| An 18-year veteran of the Texas Office of the Attorney General alleges in a suit against the OAG that she was fired after she complained to the Equal Employment Opportunity Commission that the OAG "gives preference to Christian holidays."
Rhonda Pressley also alleges in her first amended petition in Pressley v. Office of the Texas Attorney General, filed April 10 in the 250th District Court in Austin,that her termination on March 5, 2007, came after she expressed concerns about sex discrimination in a written response to a supervisor's evaluation of her job performance.
Pressley originally named Texas Attorney General Greg Abbott as the defendant in the suit, which she filed on Feb. 13. In his March 4 original answer to the suit, Abbott denied all of Pressley's allegations.
In her April 10 amended petition, Pressley uses the terms "Attorney General" or "defendant" when referring to the OAG.
The cause of action in Pressley's amended petition is "retaliation in violation of the Texas Labor Code." Pressley, who was appellate section chief in the OAG's Child Support Division at the time of her termination, alleges in her petition that the OAG allows employees to take off Good Friday, listed as an "optional holiday" in the Texas Government Code, without requiring them to make up the leave time by working on a state holiday. Pressley, who is Jewish, further alleges in her petition that the OAG allows Jews to take off certain Jewish holidays but requires them to make up the time off by working on another official state holiday or by using annual leave.
In an interview, Pressley contends, "The top lawyer of the state is violating state statute."
Texas Government Code §662.003(c) provides that state employees may take a paid day off for an "optional holiday," which, according to the statute, includes only Rosh Hashana, Yom Kippur or Good Friday. But Government Code §662.006 requires an employee who takes time off for an optional holiday to give up a state holiday during the same fiscal year.
Pressley says in an interview that she would have been happy to work on Good Friday in exchange for being able to take off from work on a Jewish holiday. But Pressley says the OAG treats Good Friday afternoon as if it were a national holiday, closing the office and requiring all employees to leave.
"I don't want my religion to be less respected than Christianity," Pressley says.
Pressley alleges in her petition that on March 5, 2007, the attorney general's office abruptly terminated her without giving her notice that her job was in jeopardy or that her performance was deficient. In fact, Pressley's last performance review six months before her termination indicated her performance met or exceeded expectations, according to the petition.
"The Attorney General's Office gave no reason for the termination," Pressley alleges in the petition.
She alleges that the following events occurred shortly before her termination: On Sept. 6, 2006, Pressley complained in a written response to her August 2006 performance evaluation that Brenda Heinold, then the supervisor in the child support division, showed favoritism to male employees. Neither Heinold nor anyone else at the OAG responded to Pressley's complaint about sex discrimination.
On Oct. 20, 2006, Pressley filed a complaint about the alleged religious discrimination with the EEOC. The EEOC dismissed Pressley's complaint but issued her a notice of her right to sue on the religious discrimination claim in January 2007.
Pressley says in an interview she had voiced concerns to her OAG supervisors about the alleged religious discrimination prior to filing her original complaint with the EEOC.
Robert W. Schmidt, who represents Pressley in the suit, says Pressley never filed a complaint about the alleged sex discrimination with the EEOC. Pressley tried to deal with that issue internally at the OAG, says Schmidt, an attorney at The Crews Law Firm in Austin.
Heinold, now an assistant attorney general in the OAG's legal counseling division, did not return two telephone calls seeking comment before presstime on April 16. Jerry Strickland, spokesman for the OAG, says the office declines to comment on pending litigation.
Pressley alleges in the petition that the OAG illegally terminated her in retaliation for the opposition she expressed to sex discrimination and/or because she complained to the EEOC about religious discrimination.
According to the petition, the alleged conduct violates Texas Labor Code §21.055, which prohibits an employer from retaliating or discriminating against an employee. Among other things, Pressley is seeking compensation for lost wages, lost earning capacity and damages to her reputation. She also is seeking reinstatement.
Pressley says in an interview that she has been unable to find a job since she was terminated. In the amended petition, Pressley — who started working at the AG's office in 1989 — alleges that she was two-and-a-half years away from retirement at the OAG.
Schmidt says, "I think it's an important case that raises issues about religion and also about the ability to talk about discrimination in the workplace."
Pressley was a good, longtime employee who was "walked out the door without notice," Schmidt says. The suit raises the question of why she was terminated, he says.
As alleged in her amended petition, Pressley had not been "written up" or given any notice that her job was in jeopardy before she was terminated.
But in a response to an April 9 open records request made by Texas Lawyer ,the OAG provideda copy of a "request for termination" memo that Heinold wrote on Feb. 21, 2007. In the memo, Heinold wrote that Pressley had violated standards of conduct contained in the OAG's Policies and Procedures Manual, specifically the requirement that employees "shall always treat members of the public and fellow employees with dignity and respect."
As noted in Heinold's termination memo, Pressley had indicated in October 2006 that she and her staff were too busy to develop a trial strategy and a brief for a child support case, but Pressley spent a significant amount of time directing the research for the brief after the case was assigned to another assistant attorney general. Heinold also wrote that Pressley sent a Jan. 26, 2007, e-mail that was "inappropriate, unprofessional and unjustified" to three lawyers at the AG's office who were working on the case. However, the OAG redacted what Pressley wrote in her e-mail.
In an interview, Pressley says Heinold's criticism seemed to be that she was trying to help on a case.
Pressley says her Jan. 26, 2007, e-mail addressed the issue of a citation in a particular paternity case. Referring to her e-mail, Pressley says, "It was very to the point and brief and concise." She denies that her e-mail was critical of the OAG lawyers involved in the case.
But Heinold wrote in the request for termination memo that Pressley's actions were "repeatedly disruptive" to the office. As noted in Heinold's memo, a week or two prior to Jan. 26, 2007, Pressley entered the office of Jessica Perry, who was at the time an assistant attorney general, and "started 'venting' about something in an extremely loud voice and angry tone and banged her fists forcefully on Ms. Perry's desk."
According to a workplace violence incident report filed by Perry on March 5, 2007, the desk-pounding occurred on or about Jan. 21, 2007.
Referring to Pressley, Perry wrote in the report, "She began to bang her fist on my desk. During this conversation, she said something to the effect that she would or wanted to bring an ozzie [an Uzi] to the second floor and shoot up into the floor."
Perry, now an attorney with the Texas Department of Family and Protective Services, declines comment.
Carol Campbell, an assistant attorney general, wrote in a separate incident report, filed March 6, 2007, that she was in Perry's office when Pressley made the comment about the Uzi. Campbell wrote that she had known Pressley for approximately 18 years.
"She vents frequently and has made references to an 'Uzi' on many occasions over these many years. It is an expression, not a threat. I do not consider her to be a physical threat or danger to anyone," Campbell wrote in her report. Campbell did not return a telephone call seeking comment.
Pressley says the incident that Perry and Campbell described in the reports occurred in January 2007, but Perry did not file her report until March 5, 2007, the day Pressley was fired, and Campbell did not file her report until the following day.
With regard to her comment about the Uzi, Pressley says, "It was something half humorous I would say. No one had ever taken it seriously."
Schmidt says Pressley had been making "these admittedly colorful comments" for years. "But they were not objectionable until after she filed her charge of discrimination" with the EEOC, he says.
Pressley says the dates on which the workplace violence incident reports were filed make it clear the reports were "belated, last-minute kinds of justification" for her termination.
In the request for termination memo, Heinold also contended that many OAG field attorneys are reluctant to seek Pressley's advice, because she is "frequently sarcastic, demeaning and highly critical of them and their work."
In an interview, Pressley notes that in the August 2006 performance evaluation, Heinold had given Pressley the highest rating — "exceeds standards" — with regard to how she worked with field attorneys.
A copy of Heinold's evaluation of Pressley — which Schmidt provided to Texas Lawyer — shows that Heinold had rated Pressley's performance as "exceeds standards" or "meets standards" in all categories.
But Heinold noted in her request for termination memo that she had advised Pressley during the performance evaluation that Pressley's appellate section had a morale problem. According to the termination memo, Pressley continued to create and contribute to the morale problem in her section instead of developing a plan to correct it, as Heinold had instructed.
Pressley alleges in an interview that Heinold had caused the morale problems. Pressley also says that she set up a meeting between Heinold and members of the appellate section and left the room so they could speak freely to Heinold.
Heinold further noted in the memo that the OAG postponed Pressley's termination until after it received a notice from the EEOC on Jan. 29, 2007, that the EEOC had found no evidence to support Pressley's religious discrimination allegation.
Schmidt says the EEOC issued a standard "no cause" finding. Such a finding means there is not clear evidence to affirmatively determine there is a violation of law, Schmidt says. But the finding also does not mean there is not a violation of law, he says.
Patrick Maher, chairman of the State Bar of Texas Labor Law and Employment Section, says a plaintiff can have a valid termination claim, even if the plaintiff was wrong about a discrimination claim.
"If she [Pressley] had a good-faith belief there was religious discrimination . . . she's protected from retaliation," says Maher, a partner in Shannon, Gracey, Ratliff & Miller in Fort Worth.
A plaintiff has a low threshold to prove a prima facie case in a retaliatory termination claim, Maher says. The employer then has to provide a nonretaliatory reason for the termination, he says.
Maher says that if the employer cites a nonretaliatory reason for terminating the plaintiff, it is then up to the plaintiff to prove that reason is pretextual or to show that the employer had a mixed motive for the termination. For example, a mixed motive could be that the plaintiff violated an agency policy but that the employer also was concerned that the plaintiff had complained about alleged discrimination.
If the employer can show that the plaintiff would have been fired for the policy violation even though the employer had concerns about the allegations of discrimination, the plaintiff can get a finding of retaliation and attorney's fees, but the plaintiff cannot get damages, Maher says.
