?
To change things, in her mind? After all, that’s how the blacks won the Civil Rights movement. They gained the support of the whites, and refused to cave in and flee from the racists.
She doesn’t have a case, because she was not qualified to be president in the first place. The results of the Triennial Evaluation that the Faculty Senate gave on her performance was hidden from the Board, and other issues were never brought to the Board’s attention.
It was a puppet board and their original decision to hire Fernandes was invalid on that basis alone.
Fernandes would never in a million years sue Gallaudet, beacuse then all this would come out in the open.
I completely agree with you because Fernandes received poor evaluation from the shared gvernance EVERY year — the record that the BoT had not seen.
Therefore, faculty members had to vote TWICE within
six months: No vote of confidence — the first rate of disapproval was about 66% and the final one was 82% of disapproval.
“She”, I meant Fernandes. She would never have a case against Gallaudet. She was unqualified.
Kimmel’s lawsuit is irrational and frivolous.
Shane - interesting blog! I am with you with many questions in mind. I also agree with some commenters above that KK has a weak case.
After I read the suit letter, the first thing came in my mind was “Selfish”. Many of her claims are unjustified and weak. She had an opportunity in the past to resolve some issues diplomatically.
I also understand that KK’s husband is a lawyer. If so, that explains her motivation even more. I certainly hope Gallaudet will win this case.
I have never met Karen Kimmel, Jane Fernandes, or King Jordan, but I am curious why everyone posting comments on this blog is so anxious to prejudge them. I believe they are decent people who have the right to petition for redress of grievances and who are entitled to the protections in our constitutional system. Until they have had their day in court, would it be too much to ask everyone, Brian Riley in particular, to refrain from setting yourselves up as the Judge, the Jury, and the Executioner? I believe that educated people could exercise a modicum of common sense in this matter.
“… I believe that educated people could exercise a modicum of common sense in this matter…”
Are you saying that KK is not an educated person? (The lawsuit is evidence of a lack of common sense).
Dr. Kimmel is an educated person. Are you?
A lot of educated people lack common sense. :)
A lot of deaf people lack common sense, so what’s your point, Deaf Pundit?
My point is, that a lot of people, regardless of their deafness or not, their educational background, lack common sense. It doesn’t discriminate.
Good point, Jeannette (two nn’s), so we find ourselves in agreement that Dr. Kimmel is entitled to her day in court and that it is not our place to prejudge her.
*chuckles about the name* We agree about the lack of common sense, but we disagree about Kimmel. Sorry!
Bert,
I believe that everybody is entitled to his
opinion. The same is true that everybody is
entitled to agreeing or disagreeing, n’est-ce pas?
Any good attorney would advise you not to prejudge a client in advance of litigation. Otherwise, I have nothing to add to my comment (#84501) above.
I think not only is Gallaudet asking for the suit to be dismissed in its entirety, but that KK pays for the legal fees incurred by Gallaudet.
Bert, life is about making personal judgments. You are confusing the issue about people’s personal lives (and their need and their prerogative to make judgments) with the issue of the functioning of the legal system.
Of course, the legal system should not prejudge a case, but should give it due process under objective procedures and rules. But that has absolutely *nothing* to do with people’s need to make their own personal judgments on what is happening in their lives and around them.
You are making the opposite mistake of what you claim other people are making. It is harmful for the human psyche to turn off all judgment capability when presented with an important issue. We should all make our personal judgments, then wait to see how the legal system processes it.
Kimmel’s past performance does not leave much room for benefit of the doubt, when it comes to people making personal judgments.