Day v. Johnson

• Decision Date: 22 September 1997
• Docket Number: No. 95-4024,95-4024
• Citation: 119 F.3d 650
• Parties: 75 Fair Empl.Prac.Cas. (BNA) 1649, 73 Empl. Prac. Dec. P 45,361 Richard DAY; Calvin Hollowell, Plaintiffs-Appellees, v. Randy JOHNSON, Pulaski County Sheriff Elect; Defendant-Appellant, Pulaski County Sheriff's Department, Defendant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 650

119 F.3d 650

75 Fair Empl.Prac.Cas. (BNA) 1649,

73 Empl. Prac. Dec. P 45,361

Richard DAY; Calvin Hollowell, Plaintiffs-Appellees, v. Randy JOHNSON, Pulaski County Sheriff Elect; Defendant-Appellant Pulaski County Sheriff's Department, Defendant.

No. 95-4024.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 9, 1996.

Decided July 10, 1997.

Rehearings and Suggestions for Rehearing En Banc Denied

Sept. 22, 1997. ^*

Stephen Engstrom, Little Rock, AR, argued (Abraham Bogoslavsky, Little Rock, AR, on the brief), for defendant-appellant.

John W. Walker, Little Rock, AR, argued, for plaintiffs-appellees.

Before FAGG, HEANEY and BEAM, Circuit Judges.

FAGG, Circuit Judge.

In his 1994 campaign for Pulaski County sheriff, Randy Johnson capitalized on the sorry state of affairs in the newly opened Pulaski County Jail, promising, if elected, to make changes in the jail's administration. After Johnson won, he notified Captains Richard Day, the jail's administrator, and Calvin Hollowell, head of the jail's troubled intake area, they would not be reappointed to their positions. Day and Hollowell are black, and Johnson is white. Before Johnson took office, and while Day and Hollowell were still employed by Johnson's predecessor Sheriff Gravett, Day and Hollowell filed suit against Johnson and the Pulaski County Sheriff's Department (the Department) under 42 U.S.C. §§ 2000e to 2000e-17 (1994) (Title VII) and 42 U.S.C. § 1983 (1994), claiming Johnson decided not to reappoint them because of their race and in retaliation for speech protected by the First and Fourteenth Amendments. Johnson was ordered to retain Day and Hollowell pending trial. The district court ruled for Day and Hollowell on their Title VII claims and for Hollowell on his § 1983 free speech claim. As a remedy, the district court ordered Johnson to place Day and Hollowell in unspecified captain-level positions. Johnson appeals, and we reverse.

When he was appointed jail administrator in January 1993, Day became chair of the committee charged with managing the upcoming transition from the old to the new jail. The committee discussed at length the likelihood that the new jail's housing units would quickly become overcrowded. When overcrowding became a reality shortly after the new jail opened in August 1994, however, Day acted like a man caught unawares. Although others disagreed, Day put the overflow from the housing units in the jail's intake area, the hub of the new jail's entire operation. Every person arrested in Pulaski County must be processed through intake, and every jail inmate transported to the local courts must go out through intake. Day's decision to turn intake into a full-blown housing unit turned out badly for those housed there. The miserable living conditions caught the attention of the Arkansas Democrat-Gazette, which reported them in widely read stories that neither Day nor Hollowell disputed at trial. Hollowell believed the conditions were unconstitutional. Up to 120 inmates at a time lived in the intake area, sharing twelve toilets and three showers, sleeping and sometimes even eating on the floor. Conditions were filthy. Unlike inmates held in the jail's housing units, inmates in intake could not receive family visits and were denied access to the outdoor exercise area. Intake staff had to meet inmates' daily living needs, distracting staff from inmate processing and making the logjam still worse. A number of staff quit under the pressure, leaving vacancies that went unfilled. Moreover, inmates waiting in intake for transportation to court often got lost in the crowd, turning up in court hours late and sometimes not at all. One municipal court judge was forced to make his own separate inmate transportation arrangements after having thirteen no-shows in a single day.

Day's use of intake for housing was not merely unsanitary and disruptive, it was dangerous. Unlike properly housed inmates, who are segregated by sex, criminal history, and type of offense, inmates in intake were not sorted out. Intake thus held an explosive mix of men and women, violent felons and petty misdemeanants, career criminals and juveniles. Day believed the conditions were "ripe for a major riot." Day complicated matters by keeping the jail persistently understaffed. Instead of hiring needed personnel, Day turned back to the county $400,000 in authorized but unused salaries. Although Day believed the jail demanded "crisis management" on his part, Day was unfamiliar with the county's hiring policies, and merely acquiesced in Sheriff Gravett's mistaken belief that vacancies could not be filled until the departing deputies' accrued vacation time had elapsed. In fact, vacant positions could be filled immediately.

Day doggedly stuck with his failed intake policy, despite front-page newspaper coverage of intake's deplorable condition and instructions from Sheriff Gravett to move the overflow into the housing units. In mid-October Hollowell entered the picture when he replaced Captain Talley as head of intake and prisoner transportation. Hollowell had been familiar with intake's problems since at least early September, when he reported those problems to the district court on Sheriff Gravett's orders. Hollowell also informed the media about jail conditions in his role as the Department's public information officer. Advance notice of intake's troubles did not help Hollowell either. The district court found intake conditions and inmate transportation failed to improve under Hollowell's supervision. Hollowell made matters worse when he decided to cure overcrowding by releasing, without the required authorization from a judge or prosecutor, seven accused felons who were in custody without bail. Hollowell's shortcut made front-page news, and he was reprimanded by the county prosecutor and two local judges. Although Hollowell apologized and Sheriff Gravett condoned Hollowell's action, Johnson agreed with the prosecutor, the judges, and the public that the release was a clear sign of "exceedingly bad judgment" on Hollowell's part.

In Arkansas, when a sheriff's term in office expires, so do the appointments of the sheriff's deputies. This puts the newly elected sheriff in a position to assemble a competent workforce that meets the new sheriff's expectations. After he was elected, Johnson interviewed all deputies holding the rank of lieutenant or higher under outgoing Sheriff Gravett to help Johnson decide whom to reappoint. Johnson interviewed Day and Hollowell, among the rest, questioning Day about intake and staffing, and Hollowell about intake and the felon release. Johnson also conferred with his new chief deputy Danny Bradley and his operations major Skipper Polk, Johnson's long-time colleagues in the North Little Rock Police Department (NLRPD). Bradley opposed rehiring Day and Hollowell based on media accounts of the jail's turmoil and because local police told Bradley they had lost confidence in the two men. Polk, who had recently worked for the county prosecutor, also advised against keeping Day and Hollowell based on Hollowell's felon release and on Day's low regard by the prosecutor's office and local law enforcement. Johnson also spoke with Lowell Kincaid, who served as planning coordinator for the new jail. Kincaid had observed Day's leadership when Kincaid worked with the transition committee Day chaired. Based on what he saw, Kincaid told Johnson that Day was not an effective administrator.

On December 12, 1994, Johnson informed Day and Hollowell they would not be reappointed to their posts. After taking office on the first of January, Johnson followed through on his campaign promise to put a professional administrator in charge of the new jail by appointing Kincaid to the newly created position of chief of detention operations. Neither Day nor the district court questioned Kincaid's qualifications for this position. Jail conditions improved under Kincaid's leadership: intake was restored to its intended purposes, disciplinary proceedings against disruptive inmates declined, and the jail's failures in transporting inmates to court were eliminated.

Johnson made very few personnel moves when he took office. Out of a staff of roughly 350 under departing Sheriff Gravett, Johnson rejected only four: Day, Hollowell, and two whites, Gravett's chief deputy and a lieutenant who opposed Johnson for sheriff. Four other employees left voluntarily, all of them white. Day and Hollowell were the only blacks whom Johnson did not reappoint. Johnson transferred Captain Talley, who is black and who had moved to the enforcement division when Hollowell took over intake, back to detention. Johnson also promoted two deputies to lieutenant, both black. Although Johnson inherited a Department with a detention division that historically has employed a higher proportion of blacks than enforcement, neither Day nor Hollowell contended, nor did the district court find, that the Department's racial composition reflected race discrimination. Johnson's employment decisions have left that composition virtually undisturbed.

Johnson testified he rejected Day because Day mismanaged the intake area and left staff positions unfilled. As the district court put it, Johnson's "bottom line" was that he "did not have confidence that Day would manage in the way Johnson wanted." Johnson testified he rejected Hollowell because Hollowell's felon release showed poor judgment, and also because of intake conditions and inmate transportation failures. Summarizing his reasons, Johnson said he decided not to reappoint Day and Hollowell based on "job performance and the perception of that job performance" by the public. In keeping with Johnson's stated reasons, the district court found the new jail was "chaotic" and understaffed, with a "deplorable" intake area that posed "a security risk." The district court also found that inmates were "delivered to court late," and acknowledged...