United States Court of Appeals,
Fifth Circuit.
No. 93-8770.
Mary J. GARCIA, Janie N. Rodriguez, Susan Urquidez, Rod T. Ellis,
Ruben Gonzales, Lucy Rodriguez, Josie Breese, George Dominguez,
Joel Madrid, Jose Baeza, Cynthia Dutchover, David Davis, Felipe
Villalobos, Charles Titus, Janice Bell, Plaintiffs-Appellees,
v.
REEVES COUNTY, TEXAS, et al., Defendants,
Arnulfo Gomez, Sheriff, Defendant-Appellant.
Sept. 20, 1994.
Appeal from the United States District Court for the Western
District of Texas.
Before REYNALDO G. GARZA, SMITH and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
Fifteen former employees of the Reeves County Sheriff's
Department ("Appellees") filed lawsuits against newly elected
Sheriff Arnulfo Gomez (Gomez) and Reeves County, Texas, claiming
pursuant to 42 U.S.C. § 1983 that their constitutional rights to
due process and their First Amendment rights of political
affiliation were violated when Gomez notified them that he would
not need their services as county employees when his term of office
began on January 1, 1993. Sheriff Gomez filed a motion for summary
judgment asserting qualified immunity. The district court denied
the motion summarily, finding it precluded by genuine issues of
material fact. Gomez appealed.
FACTS
In 1992, Appellant Gomez unseated Raul Florez, the incumbent
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sheriff of Reeves County in a hotly contested race. Seventeen out
of approximately 250 Reeves County employees received the following
notice on or about December 31, 1992.
This serves to notify you that effective January 1, 1993 your
services under my administration will not be required. Any
Reeves County property that was issued to you should be
accounted for an [sic] rendered to your immediate supervisor.
Your cooperation on this matter is expected.
If you wish to discuss this matter come to my office after the
effective date above.
/s/
Arnulfo Gomez, Sheriff Elect
Each of the Appellees initiated grievance proceedings with the
County Commissioners Court in accordance with provisions of the
Reeves County Personnel Policy Manual, seeking reinstatement to
their former positions. They were denied a hearing and opportunity
to present their claims by the Commissioners Court, and thereafter
filed this suit. The Appellees allege that they supported Gomez's
opponent in the sheriff's race, that Gomez was aware of their
support, and that he fired them in violation of their First
Amendment rights to affiliate with a political candidate of their
choice.
STANDARD OF REVIEW
We review summary judgments de novo, applying the same
standard as the district court. Bodenheimer v. PPG Industries,
Inc., 5 F.3d 955, 956 (5th Cir.1993). Summary judgment shall be
rendered if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the
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moving party is entitled to a judgment as a matter of law.
FED.R.CIV.P. 56(c). A dispute about a material fact in "genuine"
if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). In
making its determination, the court must draw all justifiable
inferences in favor of the nonmoving party. Id. at 255, 106 S.Ct.
at 2513. Further, the court must view the evidence presented
through the prism of the substantive evidentiary burden to be
applied in this case. Id.
DUE PROCESS
The threshold inquiry in determining whether a government
official has violated a clearly established right sufficiently to
deprive that official of qualified immunity is whether the
plaintiff has asserted any constitutional violation at all.
Siegert v. Gilley, 500 U.S. 226, 231, 111 S.Ct. 1789, 1793, 114
L.Ed.2d 277 (1991). See also, Duckett v. Cedar Park, Tex., 950
F.2d 272, 276-77 (5th Cir.1992).
Appellant does not dispute that Appellees were afforded no
due process when they lost their jobs. Appellant's position is
that they were not due any process. The crux of the due process
issue before this Court on appeal is whether Appellees had a
cognizable property interest in continued employment. See, Bishop
v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976) (To
prevail on a claim of deprivation of employment without due process
of law, plaintiff must show that he had a cognizable property
3
interest in his continued employment and that the process he was
afforded was insufficient to protect that interest.) The
Constitution does not create property interests, Board of Regents
v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548
(1972), and Appellees therefore look to Texas law for the creation
of a property interest that will support their claim to due process
rights.
Appellees concede that they would be at-will employees under
Texas law absent the County Personnel Manual which requires just
cause for termination of a Reeves County employee. In two cases
relied on by Appellees, this court has held that when a Texas city
government adopts a personnel procedure which includes a "just
cause" provision, the city employees' at-will status is modified,
and they enjoy a property interest in continued employment.
Schaper v. Huntsville, 813 F.2d 709, 713-14 (5th Cir.1987); Bueno
v. Donna, 714 F.2d 484, 492 (5th Cir.1983.)
Appellees now ask that we extend this ruling to sheriff's
office employees in Texas counties where the county commissioners
court has adopted a "just cause" provision in its county personnel
manual. Finding ourselves constrained by Texas law, we decline to
extend the Huntsville and Donna holdings.
Texas Local Government Code § 85.003(c) provides that "[a]
deputy serves at the pleasure of the sheriff." The sheriff must
apply to the county commissioners court for authority to appoint
employees to serve as deputies, assistants, clerks or jailers.
TEX.LOC.GOVT.CODE ANN. §§ 85.005 and 151.001. However, once the
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commissioners court sets the number and salary of sheriff office
employees, it may not attempt to influence the appointment of any
person to an employee position. TEX.LOC.GOVT.CODE ANN. § 151.004.
Commissioners Court of Shelby County v. Ross, 809 S.W.2d 754
(Tex.App.—Tyler 1991). We hold that the Reeves County
Commissioners Court had no authority under Texas law to change the
Appellees from at-will to just cause status, thereby preventing
Gomez from terminating sheriff's department employees who served
under a previous administration without just cause.
Appellees argue that the sheriff's plenary authority is
restricted by § 85.003(c) to deputized employees only, and does not
apply to appellees who served in nondeputized positions. In Texas,
employees of any elected official serve at the pleasure of the
elected official, regardless of whether there is a statute which
specifies at-will status. In Renken v. Harris County, 808 S.W.2d
222 (Tex.App.—Houston [14th] 1991), the court found deputy
constables were at-will employees, although a review of the
constable statute reveals no at-will language. TEX.LOC.GOVT.CODE ANN.
§ 86.011. Likewise, in Renfro v. Shropshire, 566 S.W.2d 688
(Tex.Civ.App.—Eastland 1978), the court found that county clerks
enjoy unfettered discretion in hiring and firing their employees.
Again, the statute contains no express provision that the deputy
serves at the pleasure of the clerk. TEX.LOC.GOVT.CODE ANN. § 82.005.
While no Fifth Circuit case squarely addresses the distinction
between deputies and other employees of a Texas sheriff's
department, we observed in Barrett v. Thomas, 649 F.2d 1193 (5th
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Cir.1981) that "[s]heriffs, like other elected county officials in
Texas, have indisputably wide-ranging discretion in the selection
of their employees," Id. at 1199, and made no distinction among the
rights of the plaintiff class which ranged from clerical workers to
law enforcement personnel. Id. at 1201.
Finally, the language relied on by Appellees appears in the
Reeves County Personnel Policy, which, by its terms, is not a
contract.1 In Texas, absent any contractual limitations, either
party may end an employment relationship at will, with or without
cause. Where no express reciprocal agreement dealing with
procedures for discharge are included, employee handbooks
constitute no more than general guidelines and do not create
contractual rights in employees. Joachim v. AT & T Information
Systems, 793 F.2d 113, 114 (5th Cir.1986).
We hold that the Reeves County Commissioners Court had no
authority under Texas law to modify the sheriff's department
employees' at-will status, and that the Personnel Policy did not
give the Appellees a cognizable property interest in continued
employment that would serve to deprive Gomez of qualified immunity.
FIRST AMENDMENT CLAIMS
If Appellees have presented evidence supporting the
contention that they were fired because of their political
affiliation or political beliefs, their First Amendment claims are
1
"Furthermore, this Employees Handbook does not constitute
nor should it be considered a contract and may be changed at any
time at the sole discretion of Commissioners' Court at any
regular meeting with or without notice to the employees."
(Record, Volume 4, exhibit 25, pp. 1-2)
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viable and should survive Gomez's motion for summary judgment.
Correa v. Fischer, 982 F.2d 931, 933 (5th Cir.1993). Appellees
must establish a fact dispute in each of three areas to avoid
summary judgment on their First Amendment Claims; one, did the
Appellees suffer an adverse employment action, two, was that action
motivated by constitutionally impermissible reasons, and three,
were the Appellees within the class of public employees of whom
political allegiance may be demanded?
Under Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429
U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), Appellees bear the
initial burden of showing that constitutionally protected activity
(affiliation with the former sheriff's campaign) was a substantial
or motivating factor in Appellant's decision to terminate their
employment.
Therefore we must first decide if, on the record before us,
there is a fact dispute on whether or not there was a triggering
personnel decision, either firing or failing to hire each of the
Appellees. The record contains the notice to the Appellees
advising them that their services would not be needed as of January
1, 1993. Appellant contends that if Appellees had come to talk to
him, he would have considered hiring them, so that the notice was
not a final determination on his part. He also contends that they
were unemployed by operation of law on January 1, 1993, and they
failed to reapply for their jobs. The best that can be said for
Appellant's position on this issue is that it creates a fact
dispute concerning whether Appellees suffered an adverse employment
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decision.
Second, was impermissible political animus a substantial or
motivating factor in the challenged decisions? The record contains
evidence that the Florez-Gomez race for sheriff was hotly
contested, with some sheriff's department employees supporting each
candidate. Gomez had worked for many years as an employee in the
sheriff's department under his opponent. He knew the Appellees
well, including their work habits and faults, and even admits to
knowing whose candidacy many of the sheriff's department employees
supported. Appellees ask this Court to rely on the inferences that
can be drawn from the circumstances of the campaign and the
subsequent terminations to conclude that a fact dispute exists on
the issue of whether political animus was a substantial or
motivating factor in their terminations.
Making this determination demands a sensitive inquiry into
such circumstantial evidence of intent as may be available.
Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252,
270-71, 97 S.Ct. 555, 566-67, 50 L.Ed.2d 450 (1977). While
cognizant of the circumstantial nature of evidence typically
available in a case such as this, we hold that plaintiffs cannot
establish a fact dispute simply by proving up a contested political
race and subsequent firings. Adding inadmissible hearsay, for
example, Janie Rodriguez's deposition testimony that Gomez's
supporters told her she was "out the door" for not supporting him,
will likewise not be enough to get past the summary judgment
hurdle. Even taken together, the claims do not fall into a pattern
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from which an inference of political animosity can be drawn. See,
Correa v. Fischer, 982 F.2d 931, 934 (5th Cir.1993) ("mass" firings
can suggest that employees' terminations were not based on
individual considerations, but rather on a political litmus test.)
The evidence in this record supports the conclusion that Gomez
wanted a reasonable level of loyalty and efficiency from his
employees, regardless of their political beliefs, which is a
perfectly legal motivation. McBee v. Jim Hogg County, Tex., 730
F.2d 1009, 1014 (5th Cir.1984). All but one of the Appellees have
failed to offer evidence, circumstantial or otherwise, that if
believed by a trier of fact, would create the causal connection
between political activities or beliefs and job terminations, which
is necessary to entitle them to a verdict on the issue of political
animus firing.
Only Appellee Susan Urquidez's case survives, on the basis of
Gomez's own affidavit testimony. Gomez related that Urquidez was
hired after the primary elections to fill a position that became
available when Raul Florez fired some people who had supported
Gomez's campaign. Gomez promised those people that he would put
them back to work if he came into office. He wanted to send a
signal to his supporters that he valued and supported them.
Although he had no adverse opinion about Urquidez's job
performance, he let her go and rehired a former sheriff's
department employee.
Urquidez's case, having survived the second step, must then be
examined under the third step: was she within the exceptional
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class of public servants of whom political allegiance may be
demanded? This third question requires the court to look at her
job description. In Barrett v. Thomas, 649 F.2d 1193 (5th
Cir.1981), this Court held that "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." Id. at 1200-1201, citing, Elrod v. Burns, 427 U.S. 347,
96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). In that case, the court
found that what has been termed the "confidential policymaking
exception" did not apply to the plaintiff class which ranged from
clerical workers to law enforcement personnel in a Texas sheriff's
office. Id. at 1201. Although Gomez summarizes the Urquidez's job
in his affidavit, nowhere in the record have we found Appellee's
formal job duties set out. On the record before us, we do not have
enough information about Urquidez to disagree with the trial
court's finding that genuine issues of material fact remain.
Gomez characterizes the law in this area as complex and
difficult to apply, reasoning that he therefore did not violate
clearly established law in filling positions based on loyalty and
trust. Gomez may be correct that the law in this area is complex,
fact specific and difficult to apply. However, he is not immune
from the consequences of violating complex laws, if they are
clearly established, as this one has been since at least 1981.
Barrett v. Thomas, 649 F.2d 1193 (5th Cir.1981).
CONCLUSION
Based on the foregoing, that portion of the trial court's
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order denying Gomez summary judgment on all Appellees' due process
claims is REVERSED. That portion which denies summary judgment of
the First Amendment questions is AFFIRMED as to Appellee Urquidez,
and REVERSED as to all other Appellees.
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