Haverda v. Hays Cnty.

• Decision Date: 17 July 2013
• Docket Number: No. 12–51008.,12–51008.
• Parties: Richard Dickey HAVERDA, Plaintiff–Appellant v. HAYS COUNTY; Hays County Sheriff's Office; Sheriff Gary Cutler, in his Official and Individual Capacities, Defendants–Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

723 F.3d 586

Richard Dickey HAVERDA, Plaintiff–Appellant

v.HAYS COUNTY; Hays County Sheriff's Office; Sheriff Gary Cutler, in his Official and Individual Capacities, Defendants–Appellees.

No. 12–51008.

United States Court of Appeals, Fifth Circuit.

July 17, 2013.

Philip Durst, Matthew Bradley Bachop (argued), Deats Durst Owen & Levy, P.L.L.C., Austin, TX, for Plaintiff–Appellant.

Michael A. Shaunessy, Eric Alexander Johnston (argued), Esq., Sedgwick, L.L.P., Austin, TX, for Defendants–Appellees.

Appeal from the United States District Court for the Western District of Texas.

Before ELROD and HIGGINSON, Circuit Judges, and MARTINEZ, District Judge.^*

PHILIP R. MARTINEZ, District Judge.

Richard Haverda, a former employee of the Hays County Sheriff's Office, appeals the district court's grant of summary judgment for failure to establish a claim of First Amendment retaliation and on qualified immunity grounds. We conclude that (1) Haverda has presented sufficient evidence to raise a genuine dispute as to a material fact relating to his claim of First Amendment retaliation and (2) Defendants are not entitled to summary judgment on the basis of qualified immunity. We, therefore, REVERSE the district court's grant of summary judgment to Appellees and REMAND for further proceedings consistent with this opinion.

I. Facts and Proceedings

For over twenty years, Haverda was an employee of the Hays County Sheriff's Office. Haverda began his employment as a corrections officer in the Hays County Jail and was promoted to the position of Captain of Corrections in 2004. In this position, Haverda was responsible for maintaining the security of the Jail, developing procedures for proper maintenance of the Jail, and supervising the individuals maintaining the Jail. During the 2010 Hays County Sheriff's Election campaign, Haverda supported the incumbent, Sheriff Ratliff, in his race against Gary Cutler. Haverda assisted Sheriff Ratliff's campaign by placing signs in locations throughout Hays County and delivering food and water to campaign volunteers on Election Day. More notably, on October 6, 2010, the San Marcos Record published a letter to the editor written by Haverda in support of Sheriff Ratliff. Therein, Haverda wrote about jail inspections, the prospect of a new jail, Hays County's practice of outsourcing inmates, and the funding of the Jail. Haverda concluded the letter by stating, “Sheriff Ratliff is doing a great job. Sheriff Ratliff didn't come in here and bring a whole new staff like his alternative [c]onservative Mr. Cutler wants to do.” A month later, Gary Cutler won the election, taking office as Hays County Sheriff on November 15, 2010.

Subsequently, Sheriff Cutler hired Jaime Page as his Chief Deputy. During Sheriff Cutler's first week in office, Chief Deputy Page spent a night at the Hays County Jail to view and experience the conditions at the Jail. During the overnight visit, Chief Deputy Page discovered a number of health, safety, and security issues. Outside the Jail, Chief Deputy Page noted that numerous lights were out, the Jail grounds were covered in trash, and outdated measures were being used to secure the Jail's perimeter. Inside the Jail, Page noted rat feces on the floor of the infirmary and kitchen, mops sitting in buckets of rancid water, and an inoperable oven infested with roaches. Chief Deputy Page also discovered issues with the administration of the Jail. He found it problematic that the Jail Command Staff—consisting of Major Brad Robinson, Lieutenant Juan Saenz, and Haverda—all worked the same shift, which left the Jail unsupervised at times. Chief Deputy Page also discovered that inmates were being booked into the Jail without first undergoing a medical screening, that lights in the inmate cells were not turned off eight hours before breakfast was served, and that inmates were being outsourced to Guadalupe County when the Jail had the capacity to house them. Additionally, two inmates attempted to escape shortly after Chief Deputy Page's visit to the Jail; according to Chief Deputy Page, improper training and a lack of protocol were to blame.

After Chief Deputy Page's inspection and evaluation of the escape attempt, he recommended to Sheriff Cutler that all three Jail Command Staff members be terminated. Chief Deputy Page believed that all three Jail Command Staff members were equally responsible for the state of the Jail. However, Sheriff Cutler did not accept Chief Deputy Page's recommendation. Chief Deputy Page then proposed that Sheriff Cutler terminate the three Jail Command Staff members but suspend their terminations for sixty days to assess their performance in improving the Jail within that time frame. Sheriff Cutler evidently accepted this recommendation. On November 22, 2010, Chief Deputy Page informed the three Jail Command Staff members that they were being terminated because of the condition of the Jail, but explained that the terminations were suspended for a period of sixty days. Chief Deputy Page told the three Jail Command Staff members that they would retain their jobs if they worked hard and the Jail substantially improved. Chief Deputy Page and Sheriff Cutler both testified that the Jail's conditions had improved by December 2010 and January 2011. Sixty days after the three Jail Command Staff members received suspended terminations, no one was fired or demoted.

The parties contest Haverda's performance during the suspended termination period. According to Chief Deputy Page, Major Robinson and Lieutenant Saenz worked hard to improve the conditions at the Jail after being notified of their suspended terminations. Chief Deputy Page testified that while Haverda's performance had improved, it was mediocre at best and remained unacceptable. Page also testified that Haverda did not display any initiative to work, came into work at his leisure, would sit in the employee dining room for two hours at a time, kept a slovenly appearance, and sat in his office without interacting with his employees. In addition, Page testified that in December 2010, he assigned Haverda to oversee the painting of a trailer to be used for road work by the inmates. However, Haverda had not made any progress on the project by March 2011.

Haverda denies Page's allegations. Haverda testified that he dedicated himself to the Jail, completed assignments given to him, and had a professional work ethic. Haverda also denied sitting in the dining room for hours at a time during work hours, being unproductive, and keeping a slovenly appearance. In addition, Major Robinson testified that he did not recall seeing Haverda in the dining room for hours at a time, and Sheriff Cutler testified that he did not personally witness Haverda sitting in the dining room. Regarding the unfinished trailer project, Haverda offered a different explanation. Haverda testified that he asked Major Robinson about the funding for such a project and that Major Robinson told him that he would look into it. Thereafter, in February of 2011, Major Robinson informed Haverda that the project had been assigned to others.

On February 15, 2011, Major Robinson informed Haverda that he had been instructed by Chief Deputy Page to tell Haverda to “get on the train or ... [Haverda would] be moved to [a] maintenance [position].” Major Robinson testified that he understood the phrase to mean that Haverda needed to meet the expectations of Sheriff Cutler and Chief Deputy Page. Chief Deputy Page testified that his instruction was due to Haverda's lack of command bearing, failure to make progress on tasks, and lack of leadership. Haverda was confused about the meaning of the phrase and feared that it referred to his political activity during the campaign. On February 16, 2011, Haverda delivered a memorandum to Sheriff Cutler setting out grievances and asking him to clarify the “get on the train” statement.

On February 23, 2011, Chief Deputy Page delivered a memorandum to Haverda, its contents signed and approved by Sheriff Cutler, demoting him to the position of Corrections Officer. Therein, Chief Deputy Page wrote, “Cutler kept his promise upon his election to the office of Hays County Sheriff not to terminate any Sheriff's employees.” The memorandum also described the poor conditions present at the Jail when Cutler took office and Chief Deputy Page's lack of confidence in Haverda as a leader and manager. The demotion was scheduled to become effective on March 1, 2011. Haverda appealed the demotion to Sheriff Cutler, and, on February 28, 2011, delivered a letter to Cutler notifying him that he intended to retire effective April 1, 2011. On March 15, 2011, Haverda met with Sheriff Cutler to discuss his appeal and secretly recorded the meeting. During the meeting, Sheriff Cutler mentioned his campaign promise not to fire any employees and stated that he knew Haverda had made several comments, during the campaign, about Sheriff Cutler “run[ning] everybody off.” Sheriff Cutler also discussed the poor condition of the Jail and accepted Haverda's retirement.

On August 8, 2011, Haverda filed suit in the United States District Court for the Western District of Texas, alleging constitutional violations against Hays County; Hays County Sheriff's Office; and Sheriff Gary Cutler, in his official and individual capacities. Appellees moved for summary judgment, and the district court granted the motion. Appellants timely appealed.

II. Standards of ReviewA. Summary Judgment Standard

We review a grant of summary judgment de novo, applying the same standard as the district court. Vaughn v. Woodforest Bank, 665 F.3d 632, 635 (5th Cir.2011) (citing Rachid v. Jack in the Box, Inc., 376 F.3d 305, 308 (5th Cir.2004)). Pursuant to Federal Rule of Civil Procedure 56(a), summary judgment is appropriate only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a)....