By Anthony Rice
In Haverda v. Hays County, an the Federal Fifth Circuit Court of Appeals found Texas Corrections Captain Haverda introduced enough evidence that could lead a reasonable juror to conclude Haverda’s demotion was motivated by his speech. It rejected a lower court ruling that had dismissed Haverda’s claim and sent it back for trial.
During a heated election for sheriff, a local newspaper published a letter to the editor written by Haverda in support of Sheriff Ratliff. Therein, Haverda wrote that “’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.
During Sheriff Cutler’s first week in office, Chief Deputy Page discovered a number of health, safety, and security issues in the Jail. Sheriff Cutler thereafter terminated the three Jail Command Staff members but suspend their terminations for sixty days to assess their performance in improving the Jail. But at the end of the 60 days, the jail conditions had improved and no member of the command staff was terminated or demoted.
Haverda’s demotion came after Haverda was instructed by Chief Deputy Page to “get on the train” And “join the team.” One week after that instruction a memorandum was delivered to Haverda demoting him to Corrections Officer. Haverda met with Sheriff Cutler to 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 him running everybody off.
In reversing the lower court, the Court of Appeals found that Haverda introduced sufficient evidence to raise an issue of fact as to whether he was demoted for his speech.
First, Haverda offered [recordings] from his meeting with Sheriff Cutler as proof that Sheriff Cutler harbored resentment following the Sheriff’s Election. . . Second, Haverda offered language from the demotion memorandum, written and issued by Chief Deputy Page and approved and adopted by Sheriff Cutler, that referenced Sheriff Cutler’s campaign promise not to terminate any employees. . . Third, Haverda offered statements made by Sheriff Cutler and Chief Deputy Page that Haverda interpreted as having a political meaning. Specifically, Haverda offered Chief Deputy Page’s and Major Robinson’s testimony that Chief Deputy Page instructed Major Robinson to tell Haverda that he needed to “get on the train.”
The Court explained how the evidence was sufficient enough to require a trial:
Although the language in the demotion memorandum and statements to “get on the train” or “join the team” do not appear to be retaliatory on their face, summary judgment evidence is not considered in a vacuum. A court must consider the evidence in the light most favorable to Haverda, which includes considering the demotion memorandum language and allegedly political statements in context with any other evidence, circumstantial or direct, that Haverda has offered.
Based on the evidence Haverda presented, a court in summary judgment proceedings must infer that Sheriff Cutler was aware of Haverda’s campaign activity and that he had a negative reaction to it. It follows then that the language in the demotion memorandum should be considered evidence that Sheriff Cutler was indirectly referencing his awareness of Haverda’s letter to the editor and that the demotion was in retaliation for Haverda’s speech.
Likewise, statements about needing to “get on the train” and “join the team” can, and often do, carry a political connotation. Whether the demotion language and the allegedly political statements were meant to be retaliatory is not a question for the court to decide during a summary judgment analysis. This inquiry involves the credibility of the evidence and must be decided by the fact-finder. Considering these statements in context with the other evidence provided by Haverda, a court at the summary judgment stage must consider these statements as evidence of retaliation.
