Attorney wants Noack post as evidence
After posting a comment to his Facebook page that offended some people, Precinct 3 Commissioner James Noack is facing more problems after he removed the post and issued a quasi-apology.
In a letter to County Attorney J D Lambright, Houston-based attorney Hessam Parzivand stated removing the post is “spoliation.” Parzivand is representing a former county employee who has filed a complaint alleging she was discriminated against by Noack and eventually fired earlier this year.
“I believe that Commissioner Noack engaged in the spoliation after others warned him of the implications that his Facebook post may have on my case,” the letter from Parzivand states.
Spoliation is the intentional, reckless or negligent destruction, loss, material alteration or obstruction of evidence that is relevant to litigation.
However, Lambright said because Noack put the post on his personal Facebook page and not a county page, there is little he can do to preserve the information.
“Montgomery County does not physically control Commissioner Noack’s personal social media account, and therefore cannot legally compel Commissioner Noack to preserve electronic data from his personal Facebook account,” Lambright said. “However, the correspondence from the former employee’s counsel was forwarded to Commissioner Noack for his review and consideration.”
Noack could not be reached for comment.
Assistant County Attorney Amy Dunham said she attempted to contact Parzivand for the former employee Friday morning to discuss his request but has learned that he is unavailable until early next week.
“Montgomery County’s longstanding policy is to preserve all evidence in its possession or control that may be relevant to any and all pending or anticipated litigation,” Lambright said.
On Wednesday morning, Noack posted a comment to his personal Facebook in regard to the Texas Conservative Tea Party Coalition. The post stated, “The fake tea party, created to aid the failing Doyal/Riley campaigns is having an unintended consequence. Because they have hired workers to pass out their ballot, Twin Peaks is understaffed!!! Expect longer waits.....”
Noack removed the post that evening and posted a new comment saying the comment was not intended to offend anyone.
However, Parzivand said the comment supports his client’s claim that Noack discriminates against women.
“I hope you will agree with me that the post is definitively offensive and derogatory towards women,” the letter stated. “It is also directly relevant to Mr. Noack’s regard for the employment status of women. I don’t think you will find it surprising that such a comment is relevant to the claims of my client Terrilynn Macarthur and the claim of JoDell Whitehead which I was informed was filed with the EEOC recently.”
The letter continues and requests Lambright preserve Noack’s current and past Facebook posts on an ongoing basis.
“Given Mr. Noack’s actions … while he knows two gender discrimination cases are pending against him, I have good reason to believe that other evidence of a discriminatory mindset are present on Noack’s Facebook activity log and other social media,” Parzivand stated.
The complaint alleging discrimination was filed with the EEOC April 10 against Montgomery County. It claims the discrimination started soon after Noack was sworn into office Jan. 1, 2013.
According to the complaint filed by Terrilynn Macarthur, she was terminated June 23, 2013, as manager of the Spring Creek Greenway Nature Center without warning after she was written up for the first time in June 2013.
Lambright said the county denies all the allegations of discrimination.
“The county did not discriminate against these employees,” Lambright said in a previous Courier article. “And we intend to vigorously defend the county against all such allegations.”
Because the case involves employment, the county is bound by privacy laws an is unable to elaborate on the case or release information or documentation, Lambright said.
By: Catherine Dominguez