United States District Court, W.D. Texas, San Antonio Division
ORDER ON MOTION FOR SUMMARY JUDGMENT
RODRIGUEZ UNITED STATES DISTRICT JUDGE
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.
case arises out of Plaintiff Beverly Hill's
(“Plaintiff”) former employment with the
Sheriff's Office in Kerr County
(“Defendant”). 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
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.
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.
(“Hierholzer”) investigation into the assault
case turned up other policy violations that could affect her
employment. Id. at 73, 82. 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.
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.
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.
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. 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.
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. 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
Mr. Hill still works at the same job. Docket no. 25-1 at 13.
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.
Standard of Review
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 ...