Gunaca v. State of TexasGunaca v. State of Texas
- Reporters:
- , , , ,
- Before:
- Emilio M. Garza, Reavley, Prado
EMILIO M. GARZA, Circuit Judge:
Dempsey Gunaca sued the State of Texas, El Paso County, El Paso County Judge Alicia Chacon, in her official capacity, and El Paso County District Attorney Jaime Esparza, in his official and individual capacity, over the loss of his job as an investigator at the El Paso County District Attorney‘s Office. Gunaca alleged age discrimination under the Age Discrimination in Employment Act of 1967,
I
Dempsey Gunaca was employed as an investigator by the former El Paso County
II
We review the district court‘s grant of summary judgment de novo. Montgomery v. Brookshire, 34 F.3d 291, 294 (5th Cir.1994). Summary judgment is proper under Rule 56 of the Federal Rules of Civil Procedure when all the evidence viewed in the light most favorable to the non-movant shows that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
A
Gunaca argues that the district court erroneously granted Esparza‘s motion for summary judgment on Gunaca‘s ADEA claim on the grounds that Gunaca is not an “employee” under Sec. 630(f) of the ADEA. Under the ADEA, it is unlawful to discharge an employee because of the employee‘s age.
[A]ny person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer‘s personal staff, or an appointee
on the policymaking level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office.
“Because the personal staff exception in the ADEA is identical to the personal staff exemption found in Title VII,
(1) Whether the elected official has plenary powers of appointment and removal, (2) whether the person in the position at issue is personally accountable to only that elected official, (3) whether the person in the position at issue represents the elected official in the eyes of the public, (4) whether the elected official exercises a considerable amount of control over the position, (5) the level of the position within the organization‘s chain of command, and (6) the actual intimacy of the working relationship between the elected official and the person filling the position.
Id. at 151; see also Clark v. Tarrant County, 798 F.2d 736, 742 (5th Cir.1986) (applying Teneyuca factors in Title VII case). We have considered those same factors in our application of the ADEA‘s personal staff exception. See Montgomery, 34 F.3d at 294-95 (applying Teneyuca in ADEA case).
The list is not exhaustive, Teneyuca, 767 F.2d at 151-52; Montgomery, 34 F.3d at 295, but it does guide us in looking to the ” ‘nature and circumstances of the employment relationship between the complaining individual and the elected official to determine if the exception applies,’ ” Teneyuca, 767 F.2d at 152 (quoting Owens v. Rush, 654 F.2d 1370, 1375 (10th Cir.1981)); accord Montgomery, 34 F.3d at 295. Our consideration
Gunaca has conceded that under chapter 41 of the Texas Government Code, the district attorney has plenary power to appoint and remove investigators, see
Gunaca contends, however, that investigators do not represent the district attorney in the eyes of the public because only those employees of the district attorney who are licensed to practice law, such as the assistant district attorneys, can represent the district attorney in the eyes of the public. In applying the third Teneyuca factor in Clark v. Tarrant County, 798 F.2d 736 (5th Cir.1986), we deemed relevant the fact that a probation officer did not represent her appointing judge to the general public in the same way that “[an] assistant district attorney represents the district attorney in legal proceedings and in the eyes of the public.” Id. at 743. However, we discussed the scope of the factor at greater length in Montgomery v. Brookshire, 34 F.3d 291 (5th Cir.1994), which concerned the application of the personal staff exemption to sheriffs’ deputies. We held in Montgomery that “as uniformed officials, all deputies regardless of position or rank represent the sheriff in the eyes of the public to some extent because the public is often generally unaware of the hierarchy within the sheriff‘s department.” Id. at 296. While we noted that “[o]ther considerations may arguably also be pertinent [in applying the third Teneyuca factor] in the context of lawyers in a law office representing an entity such as a city or county,” id. at 297 n. 6, the consideration emphasized in Montgomery is equally important in the present case. As Esparza stated in his motion for summary judgment, investigators are statutorily authorized to make arrests and to serve warrants, capiases, and subpoenas issued in criminal cases.
Gunaca also contends that the district attorney does not exercise a considerable amount of control over investigators. Esparza alleged in his motion for summary judgment, and the district court held, that the language of section 41.109(b) of the Texas Government Code, providing that the district attorney has “exclusive authority and direction”
Gunaca argues that the working relationship between the district attorney and the investigators is not intimate. In our application of the sixth Teneyuca factor in Montgomery, we considered the frequency with which Montgomery and his employer discussed business and consulted each other regarding their work. Id. at 296. In his motion for summary judgment, Esparza argued that a district attorney must maintain an intimate working relationship with investigators because “[i]n determining whether or not to initiate a criminal prosecution, a district attorney must confer, consult and rely upon the investigator assigned to gather evidence in the case,” making the investigator “privy to the confidential communications and deliberations of the elected official.” He supported his claim with affidavits from himself and an assistant that included essentially the same statements. Gunaca offered as summary judgment evidence his own affidavit, in which he stated that his working relationship with the former district attorney involved “reporting, reviewing, and seeking approval of investigative activities” but that he was “never included in organizational meetings, planning sessions, policy-making decisions, or case strategy meetings.” That Gunaca was not included in such meetings and decision-making does not detract from the fact that he regularly discussed business with the former district attorney, consulted the district attorney regarding work, and was consulted by the district attorney regarding work.
The fifth Teneyuca factor is the level of the position within the organization‘s chain of command. As we explained in Montgomery: “Factor five concerns [plaintiff‘s] rank within the organization‘s command structure. The ‘personal staff’ exception becomes less applicable the lower the particular employee‘s position because the exception was primarily intended to exempt the elected official‘s immediate subordinates or those ‘who are his first line advisors.’ ” Montgomery, 34 F.3d at 296 (holding that employee was not a member of employer‘s “personal staff” where four levels of supervisors separated employee from employer). Unrefuted summary judgment evidence established that in the organizational structure of the district attorney‘s office, three levels of supervisors separate investigators from the district attorney. The district court acknowledged that “[t]he investigator‘s position within the district attorney‘s chain of command is not at the top,” but emphasized that “the district attorney and his assistants place a great deal of trust in their investigators, and rely heavily upon them.”
Although the investigators’ position in the office‘s organizational structure provides Gunaca with his strongest argument that investigators are not part of the district attorney‘s personal staff, the argument does not have much force. Summary judgment evidence established that there are about fifty-five appointed positions in the district attorney‘s office, half the number of appointed law enforcement officials in the sheriff‘s office in Montgomery, see Montgomery, 34 F.3d at 297 (noting that appointed law enforcement officials numbered 113). In a small office, an employee‘s placement in the chain of command is less significant to a consideration of
Our inquiry into the nature and circumstances of the employment relationship between Gunaca and the former district attorney for the purpose of determining whether Gunaca is exempt from the protection of the ADEA is highly factual. It would not lend itself well to disposition by summary judgment were it not that most of the necessary facts are provided by statute or by Gunaca‘s testimony and summary judgment evidence. Our consideration of the Teneyuca factors supports the district court‘s judgment, and that judgment does not rely on the resolution of any genuine issues of fact. Therefore, we conclude that the district court properly granted Esparza‘s motion for summary judgment on Gunaca‘s ADEA claim on the grounds that Gunaca is excluded from the coverage of the ADEA.
B
Gunaca argues next that the district court erroneously granted Esparza‘s motion for summary judgment on the question of whether Esparza violated the First Amendment by refusing to re-appoint Gunaca in retaliation for Gunaca‘s political support of the former district attorney.5 Although Esparza contended in his motion for summary judgment that he is entitled to qualified immunity from liability on Gunaca‘s First Amendment claim, the district court granted Esparza‘s motion on the grounds that Gunaca “undeniably engaged in protected political activity, [but] has failed to come forward with credible evidence that such activity was the reason for his non-employment.”
Government officials performing discretionary functions are entitled to qualified immunity from suit unless their conduct violated clearly established statutory or constitutional rights of which a reasonable person would have known. Gibson v. Rich, 44 F.3d 274, 277 (5th Cir.1995). A claim of immunity must be resolved at the earliest possible stage of litigation because it entails an entitlement to immunity from suit and not merely a defense to liability. Hunter v. Bryant, 502 U.S. 224, 226, 112 S.Ct. 534, 536, 116 L.Ed.2d 589 (1991); accord Gibson, 44 F.3d at 277. In reviewing Esparza‘s assertion of qualified immunity, we must first determine whether Gunaca has alleged a violation of a constitutional right. Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991); Vojvodich v. Lopez, 48 F.3d 879, 886 (5th Cir.1995). In Elrod v. Burns, 427 U.S. 347, 357, 96 S.Ct. 2673, 2681, 49 L.Ed.2d 547 (1976), the Supreme Court held that because “political belief and association constitute the core of those activities protected by the First Amendment,” id. at 356, 96 S.Ct. at 2681, the practice of patronage dismissals “clearly infringes First Amendment interests,” id. at 360, 96 S.Ct. at 2683. Gunaca alleged in his complaint that “his discharge and failure to be rehired by Defendant Jaime Esparza . . .
Our second step is to determine whether the constitutional right that Esparza allegedly violated was clearly established at the time of the alleged violation. In Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987), the Supreme Court emphasized that “[t]he operation of this standard . . . depends substantially upon the level of generality at which the relevant ‘legal rule’ is to be identified.” Id. at 639, 107 S.Ct. at 3038-39. The Court discussed the dangers of defining the relevant legal right too generally, and held that “the right the official is alleged to have violated must have been ‘clearly established’ in a more particularized, and hence more relevant sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Id. at 640, 107 S.Ct. at 3039; accord Matherne v. Wilson, 851 F.2d 752, 756 (5th Cir.1988). Thus, in Anderson, which involved a warrantless search of a residence, the Court held that “It simply does not follow immediately from the conclusion that it was firmly established that warrantless searches not supported by probable cause and exigent circumstances violate the Fourth Amendment that [the defendant‘s] search was objectively legally unreasonable,” and held that the lower court should have considered whether it was “clearly established that the circumstances with which [the defendant] was confronted did not constitute probable cause and exigent circumstances.” Anderson, 483 U.S. at 640-41, 107 S.Ct. at 3039 (emphasis added).
In Noyola v. Texas Department of Human Resources, 846 F.2d 1021 (5th Cir.1988), we considered the effect of Anderson on “the qualified immunity of public officials whose actions are alleged to have violated an employee‘s first amendment rights.” Noyola, 846 F.2d at 1025. Because our consideration of such First Amendment claims involves a case-specific balancing of the employee‘s First Amendment rights and the government‘s interest in maintaining discipline and efficiency in the work place, id., we held that “[t]here will rarely be a basis for a priori judgment that the termination or discipline of a public employee violated ‘clearly established’ constitutional rights.” Id. In Noyola, reasoning that “[n]o Fifth Circuit case [at the time of the alleged violation] had found a first amendment violation on facts like these,” id. at 1026, we held that the defendant official was entitled to qualified immunity because ” ‘reasonable government officials, knowing only that they must not infringe on [employee free speech rights], would not necessarily know just what conduct was prohibited.’ ” Id. at 1025 (quoting Hodorowski v. Ray, 844 F.2d 1210, 1217 (5th Cir.1988)).
Esparza took office in January of 1993. By that time, both the Supreme Court and the Fifth Circuit had recognized a class of public employees from whom political allegiance may be demanded: public employees whose First Amendment interests are outweighed by a governmental interest in the employees’ political loyalty. See, e.g., Branti v. Finkel, 445 U.S. 507, 518, 100 S.Ct. 1287, 1295, 63 L.Ed.2d 574 (1980) (holding that an employee is not protected from political patronage dismissal if “the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved“); Vojvodich, 48 F.3d at 887 (holding that “by January 1992 at the latest,” law clearly established that “a public employer cannot act against an employee because of the employee‘s affiliation or support of a rival candidate unless the employee‘s activities in some way adversely affect the government‘s ability to provide services“).6
III
For the foregoing reasons, we AFFIRM the district court‘s grant of summary judgment on Gunaca‘s ADEA and Sec. 1983 claims.