Brady v. Fort Bend County

REVISED, July 27, 1998

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 96-20886
_____________________

KENNTH CRAIG BRADY, ET AL,

Plaintiffs,

KENNETH CRAIG BRADY; BOBBY LEE EVANS; WILLIAM E
FORTENBERRY; JAMES ARTHUR LEACH; STEPHEN LEON SKINNER;
GUY “NUBBIN” CHAMBLEE,

Plaintiffs-Appellees-Cross-Appellants,

v.

FORT BEND COUNTY, ET AL,

Defendants,

FORT BEND COUNTY,

Defendant-Appellant-Cross-Appellee.
_________________________________________________________________

ANTONIO O ROSAS,

Plaintiff-Appellee-Cross-Appellant,

v.

FORT BEND COUNTY, ET AL,

Defendants,

FORT BEND COUNTY,

Defendant-Appellant-Cross-Appellee.

_________________________________________________________________
 Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
July 2, 1998
Before KING, EMILIO M. GARZA, and DeMOSS, Circuit Judges.

KING, Circuit Judge:

Defendant Fort Bend County appeals the district court’s

entry of judgment in favor of plaintiffs Kenneth Craig Brady, Guy

“Nubbin” Chamblee, Bobby Lee Evans, William Fortenberry, James

Leach, Stephen Leon Skinner, and Antonio O. Rosas based upon a

jury verdict in favor of plaintiffs on their claims under 42

U.S.C. § 1983 that R. George Molina, the former sheriff of Fort

Bend County, failed to rehire them based upon their exercise of

their First Amendment rights of free speech and association. For

the reasons set forth below, we affirm the district court’s

judgment.

I. FACTUAL BACKGROUND

In 1992, R. George Molina, a Democrat, ran for sheriff of

Fort Bend County, Texas, against the Republican incumbent, Perry

Hillegeist. At that time, plaintiffs Kenneth Craig Brady, Guy

“Nubbin” Chamblee, Bobby Lee Evans, William Fortenberry, James

Leach, Stephen Leon Skinner, and Antonio O. Rosas (collectively,

the Plaintiffs) worked under Hillegeist as deputy sheriffs in the

Fort Bend County Sheriff’s Department. Brady was the lieutenant

of the detective bureau of the sheriff’s department. Chamblee

was a detective sergeant in narcotics. Evans was a patrol

2
sergeant. Fortenberry was the lieutenant in charge of the county

jail, and Leach was a sergeant supervised by Fortenberry.

Skinner was a patrol deputy. Rosas was the sergeant who

supervised the warrants division.

Each of the Plaintiffs supported Hillegeist’s bid for re-

election. Although their levels of participation varied, the

Plaintiffs generally supported Hillegeist by attending rallies,

posting signs, and campaigning door-to-door. Molina won the

election in November 1992. That month, he appointed a transition

team to determine which of the sheriff’s department’s current

employees would be reappointed under his administration. The

transition team met on November 4, 1992, and on December 1 or 2,

1992. On December 4, 1992, Molina delivered letters to the

Plaintiffs stating that they would not be rehired on January 1,

1993. On December 31, 1992, Molina was sworn into office. Under

Texas law, the Plaintiffs’ terms as deputies expired

automatically when Hillegeist’s tenure of office expired on

December 31, 1992. See Abbott v. Pollock, 946 S.W.2d 513, 517

(Tex. App.--Austin 1997, writ denied); El Paso County Sheriff’s

Deputies’ Ass’n v. Samaniego, 802 S.W.2d 727, 728 (Tex. App.--El

Paso 1990, writ denied). On January 1, 1993, Molina, now

officially occupying the office of sheriff, reaffirmed his

decision not to rehire the Plaintiffs and signed letters to this

effect.

3
 II. PROCEDURAL BACKGROUND

On February 16, 1993, Brady sued Fort Bend County (the

County) and Molina in federal district court under 42 U.S.C.

§ 1983, alleging that Molina failed to rehire him on the basis of

his political support for Hillegeist in the sheriff’s race and

that this action constituted a violation of the First Amendment.

Evans, Fortenberry, Leach, Skinner, and Chamblee subsequently

joined as plaintiffs in the action. On June 30, 1993, the County

moved for summary judgment, and Molina also moved for summary

judgment based on qualified immunity. The district court denied

both motions. Molina appealed, and a panel of this court

affirmed the district court’s denial of summary judgment. See

Brady v. Fort Bend County, 58 F.3d 173, 176 (5th Cir. 1995). The

court then granted Molina’s suggestion of rehearing en banc. See

id.

On July 21, 1994, while en banc consideration of Molina’s

appeal in Brady’s suit was pending, Rosas filed a separate action

against the County and Molina. The County and Molina both moved

to dismiss. The district court denied their motions, and Molina

filed another appeal. The Plaintiffs voluntarily dismissed

Molina as a party defendant in both the Brady and Rosas suits.

As a result, this court dismissed both appeals. The Rosas and

Brady suits were then consolidated at the district court level.

4
 On June 3, 1996, trial commenced. The County moved for

judgment as a matter of law at the close of the Plaintiffs’ case

and at the close of the evidence. The district court denied

these motions. On June 19, 1996, the jury returned a verdict in

favor of all of the Plaintiffs, awarding damages for back pay to

all of the Plaintiffs, back benefits to all of the Plaintiffs

except Chamblee, Evans, and Skinner and mental anguish to all of

the Plaintiffs.1 The County moved for judgment as a matter of

law, a new trial, or remittitur. The district court granted the

County’s motion in part and set aside the jury’s award of mental

anguish damages as to all of the Plaintiffs except Skinner on the

ground that insufficient evidence supported these awards. It

denied the motion in all other respects. On August 15, 1996, the

district court entered final judgment consistent with the jury’s

verdict except that it awarded mental anguish damages only to

Skinner. The district court also awarded the Plaintiffs

prejudgment interest on back pay and attorney’s fees of

$751,370.75. Additionally, the district court ordered

reinstatement of the Plaintiffs but stayed the reinstatement

pending appeal.

The County timely filed a notice of appeal, and all of the

Plaintiffs except Skinner cross-appealed the district court’s

1
The jury awarded $25,000 in mental anguish damages to
Rosas, $15,000 to Leach, and $10,000 to each of the other
Plaintiffs.

5
partial grant of the County’s motion for judgment as a matter of

law on the issue of mental anguish damages.

III. DISCUSSION

The County appeals the district court’s judgment in favor of

the Plaintiffs on the following grounds:

1. As a matter of law, the County is not liable for

Molina’s hiring decisions because Molina was not a

final policymaker regarding the County’s

employment policy.

2. First Amendment law should defer to a state’s

right to decide, as Texas has done, whether

patronage practices will exist as part of

political systems.

3. The County’s interest in efficiency in the

services that it provides through its employees

outweighed the interests of the Plaintiffs in

engaging in political activity in support of

Hillegeist.

4. Molina’s actions could not have violated the

Plaintiffs’ First Amendment rights because he

merely failed to rehire them as opposed to

discharging them before their terms expired.

5. The district court erred in instructing the jury

that the County was required to prove that Molina

6
 possessed legitimate reasons for his failure to

rehire the Plaintiffs by a preponderance of the

evidence.

6. Insufficient evidence exists to support the jury’s

conclusion that Molina’s decision not to rehire

the Plaintiffs was based upon their political

support for Hillegeist.

7. The district court erred in admitting certain

testimony from one of the Plaintiffs’ witnesses

because the testimony was irrelevant and

prejudicial.

8. The district court’s award of attorney’s fees is

supported by insufficient evidence.

All of the Plaintiffs except Skinner contend on appeal that the

district court erred in partially granting the County’s motion

for judgment as a matter of law and setting aside their awards of

damages for mental anguish. We consider each of these issues in

turn.

A. Whether Molina Was a Final Policymaker

The County correctly observes that municipal liability for

constitutional torts arises when the execution of an official

policy or custom of the municipality causes the constitutional

injury. See Monell v. Department of Soc. Servs., 436 U.S. 658,

694 (1978). It also recognizes that a single action by a

7
municipal official possessing final policymaking authority

regarding the action in question constitutes the official policy

of the municipality and that the determination of whether a

municipal official wields final policymaking authority regarding

a particular action constitutes a question of state law. See

McMillian v. Monroe County, 117 S. Ct. 1734, 1736-37 (1997). The

County contends that Molina was not acting in a capacity as the

County’s final policymaker when it declined to rehire the

Plaintiffs. In support of this contention, the County relies on

the following passage from Justice Brennan’s opinion in Pembaur

v. City of Cincinnati, 475 U.S. 469 (1986):

Municipal liability attaches only where the
decisionmaker possesses final authority to establish
municipal policy with respect to the action ordered.
The fact that a particular official--even a
policymaking official--has discretion in the exercise
of particular functions does not, without more, give
rise to municipal liability based on an exercise of
that discretion. The official must also be responsible
for establishing final government policy respecting
such activity before the municipality can be held
liable.12
_______
12
Thus, for example, the County Sheriff may have
discretion to hire and fire employees without also
being the county official responsible for establishing
county employment policy. If this were the case, the
Sheriff’s decisions respecting employment would not
give rise to municipal liability, although similar
decisions with respect to law enforcement practices,
over which the Sheriff is the official policymaker,
would give rise to municipal liability. Instead, if
county employment policy was set by the Board of County
Commissioners, only that body’s decisions would provide
a basis for county liability. This would be true even
if the Board left the Sheriff discretion to hire and
fire employees and the Sheriff exercised that

8
 discretion in an unconstitutional manner; the decision
to act unlawfully would not be a decision of the Board.

Id. at 484 & n.12 (citations and other footnotes omitted).

The County argues that Molina is analogous to the

hypothetical sheriff in Pembaur. The County concedes that, under

Texas law, Molina constituted its final policymaker with respect

to law enforcement and that his actions in this capacity could

form a basis for county liability. See Turner v. Upton County,

915 F.2d 133, 136 (5th Cir. 1990) (holding that, in Texas, a

sheriff wields final policymaking authority in the county

regarding law enforcement). However, it contends that he did not

constitute a final policymaker with respect to county employment

policy generally and thus that his failure to rehire the

Plaintiffs cannot subject the County to liability. The County

observes that the Texas Local Government Code requires the

sheriff to apply to the commissioners court of the county for

authorization to appoint employees. See TEX. LOC. GOV’T CODE ANN.

§ 151.001 (Vernon 1988). It further notes that the commissioners

court establishes the classifications of employees in the

sheriff’s department and sets the salaries for each

classification. See id. § 152.071. The County also observes

that the commissioners court establishes policy regarding the

entitlement of numerous classes of county employees to benefits

such as health and accident insurance. See id. § 157.002 (Vernon

Supp. 1998). The County therefore argues that the commissioners

9
court, rather than the sheriff, constitutes the final policymaker

regarding county employment policy.

The County correctly observes that we would paint with too

broad a brush were we to conclude that the County may be liable

for constitutional injury arising from Molina’s decision not to

rehire the Plaintiffs because he constituted the County’s final

policymaker with respect to law enforcement. As the Supreme

Court recently observed, in determining whether Molina

constituted a “policymaker” for the County, the relevant inquiry

“is not whether [he] act[ed] for . . . [the County] in some

categorical, ‘all or nothing’ manner.” McMillian, 117 S. Ct. at

1737. Rather, the Court’s “cases on the liability of local

governments under § 1983 instruct us to ask whether governmental

officials are final policymakers for the local government in a

particular area, or on a particular issue.” Id. at 1737

(emphasis added); see also City of St. Louis v. Praprotnik, 485

U.S. 112, 123 (1988) (plurality opinion) (observing that, in

order for municipal liability to attach based upon an

unconstitutional act by its official or officials, “the

challenged action must have been taken pursuant to a policy

adopted by the official or officials responsible under state law

for making policy in that area of the [municipality’s]

business”). However, the County’s argument goes astray because

it then urges us to paint with too broad a brush and hold that

Molina did not act as the County’s final policymaker when he

10
declined to rehire the Plaintiffs because Molina did not

establish the County’s employment policy generally. Rather, the

appropriate inquiry is whether the sheriff is the County’s final

policymaker with respect to the specific action at issue here--

filling available employment positions in the sheriff’s

department. With respect to this specific act, Texas law

unequivocally vests the sheriff with final policymaking

authority. Section 85.003(c) of the Texas Local Government Code

provides that deputies “serve[] at the pleasure of the sheriff.”

TEX. LOC. GOV’T CODE ANN. § 85.003(c) (Vernon 1988). Moreover,

§ 151.004 prohibits the commissioners court from exercising any

influence over whom the sheriff appoints to serve as deputies.

See id. § 151.004. As one Texas court of appeals has observed,

By including such provision in the law, the Legislature
established a public policy to the effect that officers
elected by the people to discharge public trusts and
upon whose shoulders rests the responsibility for their
proper discharge should be free to select persons of
their own choice to assist them in the discharge of the
duties of their officers.

Murray v. Harris, 112 S.W.2d 1091, 1093 (Tex. Civ. App.--Amarillo

1938, writ dism’d); see also Commissioners Court v. Ross, 809

S.W.2d 754, 756 (Tex. App.--Tyler 1991, no writ) (“The

commissioners court may limit the number of deputies authorized,

but it has no power over naming the individuals to be

appointed.”).

Sheriffs under Texas law are unlike the hypothetical sheriff

discussed in Pembaur because a Texas sheriff is not merely

11
granted “discretion to hire and fire employees” by the

commissioners court. Pembaur, 475 U.S. at 484 n.12. Rather, the

Texas legislature has vested sheriffs with such discretion, and

the sheriff’s exercise of that discretion is unreviewable by any

other official or governmental body in the county. Texas

sheriffs therefore exercise final policymaking authority with

respect to the determination of how to fill employment positions

in the county sheriff’s department. See Turner, 915 F.2d at 136

(“‘Because of the unique structure of county government in Texas

. . . elected county officials, such as the sheriff . . . hold[ ]

virtually absolute sway over the particular tasks or areas of

responsibility entrusted to him by state statute and is

accountable to no one other than the voters for his conduct

therein . . . . Thus, at least in those areas in which he,

alone, is the final authority or ultimate repository of county

power, his official conduct and decisions must necessarily be

considered those of one “whose edicts or acts may fairly be said

to represent official policy” for which the county may be held

responsible under section 1983.’” (quoting Familias Unidas v.

Briscoe, 619 F.2d 391, 404 (5th Cir. 1980) (quoting Monell, 436

U.S. at 694))) (alterations in original)); see also Davis v.

Ector County, 40 F.3d 777, 784 (5th Cir. 1994) (holding that a

Texas district attorney’s termination of an employee under his

supervision constituted an act of final policymaking authority

within the county because he “enjoyed free reign over the

12
District Attorney’s office and set department policy without

oversight”).2

The County argues, however, that the commissioners court

possesses an indirect ability to control the sheriff’s exercise

of discretion to hire and fire deputies because it determines the

number of deputy positions that the sheriff will be allowed to

fill. See TEX. LOC. GOV’T CODE ANN. § 151.001; Ross, 809 S.W.2d at

756. We acknowledge that a plurality of the Supreme Court has

stated that, “[w]hen an official’s discretionary decisions are

constrained by policies not of that official’s making,” that

official does not wield final policymaking authority with respect

to his discretionary actions. Praprotnik, 485 U.S. at 127

(plurality opinion). However, the Court’s later decision in Jett

v. Dallas Independent School District, 491 U.S. 701 (1989),

2
The County contends that this court’s decision in Gunaca
v. Texas, 65 F.3d 467 (5th Cir. 1995), mandates a conclusion that
Molina did not act as a final policymaker in choosing not to
rehire the Plaintiffs. In Gunaca, the plaintiff, a county
investigator, argued that the defendant county was liable for the
district attorney’s dismissal of the plaintiff on the basis of
his political affiliation. See id. at 473 n.5. The county
argued that no municipal liability existed because, “under Texas
law, the district attorney possesses exclusive authority to hire
and fire investigators.” Id. The plaintiff’s sole response to
this argument was that the county could nonetheless be liable for
the patronage dismissal because “municipal officials controlled
investigators’ salary and employment benefits.” Id. A review
of the Gunaca opinion and the briefs filed in that case reveals
that the plaintiff did not argue that the fact that the district
attorney had exclusive discretion in the hiring and firing of
investigators rendered him the county’s policymaker in this
regard, which would give rise to municipal liability. Gunaca
therefore does not control our decision in this case.

13
implies that the type of indirect constraint to which the County

refers does not indicate that an official does not possess final

policymaking authority.

In Jett, the petitioner brought suit under 42 U.S.C. §§ 1981

and 1983, contending that his transfer from a coaching position

by the superintendent of the Dallas Independent School District

(DISD) violated his constitutional rights to due process and

equal protection. See id. at 707. The petitioner further argued

that DISD was liable for the superintendent’s actions. See id.

After concluding that § 1983 “provides the exclusive federal

damages remedy for the violation of rights guaranteed by § 1981

when the claim is pressed against a state actor,” see id. at 735,

the Court remanded the case for a determination of whether DISD’s

superintendent wielded final policymaking authority “concerning

the transfer of school district personnel.” Id. at 738 (emphasis

added). This statement of the issue to be resolved by the Court

of Appeals on remand indicates that it was unnecessary for the

superintendent to exercise final policymaking authority over

other aspects of school district employment policy, such as

hiring and firing school district personnel. To the extent that

final policymaking authority regarding the hiring and firing of

school district personnel was vested in an official other than

the superintendent, that other official could certainly

“constrain” the superintendent’s exercise of authority to

transfer school district personnel by simply firing the

14
individuals that the superintendent wished to transfer. This is

precisely the sort of indirect constraint that the commissioners

court can place upon the sheriff’s exercise of his authority to

hire and fire deputies. That the municipal official need only

exercise final policymaking authority with respect to the

specific action allegedly constituting a constitutional tort thus

indicates that the sort of indirect constraint that the County

contends limits a Texas sheriff’s discretion in hiring and firing

deputies does not indicate a lack of final policymaking authority

on the part of the sheriff regarding such decisions.

The County further argues that sheriffs do not possess final

policymaking authority with regard to filling employment

positions in the sheriff’s department because the Texas

legislature has authorized the creation of a civil service

commission empowered to “adopt, publish, and enforce rules

regarding . . . matters relating to the selection of employees

and the procedural and substantive rights, advancement, benefits,

and working conditions of employees.” TEX. LOC. GOV’T CODE ANN.

§ 158.035(a) (Vernon Supp. 1998). However, establishment of a

civil service commission requires a petition by at least twenty

percent of the employees of the sheriff’s department requesting

the creation of a civil service system as well as a majority of

the employees in the department in favor of the creation of such

a system. See id. §§ 158.033-.034 (Vernon 1988 & Supp. 1998).

No such system existed in the County when Molina took office.

15
Thus, for the time period relevant to this lawsuit, final

policymaking authority regarding the selection of deputies

remained vested in the sheriff of the County.3

The County next argues that Molina clearly did not exercise

final policymaking authority with respect to the appointment of

deputies to available employment positions on December 4, 1992,

when he delivered the letters to the Plaintiffs indicating that

he did not intend to rehire them. This argument is devoid of

merit because, once Molina assumed office, he reaffirmed his

intention not to rehire the Plaintiffs and gave effect to that

intent by not rehiring the Plaintiffs. After Molina took office,

he was a state actor wielding the policymaking authority

described above with respect to filling available deputy

positions in the sheriff’s department.

Finally, the County contends that, because Texas sheriffs

possess “unfettered authority to appoint deputies,” a conclusion

that the sheriff wields final policymaking authority with respect

to filling available deputy positions “subjects every Texas

county to recurring lawsuits after every election even though the

counties are forbidden from interfering in the Sheriff’s

3
We note that, even if the County’s sheriff’s department
were to adopt a civil service system, doing so would not strip
the sheriff of all final policymaking authority regarding the
selection of deputies. This is so because the Local Government
Code provides that the sheriff retains the ability to exempt a
certain number of positions within the department from the civil
service system. See TEX. LOC. GOV’T CODE ANN. § 158.038 (Vernon
Supp. 1998).

16
appointment decisions.” As indicated above, however, the fact

that under Texas law, no other official or governmental entity of

the county exerts any control over the sheriff’s discretion in

filling available deputy positions is what indicates that the

sheriff constitutes the county’s final policymaker in this area.4

We therefore conclude that, when Molina failed to rehire the

Plaintiffs, he acted in a final policymaking capacity. As such,

if his decision not to rehire the Plaintiffs constituted an

infringement of their First Amendment rights, the County is

liable for the consequences of that decision.

B. Whether Molina’s Failure to Rehire the Plaintiffs
Violated Their First Amendment Rights

The County advances a number of arguments as to why Molina’s

failure to rehire the Plaintiffs, even if motivated by their

political activities in support of Hillegeist, nonetheless did

not violate their First Amendment rights. We consider each of

these arguments in turn.

4
The County does not contend that it is not liable for the
sheriff’s unconstitutional employment practices on the ground
that, under Texas law, sheriffs act as state policymakers as
opposed to county policymakers in filling available deputy
positions. See McMillian, 117 S. Ct. at 1740 (holding that an
Alabama county was not liable for the constitutional torts
resulting from the law enforcement policy of the county’s sheriff
because, under Alabama law, sheriffs acting in a law enforcement
capacity constitute officers of the state rather than the
county). We therefore do not address this issue.

17
 1. Texas’s “right” to allow employment decisions
on the basis of political affiliation

The County first observes that, through relevant provisions

of the Texas Local Government Code, the Texas Legislature has

manifested a clear intention that deputy sheriffs “serve[] at the

pleasure of the sheriff.” TEX. LOC. GOV’T CODE ANN. § 85.003. It

contends that “[w]hether to endorse a patronage system is a

policy decision that should be left to the judgment of the

people’s elected representatives.” The County therefore argues

that our First Amendment jurisprudence should “defer” to Texas’s

“right to decide . . . whether patronage practices will exist as

part of local political systems.” This argument need not detain

us long.

For more than two decades, the Supreme Court has

consistently held that “the First Amendment forbids government

officials to discharge or threaten to discharge public employees

solely for not being supporters of the political party in power,

unless party affiliation is an appropriate requirement for the

position involved.” Rutan v. Republican Party of Ill., 497 U.S.

62, 64 (1990); see also Branti v. Finkel, 445 U.S. 507 (1980);

Elrod v. Burns, 427 U.S. 347 (1976). In essence, the County asks

us to overrule the long line of Supreme Court authority placing

limits on political patronage practices, along with the

substantial body of case law in this circuit interpreting and

applying that authority. See, e.g., Kinsey v. Salado Indep. Sch.

18
Dist., 950 F.2d 988 (5th Cir. 1992) (en banc); McBee v. Jim Hogg

County, 730 F.2d 1009 (5th Cir. 1984) (en banc). This is

something that we obviously lack the authority to do, even if we

had the inclination.

In a similar vein, the County argues that the Plaintiffs

were well aware that they served at the pleasure of the sheriff

and that their tenures ended automatically with the end of the

sheriff’s term. It therefore contends that the Plaintiffs had no

legitimate expectation of, or right to, being rehired by Molina.

The County thus claims that Molina’s failure to rehire the

Plaintiffs, even if based upon their political activities in

support of Hillegeist, could not have violated their First

Amendment rights. In Perry v. Sindermann, 408 U.S. 593 (1972),

the Supreme Court observed that, “[f]or at least a quarter-

century, this Court has made clear that even though a person has

no ‘right’ to a valuable governmental benefit and even though the

government may deny him the benefit for any number of reasons,

there are some reasons upon which the government may not rely.”

Id. at 597. “The denial of a public benefit may not be used by

the government for the purpose of creating an incentive enabling

it to achieve what it may not command directly.” Elrod, 427 U.S.

at 361 (Brennan, J.). In Sherbert v. Verner, 374 U.S. 398

(1963), the Court observed that “[i]t is too late in the day to

doubt that the libert[y] of . . . expression may be infringed by

the denial of or placing of conditions upon a benefit or

19
privilege.” Id. at 404. If it was too late in the day three-

and-a-half decades ago to consider the County’s argument that the

Plaintiffs’ First Amendment rights could not have been violated

by Molina’s failure to rehire them because they had no right or

expectation of being rehired, it is certainly too late to

consider it now.

The County finally contends that it is unfair to subject it

to a new round of lawsuits every four years when a new sheriff is

elected merely because Texas law allows patronage dismissals by

county sheriffs. The answer to this contention is that, if the

Texas legislature wishes to minimize the potential liability of

local governments for unconstitutional practices by local

governmental officials, it can pass laws constraining the ability

of such officials to engage in unconstitutional practices. As

the County acknowledges, the legislature has done just that by

giving counties the option of creating a civil service system for

sheriff’s departments that at least limits to some degree the

sheriff’s ability to engage in unconstitutional hiring practices.

The fact that the Fort Bend County Sheriff’s Department chose not

to utilize this option provides no justification for allowing

constitutional violations by the County’s sheriff to go

unremedied.

2. Failure to rehire versus discharge

20
 The County next contends that Molina could not have violated

the Plaintiffs’ First Amendment rights because he merely declined

to rehire them rather than firing them. In McBee v. Jim Hogg

County, 730 F.2d 1009 (5th Cir. 1984) (en banc), we addressed a

factual scenario identical in all material respects to the one at

issue here and concluded that “the fact that the deputies were

terminated by a ‘failure to rehire’ rather than a ‘dismissal’ is

irrelevant to the question of whether they were impermissibly

terminated for exercising their First Amendment rights.” Id. at

1015 (footnote omitted); see also Warnock v. Pecos County, 116

F.3d 776, 779 n.1 (5th Cir. 1997) (“For our purposes, there is no

difference between firing and declining to re-appoint.”).

The Supreme Court subsequently reached a similar conclusion

in Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990),

where it determined that the same limitations that the First

Amendment imposes upon a public employer’s power to discharge

employees based upon their political affiliation apply to a

public employer’s decisions to transfer, recall, and hire on that

basis. Id. at 74; cf. Branti, 445 U.S. at 512 n.6 (“[T]he lack

of a reasonable expectation of continued employment is not

sufficient to justify dismissal based solely upon an employee’s

private political beliefs.”). While Rutan addressed only

political patronage, we have applied it to cases involving public

employer retaliation for employees’ exercise of their right to

free speech. See Pierce v. Texas Dep’t of Criminal Justice,

21
Institutional Div., 37 F.3d 1146, 1149-50 (5th Cir. 1994); Click

v. Copeland, 970 F.2d 106, 110-11 (5th Cir. 1992). The County’s

claim that a failure to rehire a public employee cannot violate

the employee’s First Amendment rights therefore lacks merit.

3. Balancing the interests of the County as employer
against the interests of the Plaintiffs as citizens

In further support of its contention that Molina’s failure

to rehire the Plaintiffs did not violate their First Amendment

rights even if based upon their political activity and

affiliation, the County makes two additional arguments that are

closely intertwined. First, it argues that sheriff’s deputies in

Texas may be freely dismissed on political patronage grounds.

Second, the County argues that governmental interests outweighed

the Plaintiffs’ interest in engaging in political activity in

support of Hillegeist. A summary of the relevant First Amendment

law as established in Supreme Court precedent and as applied in

this circuit will facilitate a clear disposition of these claims.

a. Relevant First Amendment law

It is well established that the First Amendment places

certain constraints upon dismissals from public employment based

upon political affiliation and speech. As noted in Part III.B.1,

supra, limitations on dismissals based upon a public employee’s

political affiliation, or political patronage dismissals, emerged

from the Supreme Court’s decisions in Elrod v. Burns, 427 U.S.

347 (1976), and Branti v. Finkel, 445 U.S. 507 (1980). In Elrod,

22
the Court held that “a nonpolicymaking, nonconfidential

government employee can[not] be discharged or threatened with

discharge from a job that he is satisfactorily performing upon

the sole ground of his political beliefs.” Elrod, 427 U.S. at

375 (Stewart, J., concurring).5 In Branti, the Court clarified

the rule announced in Elrod regarding when party affiliation may

serve as a legitimate basis for terminating a public employee as

follows:

It is equally clear that party affiliation is not
necessarily relevant to every policymaking or
confidential position. The coach of a state
university’s football team formulates policy, but no
one could seriously claim that Republicans make better
coaches than Democrats, or vice versa, no matter which
party is in control of the state government. On the
other hand, it is equally clear that the Governor of a
State may appropriately believe that the official
duties of various assistants who help him write
speeches, explain his views to the press, or
communicate with the legislature cannot be performed
effectively unless those persons share his political
beliefs and party commitments. In sum, the ultimate
inquiry is not whether the label “policymaker” or
“confidential” fits a particular position; rather, the
question is whether the hiring authority can
demonstrate that party affiliation is an appropriate
requirement for the effective performance of the public
office involved.

Branti, 445 U.S. at 518.

5
The Elrod court was fractured, with Justice Brennan
delivering the judgment of the Court and authoring a “wide-
ranging opinion” in which two other justices joined. See Elrod
427 U.S. at 349 (Brennan, J.); id. at 374 (Stewart, J.,
concurring). However, as the Court recently observed, “five
Justices found common ground in the proposition” stated in the
text above. O’Hare Truck Serv., Inc. v. City of Northlake, 116
S. Ct. 2353, 2357 (1996).

23
 In Pickering v. Board of Education, 391 U.S. 563 (1968) and

Connick v. Myers, 461 U.S. 138 (1983), the Supreme Court held

that certain limitations exist on the ability of a government

employer to discharge employees based upon the employees’

exercise of their right to free expression. Specifically, the

Court concluded that the First Amendment precludes a discharge

based upon an employee’s exercise of his right to free expression

if two criteria are satisfied. First, the expression must relate

to a matter of public concern. See Connick, 461 U.S. at 146;

Kinsey v. Salado Indep. Sch. Dist., 950 F.2d 988, 992 (5th Cir.

1992) (en banc) (plurality opinion). Second, the employee’s

interest in “commenting upon matters of public concern” must

outweigh the public employer’s interest “in promoting the

efficiency of the public services it performs through its

employees.” Pickering, 391 U.S. at 568; see also Kinsey, 950

F.2d at 992.

In applying the Supreme Court’s jurisprudence concerning

public employers’ adverse employment actions based upon

employees’ political affiliation and expression, this court has

concluded that factual scenarios in which government employers

discharge employees based upon their political affiliation, their

exercise of their right to free expression, or some combination

thereof “locate themselves on a spectrum.” McBee v. Jim Hogg

County, 730 F.2d 1009, 1014 (5th Cir. 1984). At one end of the

spectrum lie the factual scenarios like the ones at issue in

24
Elrod and Branti, where the employee was discharged based solely

upon grounds of political affiliation. See id. We have observed

that, in such scenarios, little Pickering/Connick-style weighing

is necessary because the employees are “discharged on the sole

ground of their private and--for employment purposes--all but

abstract political views. They [have] not campaign[ed], they

[have] not even [spoken]: they [have] merely thought.” Id. at

1014.

At the other end of the spectrum lie factual scenarios in

which the government employee’s “exercise of his constitutional

privileges [has] clearly over-balanced his usefulness as an

[employee].” Id. (internal quotation marks omitted). We have

cited as examples of factual scenarios occupying this position on

the spectrum those at issue in Ferguson v. Thomas, 430 F.2d 852

(5th Cir. 1970), and Duke v. North Texas State University, 469

F.2d 829 (5th Cir. 1972), “where instructors had incited student

disturbances that were sufficiently serious to call in question

the ability of the academic authorities to maintain order on

campus.” McBee, 730 F.2d at 1014.

In circumstances falling between these two polar extremes,

we have concluded that Connick/Pickering balancing constitutes

the appropriate inquiry. See McBee, 730 F.2d at 1015. The

Supreme Court recently confirmed the correctness of this approach

in O’Hare Truck Service, Inc. v. City of Northlake, 116 S. Ct.

2353 (1996):

25
 Elrod and Branti involved instances where the raw test
of political affiliation sufficed to show a
constitutional violation, without the necessity of an
inquiry more detailed than asking whether the
requirement was appropriate for the employment in
question. There is an advantage in so confining the
inquiry where political affiliation alone is concerned,
for one’s beliefs and allegiances ought not to be
subject to probing or testing by the government. It is
true, on the other hand, . . . that the inquiry is
whether the affiliation requirement is a reasonable
one, so it is inevitable that some case-by-case
adjudication will be required even where political
affiliation is the test the government has imposed. A
reasonableness analysis will also accommodate those
many cases . . . where specific instances of the
employee’s speech or expression, which require
balancing in the Pickering context, are intermixed with
a political affiliation requirement. In those cases,
the balancing Pickering mandates will be inevitable.
This case-by-case process will allow the courts to
consider the necessity of according to the government
the discretion it requires in the administration and
awarding of contracts over the whole range of public
works and the delivery of governmental services.

Id. at 2358.

This summary of the applicable law provides the appropriate

frame of reference from which to analyze the County’s remaining

arguments regarding whether Molina’s failure to rehire the

Plaintiffs, if based upon their political activities in support

of Hillegeist, constituted a violation of the First Amendment.

b. The County’s arguments in the First Amendment’s lexicon

The County’s first argument--that sheriff’s deputies in

Texas may be freely dismissed on political patronage grounds--

rests upon a contention that sheriff’s deputies occupy a position

with respect to which “party affiliation is an appropriate

requirement for . . . effective performance.” Branti, 445 U.S.

26
at 518. The County thus argues that, to the extent that Molina

was privileged to choose not to rehire the Plaintiffs based

solely upon their political beliefs, he was necessarily

privileged to choose not to rehire them on the basis of their

expression of those beliefs. The County’s second argument--that

its interests outweighed the Plaintiffs’ interest in engaging in

political activity in support of Hillegeist--constitutes a

contention that Molina’s failure to rehire the Plaintiffs did not

violate their First Amendment rights because the

Pickering/Connick balance weighs in favor of the County.

We conclude that the County’s second argument subsumes its

first and that we therefore need only address the second

argument. If we accept the County’s second argument, then we

have no need to determine whether Molina’s failure to rehire the

Plaintiffs would have been constitutional had he done so solely

on the grounds of the Plaintiffs’ political affiliation. By the

same token, if we reject the County’s second argument and

conclude that Molina’s failure to rehire the Plaintiffs was

unconstitutional if based upon the combination of their political

affiliation and expression of that affiliation, then we

necessarily reject the County’s argument that Molina’s failure to

rehire the Plaintiffs was constitutional even if he based the

decision solely upon their political affiliation. Should we

conclude that the Plaintiffs’ expressive political activity in

conjunction with their political affiliation did not sufficiently

27
threaten to undermine the County’s interest “in promoting the

efficiency of the public services it performs through its

employees,” Pickering, 391 U.S. at 568, as to render Molina’s

failure to rehire the Plaintiffs on the basis of this activity

constitutional, then we surely could not simultaneously conclude

that the Plaintiffs’ political beliefs alone threatened to

undermine the County’s interests to a degree sufficient to

justify Molina’s failure to rehire the Plaintiffs solely on the

basis of their political belief. See Kinsey, 950 F.2d at 993-94;

McBee, 730 F.2d at 1014; cf. Kinsey, 950 F.2d at 998-99

(Higginbotham, J., concurring) (concluding that, where the

plaintiff superintendent claimed that the school board suspended

him based upon both his political affiliation and speech on a

matter of public concern, consideration of the plaintiff’s speech

was unnecessary because the fact that party affiliation was an

appropriate requirement for the superintendent position of itself

demonstrated that the suspension did not violate the plaintiff’s

First Amendment rights).

We therefore confine our inquiry to an application of the

Pickering/Connick balance to determine whether Molina’s failure

to rehire the Plaintiffs, if based upon their political activity

in support of Hillegeist, violated their First Amendment rights.

c. The Pickering/Connick balance

As noted earlier, we must determine, as a threshold matter,

whether the expressive activity that the Plaintiffs contend

28
motivated Molina’s failure to rehire them constituted comment on

a matter of public concern. See Connick, 461 U.S. at 146;

Kinsey, 950 F.2d at 992. While speech need not touch on a matter

of public concern to possess First Amendment protection,

when a public employee speaks not as a citizen upon
matters of public concern, but instead as an employee
upon matters only of personal interest, absent the most
unusual circumstances, a federal court is not the
appropriate forum in which to review the wisdom of a
personnel decision taken by a public agency allegedly
in reaction to the employee’s behavior.

Connick, 461 U.S. at 147. Therefore, if the Plaintiffs’

expressive activity “cannot be fairly characterized as

constituting speech on a matter of public concern, it is

unnecessary for us to scrutinize the reasons for [Molina’s

failure to rehire them].” Id. at 146.

We determine whether the Plaintiffs’ expressive activity in

this case constituted speech on a matter of public concern based

upon its “content, form, and context . . . as revealed by the

whole record.” Id. at 147-48; Kinsey, 950 F.2d at 992. The

Plaintiffs testified that they engaged in a wide variety of

political activity in support of Hillegeist. Fortenberry

testified that he went to numerous political functions in support

of Hillegeist and that he walked door-to-door campaigning for

him. Leach testified that he walked door-to-door campaigning for

Hillegeist and that, approximately once per week, he drove a

truck with Hillegeist signs on the sides. Skinner testified that

he placed Hillegeist signs in his yard and a Hillegeist bumper

29
sticker on his van. He also testified that, when asked about the

election, he would state his opinion that he considered

Hillegeist to be the person most qualified for the sheriff

position. Evans testified that he walked door-to-door

campaigning for Hillegeist, put up Hillegeist signs, and

participated in two fundraisers for Hillegeist. Rosas testified

that he put up Hillegeist billboards, walked door-to-door

campaigning for him, and wore Hillegeist paraphernalia. Brady

testified that he made and put up Hillegeist signs, wore

Hillegeist shirts, and spoke with people at the county fair in

support of Hillegeist. Chamblee testified that he organized a

barbecue cook-off in support of Hillegeist at the county fair and

that he wore a Hillegeist shirt and cap at this event. He also

testified that he polled for Hillegeist on election day.

The County does not claim that the above conduct did not

constitute expressive conduct subject to First Amendment

protection. However, the County contends that the expressive

conduct did not constitute a comment on a matter of public

concern because the Plaintiffs supported Hillegeist merely to

promote their own job security; they did not support him “based

upon political ideology or concerns, or party affiliation.” The

County contends that this is evidenced by the fact that many of

the Plaintiffs had worked at the sheriff’s department for a

number of years under a number of sheriffs and, during each

30
sheriff’s election, these Plaintiffs unfailingly supported the

incumbent.

“[T]here can be no question that . . . campaigning for a

political candidate . . . relate[s] to a matter of public

concern.” Vojvodich v. Lopez, 48 F.3d 879, 885 (5th Cir. 1995).

The fact that the Plaintiffs may have been motivated to support

Hillegeist out of a concern for their job security does not

change our conclusion that their public displays of support for

Hillegeist related to a matter of public concern. In Kinsey v.

Salado Independent School District, 950 F.2d 988 (5th Cir. 1992),

this court considered en banc a claim that the school board

suspended the plaintiff superintendent because he supported a

political slate of incumbent board members who were defeated in

the most recent election. See id. at 990. The losing slate

supported the plaintiff’s continued superintendency, and the

winning slate opposed it. See id. In applying the

Pickering/Connick balancing test, the plurality concluded that,

“[n]otwithstanding [the plaintiff’s] interest in retaining his

position as superintendent, his speech and association involved

matters of great public concern--the performance of elected

officials.” Id. at 995. Kinsey thus indicates that the fact

that the Plaintiffs may have been motivated by self-interest

rather than abstract political ideology does not indicate that

their expressive activity in support of Hillegeist did not

address a matter of public concern. The Supreme Court recently

31
confirmed the correctness of this conclusion in O’Hare when it

stated that “one’s beliefs and allegiances ought not to be

subject to probing or testing by the government.” O’Hare, 116 S.

Ct. at 2358. We conclude that the Plaintiffs’ speech related to

a matter of public concern, and we therefore proceed to the

determination of whether the Plaintiffs’ interests in their

expressive activities in support of Hillegeist outweighed the

County’s interest “in promoting the efficiency of the public

services it performs through its employees.” Pickering, 391 U.S.

at 568.

We have read Pickering, as expounded in Connick, “to require

a comprehensive but flexible analysis--a balance which weighs the

particular aspects of the government’s interest in effective

service and the plaintiff’s interest in freedom of speech that

arise in each fact situation.” McBee, 730 F.2d at 1016. We have

read the Supreme Court precedent applying Pickering to indicate

that a number of factors are relevant in balancing the interests

of the individual against those of the state, including the

following: (1) the degree to which the employee’s activity

involved a matter of public concern; (2) the time, place, and

manner of the employee’s activity; (3) whether close working

relationships are essential to fulfilling the employee’s public

responsibilities and the potential effect of the employee’s

activity on those relationships; (4) whether the employee’s

activity may be characterized as hostile, abusive, or

32
insubordinate; (5) whether the activity impairs discipline by

superiors or harmony among coworkers. See Click v. Copeland, 970

F.2d 106, 112 (5th Cir. 1992); Matherne v. Wilson, 851 F.2d 752,

760 (5th Cir. 1988).6 We have also concluded that, in “cases

involving public employees who occupy policymaker or confidential

positions . . . , the government’s interests more easily outweigh

the employee’s (as a private citizen).” Kinsey, 950 F.2d at 994;

see also Vojvodich, 48 F.3d at 885. In this case, these factors

militate strongly in favor of a conclusion that the Plaintiffs’

political interest in political activity in support of Hillegeist

outweighed the County’s interest in efficiency in the services

that it provides through its employees because any negative

impact that the Plaintiffs’ activity could have had on the

efficiency of the sheriff’s department was minimal, if their

activity could have created any such impact at all.7

6
The above list of factors is nonexclusive. See
Vojvodich, 48 F.3d at 885. As the Supreme Court observed in
Pickering and Connick, “‘[b]ecause of the enormous variety of
fact situations in which critical statements by . . . public
employees may be thought by their superiors . . . to furnish
grounds for dismissal, we do not deem it either appropriate or
feasible to attempt to lay down a general standard against which
all such statements may be judged.’” Connick, 461 U.S. at 154
(ellipses in original) (quoting Pickering, 391 U.S. at 569).
7
In this case, the district court submitted to the jury
the question of whether the Plaintiffs’ interest in politically
supporting Hillegeist outweighed the County’s interest in
efficiently providing the services it performs through its
employees. The ultimate determination mandated by Pickering and
Connick of whether a public employee’s interest, as a citizen, in
commenting on matters of public concern outweighs the
government’s interest, as an employer, in efficiency in the

33
public services that it performs through its employees
constitutes a legal determination. See Kinsey, 950 F.2d at 992
(describing the Pickering/Connick balance as a threshold legal
issue); Fyfe v. Curlee, 902 F.2d 401, 405 (5th Cir. 1990) (“Th[e
Connick/Pickering] balancing is to be conducted by the court as a
matter of law, not fact.”).

To the extent that Pickering/Connick balancing entails a
fact-intensive inquiry, it might be appropriately characterized
as a mixed question of law and fact--that is, a question
entailing the application of a legal standard to a particular set
of facts. See Ornelas v. United States, 116 S. Ct. 1657, 1662
(1996) (describing mixed questions of law and fact as questions
as to which the “‘historical facts are admitted or established,
the rule of law is undisputed, and the issue is whether the facts
satisfy the [relevant] statutory [or constitutional] standard, or
to put it another way, whether the rule of law as applied to the
established facts is or is not violated’” (alterations in
original) (quoting Pullman-Standard v. Swint, 456 U.S. 273, 289
n.19 (1982))). Our decision in Schneider v. City of Atlanta, 628
F.2d 915 (5th Cir. 1980), lends some support to this conclusion.
In Schneider, we observed that, “[a]lthough the balancing test
prescribed in Pickering is a question of law for the court, this
circuit has recognized that in striking this balance between the
interests of a governmental employee as a citizen and the
interests of the government in promoting efficiency of the
services it performs through its employees, there are factual
matters appropriate for determination by a jury.” Id. at 919
n.4. The court then cited with approval a Seventh Circuit case
that apparently approved of the district court’s submission of
the Pickering balancing issue to the jury as a mixed question of
law and fact. See id. (citing McGill v. Board of Educ. of Pekin
Elementary Sch. Dist., 602 F.2d 774, 777 (7th Cir. 1979)
(affirming judgment for the plaintiff teacher where the district
court had instructed the jury that the teacher’s criticism of
school district policy and officials was not constitutionally
protected if “the teacher’s actions materially and substantially
interfere with the operation of the education process in the
classroom” because sufficient evidence existed to support the
jury’s implicit conclusion that the teacher’s actions did not
cause disruption)).

Schneider, however, was a pre-Connick case. Connick created
some ambiguity as to the scope of our review of a determination
at the district court level (either by the court or the jury) of
whether a public employee’s interest, as a citizen, in commenting
on matters of public concern outweighs the government’s interest,

34
as an employer, in efficiency in the services it performs through
its employees. In this regard, the Court stated:

The Constitution has imposed upon this Court final
authority to determine the meaning and application of
those words of that instrument which require
interpretation to resolve judicial issues. With that
responsibility, we are compelled to examine for
ourselves the statements in issue and the circumstances
under which they are made to see whether or not they
are of a character which the principles of the First
Amendment, as adopted by the Due Process Clause of the
Fourteenth Amendment, protect. . . . Because of this
obligation, we cannot avoid making an independent
constitutional judgment on the facts of the case.

Connick, 461 U.S. at 150 n.10 (internal quotation marks,
citations, and modifications omitted). The Court then proceeded
to discuss a number of the weight factors mentioned in the text,
supra, and, in doing so, arguably paid little if any deference to
the district court’s conclusions. For example, the Court stated
that it “agree[d] with the District Court that there [was] no
demonstration . . . that the [plaintiff’s expressive conduct]
impeded [her] ability to perform her responsibilities” in the
district attorney’s office. Id. at 151. Additionally, the Court
stated that “[t]he District Court was also correct to recognize
that it is important to the efficient and successful operation of
the District Attorney’s office for Assistants to maintain close
working relationships with their superiors.” Id. (internal
quotation marks omitted).

One commentator has indicated that Connick did not make
“altogether clear whether Pickering ‘balancing’ was a question of
mixed law and fact, or entirely one of law” and that the case may
indicate that appellate courts are to function as “super
trier[s]-of-fact with regard to the extent of actual (or
reasonably anticipated) detrimental impacts of given items of
employee speech on particular ‘working relationships’ or specific
governmental operations.” See Richard Hiers, Public Employees’
Free Speech: An Endangered Species of First Amendment Rights in
Supreme Court and Eleventh Circuit Jurisprudence, 5 U. FLA. J.L. &
PUB. POL’Y 169, 281 (1993). The Eleventh Circuit seems to have
adopted this approach, describing jury findings on Pickering
balancing to be “only advisory.” Bryson v. City of Waycross, 888
F.2d 1562, 1566 n.2 (11th Cir. 1989); see also Morales v.
Stierheim, 848 F.2d 1145 (11th Cir. 1988) (conducting a Pickering
balance and apparently giving no deference to the findings

35
 The Plaintiffs’ political activities in support of

Hillegeist all took place while the Plaintiffs were off-duty.

Their activities consisted of positive statements in support of

Hillegeist rather than negative statements about Molina;8 in no

sense could their actions be characterized as hostile, abusive,

or insubordinate. When asked at trial if he was aware of any

negative statements about him made by the Plaintiffs, Molina

responded that he was aware of none. In sum, this is a case of

“subordinate[s] who . . . expressed a reasoned preference for

regarding the factors relevant to the balance implicit in the
jury’s conclusion that municipal officials reassigned the
plaintiff in violation of his First Amendment rights).

To date, we have avoided the issue of the extent to which
the factors relevant to Pickering/Connick balancing outlined
supra constitute factual matters subject to deference on
appellate review. See Matherne, 851 F.2d at 761 (avoiding the
issue of whether the district court could properly submit any
portion of the Pickering/Connick balancing issue to the jury by
concluding that, “even when [the court] view[ed] the facts in the
light most favorable to the sheriffs in their official
capacities, [the plaintiff’s] activities were protected under the
first amendment, and [the sheriff] was not justified in firing
[the plaintiff] for those activities” (footnote omitted)). We
likewise need not decide this issue here because, even if we
conduct a de novo review of the factual record in evaluating the
jury’s determination that the Plaintiffs’ interest in engaging in
political activities in support of Hillegeist outweighed the
County’s interest in efficiency in the services it provides
through employees in the sheriff’s department, we conclude that
the jury’s determination was correct.
8
The only evidence of any negative statements by any of
the Plaintiffs regarding Molina to which the County directs our
attention is Evans’s testimony that, during a private
conversation, he stated that he considered Molina to be a liar.

36
another superior;” it is not a case of subordinates who

“blackguarded [a superior’s] honesty and ability up and down the

county.” McBee, 730 F.2d at 1017; see also Matherne, 851 F.2d at

761.9

Furthermore, assuming that the Plaintiffs’ former positions

in the sheriff’s department could be considered “policymaking”

positions,10 such a conclusion is not dispositive of our

balancing inquiry. See Vojvodich, 48 F.3d at 884. As the

Supreme Court observed in Branti, “the ultimate inquiry is not

whether the label ‘policymaker’ or ‘confidential’ fits a

particular position; rather, the question is whether the hiring

authority can demonstrate that party affiliation is an

appropriate requirement for effective performance of the public

office involved.” Branti, 445 U.S. at 518; see also Vojvodich,

48 F.3d at 884. Indeed, the Branti court expressly observed that

“party affiliation is not necessarily relevant to every

9
At trial, testimony was introduced that John Font, one of
the plaintiffs below, made negative comments to fellow officers
about Molina. Notably, however, the jury returned a verdict
against Font on his First Amendment claim, and he is not a party
to this appeal.
10
Our precedent clearly indicates that, at a minimum,
Skinner, who served as a patrol deputy, did not wield
policymaking authority. See Click, 970 F.2d at 108 (noting that
the deputy positions of civil warrants officer and chief criminal
district court bailiff did not involve policymaking); Matherne,
851 F.2d at 761 (holding that sheriff’s deputy occupying the
lowest rung in the chain of command in the department held a
position that “imposed upon him the professional duties of a
peace officer, not the politically sensitive requirements of a
confidential aide to a politically elected official”).

37
policymaking or confidential position.” Branti, 445 U.S. at 518.

The record in this case strongly supports a conclusion that the

Plaintiffs did not fall within “the exceptional class of public

servants of whom political allegiance may be demanded.” Garcia

v. Reeves County, 32 F.3d 200, 205 (5th Cir. 1994).

At trial, Molina testified as follows regarding the

necessity of having individuals who supported him politically in

the positions occupied by the Plaintiffs:

Q: Now, sir, wouldn’t it be fair to say that it is
your testimony that whether somebody supported
Sheriff Hillegeist or whether they supported you
would have nothing to do with the decision as to
whether they were retained, demoted, transferred
or let go? Correct?

A: That is correct.

Q: In other words, you didn’t feel like you needed to
have political--your own political supporters in
any positions in the sheriff’s department,
correct?

A: That is correct.

. . .

Q: Okay. Now, would it be fair to say that for the
position of lieutenant you did not have to have a
person in that position to support you in a
sheriff’s election campaign?

A: No one needed to support me.

Q: Including lieutenants, correct, sir?

A: That is correct.

Q: In other words, you ought to be able to work with-
-as sheriff of Fort Bend County, you ought to be
able to work with a lieutenant who had supported
Sheriff Hillegeist, correct?

38
 A: Yes.

Q: In fact, you ought to be able to work with, as
sheriff of Fort Bend County, somebody who actively
supported Sheriff Hillegeist, correct?

A: Yes, sir.

Q: So, in going through the decisions that you made,
all the personnel decisions that you made--hiring,
firing, demotions, et cetera--none of those--in
none of those decisions was the political support
of Hillegeist or you ever a factor at all?

. . .

A: It was never a factor.

Not only does this testimony indicate that the Plaintiffs, none

of whom occupied a position higher than lieutenant in the

sheriff’s department chain of command, did not occupy positions

for which political affiliation is an appropriate employment

criterion, it also indicates that their political activity in

support of Hillegeist had little if any potential for undermining

close working relationships within the sheriff’s department or

for impairing discipline by superiors or harmony among coworkers

within the department. We therefore conclude that the

Pickering/Connick balance weighs in favor of the Plaintiffs and

that Molina therefore was not privileged to decline to rehire

them based upon their political support for Hillegeist.

C. Jury Charge’s Placement of the Burden of Proof

The County contends that the instructions submitted to the

jury improperly placed upon it the burden of persuading the jury

39
that the reasons that it proffered for Molina’s failure to rehire

the Plaintiffs were not pretextual. The jury instruction

provided in relevant part as follows:

In order to find that R. George Molina
intentionally violated Plaintiffs’ rights under the
First Amendment, you must find by a preponderance of
the evidence that such speech and/or association
activities were a substantial or motivating factor in
his decision not to rehire them. To prove that their
speech and/or association activities were a substantial
or motivating factor in R. George Molina’s decision not
to rehire them, the plaintiffs do not have to prove
that their speech and/or association activities were
the only reason R. George Molina decided not to rehire
them. Plaintiffs need only prove that their speech
and/or association activities were a substantial
consideration that made a difference in or influenced
R. George Molina’s decision not to rehire them.

. . .

If you find that plaintiffs have established each
element of their claims, you must then decide whether
the defendant has shown by a preponderance of the
evidence that R. George Molina would have elected not
to rehire the plaintiffs for other reasons even if
plaintiffs had not engaged in their protected speech or
association activities. If you find that R. George
Molina would have elected not to rehire the plaintiffs
for reasons wholly apart from the speech or association
activity, then your verdict should be for the
defendant.

This jury instruction accurately reflects the holding of the

Supreme Court in Mt. Healthy City School District Board of

Education v. Doyle, 429 U.S. 274 (1977). In that case, the Court

held that a plaintiff claiming that a public employer retaliated

against him for the exercise of his First Amendment right to free

expression bears the burden of proving “that his conduct was

constitutionally protected, and that this conduct was a

40
‘substantial factor’--or, to put it in other words, that it was a

‘motivating factor’” in the defendant public employer’s adverse

employment action. Id. at 287 (footnote omitted). If the

plaintiff carries this burden, the defendant public employer may

nonetheless avoid liability if the trier of fact concludes that

the defendant has “shown by a preponderance of the evidence that

it would have reached the same decision [regarding the adverse

employment action taken against the plaintiff] even in the

absence of the protected conduct.” Id.

The County argues that Mt. Healthy does not dictate the

appropriate allocation of the burden of proof in this case

because it applies only in “mixed motive” cases--that is, cases

in which both legitimate and illegitimate factors motivated the

defendant’s adverse employment action. It contends that this is

a “pretext” case--that is, a case in which the plaintiff contends

that the defendant’s adverse employment action was motivated by

only illegitimate factors and that the legitimate factors

proffered by the defendant as motivating its action are merely

pretextual. “In pretext cases, ‘the issue is whether either

illegal or legal motives, but not both, were the “true” motives

behind the decision.’” Price Waterhouse v. Hopkins, 490 U.S.

228, 260 (1989) (White, J., concurring) (quoting NLRB v.

Transportation Management Corp., 462 U.S. 393, 400 n.5 (1983)).

The County claims that the Supreme Court’s decision in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973), therefore provides

41
the appropriate allocation of the evidentiary burdens in this

case. The County’s argument fails for several reasons.

First, the McDonnell Douglas burden-shifting framework

constitutes “the proper order and nature of proof in actions

under Title VII of the Civil Rights Act of 1964.” Id. at 793-94;

see also St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506

(1993). The County has cited no authority for the proposition

that the McDonnell Douglas burden-shifting framework is

applicable to patronage dismissal and free-speech retaliation

cases.11

Second, the Supreme Court developed the McDonnell Douglas

framework as a means of allowing Title VII claimants to prove up

claims of unlawful discrimination in the absence of direct

evidence of such discrimination. As such, the Court has

indicated that the framework is applicable in the Title VII

context only when the plaintiff’s proof of discrimination is

circumstantial; it “is inapplicable where the plaintiff presents

direct evidence of discrimination.” See Trans World Airlines,

Inc. v. Thurston, 469 U.S. 111, 121 (1985); see also Rizzo v.

Children’s World Learning Ctrs., Inc., 84 F.3d 758, 762 (5th Cir.

11
Our research has revealed one case in which a court of
appeals considered the possibility that McDonnell Douglas may
provide the appropriate framework for evaluating some patronage
dismissal cases. See McMillian v. Svetanoff, 878 F.2d 186, 190
n.3 (7th Cir. 1989). However, the court in that case declined to
decide the issue based on a conclusion that the plaintiff would
fair no better under the McDonnell Douglas framework than under
the Mt. Healthy framework. See id.

42
1996) (“The district court improperly analyzed this case. This

is not a circumstantial evidence case, where we apply the

McDonnell Douglas burden shifting framework; rather, this is a

direct evidence case.”); Moore v. USDA, 55 F.3d 991, 995 (5th

Cir. 1995) (“In the rare situation in which the evidence

establishes that an employer openly discriminates against an

individual it is not necessary to apply the mechanical formula of

McDonnell Douglas to establish an inference of discrimination.”

(internal quotation marks omitted)). As indicated in Part III.D,

infra, in this case, the Plaintiffs presented direct evidence

that their protected political activity motivated Molina not to

rehire them. Specifically, they offered testimony from a number

of witnesses that Molina admitted to them that he failed to

rehire the Plaintiffs because of their political activity. See

Brown v. East Miss. Elec. Power Ass’n, 989 F.2d 858, 861 (5th

Cir. 1993) (“Direct evidence is evidence which, if believed,

proves the fact without inference or presumption.”). Thus,

assuming that the McDonnell Douglas framework has potential

application in patronage dismissal and free-speech retaliation

cases, it can have no application here.

Third, the Mt. Healthy framework actually benefits

defendants such as the County. Contrary to the County’s

contention, the Mt. Healthy framework does not improperly shift

to the defendant the ultimate burden of persuading the trier of

fact that it did not take an adverse action against the plaintiff

43
based at least in part on an improper motive. See Transportation

Management, 462 U.S. at 400 n.5; Price Waterhouse, 490 U.S. at

260 (White, J., concurring). This point is demonstrated by the

language of the jury instruction at issue here. The second

paragraph of the instruction clearly indicates that the County

did not need to establish that Molina would not have rehired the

Plaintiffs even absent their protected conduct unless the

Plaintiffs carried their burden of proving that their political

activity in support of Hillegeist was constitutionally protected

and that this activity was a substantial or motivating factor in

Molina’s decision not to rehire them.

In essence, Mt. Healthy may be properly construed as

creating an affirmative defense because it allows the defendant

to avoid liability once the plaintiff has carried his burden of

proving that an improper consideration was a substantial or

motivating factor in the defendant’s adverse employment action by

proving that it would have taken the same adverse action even in

the absence of the improper consideration. See Price Waterhouse,

490 U.S. at 246 (plurality opinion) (“[T]he employer’s burden

[under the Mt. Healthy framework] is most appropriately deemed an

affirmative defense: the plaintiff must persuade the factfinder

on one point, and then the employer, if it wishes to prevail,

must persuade it on another.”); Mooney v. Aramco Serv. Co., 54

F.3d 1207, 1216 (5th Cir. 1995) (“Although Price Waterhouse[,

which held that the Mt. Healthy framework is applicable in

44
certain Title VII cases,] can be characterized as a method to

prove discrimination, the mixed-motives theory is probably best

viewed as a defense for an employer.”). As the district court

observed in addressing the County’s objection to its jury

instruction, the instruction could in no way prejudice the County

because it did nothing to diminish the Plaintiffs’ burden of

proving that their political activity in support of Hillegeist

constituted a substantial or motivating factor in Molina’s

decision not to rehire them. Rather, this portion of the

instruction aided the County by creating the possibility that the

jury could conclude that the County was not liable even if it was

persuaded that the Plaintiffs’ political activity in support of

Hillegeist was a substantial or motivating factor in Molina’s

decision not to rehire them.12 We therefore reject the County’s

contention that the district court erred in instructing the jury

on the evidentiary burdens applicable to the Plaintiffs’ First

Amendment claim.

D. Sufficiency of the Evidence Supporting
the Jury’s Finding on Causation

The County contends that the district court erred in denying

its motion for a new trial because the jury’s finding that Molina

failed to rehire the Plaintiffs based upon their political

activity in support of Hillegeist is not supported by sufficient

12
Indeed, the County conceded as much when it declined the
district court’s offer to remove the entire paragraph from the
instruction.

45
evidence or is against the great weight and preponderance of the

evidence. Given our disposition of the County’s claim regarding

the proper evidentiary framework applicable to the Plaintiffs’

First Amendment claim, we construe the instant claim as a

contention that the district court should have ordered a new

trial because (1) insufficient evidence existed to support the

jury’s conclusion that the Plaintiffs’ political activity was a

substantial or motivating factor in Molina’s decision not to

rehire them and (2) even if sufficient evidence existed to

support this conclusion, the jury’s further conclusion that

Molina would not have made the same decision absent the

Plaintiffs’ political activity is against the great weight and

preponderance of the evidence.

“A trial court should not grant a new trial on evidentiary

grounds unless the verdict is against the great weight of the

evidence.” Dotson v. Clark Equip. Co., 805 F.2d 1225, 1227 (5th

Cir. 1986). This court may overturn a denial of a motion for a

new trial only upon a finding of an abuse of discretion. Pagan

v. Shoney’s, Inc., 931 F.2d 334, 337 (5th Cir. 1991). Our review

of a district court’s decision to deny a motion for new trial is

more deferential than our review of the district court’s decision

to grant such a motion. Pryor v. Trane Co., F.3d , NO.

97-40645, 1998 WL 163701, at *1 (5th Cir. Apr. 24, 1998); Pagan,

931 F.2d at 337.

46
 When the trial judge has refused to disturb a jury
verdict, all the factors that govern our review of his
decision favor affirmance. Deference to the trial
judge, who has had an opportunity to observe the
witnesses and to consider the evidence in the context
of a living trial rather than upon a cold record,
operates in harmony with deference to the jury’s
determination of the weight of the evidence and the
constitutional allocation to the jury of questions of
fact.

Shows v. Jamison Bedding, Inc., 671 F.2d 927, 930 (5th Cir.

1982). Accordingly, we will hold that the district court has

abused its discretion in denying a motion for new trial on

evidentiary grounds only if, viewing the evidence in the light

most favorable to the verdict, we conclude that “the evidence

points ‘so strongly and overwhelmingly in favor of one party that

the court believes that reasonable men could not arrive at a

contrary [conclusion].’” Pagan, 931 F.2d at 337 (alterations in

original) (quoting Jones v. Wal-Mart Stores, Inc., 870 F.2d 982,

987 (5th Cir. 1989)); see also Pryor, F.3d at , 1998 WL

163701, at *1.

The record in this case contains more than ample evidentiary

support for the jury’s conclusion that (1) the Plaintiffs proved

by a preponderance of the evidence that their political activity

constituted a substantial or motivating factor in Molina’s

decision not to rehire them and (2) the County failed to prove by

a preponderance of the evidence that Molina would have chosen not

to rehire the Plaintiffs even absent their political activity.

Numerous witnesses testified that Molina made statements to them

47
indicating that he declined to rehire the Plaintiffs based upon

their political activity in support of Hillegeist.

Carolyn Faye Dickerson, an employee of the Precinct 2

Justice of the Peace in Fort Bend County, testified that, while

Molina occupied that position, she heard him say that “some of

the Hillegeist supporters at the first of the year probably would

no longer have a job at the sheriff’s department.” Mary Salais,

another employee of Molina while he served as a justice of the

peace, testified that during the sheriff’s election, Molina

expressed anger when certain officers applied for warrants

because they were campaigning for Hillegeist. She also testified

that Molina told her that Brady “[did]n’t know . . . which side

[his] bread is buttered on” and that he “must not value his job

or appreciate his job very much because he was campaigning for

the wrong side.” Additionally, Salais testified that during a

conversation that she had with Molina after he took office,

Molina stated, “We were out to dinner one night and that’s when I

saw Tony Baloney [Rosas] putting Hillegeist signs in front of my

signs and that really pissed me off, kid, and that’s when I

decided to fire his ass.” Elmo Cepeda, a police officer with the

Missouri City police department who worked for Fort Bend County’s

drug task force, testified that Molina told him that he declined

to rehire Chamblee because he “was backing the wrong man.” Larry

Pittman, the officer who took Chamblee’s place in the detective

bureau, testified that Molina told him that Chamblee “had bet on

48
the wrong horse and lost.” Bettye Newberry, a former employee of

Fort Bend County, testified that she had a conversation with

Molina at a political rally during the sheriff’s campaign and

that, during their conversation, they saw Hillegeist with a group

of his supporters, including Brady and Fortenberry. She

testified that Molina said that Hillegeist’s supporters were

“going to be surprised if they don’t have their jobs.”

Additionally, the Plaintiffs offered a substantial amount of

evidence indicating the high quality of their job performance.

Brady received a rating of outstanding, the highest possible

rating, on his last employment evaluation with the sheriff’s

department. Brady also testified that a few days before Molina

officially announced that he intended to run for sheriff, he

telephoned Brady and stated that he considered Brady to be one of

the “good people” in the sheriff’s department. Fortenberry also

received a rating of outstanding in his last employment

evaluation in the sheriff’s department. Skinner testified that

he had been named Officer of the Year in 1992, the same year that

Molina chose not to rehire him, and that he had received this

award once before. Leach received an overall rating of very good

in his last employment evaluation. Ken Lee, a captain in the

sheriff’s department during Molina’s tenure as sheriff, testified

that he considered Leach to be a good employee and a hard worker.

Rosas received an overall rating of very good in his last

employment evaluation, and his supervisor described him as having

49
“done an excellent job of organizing the Warrants Section and

implementing new procedures.” Evans received a rating of very

good on his last employment evaluation in the sheriff’s

department and consistently received evaluation ratings of very

good or outstanding. Chamblee was part of the Fort Bend County

Narcotics Task Force, which consisted of employees of numerous

local agencies who worked in conjunction with federal agencies to

ferret out drug trafficking in the area. Elizabeth Wiggington, a

special agent for the Internal Revenue Service, testified that

Chamblee’s reputation in the federal agencies with which he

worked on the Narcotics Task Force was “very good” and that he

had been asked to teach at several law enforcement schools. Jack

Schumacher, a special agent for the Drug Enforcement

Administration, testified that Chamblee received an award from

the International Narcotics Officers Association based upon his

job performance.

The evidence outlined above provides a strong basis for the

jury’s conclusion that the Plaintiffs’ political activity in

support of Hillegeist constituted a substantial or motivating

factor in Molina’s decision not to rehire him. The County

nonetheless contends that the record in this case demonstrates

overwhelmingly that Molina did not base his decision not to

rehire the Plaintiffs on their political activity in support of

Hillegeist. In support of this contention, the County points

almost exclusively to various pieces of Molina’s testimony.

50
Specifically, the County points to Molina’s testimony that

political affiliation and campaign activities played no part in

his decision not to rehire the Plaintiffs and that he was unaware

of the political activities of some of the Plaintiffs. The

County also notes that Molina testified that, in choosing not to

rehire the Plaintiffs, he based his decision largely on negative

statements made about each of the Plaintiffs’ job performance

during the transition team meetings. Additionally, the County

relies on Molina’s testimony that he chose not to rehire some of

the Plaintiffs because he did not know them very well.

As the trier of fact, the jury had the exclusive authority

to assess the credibility of witnesses, including Molina. It was

therefore free to discredit Molina’s testimony regarding his

motivation for failing to rehire the Plaintiffs. See Hiltgen v.

Sumrall, 47 F.3d 695, 700 (5th Cir. 1995) (“‘Even though we might

have reached a different conclusion if we had been the trier of

fact, we are not free to reweigh the evidence or to re-evaluate

credibility of witnesses.’” (quoting Rideau v. Parkem Indus.

Servs., Inc., 917 F.2d 892, 897 (5th Cir. 1990)).

The County also argues that the fact that Molina rehired

numerous Hillegeist supporters indicates that the Plaintiffs’

support of Hillegeist did not motivate Molina’s decision not to

rehire them. While this constitutes probative evidence that

Molina may not have chosen not to rehire the Plaintiffs because

of their political affiliation, it certainly did not compel such

51
a conclusion by the jury, particularly in light of testimony

outlined above that Molina made statements indicating that he

intended to make employment decisions based upon political

support. Moreover, Molina testified that it simply would not

have been feasible not to rehire all of the Hillegeist supporters

working in the sheriff’s department when he took office.

In sum, the evidence in this case does not point so strongly

and overwhelmingly in favor of a conclusion that (1) the

Plaintiffs’ political activity was not a substantial or

motivating factor in Molina’s decision not to rehire them or (2)

that Molina would have chosen not to rehire the Plaintiffs absent

their support for Hillegeist that a reasonable jury could not

reach a contrary conclusion. We therefore conclude that the

district court did not abuse its discretion in denying the

County’s motion for a new trial.13

13
The County contends that it is entitled to judgment as
a matter of law on Skinner’s First Amendment claim because he
alleged that Molina refused to rehire him based upon the
political activity of his wife, Cheryl Skinner, in support of
Hillegeist rather than his own political activity. The County
therefore argues that Skinner is impermissibly “assert[ing] a
claim on the basis of another person’s constitutionally protected
rights.” We disagree.

As noted supra, Skinner engaged in political activity in
support of Hillegeist himself, and he alleged that this activity
also motivated Molina’s decision not to rehire him. Furthermore,
the First Amendment guarantees a right to free association for
the purpose of engaging in expressive activity. See Roberts v.
United States Jaycees, 468 U.S. 609, 617-18 (1984). To the
extent that we have concluded that Molina could not
constitutionally predicate his decision not to rehire Skinner on
the basis of Skinner’s own support for Hillegeist, we likewise

52
 E. Admission of Testimony from Barbara Smith

The County next contends that the district court erred in

admitting testimony from Barbara Smith, a former secretary of

Frank Briscoe, an assistant district attorney in Fort Bend

County. Smith testified that, on July 21, 1992, she answered a

telephone call to Briscoe from Molina during which Molina asked

for Briscoe’s endorsement in his bid for sheriff. Smith stated

that when she informed Molina that Briscoe did not intend to

endorse either candidate in the sheriff’s race, Molina responded

“there was going to be trouble.” Smith further testified that

Briscoe was fired from the district attorney’s office the

following day.

The County contends that the prejudicial effect of this

testimony substantially outweighed its probative value and that

it was therefore inadmissible under Rule 403 of the Federal Rules

of Evidence. In support of this contention, the County observes

that, on cross-examination, Smith conceded that she did not know

why Briscoe was terminated and that she was unaware of any

relationship between Molina and Jack Stern, Fort Bend County’s

conclude that Molina could not predicate his decision on the fact
that Skinner chose to associate (here through marriage) with a
Hillegeist supporter. See Martinez v. Cotulla Indep. Sch. Dist.,
700 F. Supp. 17, 19 (S.D. Tex. 1988) (holding that a genuine
issue of material fact existed as to whether the plaintiff’s
support of her husband’s political activities was a substantial
or motivating factor in the school district’s decision to
terminate her and therefore that a genuine issue of material fact
existed as to whether the plaintiff’s termination violated her
First Amendment rights), aff’d, 922 F.2d 839 (5th Cir. 1990).

53
district attorney. It therefore argues that Smith’s testimony

was unduly prejudicial because “Briscoe could have been fired for

any number of reasons unrelated to Molina” and “there is no

evidence to support the supposition that anyone other than Jack

Stern . . . was responsible for Briscoe’s termination.”

We review a district court’s evidentiary rulings only for an

abuse of discretion. Smith v. Isuzu Motors Ltd., 137 F.3d 859,

861 (5th Cir. 1998). In determining whether evidence is

properly excludable under Rule 403, district courts must be

cognizant of the fact that, because Rule 403 operates to exclude

relevant evidence, application of the rule “‘must be cautious and

sparing.’” United States v. Pace, 10 F.3d 1106, 1116 (5th Cir.

1993) (quoting United States v. McRae, 593 F.2d 700, 707 (5th

Cir. 1979)). We conclude that the district court did not abuse

its discretion in admitting Smith’s testimony regarding Molina’s

telephone call to Briscoe’s office.

Smith’s testimony was relevant in that Molina’s statement

that “there was going to be trouble” because of Briscoe’s refusal

to endorse him constituted evidence of Molina’s retaliatory

intent. Molina’s statement to Smith strongly implies that he

intended to attempt to make trouble for Briscoe because of

Briscoe’s refusal to endorse him regardless of whether Molina was

actually capable of making trouble for Briscoe. Even assuming

that the tendency of Smith’s testimony on direct examination to

imply that Molina was responsible for Briscoe’s discharge

54
rendered this testimony unfairly prejudicial, the County

effectively mitigated any unfair prejudice by establishing on

cross-examination that Smith was unaware of any relationship

between Molina and Stern and that she had no idea why Briscoe was

fired. We therefore conclude that the district court did not

abuse its discretion in admitting Smith’s testimony.

F. Whether the District Court’s Award of Attorney’s
Fees Constituted an Abuse of Discretion

The County contends that the district court erred in

awarding the attorneys who represented the Plaintiffs a total of

$751,370.75 in attorney’s fees in connection with this lawsuit

pursuant to 42 U.S.C. § 1988. In this regard, the County

contends that the Plaintiffs’ request for fees contained vague,

conglomerated, and duplicative billing entries. The County also

contends that the district court erred in allowing the Plaintiffs

to recover fees in connection with Molina’s interlocutory appeal

because the Plaintiffs voluntarily dismissed Molina prior to

resolution of that appeal by this court en banc.14

We review a district court’s award of attorney’s fees for an

abuse of discretion, see Riley v. City of Jackson, 99 F.3d 757,

759 (5th Cir. 1996), and we accept the factual findings upon

14
The County does not contend that the attorney’s fee
award ($751,370.75) was disproportionate to the amount of damages
recovered by the Plaintiffs ($401,109.43, including the jury’s
awards of mental anguish damages, which we reinstate infra). See
Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1048 (5th Cir.
1998).

55
which the district court bases its award of attorney’s fees,

including the determination of the number of hours reasonably

expended on the litigation, unless they are clearly erroneous,

see Louisiana Power & Light Co. v. Kellstrom, 50 F.3d 319, 324

(5th Cir. 1995). We conclude that the district court’s award of

attorney’s fees in this case does not constitute an abuse of

discretion.

With respect to the specificity with which a party seeking

attorney’s fees must itemize the services for which it seeks

recovery, the Supreme Court has stated that “counsel, of course,

is not required to record in great detail how each minute of his

time was expended. But at least counsel should identify the

general subject matter of his time expenditures.” Hensley v.

Eckerhart, 461 U.S. 424, 437 n.12 (1983). The Plaintiffs’ bill

of costs contains daily entries of time expended on the case that

adequately describe the activity upon which the time was

expended. Moreover, the record in this case reflects that the

district court personally conducted an exhaustive line-by-line

analysis of the bill of costs submitted by the Plaintiffs in

support of their request for attorney’s fees and that the court

ordered the Plaintiffs’ counsel to submit two amended bills of

costs providing more detailed itemizations of certain categories

of expenses for which they sought reimbursement. The district

court also entered a detailed order explaining its reasons for

denying certain categories of costs as unnecessary or

56
duplicative. “[G]iven the district court’s familiarity with this

case, including the quality of the attorneys’ work over a period

of several years, we cannot say that the district court clearly

erred in refusing to [further] reduce the hours in question for

vagueness” or in concluding that the fees that it awarded did not

include recovery for duplicative charges. Kellstrom, 50 F.3d at

327; see also Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir. 1993)

(“Due to the district court’s superior knowledge of the facts . .

. , the district court has broad discretion in setting the

appropriate award of attorneys’ fees.”).

Furthermore, the County’s claim that the district court

abused its discretion in allowing the Plaintiffs to recover

attorney’s fees incurred during Molina’s interlocutory appeal

also lacks merit. In Cobb v. Miller, 818 F.2d 1227 (1987), we

adopted the Seventh Circuit’s reasoning in Mary Beth G. v. City

of Chicago, 723 F.2d 1263 (7th Cir. 1983), where that court held

that

“all time spent in pursuit of relief for the same
illegal conduct should be considered in awarding
attorney’s fees once the relief sought is obtained,
regardless whether the plaintiff has succeeded in
obtaining the relief from only some and not all of the
defendants named in connection with the conduct.”

Cobb, 818 F.2d at 1233 (quoting Mary Beth G., 723 F.2d at 1281).

We went on to state that, “so long as the defendants from whom

the plaintiff did not obtain relief were not named frivolously,

the total time expended on the claim should be counted” in

57
computing an attorney’s fee award. Id.; see also Kellstrom, 50

F.3d at 327 (“A prevailing litigant may not recover for hours

devoted solely to claims against other parties. But when claims

against multiple parties share a common core of facts or related

legal theories, a fee applicant may claim all hours reasonably

necessary to litigate those issues.” (citations and internal

quotation marks omitted)).

With the exception of their claim for punitive damages,15

the Plaintiffs asserted the same claims against Molina that they

asserted against the County. To the extent that the County’s

liability in this case is based entirely upon Molina’s actions,

the Plaintiffs’ claims against the County rest on a factual basis

identical to the one on which their claims against Molina rested.

Given that a panel of this circuit unanimously concluded that

Molina was not entitled to qualified immunity from liability for

the Plaintiffs’ claims, see Brady, 58 F.3d at 176, it can hardly

15
The County also contends that the Plaintiffs should not
have been allowed to recover for discovery expenses incurred in
pursuit of their exemplary damages claim because they asserted
this claim only against Molina in his individual capacity.
However, the Plaintiffs’ claim that the bill of costs upon which
the district court based its award of attorney’s fees includes no
costs for discovery relating solely to the Plaintiffs’ claim of
exemplary damages against Molina in his individual capacity, and
the County does not dispute this contention. In our review of
the record, we have found no indication that the Plaintiffs
sought, or that the district court authorized, recovery of fees
incurred in conducting discovery relevant only to the Plaintiffs’
claim for exemplary damages.

58
be said that the Plaintiffs’ joinder of Molina in his individual

capacity as a party defendant was frivolous.

We find the County’s contention that the Plaintiffs should

not be able to recover attorney’s fees for the interlocutory

appeal because they dismissed Molina voluntarily prior to our

consideration of the appeal en banc unpersuasive. As noted

above, the time spent by the Plaintiffs’ counsel on the

interlocutory appeal constitutes time spent seeking recovery for

the same illegal conduct for which the jury found the County

liable. Our precedent therefore indicates that the district

court could have properly allowed the Plaintiffs to recover for

the fees incurred during the interlocutory appeal even if this

court had concluded en banc that Molina was entitled to qualified

immunity, thereby precluding recovery against him in his

individual capacity. See Kellstrom, 50 F.3d at 327; Cobb, 818

F.2d at 1227. Given that the Plaintiffs could have recovered

these fees even if they had lost the interlocutory appeal, we see

no reason why they should be precluded from such recovery merely

because they dismissed Molina voluntarily.16 We therefore

conclude that the district court did not abuse its discretion in

allowing the Plaintiffs to recover attorney’s fees for fees

incurred during the interlocutory appeal.

16
It is worth noting that, in dismissing Molina
voluntarily, the Plaintiffs actually decreased the legal fees
that they incurred at the interlocutory appeal phase and thus
reduced the amount recoverable against the County.

59
 G. Plaintiffs’ Entitlement to Damages for Mental Anguish

Brady, Chamblee, Evans, Fortenberry, Leach, and Rosas

contend that the district court erred in concluding that they

were not legally entitled to mental anguish damages. We conclude

that the district court correctly granted judgment as a matter of

law on this issue.

The Supreme Court has long required that compensatory

damages for emotional distress “be supported by competent

evidence concerning the injury.” Carey v. Piphus, 435 U.S. 247,

264 n.20 (1978). Failure to establish “actual injury” with

sufficient evidence will result in the award of only nominal

damages. Id. at 266-67. In Patterson v. P.H.P. Healthcare

Corp., 90 F.3d 927 (5th Cir. 1996), this court set out to clarify

the level of specificity required under Carey.

In Patterson, we addressed two separate issues regarding the

proof necessary to support mental anguish damages. First, we

articulated the level of specificity needed to prove a claim for

mental damages under Carey. We held that there must be a

“specific discernable injury to the claimant’s emotional state,”

Patterson, 90 F.3d at 940, proven with evidence regarding the

“nature and extent” of the harm, id. at 938. We acknowledged

that “hurt feelings, anger and frustration are part of life,” and

were not the types of harm that could support a mental anguish

award. Id. at 940. And our language describing the specificity

60
standard was unequivocal; that standard must be met before mental

anguish damages can be awarded. See id. at 938 (holding that

plaintiff “must” present such evidence).

Second, we addressed the types of evidence that may be used

to clear that hurdle. We observed that in proving mental damages

“a claimant’s testimony alone may not be sufficient to support

anything more than a nominal damage award.” Id. at 938 (emphasis

added). We noted that Carey requires evidence that “may include

corroborating testimony or medical or psychological evidence.”

Id. at 940 (emphasis added). Likewise, we turned to the Equal

Employment Opportunity Commission’s (EEOC) official guideline

statement for guidance. EEOC POLICY GUIDANCE NO. 915.002 § II(A)(2)

(July 14, 1992). That document provides:

Emotional harm will not be presumed simply because the
complaining party is a victim of discrimination. The
existence, nature, and severity of emotional harm must
be proved. Emotional harm may manifest itself, for
example, as sleeplessness, anxiety, stress, depression,
marital strain, humiliation, emotional distress, loss
of self esteem, excessive fatigue, or a nervous
breakdown. Physical manifestations of emotional harm
may consist of ulcers, gastrointestinal disorders, hair
loss, or headaches . . . . The Commission will
typically require medical evidence of emotional harm to
seek damages for such harm in conciliation
negotiations.

Id. at 10-12 (footnotes omitted) (emphasis added).

About two months after our decision in Patterson, the Fourth

Circuit issued its decision in Price v. City of Charlotte, 93

F.3d 1241 (4th Cir. 1996), which is a magnum opus on the evidence

needed to support compensatory damages for emotional distress.

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Just as we did in Patterson, the Fourth Circuit used the Supreme

Court decision in Carey as a beacon for its analysis. See id. at

1250. The Price court then conducted a comprehensive survey of

circuit case law addressing the circumstances in which a

plaintiff’s own testimony was found sufficient, and the

circumstances in which that testimony was found insufficient.

See id. at 1251. In arriving at its determination that the

testimony in Price was insufficient, the Fourth Circuit

concluded:

Neither conclusory statements that the plaintiff
suffered emotional distress nor the mere fact that a
constitutional violation occurred supports an award of
compensatory damages. In marshaling the evidence
necessary to establish emotional distress resulting
from a constitutional violation, Carey instructs us
that "genuine injury" is necessary.

Id. at 1254 (citing Carey, 435 U.S. at 264).

In this case, the Plaintiffs’ own testimony is the sole

source of evidence on mental damages. Brady testified that

Molina’s refusal to rehire him resulted in marital and family

problems. Brady also claimed that he had “spent more time on the

couch in last three years” because he “didn’t feel like the same

person.” Brady’s testimony on mental anguish is less than two

pages of trial transcript.

Chamblee testified that Molina’s failure to rehire him

caused him sleeplessness, loss of appetite, and weight loss. He

claimed that he “just couldn’t accept it mentally,” and that he

worried over finding another job at age fifty-three. Chamblee’s

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testimony on mental anguish is roughly eleven lines of trial

transcript.

Evans testified that his job loss had produced nervousness,

sleeplessness, and anxiety. He stated that he had been forced to

forego insurance coverage due to his unemployment. He asserted

that upon learning of Molina’s decision not to rehire him “[he]

didn’t feel like [he] could perform [his] duties for the

remainder of time at the sheriff’s department.” Evans’ testimony

on mental anguish is roughly nineteen lines of trial transcript.

Fortenberry testified that the loss of his job had made him

“highly upset,” prompting him to see a family physician. He

asserted that he became concerned that his wife would have to

quit college and return to work. He maintained that he had

experienced nervousness, sleeplessness, and stress.

Fortenberry’s testimony on mental anguish is roughly one page of

trial transcript.

Leach testified that Molina’s failure to rehire him caused

nervousness and sleeplessness. He claimed that he had been

forced to leave his home in Fort Bend County to find new

employment. He described that travail as not “fun.” Leach’s

testimony on mental anguish is roughly nine lines of trial

transcript.

Finally, Rosas testified that he gained roughly 100 pounds

during the nine months of unemployment that resulted from

Molina’s failure to rehire him. He claimed that, like Chamblee,

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he worried over job prospects due to his age. He described the

experience as “the worst thing that ever happened to [him].” He

stated that he was “shocked and devastated.” Rosas’ testimony on

mental anguish is roughly two and a half pages of trial

transcript.

The Plaintiffs’ testimony in this case is too vague and

conclusory to support mental anguish damages. References to

spending too much time on the couch (Brady), not “accept[ing] it

mentally” (Chamblee), being “highly upset” (Fortenberry), and

experiencing “the worst thing that has ever happened to me”

(Rosas), hardly qualify as evidence of demonstrable emotional

distress, as required by Carey. Moreover, when the Plaintiffs do

refer to specific manifestations of emotional harm--like

nervousness, sleeplessness, or stress--they fail to elaborate

with any detail. Statements like “[my termination] caused

marital problems” (Brady), or “there were sleepless nights”

(Chamblee), go completely unexplained with no hint as to the

nature or extent or severity of the alleged harm. Conclusory

statements give the finder of fact no adequate basis from which

to gauge the “nature and circumstances of the wrong and its

effect on the plaintiff.” Carey, 435 U.S. at 263-64. That

failure of proof is unacceptable. As aptly stated by the Fourth

Circuit, a plaintiff must present evidence of “demonstrable

emotional distress, which must be sufficiently articulated;

[]conclusory statements that the plaintiff suffered emotional

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distress . . . [do not] support an award of compensatory

damages.” Price, 93 F.3d at 1254.

Remarkably, in this case not one plaintiff presented medical

or psychological expert testimony as to the emotional harm that

was purportedly suffered. Similarly, not one plaintiff presented

corroborating testimony from a spouse, family member, friend, or

coworker, regarding objective evidence of emotional distress,

such as crying spells, outbursts of anger, sleeplessness, or

excessive sleeping. Not one of these plaintiffs presented any

testimony as to the need for or use of prescription or over-the-

counter medication to treat their mental upsets. As such, the

evidence of mental damages in this case consists solely of the

Plaintiffs’ own uncorroborated testimony. Given that “emotional

distress [is] fraught with vagueness and speculation, [and] is

easily susceptible to fictitious and trivial claims,” id. at

1250, we must “scrupulously analyze an award of compensatory

damages for a claim of emotional distress predicated exclusively

on the plaintiff’s testimony,” id. at 1251.

The Plaintiffs’ testimony is further weakened by the method

in which it was elicited. In several instances, the Plaintiffs’

testimony consists of simple one-word, yes-or-no answers to

leading questions. To a large extent, it was the Plaintiffs’

attorneys, and not the Plaintiffs themselves, who testified on

the mental damages issue. Evans’ testimony on direct examination

accurately portrays many of the shortcomings we have discussed:

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 Q: Did you have sleeplessness?
A: Yes, I did.
Q: Did you have nervousness?
A: Yes.
Q: Did you have anxiety?
A: Pardon?
Q: Did you have anxiety?
A: Yes.

In sum, the Plaintiffs’ testimony in this case is vague,

conclusory, and uncorroborated. Under Carey, Patterson, and

Price, it cannot legally support mental anguish damages.

In reaching our conclusion, we do not now hold, nor have we

ever held, that a plaintiff may never prove mental anguish

damages with his own testimony alone. In certain cases a

plaintiff’s testimony alone may be sufficient proof of mental

damages. See Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1047

(5th Cir. 1998) (“Patterson recognizes that mental anguish

damages . . . [do] not always require that the plaintiff offer

medical evidence or corroborating testimony in addition to her

own testimony.”). Patterson does not conflict with that

proposition.

Under Patterson it does not matter what type of evidence is

used to satisfy Carey’s specificity requirement, so long as that

standard is successfully met. When a plaintiff’s testimony is

particularized and extensive, such that it speaks to the nature,

extent, and duration of the claimed emotional harm in a manner

that portrays a specific and discernable injury, then that

testimony alone may be sufficient.

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 We recognize that this court has occasionally permitted a

plaintiff’s uncorroborated testimony to support an award for

mental anguish damages. Migis, 135 F.3d 1041; Forsyth v. City of

Dallas, 91 F.3d 769 (5th Cir. 1996). Both of those cases,

however, were decided after Patterson and offer slim guidance

when attempting to compare the sufficiency of the testimony in

those cases with that in our case, which consists chiefly of one-

word responses to leading questions.

We affirm the district court’s decision to grant judgment as

a matter of law in favor of the County on the mental anguish

awards.17

17
The result reached in Part III.G reflects the view of
Judges Garza and DeMoss. Judge King, however, would hold that
Brady, Chamblee, Evans, Fortenberry, Leach, and Rosas are
entitled to reinstatement of the jury’s award of mental anguish
damages to them. While the evidence that these plaintiffs
presented supporting their entitlement to mental anguish damages
is, in many respects, not especially compelling, Judge King would
hold that our opinion in Forsyth, the benefit of which the
district court did not have when it decided to set aside the
jury’s award of mental anguish damages, compels a conclusion that
the jury’s award of damages for mental anguish to these
plaintiffs was supported by sufficient evidence. The Forsyth
panel held that a § 1983 claimant’s uncorroborated testimony
“that he suffered depression, sleeplessness, and marital
problems” constituted sufficient evidence to sustain the jury’s
award of $75,000 in damages for mental anguish. Forsyth, 91 F.3d
at 774.

Furthermore, Judge King would hold that the prior panel
opinion in Patterson does not foreclose the result reached in
Forsyth because Patterson held only that some evidence of actual
manifestation of mental anguish is necessary to sustain a more-
than-nominal mental anguish damages award. See Patterson, 90
F.3d at 940. The types of manifestations of mental anguish that
Patterson indicates will support an award of mental anguish
damages include the same manifestations about which the

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 IV. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the

district court.

plaintiffs in Forsyth and this case testified: depression,
sleeplessness, marital problems, stress, and anxiety. See id. at
939. Judge King would hold that the testimony on mental anguish
in this case is materially indistinguishable from the testimony
at issue in Forsyth as it is described in that opinion, and the
damages awards in this case are much smaller. Judge King would
therefore hold that Forsyth requires reinstatement of the jury’s
award of mental anguish damages to Brady, Chamblee, Evans,
Fortenberry, Leach, and Rosas.

68