Judge Yeakel: Hyatt Lawsuit Can Proceed

Judge okays wrongful termination lawsuit against TWDB

Diane Hyatt
Diane Hyatt (Photo by Jana Birchum)

On May 13, in a tentative victory for free speech rights, U.S. District Judge Lee Yeakel rejected a Texas Water Develop­ment Board effort to quash a wrongful termination lawsuit. Yeakel ruled that former agency coordinator Diane Hyatt can pursue her suit against the administrators who fired her – allegedly for Working While Democrat.

Hyatt was fired two years ago (May 11, 2012), after six years with strong performance evaluations at the TWDB for her work as coordinator of the state's revolving fund that provides financing for water projects. She was dismissed a day after her name appeared in an Austin American-States­man story about campaign finance "bundling" in the 2012 Austin mayor's race. Hyatt had bundled contributions for candidate Brigid Shea; the story quoted her in support of Shea, and noted in passing her position at the TWDB. Although a supervisor had not objected to Hyatt talking to a reporter about the campaign, the next day she was called in and informed that she had violated the agency's ethics policy by "engaging in political activity on state time or utilizing state resources," and would be terminated (without the option of resigning).

Hyatt's bosses had searched her computer and found a few incidental emails concerning her fundraising efforts, and used those to justify her dismissal. However, a subsequent open-records search, reports her attorney Derek Howard, turned up many emails with political content circulated by "approximately 20" TWDB employees, all of them either promoting Repub­lican causes or disparaging Democrats – including joking about assassinating President Barack Obama or disseminating racist jokes. One such email between employees reads: "Give a man a fish and he eats for a day. Give the man a welfare check, a forty ounce malt liquor, a crack pipe and some Air Jordans and he votes Democrat for a lifetime." (See "GOP Politics Only at the State Water Board," Newsdesk, Dec. 18, 2012.)

Following her dismissal, Hyatt told the Chronicle, "This violation of my civil rights shows that no matter how diligent one is at their job, the agency can arbitrarily remove us on a pretext. Hundreds of other employee emails were political, many of them [sent by] managers. I was singled out for being in the newspaper."

Howard says there has been no action taken against any of the other employees "who had engaged in types of political speech, all of whom were on the Republican/Tea Party side of the fence," even after open-records searches revealed their emails: "The person who joked about advocating the assassination of Obama," Howard said, "is still working there."

Hyatt's lawsuit, filed against TWDB Exec­utive Administrator Melanie Callahan and Deputy Executive Administrator Lisa Glenn (who wrote the dismissal memo), charges that the emails were used simply as a pretext to dismiss an employee whose political affiliations supervisors found objectionable. The defendants had asked for a summary dismissal of Hyatt's claims, and Yeakel rejected their motion. "It's a big deal," said Howard, "because the state was trying to throw the case out and the judge said, 'No, it's going forward.'"

Yeakel's ruling, while rejecting some of Hyatt's claims, noted that the agency had clearly failed to enforce its ethics policy against other employees, and that the newspaper story was the "triggering event" for Hyatt's firing. He ruled that "a reasonable jury could consider the evidence and find that Glenn and Callahan failed to show that they would have terminated Hyatt's employment in the absence of Hyatt's [constitutionally] protected speech."

The judge directed the parties to propose a schedule for trial by the end of the month.

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Diane HyattTexas Water Development Board, Texas Water Development Board, Derek Howard

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