McCarthy case documents reveal turbulent pretrial process

Dan Bauman
The Journal at Webster University

🔗 Professor punished by judge for delays

As of Tuesday, Oct. 2, Tracey McCarthy is without a lawyer in her lawsuit against Webster University. McCarthy, an associate professor of legal studies at Webster, fired her former attorney, Donnell Smith of Donnell Smith and Associates, on July 10 for his alleged failure to represent her best interest.

Besides Smith, McCarthy has accused Provost Julian Schuster, Webster attorney Travis Kearbey, case mediator Karen Tokarz and others of unprofessionalism and/or abusive behavior.

McCarthy sued the university in August 2011 in St. Louis County Circuit Court on four counts: race discrimination, sex discrimination, disability discrimination and retaliation. According to court documents, McCarthy is an African-American and suffers from cardiopulmonary disorder.

In September 2011, the case was moved to Missouri Eastern Federal District Court. McCarthy alleged damages of at least $25,000 on each count.

In a letter to Kearbey, McCarthy alleged Webster representatives had used the threat of employment termination and other methods in an attempt to force McCarthy to agree to a settlement and reach a case dismissal. McCarthy claimed Schuster, Tokarz and her own counsel had exercised these threats in some form.

In documents filed Tuesday, Oct. 2, McCarthy said Webster threatened to terminate her for the 2012-2013 academic year if she refused to drop her lawsuit and resign from her position. It is Webster media policy not to comment on cases in litigation.

Furthermore, McCarthy accused Tokarz of poor conduct during the mediation process and asked her to withdraw from the role. In a letter to Tokarz, McCarthy listed 17 alleged instances of “patently objectionable” behavior.

In her letter to Tokarz sent by email, McCarthy wrote: “You were not, however, selected (as mediator) to terrorize, scream, threaten, badger, impair, legally extort or cause detriment to me as an individual or to my case against Webster University. Your actions during the course of what you termed mediation were inexcusable and beyond logical comprehension.”

When Tokarz received McCarthy’s email, it appears she believed it to have been forwarded from Kearbey. Tokarz wrote in her response email, addressed to Kearbey, that none of the allegations cited in McCarthy’s email had occurred. Tokarz said she and Smith had urged McCarthy to respond to the university’s offer.

“I am happy to withdraw, and it seems that I should given her misgivings, but that will surely prolong matters — which may well be her goal,” wrote Tokarz in her email addressed to Kearbey.

Tokarz’s response email was sent to McCarthy instead. Tokarz apologized and said she had thought McCarthy’s letter had been forwarded from Kearbey.

Tokarz reported to Judge Charles Shaw that no settlement had been reached. She also reported that McCarthy had requested to reschedule mediation with a new mediator.

In a letter to Smith, McCarthy said Smith had not represented her best interest during the mediation process with Webster. Furthermore, McCarthy said Smith had repeatedly expressed a desire to withdraw if the case was not settled before trial.

Shaw granted Smith’s dismissal on July 10, 2012. Shaw also granted McCarthy leave to obtain a new lawyer. As of Oct. 2, McCarthy is acting as her own legal counsel.

A jury trial has been scheduled for May 5, 2013.

Shaw ordered McCarthy on Thursday, Sept. 27 to provide Webster with documentation of her allegations by Monday, Oct. 8. Shaw also ordered McCarthy to disclose whether she would seek to continue mediation with Webster.