Former Texas Department of Criminal Justice Public Information Director Michelle Lyons filed an appeal in her discrimination case in mid-September after a judged tossed out the original complaint.

Lyons attorney Delana Cline said they are appealing to the Fifth Circuit Court on the grounds that the judge improperly dismissed the case.

“(U.S. Judge David Hittner admits she establishes prima facie case,” Cline said. “(TDCJ) says they looked at (now-TDCJ Public Information Director Jason) Clark’s time records. That’s false. The judge is completely wrong here.”

The judge’s decision cites several depositions that claim TDCJ’s investigation into Lyons’s and Clark’s alleged improper time-keeping looked through evidence of both employees’ habits. Cline said what actually happened was that the only thing TDCJ saw were the few documents Lyons herself provided.

“The only thing is the fact that (TDCJ) didn’t do a 16-month investigation on (Clark) like they did on her,” she said. “There’s at least one time where Mr. Clark made mistakes on his time sheet. He just didn’t get a $14,000 demotion like (Lyons).”

She filed suit against TDCJ claiming gender discrimination after she was demoted as director of public information to public information officer in early 2012. Following the demotion, TDCJ reassigned Lyons to the Executive Services department. She resigned from the agency in May 2012.

TDCJ accused Lyons, who worked for the agency for 10 years, of keeping inaccurate time sheets. After an investigation, she was demoted to PIO and received a pay cut. TDCJ also suspended Lyons for five days and placed her on probation for nine months. Clark didn’t receive a demotion.

Hittner said that Lyons failed to meet the basic definition of a gender discrimination case because she couldn’t back up claims that TDCJ didn’t adequately investigate her co-worker accused of the same violation.

To prove a discrimination case, a person must uphold four specific items. One – the person must be a member of the protected class. Second – they were qualified for the position they held. Third – they received adverse employment actions. And fourth – they were replaced by a non-protected class member or treated less favorably than another similarly situated non-protected group member.

In this case, only the last was in dispute. Hittner said that Lyons “has made a prima facie showing of discrimination in the case.” However, he said, the TDCJ’s “non-discriminatory” explanation satisfies its burden and that the summary judgement record doesn’t create a fact issue.

TDCJ’s explanation for Lyons demotion was that Lyons’s position was too high profiled to be falsifying records.

“As the PI Director for TDCJ, Lyons held a relatively high-profile position in a state agency charged with enforcing state criminal laws,” TDCJ’s motion for summary judgement read. “(TDCJ officials) needed to act to address the falsification of state records, a possible crime under Texas law.”

Cline said this is the grounds of the appeal.

“There is absolutely genuine fact issue here,” she said. “If there is any factual dispute, the case is supposed to go to a jury.”

At its basics, a fact issue means that the information of the case is in question that mostly are handled by juries. Cline said judges are supposed to check if the amount of evidence provided is sufficient to meet the prima facie burden, not interpret the facts as she said Hittner did.

The fact in dispute, Cline said, is that TDCJ is solely used the documents Lyons handed to the investigators as their means of investigating Clark – who was also charged with falsifying time records and only found to have one violation. Cline says the discrimination occurred not only because Clark wasn’t demoted as Lyons was, but that TDCJ had an inequitable handling of the investigation.

“(The judge) is basically saying (Lyons’s and Clark’s) investigation was the same,” Cline said. “They’re two totally different things. There’s a level of dishonesty here.”

By Hittner saying the investigation into the two employees was equal – and therefore no discrimination – then Lyons couldn’t meet the prima facie burden because her demotion was non-discriminatory. Had he ruled the investigation unequal, Lyons’s subsequent punishment was also unequal.

She said one reason for the perceived dishonesty is a widespread misinterpretation of law.

“(Judges) are interpreting our discrimination laws,” she said. “They’re making it harder for discrimination victims to get their day in court.”

TDCJ wouldn’t comment on the specifics of the case or appeal but said they are pleased with the original dismissal.

“We believe the court was correct in dismissing the lawsuit,” the statement read. “Mrs. Lyons’s was without merit.”

Cline said they have only filed an appeal petition and hasn’t yet filed a formal brief – or explanation of the arguments. She expects to do that within 45 to 60 days.

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