Federal judge dismisses ex-probation officer's lawsuit
by PHILLIP WILLIAMS
Sep 29, 2013 | 1200 views | 0 0 comments | 9 9 recommendations | email to a friend | print
A federal judge on Monday dismissed a wrongful termination lawsuit filed by former Upshur County Juvenile Probation Officer Richard Tucker against three local current or former judges and the county’s chief juvenile probation officer.

U.S. District Judge Michael H. Schneider dismissed the suit in Tyler against 115th District Judge Lauren Parish, Upshur County Judge Dean Fowler, former interim County Judge James (Jim) Bowling, and Chief Juvenile Probation Officer William (Eric) McGee.

In a 17-page dismissal order, Schneider said Tucker hadn’t pleaded enough facts for a plausible claim to relief.

Tucker’s original lawsuit, filed in U.S. District Court for the Eastern District of Texas in November 2011, alleged he suffered wrongful retaliation for “speaking out about misconduct by government officials” in the juvenile probation office. He cited several alleged actions against him culminating in his termination on Aug. 31, 2011.

Tucker contended the retaliation stemmed from his reporting in 2010 that then-Chief Juvenile Probation Officer Milton Wylie and two female former assistant juvenile probation officers, Lori Ann Davidson and Sandra Edwards, had forged documents. Wylie, who was terminated, and the two women were later placed on probation after pleading to misdemeanor charges.

Soon before his dismissal, Tucker filed a grievance with the county Juvenile Probation Board, alleging mistreatment by Wylie’s successor, McGee. (Judges Parish and Bowling were the sole board members then; Ms. Parish and Fowler had been and are now the only members, but Fowler was suspended from his judgeship at the time due to misdemeanor charges of which he was later cleared.)

Judges Parish and Bowling denied the grievance, and she issued a scathing denunciation of Tucker, charging him with falsely portraying himself as a “whistleblower.” Soon afterward, she and Bowling approved a budget for the office which effectively eliminated funding for Tucker’s position, and he contended he was falsely told he was released because of budgetary constraints.

His attorney, Nacogdoches lawyer Alex A. Castetter, filed a civil rights lawsuit against the three judges, McGee, the county itself, and the county’s Juvenile Probation Department, contending Tucker was fired for “exercising his First Amendment rights of free speech and freedom of association,” Judge Schneider wrote.

The county and its juvenile probation office successfully moved to have themselves dismissed as defendants from the lawsuit in 2012. Claims against the judges and McGee in their official capacity were also dismissed, leaving only claims against them “in their individual capacity,” which were dismissed Monday.

In his original suit, Tucker argued he received a disciplinary notice for “creating a hostile work environment.” In his dismissal order Monday, Schneider wrote “Tucker claims that as a result of his report, he was issued a disciplinary notice and stripped of all his collateral duties;” that he was then “moved into a smaller and less accessible office”; and that he was passed over “for a raise that was given to two junior probation officers” (Tucker was a senior officer.)

Scheider also wrote the plaintiff charged that he was allowed only “limited access to the department’s policy and procedure manual;” that he was instructed “not to attend (county) commissioners’ court meetings unless he had specific business on the agenda”; and that McGee ordered him “not to speak to the district attorney’s office.”

Near the end of his ruling, Schneider wrote that “Despite given the opportunity to amend his compliant (sic) and directed by the Court ‘to supply detailed facts and allegations which overcome the heightened pleading standard for qualified immunity in individual capacity cases’. . .Tucker has failed to plead enough facts to state a claim to relief that is plausible on its face.”

Schneider explained that “The defense of qualified immunity shields government officials performing discretionary functions from liability for civil damages insofar as their conduct does not violate clearly established rights which a reasonable person would have known.”

The judge also wrote that “Tucker alleges that Defendants violated his rights to freedom of association. But he did not plead any facts about freedom of association,” said the judge, italicizing the word “any.”

Schneider additionallly quoted a prior court ruling that when “public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”

Judge Parish told The Mirror Monday that “The court found it (the lawsuit) was frivolous, basically.” She said Tucker “failed to state any facts that would support” his claim, and that she was glad the nearly 2-year legal battle was over.

At the time the suit was filed, Fowler had returned to office from his suspension, and he said he had referred the suit to the Texas Association of Counties, which had given the case to Dallas attorney Cass Weyland.

Judge Parish’s office said attorney Scott Graydon represented her in the litigation.
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