In August 2018, Kristie Small was newly serving as the acting chief of staff for Texas Rep. Henry Cuellar, an anti-abortion Democrat, when she told him she was pregnant. Small requested maternity leave via email, and Cuellar responded that they would need to talk about the leave—and the 90-day probationary period for all new hires. It was the first time Small, who already had a young daughter, had ever heard about the policy, which wasn’t in the employee handbook. Cuellar never approved her parental leave and, on October 16, he fired her over the phone, citing poor job performance, while she was in her third trimester. About two weeks later, Small delivered her baby at 30 weeks pregnant. It was a stillbirth.
Small filed a lawsuit against Cuellar’s office in May 2019, alleging both sex and pregnancy discrimination under federal law and noting that she’d worked for another congressman for 13 years without any performance issues. Cuellar’s office tried to dismiss the lawsuit on summary judgment and submitted letters from Small’s colleagues about her job performance but, according to court documents reviewed by Jezebel, Cuellar himself requested staffers write these letters after he fired Small, and at least five were dated after Small filed her lawsuit.
In denying the dismissal attempt by Cuellar’s office, federal judge Trevor N. McFadden wrote, “Indeed, Cuellar solicited written statements from his staffers about Small’s performance after he fired her…And the staffers provided their statements after Small filed this action in May 2019,” McFadden said. “Perhaps Cuellar was simply looking for corroboration of Small’s poor performance, but a jury might also see this as an attempt to collect post hoc justifications.”
The staff letters, reviewed by Jezebel, allege that Small failed to catch typos in press releases and sometimes arrived at work late or left early. (Again, Small was pregnant and the mother of a toddler.) One letter notes that Small was looking for a new daycare for her daughter. That same letter said one day “in the middle of the annual Taste of Laredo event (which is very important to the Congressman and office),” Small asked a colleague to leave early and give her and her daughter a ride back to the Capitol Hill office.
News of Cuellar’s attempt to discredit the fired staffer, which has not been previously reported, comes as the San Antonio-area Congressman—the last anti-abortion Democrat in the U.S. House—is facing extra scrutiny, following the leak of a draft Supreme Court opinion that would overturn Roe v. Wade and allow states to ban abortion. In September, Cuellar was the only Democrat to vote against the Women’s Health Protection act, a bill that would codify the right to have an abortion into federal law.
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Cuellar faces a runoff in a primary election on May 24 against progressive immigration attorney Jessica Cisneros, who has called for Democratic leadership to rescind its support of Cuellar in light of his views. Cisneros has been endorsed by Sen. Elizabeth Warren (D-Mass.), Sen. Bernie Sanders (I-Vt.), Sen. Ed Markey (D-Mass.), Rep. Alexandria Ocasio-Cortez (D-N.Y.), Planned Parenthood Action Fund, and NARAL Pro-Choice America.
Warren called out Cuellar’s opposition to abortion in an MSNBC interview last week and made a plea for voters to donate to Cisneros in the Texas primary. “If you’re mad when you listen to this,” Warren told host Chris Hayes, “send Jessica Cisneros 10 bucks.”
But Cuellar still has a lot of support in the Democratic establishment: House Speaker Nancy Pelosi (D-Calif.) and Majority Whip Jim Clyburn (D-South Carolina), notably, have both endorsed him in the runoff. Clyburn even campaigned for him in Texas last week, days after the Supreme Court draft was leaked.
“I don’t believe we ought to have a litmus test in the Democratic Party,” Clyburn told reporters Wednesday. “I think we have to bring as many people into the party as we possibly can.”
If the Supreme Court does overturn Roe, Texas is one of about a dozen states with a trigger law that would ban abortions, and Cuellar has three Texas offices where staffers who may become pregnant work.
Jezebel contacted Cuellar for comment about Small’s firing and the solicitation of performance letters after she’d filed a lawsuit and did not hear back. Small’s attorneys said that neither they nor Small could comment due to the terms of the settlement and the confidentiality provisions of the Congressional Accountability Act. Representatives for Pelosi and Clyburn did not return a request for comment before publication, nor did the Cisneros campaign.
Cuellar’s office hired Small in June 2018 as deputy chief of staff, but the COS position was vacant during her employment, so she worked as acting chief of staff. Small said the employee handbook outlined 12 weeks of maternity leave.
Before suing, Small first filed a complaint with Congress’ Office of Compliance. After a Washington Post story on the complaint published on October 25, 2018, a staffer on Cuellar’s campaign, Colin Strother, was on a conference call with staffers in Cuellar’s congressional office. On that call, Strother asked if the Congressional staffers knew they had been on probation periods at the beginning of their employment and several responded that they were unsure. In addition to working on Cuellar’s campaign, Strother is also the head of the Voter Education Foundation, a dark-money group that has run ads against Cisneros.
In Small’s lawsuit, filed in the US District Court for the District of Columbia, she demanded a jury trial and sought $300,000 in damages. When Judge McFadden rejected the office’s motion to dismiss the case on summary judgment in September 2020, he noted that there were serious questions about whether Cuellar’s probation policy had been “applied consistently,” and that there were “legitimate questions about whether” Cuellar’s stated reasons for firing Small “were well founded.” McFadden set a trial date for October 25, 2021, but in August 2021, Small settled the lawsuit with Cuellar’s office. The details of the settlement, including any monetary damages, are not publicly available.
As Clyburn traveled to Texas on Wednesday to support Cuellar in the wake of the Supreme Court leak, Cisneros released a statement urging Democratic leadership to rescind their endorsements of the last anti-abortion Democrat in the House. “At every turn, my Congressman has stood in opposition to the Democratic Party agenda from being anti-union to being anti-choice,” Cisneros said. “With the House majority on the line, he could very much be the deciding vote on the future of our reproductive rights and we cannot afford to take that risk.”