In a little noticed development, a federal judge in D.C. last October dismissed a lawsuit accusing the Washington Teachers’ Union of firing a gay man because of his sexual orientation. The dismissal came at the request of the gay man’s lawyer.
The lawyer for gay Upper Marlboro, Md., resident Barry Hobson, 36, then refiled the lawsuit one month later in D.C. Superior Court, where it’s currently pending.
Hobson’s lawyer, Brian Markovitz, filed his motion asking for dismissal of the case in federal court “without prejudice” after lawyers representing the union filed their own motion seeking dismissal with prejudice, an action that would have permanently killed the lawsuit.
The motion filed by the union’s lawyers called for dismissal, among other things, on grounds that the lawsuit was incorrectly filed in the U.S. District Court for the District of Columbia, which the lawyers said does not have proper “subject-matter jurisdiction” for cases such Hobson’s.
Rather than challenge the union’s motion, Markovitz filed his own “voluntary” dismissal motion informing U.S. District Court Judge Rosemary M. Collyer his intent was to enable Hobson to “refile the action in a court of competent jurisdiction.”
Court records show that on Oct. 31 Collyer granted Markovitz’s motion and denied the WTU motion calling for dismissal with prejudice, saying the latter motion was “moot.”
Similar to the first lawsuit filed in federal court, Hobson’s refiled lawsuit in D.C. Superior Court charges that Hobson was subjected to unfair and discriminatory treatment and harassment by the union’s then-chief of staff, Dorothy Egbufor. It says Egbufor served as Hobson’s immediate supervisor shortly after he was hired as a receptionist and office assistant on Jan. 15, 2017.
In addition to the union itself and Egbufor, the lawsuit names as a defendant WTU President Elizabeth Davis. The WTU represents around 5,000 D.C. public school teachers.
The lawsuit drew attention among some labor and LGBT activists because the WTU is an affiliated member — Local 6 — of the American Federation of Teachers, a national teacher’s union headed by Randi Weingarten, an out lesbian and outspoken supporter of LGBT rights.
Weingarten has not responded to a request by the Washington Blade for comment on the Hobson lawsuit.
At the time Hobson filed his lawsuit in federal court last September, Davis issued a statement in response to a request by the Blade, which called Hobson’s allegations “outrageous and totally without merit.”
She said the union would respond to the specifics of Hobson’s allegations in its court filings, but added, “the Washington Teachers’ Union has always been, and continues to be strongly committed to treating all individuals equally regardless of their sexual orientation.”
In addition to the claim in its Oct. 10 motion to dismiss the lawsuit with prejudice on grounds that it had been filed in the wrong court, attorneys for the WTU argued the case should be dismissed on a number of technical grounds. Among them, it said, Hobson filed several complaints against the union with the D.C. Office of Human Rights that are inconsistent with required deadlines for making claims in his lawsuit.
Hobson filed his OHR complaints before retaining a lawyer to assist him with his lawsuit. As required under D.C. law, he withdrew his OHR complaints so that he could file his lawsuit.
The lawsuit includes as evidence that Hobson faced discriminatory action by the union photocopies of two internal emails shown to have been written by chief of staff Egbufor and sent to WTU President Davis proposing that the WTU deny Hobson full employee health insurance benefits.
“We should confer about allowing Barry to take advantage of WTU’s insurance benefits since he confirmed he engages in same-sex intimacy,” Egbufor states in one of the emails dated Feb. 15, 2017. “Never in WTU’s past have we allowed any individual to participate in our group policy ‘openly gay’ and I don’t think this should be an exception,” Egbufor purportedly said in the email.
“Market data shows a substantial premium/rate increase when allowing the LGBT community to participate in employer sponsored plans for various reasons,” Egbufor continued in her email. “AIDS, HIV and STD statistics are great pricing factors when considering this community and would be a detriment to our regular employees with significant rate increase …” the email said.
At the time the lawsuit was filed in federal court Markowitz disputed Egbufor’s claims that LGBT employees automatically result in higher insurance rates. He said denying an employee access to health benefits is a clear violation of the D.C. Human Rights Act, which bans discrimination based on sexual orientation among other categories.
Court records show that on Oct. 9, Egbufor filed her own “answer” to Hobson’s lawsuit filed in federal court. Her response is listed as having been filed “pro se,” which means she is representing herself without a lawyer.
Her response denies Hobson’s allegations against her. It further states she met Hobson at the time he applied for his job at the WTU when she interviewed him for the job. According to her court filing, Hobson disclosed to her that he was engaged to be married to his male partner and that he is gay.
“Even after receiving this this unrequested information from the Plaintiff, Barry Hobson, I congratulated him and continued with my recommendation to the Washington Teachers’ Union (WTU) Executive Board to hire the Plaintiff as the receptionist/office assistant,” Egbufor states in her court filing.
She further states that she recommended that Hobson be paid $10,000 more in salary than the salary originally offered him.
The lawsuit says Egbufor acted as if she first learned that Hobson was gay when she called him to ask who a person named Timothy was that Hobson listed on his paperwork for health benefits after he was hired and on the job.
“During the call, Defendant Egbufor then asked, ‘Exactly who is he to you?’” the lawsuit states. “Plaintiff responded, ‘my fiancé.’ In response, Defendant Egbufor said in a tone of utter disgust and in a raised, malicious voice, ‘Your fiancé?! Ok Barry, goodbye,’” the lawsuit quotes her as saying, adding that she abruptly ended the conversation and hung up.
The lawsuit says that following a series of additional actions and comments hostile toward Hobson by Egbufor, the WTU’s board in response to a recommendation by Egbufor voted “on or about” April 1, 2017, to terminate Hobson’s employment at the WTU.
“Upon information and belief, Defendant Davis, as a voting member of Defendant WTU’s Board, voted to terminate Plaintiff with full knowledge that he had filed a charge of discrimination with the D.C. Office of Human Rights, his prior complaints of discrimination, and having the discriminatory emails from Defendant Egbufor,” the lawsuit says.
Markowitz this week said he prefers not to comment further on the specifics of the case at this time, including why he initially filed the case in federal court.
“We’re actively pursuing all of Mr. Hobson’s options,” he said. “We hope that at some point justice will be served.”
Court observers say that under federal law, filing a case in a state or D.C. Superior Court seeking damages for a client who lives in another state from the state where the party being sued is located, limits the monetary damages a lawsuit can obtain to $75,000. Hobson’s attorneys may have initially selected to file the case in federal court so that he could seek damages greater than $75,000.
D.C. attorneys Lee Jackson and Daniel Rosenthal, who are representing the WTU and Davis, didn’t respond this week to the Blade’s request for comment.
Records from the D.C. Superior Court docket show that a scheduling conference among the lawyers and judge was scheduled for March 1.