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Hill v. Kerr County

United States District Court, W.D. Texas, San Antonio Division

January 13, 2020

KERR COUNTY, Defendant



         On this date, the Court considered Defendant Kerr County's motion for summary judgment (docket no. 25), Plaintiff Beverly Hill's response (docket no. 26), and Defendant's reply (docket no. 27). After careful consideration, Defendant's motion is DENIED.


         This case arises out of Plaintiff Beverly Hill's (“Plaintiff”) former employment with the Sheriff's Office in Kerr County (“Defendant”).[1] Docket no. 15. Plaintiff began working at the Kerr County Sheriff's Department as a dispatcher on June 5, 2016. Docket no. 25-2 at 10. As a dispatcher, Plaintiff was aware of two specific workplace policies. Id. at 11-12. First, Policies and Procedures Section 2.3 provided that “[o]fficers and employees will not knowingly give any false or misleading information concerning the duties, responsibilities or actions of the Office…nor withhold any information that is their duty to report….” Id. at 56 (truthfulness policy). Second, Section 4.15 provided that “[a]ffairs consisting of married employees with any other persons regardless of their marital status or if they are employed by this agency, or single employees with any married person are strictly forbidden and grounds for immediate termination.” Id. at 64 (extramarital affairs policy).

         Plaintiff's husband, Tommy Hill (“Mr. Hill”), worked for Defendant as a corrections officer. Docket no. 25-3 at 7. On April 2, 2018, Plaintiff and Mr. Hill were involved in a domestic disturbance at their home. Plaintiff returned home that evening, admittedly angry at Mr. Hill. The two began arguing, upon which Plaintiff admits she “smacked [Mr. Hill's] phone out of his hand.” Docket no. 25-1 at 91. The dispute ended when Mr. Hill, in his own words, “jumped up and…charged her and…grabbed her and…placed her on the floor and…put her hands above her head.” Docket no. 25-3 at 19. Plaintiff then left the residence and made a report with the Sheriff's Department. Id. The Department decided to forward the case to the Assistant County Attorney. Docket no. 25-2 at 82.

         When Plaintiff went to the Sheriff's office to inquire about the status of that case, Clay Barton (“Barton”), the Chief Deputy, informed her that the prosecutor decided not to prosecute the case and that Sheriff W.R. “Rusty” Hierholzer's (“Hierholzer”) investigation into the assault case turned up other policy violations that could affect her employment. Id. at 73, 82.[2] Barton informed Plaintiff that a previous affair she had with Sean Feldmann (“Feldmann”), a Sheriff's deputy, was now known. Hierholzer was aware of that affair from information he received from Mr. Hill during the Sheriff's investigation of Mr. Hill for assault. Docket no. 25-1 at 110. Plaintiff stated that if she lost her job over an extramarital affair, Mr. Hill should as well because he had also engaged in an extramarital affair. Id. at 82.

         On April 5, 2018, Plaintiff returned to work to meet with Hierholzer. Amanda Jemeyson (Plaintiff's immediate supervisor) and Clay Barton were present. Docket no. 25-2 at 82. Hierholzer, having heard from Mr. Hill that Plaintiff had an extramarital affair, sent Plaintiff to a connected conference room where he ordered her to write a statement. Id. at 23. In that statement, Plaintiff admitted to having sex once with Deputy Feldmann while she and her husband were separated. Id. at 73. After sending Plaintiff back to the room when he felt the statement was not sufficiently complete, Hierholzer called Plaintiff a “hothead” and said that she went home that evening asking for a confrontation between her and Mr. Hill. Docket no. Id. at 21, 23.

         Initially, Hierholzer took no employment action because he often excused extramarital affairs that occurred while the married couple was separated, and Plaintiff and Mr. Hill were separated at the time of the confessed encounter between Plaintiff and Feldmann. See docket no. 25-1 at 17 (noting his determination of whether the affair merits termination is determined on a “case-by-case” basis). That same day, Feldmann wrote Hierholzer a letter in which he admitted to the affair, at first claiming it only happened once and that it was during Plaintiff and Mr. Hill's separation. Docket no. 25-2 at 74. A week later, however, Feldmann amended his statement to Hierholzer, this time claiming that the two had sex multiple times over a several-week period. Id. at 74, 85; docket no. 25-1 at 24. Plaintiff maintains that this was a one-time occurrence. Docket no. 25-2 at 18-19.

         The investigation also revealed that Plaintiff may have had an affair with another employee, Deputy Justin Outlaw (“Outlaw”). Outlaw wrote a letter to Hierholzer, confessing to a one-time sexual encounter in 2017. Docket no. 25-2 at 76. That letter remarked that Plaintiff's husband was okay with the affair because he, too, admitted to having sexual intercourse with other people during their marriage. Id. When asked, Plaintiff denied the allegation that she had an affair with Outlaw. Docket nos. 25-1 at 24; 25-2 at 25.[3] Hierholzer also claimed Plaintiff had an affair with another employee, Ray Valero (“Valero”), which Plaintiff denies. Docket no. 25-2 at 41. Valero also denies sleeping with Plaintiff, and when Hierholzer asked him to take a polygraph, he refused to do so and resigned instead. Docket no. 25-1 at 35-38.

         During the investigation, Hierholzer also spoke with Mr. Hill, Plaintiff's husband. Docket no. 25-3 at 19. Hierholzer asked Mr. Hill whether he and Plaintiff were divorcing; when asked why they were indeed divorcing, Mr. Hill remained quiet. Hierholzer then asked, “She's messing around on you, isn't she? Well, who is it?” Docket no. 25-3 at 21-22, 24. Mr. Hill responded that Plaintiff had an affair with Feldmann and that this happened once while he and Plaintiff were separated. Id. Mr. Hill claimed-multiple times-that Hierholzer did not ask him whether he had himself had any extramarital affair. Id. at 21, 22-23, 28, 34. Indeed, Mr. Hill testified that no one asked him if he had any extramarital affair. Id. at 34. Hierholzer, on the other hand, claims that he was aware of the allegation that Mr. Hill had an affair, that he asked Mr. Hill about it, and that Mr. Hill denied as much. Docket nos. 25-2 at 82, 25-1 at 26-27.[4] Rather than investigating the matter himself, Hierholzer had a jail administrator speak with Mr. Hill and the woman he was allegedly sleeping with. Docket no. 25-3 at 2. Both denied the allegations, and the record reveals no further investigation of the matter. Id. Nonetheless, Mr. Hill admits that he did indeed have a sexual relationship with another employee. Docket no. 25-3 at 33.[5] Mr. Hill still works at the same job. Docket no. 25-1 at 13.

         The investigation into Plaintiff resulted in the following employment decisions: (1) Plaintiff was terminated for violation of the truthfulness policy (with respect to the number of times she slept with Feldmann), improper conduct, and the extramarital affairs policy; (2) Feldmann was terminated for the same policy violations; (3) Outlaw was suspended for thirty days without pay for violation of the extramarital affair policy; and (4) Mr. Hill was found to have not violated any policy and remains employed today. Docket nos. 25-2 at 78, 25-1 at 110.


         I. Standard of Review

         The Court shall grant summary judgment 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. To establish that there is no genuine issue as to any material fact, the movant must either submit evidence that negates the existence of some material element of the non-moving party's claim or defense, or, if the crucial issue is one for which the non-moving party will bear the burden of proof at trial, merely point out that the evidence in the record is insufficient to support an essential element of the non-movant's claim or defense. Lavespere v. Niagara Machine & Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990). Once the ...

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