On June 11, the U.S. Supreme Court denied a petition for writ of certiorari in the so-called Candy Cane Case, Doug Morgan, et al. v. Lynn Swanson, et al. On Sept. 27, 2011, public school administrators won before the full 5th U.S. Circuit Court of Appeals, which ruled that two elementary school principals are immune from suit for allegedly preventing students from distributing religious gifts at school. The students and their parents sued the principals alleging religious freedom and First Amendment violations. The gifts, which were meant to be distributed at an on-campus winter party in the Plano Independent School District, included candy cane-shaped pens. Attached to the pens were laminated cards titled “Legend of the Candy Cane” and text discussing the “Christian origin of candy canes,” the plaintiffs alleged in their brief to the en banc 5th Circuit. The 5th Circuit found that the educators deserved immunity “because clearly established law did not put the constitutionality of their actions beyond debate.” So the students and parents sought cert at the Supreme Court. Tom Brandt, a partner in Dallas’ Fanning Harper Martinson Brandt & Kutchin who represents the defendant principals in the case, is pleased the high court decided not to grant review. “The law was not clear and the individuals as a result are entitled to immunity. And even to this date, there is still a measure of lack of clarity,” Brandt says. “But it’s a great day for my clients and really a great day for educators in general.” Hiram Sasser, director of the Liberty Institute, a Plano-based religious freedom organization that represents the plaintiffs in Morgan, says, “We’re disappointed to not have the opportunity to hold the government school officials accountable for their violations of the law.”
Gender Discrimination Alleged
Michelle Lyons, a former director of public information for the Texas Department of Criminal Justice, has sued the agency claiming it demoted her and cut her pay “because of her gender.” In a June 4 original complaint, Lyons alleges TDCJ falsely accused her of “keeping inaccurate time” although she had “always kept her time as she had been instructed to do” and although male employees in her department “recorded their time in the same manner.” She alleges she was an exempt employee under the Fair Labor Standards Act. Lyons’ lawyer Nasim Ahmad, a partner in Cline | Ahmad in The Woodlands, says, “It looks like she was clearly being treated differently than the other male employees, which is the focus of our charge for gender discrimination.” TDCJ general counsel Melinda Bozarth and spokesman Jason Clark decline comment about the suit. Bozarth explains, “We don’t answer questions on pending litigation.” Lyons alleges in Lyons v. TDCJ, filed in the U.S. District Court for the Southern District of Texas in Houston, that after investigating her timekeeping, TDCJ suspended her for five days, placed her on probation for nine months, demoted her from director of public information to public information officer, and cut her pay. “However, the non-female employees in Plaintiff’s department who recorded their time in the same manner Plaintiff recorded her time were not disciplined,” Lyons alleges in the complaint, continuing, “Defendant intended to discriminate against Plaintiff because of her gender.” Lyons alleges she filed a complaint in March against the TDCJ with the Equal Employment Opportunity Commission and the Texas Workforce Commission’s Civil Rights Division. She filed her suit within 90 days of receiving a notice-of-right-to-sue letter, she alleges. Lyons brings her claim under Title VII of the Civil Rights Act of 1964. She seeks actual damages including back pay and reimbursement for lost benefits, compensatory damages, punitive damages, interest, costs and attorney’s fees. “What I want is to see this doesn’t happen to someone else,” Lyons says. She says she resigned from the TDCJ on May 9 because the agency planned to terminate her on May 10.
