Federal Lawsuit Alleges Verbal Abuse, Sexual Harassment, and Retaliation
Former County Court at Law No. 3 Judge Don Higginbotham Accused
What started out as a sexual harassment complaint against Williamson County Court at Law No. 3 Judge Donald Higginbotham has turned into a full-blown federal lawsuit that adds retaliation to the allegations.
Attorney Gregg Rosenberg of the Houston firm of Rosenberg and Sprovach filed the lawsuit, Kimberly Lee and Sharon McGuyer v. Williamson County, in federal court November 23.
The lawsuit lists more than a dozen instances in which Judge Higginbotham allegedly made comments that were insulting, demeaning, and abusive. Several of the alleged comments involved vulgarity or sexual references.
For example, in “November 2009,” the lawsuit alleges, “Plaintiff Lee was walking in the hallway when Judge Higginbotham turned to her and said, ‘I hate to tell you this, but in those pants you are wearing, you have the ass of a Ni**er.’”
“Also in November 2009, when Plaintiff Lee asked for a peppermint, the Judge said he had something for Plaintiff Lee to suck on,” the lawsuit alleges.
When he found court coordinator Amanda Vega’s vehicle in his parking space, according to the lawsuit, Higginbotham, neck veins bulging, hands clamped into fists, said, “You are nothing but a bunch of fu**ing pukes, nothing but a bunch of go**amn fu**ing pukes! Get out of here and move your car, move it, move it, move it!”
Higginbotham could not be reached for comment.
Higginbotham, whose position pays $139,000 a year, did not seek reelection. His term would have ended in January 2011, but he retired from the bench on June 30, while Lee and McGuyer’s complaint of sexual harassment was pending with the Texas Workforce Commission.
Round Rock Attorney Michael P. “Mike” Davis, who represented Higginbotham in dealing with the plaintiffs’ complaints at Williamson County and at the Texas Workforce Commission, said in a November 20 e-mail the Texas Rules of Professional Conduct “prohibit me from commenting on pending litigation” and, “I assume if a lawsuit is filed…he (Higginbotham) would prefer to litigate his case in a court of competent jurisdiction rather than in the media.”
Davis did not respond to numerous subsequent messages left at his office, including a message after The Austin Bulldog obtained a copy of the lawsuit.
Kimberly D. Lee, 42, was a court reporter in Judge Higginbotham’s court. Sharon E. McGuyer, 59, was the court secretary.
The lawsuit asks for payment of Lee and McGuyer’s pay and benefits remaining until their normal retirement age; payment of their costs and attorneys’ fees; compensatory damages for emotional pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life; punitive damages; and pre-judgment and post-judgment interest.
Although the offenses listed in the lawsuit were allegedly committed by one person, Judge Higginbotham, he is not named as a party to the suit.
Asked why, plaintiffs’ attorney Rosenberg stated in an e-mail: “Very simple. A judge is not technically their employer. They were paid by the county and were exclusively county employees. The judge is the county’s agent and controlled the terms and conditions of their employment.”
County couldn’t resolve complaints
Lee and McGuyer first lodged complaints of sexual harassment against Higginbotham with the county’s Human Resources office on December 22, 2009, the lawsuit states. A third employee in Higginbotham’s office, court coordinator Amanda C. Vega, did not file a complaint.
The lawsuit states that on January 8, 2010, County Attorney Jana Duty initiated action to resolve the sexual harassment complaints, in part by asking the plaintiffs if they would be satisfied if they were moved to another court.
In addition, the lawsuit states that on Monday, January 11, Duty delivered a letter to Lee and McGuyer that stated if they would agree not to hire an attorney, Duty would have affidavits drawn up by other women who would state they also been abused by Higginbotham or had witnessed his behavior.
Duty says her intent was to have Higginbotham’s attorney Mike Davis deliver the letter and affidavits to Judge Higginbotham and give him an ultimatum: Higginbotham had until 5pm Friday, January 15, to tell Duty when he would retire. Otherwise, she would hand deliver the affidavits to the State Commission on Judicial Conduct and go to the press.
Duty confirmed these statements after The Austin Bulldog obtained a copy of the lawsuit.
“This would have given me the opportunity to handle the complaint the way it should have been handled in the first place,” Duty says.
The affidavits Duty offered to gather would have been provided by four or five women in Duty’s office, including female prosecutors who sometimes tried cases in Higginbotham’s court. Duty says she had individually interviewed these employees, one by one, as early as the summer of 2008. At that time, none of those employees wanted to file a complaint, Duty says, although all had agreed that Higginbotham said things that were inappropriate.
The lawsuit states that Higginbotham apologized to Lee, McGuyer, and Vega on January 28, said he would be retiring, but wanted to stay until after the primary election.
The solution offered by Duty was not accepted.
“Whoever is complained against needs to take prompt action to fix the situation,” she says. “We could not work out an agreement. Higginbotham decided not to retire.”
The lawsuit alleges that Higginbotham continued to defame the employees and on March 30 Lee and McGuyer filed complaints with the Texas Workforce Commission’s Civil Rights Division and the U.S. Equal Employment Opportunity Commission.
Texas Workforce Commission action
The Texas Workforce Commission at one point conducted a mediation session in an attempt to resolve the complaint.
“It almost went to blows,” Duty says. Plaintiffs’ attorney Gregg Rosenberg and defendant’s attorney Mike Davis “almost got into a fistfight,” she says.
When The Austin Bulldog asked Rosenberg if that happened, Rosenberg chuckled briefly and said, “Anything that happens in a mediation session stays in a mediation session.”
Davis did not respond to requests for an interview about this.
Rosenberg says the case remained pending with the Texas Workforce Commission for more than seven months, until “we requested the right to sue so we could get to court.”
The federal notice of right to sue was issued November 15, the lawsuit states.
The lawsuit was filed November 23 in the U.S. District Court, Western District of Texas, located in Austin.
The retaliation claim
On June 30, Higginbotham retired from County Court at Law #3. He is taking care of his wife, Debra, who is being treated for cancer, Davis said in an e-mail.
With Higginbotham gone, and a November 2 election scheduled to elect a new judge for the court, on July 20, the Williamson County Commissioners Court, with Commissioner Lisa Birkman absent, voted 4-0 to appoint County Judge Dan Gattis to supervise the employees of County Court at Law No. 3 “temporarily until that office is filled by an elected judge for that position.”
The lawsuit states and Duty confirms that on Tuesday, November 16—the day after Lee and McGuyer received notice of their right to sue—Arnold, who has not yet been sworn in to officially assume the duties as judge of County Court at Law No. 3, went to the court office and gave two weeks notice to the three women who worked in that office.
Duty says Arnold told Lee and McGuyer, along with court coordinator Amanda Vega, that their employment would be terminated when he took office on December 1.
Arnold did not respond to multiple messages left at his home to request a comment.
Shortly after Arnold left the County Court at Law No. 3 office, Duty says, County Judge Dan Gattis came and told the women that they were terminated that very day.
Gattis did not respond to a request left with his office to comment on this matter.
Through open records requests The Austin Bulldog obtained personnel records that indicate all three employees in County Court at Law No. 3 were placed on paid administrative leave starting November 17 and ending December 1. Connie Watson, public affairs manager for Williamson County, supplied information about when these employees first started working for Williamson County.
Kimberley D. “Kim” Lee, a court reporter in County Court at Law No. 3, drew an annual salary of $83,572 a year. Lee has worked for Williamson County since January 1, 2000.
Sharon E. McGuyer, an office specialist in the same court, was paid $40,741 a year. McGuyer has worked for Williamson County since September 30, 1994.
Amanda C. “Mandy” Vega, the court administrator who did not file a complaint against Higginbotham, made $52,238 a year and has worked for the court since January 1, 2000.
“Elected officials have the ability to hire their own staff,” Watson said. She said Judge Arnold will have the option to retain or terminate the three employees when he is sworn in December 1. If terminated, she added, they will continue to be covered by health insurance through December.
Plaintiffs’ attorney Rosenberg was already preparing to file a federal lawsuit for sexual harassment when Lee and McGuyer learned their employment would be terminated. Rosenberg said that’s when he revised the lawsuit to include retaliation.
Who’s financially responsible?
Asked whether Rosenberg and Sprovach are representing Lee and McGuyer on contingency or for a fee, Rosenberg told The Austin Bulldog he does not discuss fee arrangements, but added that neither he nor law partner Ellen Sprovach would take a case that did not have merit.
The Williamson County Commissioners Court has not authorized payment of legal fees to represent Higginbotham. Mike Davis inappropriately billed the county and was paid $7,665 to represent Higginbotham. After these payments were discovered by the county auditor’s office at the request of County Attorney Duty, Davis agreed to repay that amount. He issued a “credit memo” on August 11, an agreement to work off the amount by offsetting his bills for future legal work for the county.
Should the lawsuit be decided in the plaintiffs’ favor, Duty says she believes that Williamson County taxpayers will not be responsible for any financial damages that may be assessed against Higginbotham, who was an independently elected official.
Despite the fact that the solution offered by the county attorney did not work out, “What’s important to me,” Duty says, “is when it comes to the county being liable, we took prompt remedial action to get the women out of that situation and resolve the problem.”
As a result, Duty says, the county will likely be able to get the lawsuit dismissed through a summary judgment, “because we can’t control Higginbotham’s behavior.”
“When Higginbotham used vulgarity in my office, we blew it off,” Duty says. “We can say, ‘Please leave now.’ Those poor women suffered all day.”
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