October 15, 2018

MULTIMEDIA: McCarthy case sent to state court

Correction: The headline originally read “McCarthy lawsuit sent to Federal Court.” The case is a petition and not a lawsuit and it was sent to state court from federal court.

Webster University associate professor Tracey McCarthy’s case against Webster University was sent back from federal court to the Circuit Court of the City of St. Louis on Aug. 22, 2013. McCarthy is an associate professor in the legal studies department.

McCarthy filed a petition against Webster University on Jan. 10, 2013, in St. Louis City Circuit Court for retaliation, assault, false imprisonment, conspiracy, intentional infliction of emotional distress and negligent infliction of emotional distress.

Judge Charles Shaw stated in his decision that while he would grant the motion to remand the case to state court, the validity of the case was questionable.

“Although the plaintiff’s claims might be dubious and this Court could likely make quick work of defendant Webster’s pending motion to dismiss, this court simply does not have the jurisdiction,” Shaw’s order stated.

On the same day McCarthy filed her petition, a federal judge dismissed her prior suit against the university, citing a failure to release essential documents. The first suit alleged instances of race discrimination, sex discrimination, disability discrimination and retaliation. McCarthy alleged damages of at least $25,000 on each count.

In the latest case, McCarthy alleged that during a federal court-ordered mediation on June 12, 2012, mediator Karen    Tokarz threatened McCarthy on behalf of the university and held McCarthy against her will. This mediation was ordered to deal with the issues brought forth by McCarthy’s first suit against the university.

The case was brought from state court to federal court on April 12, 2013 by request of the university.

McCarthy made a request on May 13, 2013 to have the case brought back down to state court on the basis that the case’s subject matter did not fall under federal jurisdiction.

Travis Kearby, an attorney for the university, stated Tokarz’s role as a mediator means she should be considered a federal officer, therefore putting the second case under federal jurisdiction.

A mediator in a court-ordered mediation is considered a federal officer under the federal officer removal statute.

“The statute ‘clearly contemplates that a private actor can claim its protection when it is threatened with liability for actions taken on behalf of a federal officer,’” Kearby said in his statement.

This statute gives the federal officer protection for their actions while serving as a mediator under federal jurisdiction. Kearby opposed the remand, arguing that the officer’s federal status was grounds to keep the case in federal court.

Shaw wrote in his decision to move the case to state court “although Professor Tokarz might be able to argue that she was acting under a federal officer, Webster University, a party to the underlying federal mediation, cannot.”

Shaw also called into question whether Tokarz can be considered a federal officer in this case. McCarthy alleged that Tokarz was actually paid to represent the best interest of the university and claims that she was an “agent” of the university.

Shaw said in his statement that Tokarz cannot be both an agent for the university and a federal officer protected under the federal officer removal statute.

“(The university) cannot argue that Professor Tokarz is a federal officer, being sued for actions under the color of such office, and that she is also Webster University’s agent such that Webster can avail itself of federal officer removal statute,” Shaw stated in his order.

The university’s motion to dismiss the case in its entirety will carry over to state court with this decision. A jury trial is set for May 5, 2014.

Judge Shaw Remand Order by Dan Bauman

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