Monday, July 13, 2015

Kelvin Cochran whines: I 'absolutely' want my job back

Kelvin Cochran
Atlanta's terminated fire chief, Kelvin Cochran, might be a dim bulb but he has been well prepped and he has learned the script. Get ready for another year of whining — and then some. Cochran, you might recall, wrote a self-published book that demeaned women (thous should be subservient to men) and denigrated gays. Cochran originally claimed that he gave the book to two or three people in the department. Turns out that he gave it to about 18 subordinates. He created a disruption in the workplace that caused at least one employee to complain to a city councilman.

Cochran initially claimed that he had the required permission of the city attorney. His attorneys (ADF) have claimed in filings that he did not have, and did not require, permission. Conservative Christians don't have a great track record when it comes to “bearing false witness.”

Last week Cochran told Heritage Foundation staffer, Kelsey Harkness that “tolerance is a two-way street.” So we are to be tolerant of bigots? Ask any Klansman and he will tell you that he is a devout Christian. Cochran also told Harkness:
In the United States of America, Americans should not have to choose between keeping your job and living out your faith. And that’s the position the city of Atlanta actually has taken—that I have to have a choice to live out my faith or to keep my job.
That is the ADF template for religious persecution. It is what we politely call “bullshit.” When the government is an employer the employee must demonstrate a substantial burden to free exercise. Religious freedom does not include the right to distribute an offensive book to subordinates in a city department. Religious freedom does not permit religion to create a disruption in the workplace. Cochran failed to appreciate the religious and sexual diversity of the department that he headed. Imagine ADF's position if Cochran was a Muslim whose commentary on the Qur'an expressed equal oppression of women and deemed Christians to be idolaters and infidel, worthy of death.

Cochran might claim that he wants his job back. The truth is that he is playing the litigation lottery seeking a big payday. ADF is representing him for free meaning that he his adventure comes with little risk to him personally.

Based upon the current scheduling order, discovery concludes at the end of December. Motions for summary judgment are due at the end of January, 2016. If this does go to trial it looks like spring of 2016. It is all quite familiar. One of the things that I learned as a senior executive is that it is never the employee's fault. People whose employment is terminated almost always believe that their (former) employer is to blame. Nevertheless, Cochran faces a huge uphill climb in order to prevail:
  1. There is a motion to dismiss pending. An interesting development is that the judge hearing the matter allowed (over ADF's objections) Lambda Legal to file an amicus brief in support of the motion.
  2. There is no doubt that Cochran was an “at will” employee. As a department head he served at the pleasure of the mayor. Such employees can be summarily terminated without cause.
  3. If he survives the motion to dismiss he must prevail over a motion for summary judgment. There does not seem to be any controversy over the facts. There is a very similar 1997 case (Lumpkin v. Brown) in which the mayor of San Francisco terminated Lumpkin, a Protestant minister from his duties on the civil rights commission due to his numerous statements that homosexuality was an abomination. Lumpkin sued. The Ninth Circuit rejected his claims of religious persecution noting that “when the government acts as an employer, it has certain latitude to protect its operations and policies from being subverted by its own personnel.” 
And guess who pays the tab? The U.S. district court's considerable expenses are financed by federal tax revenues. Obviously, the citizens of Atlanta are funding the city's defense. Even ADF's fees are paid by tax-deductible contributions and ADF pays no sales or use taxes.  Expect the Christian establishment to continue to pimp Cochran as a victim of the Homosexual Agenda. It's a reliable donor magnet. Even National Organization for Marriage jumped on the bandwagon, selling Cochran's book.

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