Gunaca v. State of Tex.

United States Court of Appeals,

Fifth Circuit.

No. 94-50599.

E. Dempsey GUNACA, Plaintiff-Appellant,

v.

The STATE OF TEXAS, office of the District Attorney—El Paso
County, et al., Defendants,

El Paso County, Alicia R. Chacon, County Judge, and Jaime
Esparza, District Attorney, in his official and individual
capacity, Defendants-Appellees.

Oct. 3, 1995.

Appeal from the United States District Court for the Western
District of Texas.

Before REAVLEY and EMILIO M. GARZA, Circuit Judges, and PRADO,
District Judge.*

EMILIO M. GARZA, Circuit Judge:

Dempsey Gunaca sued the State of Texas, El Paso County, El

Paso County Judge Alicia Chacon, in her official capacity, and El

Paso County District Attorney Jaime Esparza, in his official and

individual capacity, over the loss of his job as an investigator at

the El Paso County District Attorney's Office. Gunaca alleged age

discrimination under the Age Discrimination in Employment Act of

1967, 29 U.S.C. § 621 (1988), and First Amendment violations under

42 U.S.C. § 1983 (1988). The district court granted Esparza,

Chacon, and El Paso County's motion for summary judgment, and

dismissed Gunaca's complaint. Gunaca appeals the dismissal, and we

affirm.

*
District Judge of the Western District of Texas, sitting by
designation.

1
 I

Dempsey Gunaca was employed as an investigator by the former

El Paso County District Attorney, Steve Simmons. When Simmons ran

for re-election in 1992, he was defeated in the democratic primary

by Jaime Esparza. Esparza, who ran unopposed in the general

election, chose not to re-appoint Gunaca to his former position.

Gunaca filed suit against Esparza, claiming that Esparza's refusal

to re-appoint him was motivated by age discrimination in violation

of the ADEA, and by political animus in violation of the First

Amendment. Gunaca also named as defendants the State of Texas, El

Paso County,1 and El Paso County Judge Alicia Chacon.2 The district

court dismissed the State of Texas early in the proceedings, and

later heard motions for summary judgment from the remaining

defendants. The court granted summary judgment in favor of El Paso

County and Chacon on the grounds that neither was a proper party to

the suit. The court also granted summary judgment in favor of

Esparza, holding that investigators in the El Paso County District

Attorney's Office are not "employees" for the purposes of the ADEA,

see 29 U.S.C. § 630(f) (1988) (excluding members of "personal

staff" of elected county officials from ADEA's definition of

"employee"), and that Gunaca failed to provide summary judgment

evidence in support of his claim that Esparza's refusal to

1
In his complaint, Gunaca alleged that he "was employed by
the Defendant El Paso County."
2
In his complaint, Gunaca alleged that "Alicia C. Chacon is
County Judge of El Paso County, and is charged with the overall
supervision of personnel matters, and maintains and administers
all County employee payroll and retirement records."

2
re-appoint him was motivated by political animus. Gunaca appeals

the district court's grant of summary judgment in favor of Esparza,

El Paso County, and Chacon.

II

We review the district court's grant of summary judgment de

novo. Montgomery v. Brookshire, 34 F.3d 291, 294 (5th Cir.1994).

Summary judgment is proper under Rule 56 of the Federal Rules of

Civil Procedure when all the evidence viewed in the light most

favorable to the non-movant shows that "there is no genuine issue

as to any material fact and that the moving party is entitled to a

judgment as a matter of law." Fed.R.Civ.P. 56(c). Rule 56

"mandates the entry of summary judgment, after adequate time for

discovery and upon motion, against a party who fails to make a

showing sufficient to establish the existence of an element

essential to that party's case, and on which that party will bear

the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S.

317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); accord

Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en

banc). The movant bears the initial burden of demonstrating the

absence of a genuine issue of material fact, but need not negate

the elements of the nonmovant's case. Celotex, 477 U.S. at 323,

106 S.Ct. at 2553; accord Little, 37 F.3d at 1075. "If the moving

party fails to meet this initial burden, the motion must be denied,

regardless of the nonmovant's response." Little, 37 F.3d at 1075.

"Once the moving party has supported its contention that there is

no genuine issue of material fact and that it is entitled to

3
judgment as a matter of law, the burden is on the nonmoving party

"to go beyond the pleadings and by her own affidavits, or by the

depositions, answers to interrogatories, and admissions on file,

designate "specific facts" showing that there is a genuine issue

for trial.' " Krim v. BancTexas Group, Inc., 989 F.2d 1435, 1445

(5th Cir.1993) (quoting Celotex, 477 U.S. at 324, 106 S.Ct. at

2553.)

A

Gunaca argues that the district court erroneously granted

Esparza's motion for summary judgment on Gunaca's ADEA claim on the

grounds that Gunaca is not an "employee" under § 630(f) of the

ADEA. Under the ADEA, it is unlawful to discharge an employee

because of the employee's age. 29 U.S.C. § 623(a)(1); accord

Montgomery, 34 F.3d at 294. However, § 630(f) of the ADEA excludes

from its definition of "employee":

[A]ny person elected to public office in any State or
political subdivision of any State by the qualified voters
thereof, or any person chosen by such officer to be on such
officer's personal staff, or an appointee on the policymaking
level or an immediate adviser with respect to the exercise of
the constitutional or legal powers of the office.

29 U.S.C. § 630(f).3 The district court held that Gunaca "was a

3
Not long before the events at issue in this suit occurred,
Congress passed the Civil Rights Act of 1991, Pub.L. No. 102-166,
105 Stat. 1071 (1991). Section 321 of the Act provided in
relevant part that:

The rights, protections, and remedies provided pursuant
to section 302 and 307(h) of this title shall apply
with respect to employment of any individual chosen or
appointed, by a person elected to public office in any
State or political subdivision of any State by the
qualified voters thereof—

4
member of the personal staff of the district attorney and is

therefore not an "employee' covered by the Act." Gunaca contends

that Esparza failed to show that there are no genuine issues of

fact as to whether Gunaca fell into the personal staff exception.

(1) to be a member of the elected official's personal
staff.... § 321(a) (codified at 2 U.S.C. § 1220(a) and
amended by the Congressional Accountability Act of 1995,
Pub.L. No. 104-1); see generally, Rutland v. Moore, 54 F.3d
226 (5th Cir.1995) (discussing § 321). The rights and
protections provided by § 302 included freedom from
discrimination based on age "within the meaning of section
633a of [the ADEA];" and the remedies provided by § 307(h)
included, "[i]n the case of a determination that a violation
based on age has occurred," "such remedies as would be
appropriate if awarded under section 633a(c) of [the ADEA]."

While no party to the present suit has raised the
issue, it is possible that § 321 offered Gunaca a way to
circumvent the exemptions found in § 630(f) of the ADEA and
a vehicle for his ADEA claim. Cf. Rutland, 54 F.3d at 230
(assuming without holding that § 321 repealed the exemptions
in § 630(f)). We need not resolve what rights Gunaca might
have had under § 321 because the record in the present case
shows that Gunaca's suit against Esparza was not brought in
compliance with the administrative and procedural
requirements set forth in that statute. See, e.g., § 321(b)
(codified at 2 U.S.C. § 1220(b) and amended by the
Congressional Accountability Act of 1995, Pub.L. No. 104-1)
(providing that complaints brought under § 321 must be filed
with EEOC, and that the EEOC will issue a final order on the
claim); § 321(c) (codified at 2 U.S.C. § 1220(c) and
amended by the Congressional Accountability Act of 1995,
Pub.L. No. 104-1) (requiring that "[a]ny party aggrieved by
a final order under subsection (b) may obtain a review of
such order under chapter 158 of title 28, United States
Code. For the purpose of this review, the Equal Employment
Opportunity Commission shall be an "agency' as that term is
used in chapter 158 of title 28, United States Code."); 28
U.S.C. § 2344 (1988) ("On entry of a final order reviewable
under [chapter 158 of Title 28], the agency shall promptly
give notice thereof by service or publication in accordance
with its rules. Any party aggrieved by the final order may,
within 60 days after its entry, file a petition to review
the order in the court of appeals wherein venue lies. The
action shall be against the United States." (emphasis
added)).

5
 "Because the personal staff exception in the ADEA is

identical to the personal staff exemption found in Title VII, 42

U.S.C. § 2000e(f), courts construe the two exceptions

consistently." Montgomery, 34 F.3d at 294. In Teneyuca v. Bexar

County, 767 F.2d 148 (5th Cir.1985), we identified six factors that

courts have found significant in determining whether a Title VII

plaintiff fell under that statute's personal staff exemption:

(1) Whether the elected official has plenary powers of
appointment and removal, (2) whether the person in the
position at issue is personally accountable to only that
elected official, (3) whether the person in the position at
issue represents the elected official in the eyes of the
public, (4) whether the elected official exercises a
considerable amount of control over the position, (5) the
level of the position within the organization's chain of
command, and (6) the actual intimacy of the working
relationship between the elected official and the person
filling the position.

Id. at 151; see also Clark v. Tarrant County, 798 F.2d 736, 742

(5th Cir.1986) (applying Teneyuca factors in Title VII case). We

have considered those same factors in our application of the ADEA's

personal staff exception. See Montgomery, 34 F.3d at 294-95

(applying Teneyuca in ADEA case).

The list is not exhaustive, Teneyuca, 767 F.2d at 151-52;

Montgomery, 34 F.3d at 295, but it does guide us in looking to the

" "nature and circumstances of the employment relationship between

the complaining individual and the elected official to determine if

the exception applies,' " Teneyuca, 767 F.2d at 152 (quoting Owens

v. Rush, 654 F.2d 1370, 1375 (10th Cir.1981)); accord Montgomery,

34 F.3d at 295. Our consideration of these factors is tempered by

the legislative history of the exception, which indicates that it

6
is to be narrowly construed. Teneyuca, 767 F.2d at 152; Clark,

798 F.2d at 742; Galvan v. Bexar County, 785 F.2d 1298, 1303 n. 8

(5th Cir.1986).4 Finally, we have emphasized that " "the highly

factual nature of the inquiry necessary to the determination of the

"personal staff" exception does not lend itself well to disposition

by summary judgment.' " Montgomery, 34 F.3d at 295 (quoting

Teneyuca, 767 F.2d at 152).

Gunaca has conceded that under chapter 41 of the Texas

Government Code, the district attorney has plenary power to appoint

and remove investigators, see Tex.Gov't Code Ann. § 41.102 (West

1988) ("A prosecuting attorney may employ the assistant prosecuting

attorneys, investigators, secretaries, and other office personnel

that in his judgment are required for the proper and efficient

operation and administration of the office."); Tex.Gov't Code Ann.

§ 41.105 ("All personnel of a prosecuting attorney's office are

subject to removal at the will of the prosecuting attorney."), and

that investigators are personally accountable only to the district

attorney, see Tex.Gov't Code Ann. § 41.109(b) ("An investigator is

under the exclusive authority and direction of the prosecuting

4
" "It [was] the conferees intent that this exemption
[should] be construed narrowly.' " Teneyuca, 767 F.2d at 152,
(quoting 1972 U.S.C.C.A.N. 2137, 2180). "Furthermore, Senator
Ervin, the sponsor of the original Senate amendment, agreed that
the purpose of the exception was to "exempt from coverage those
who are chosen by ... the elected official ..., and who are in a
close personal relationship and an immediate relationship with
him. Those who are his first line advisers.' " Id. (quoting 118
Cong.Rec. 4492-93 (1972)). " "Congress intended for the personal
staff exception to apply only to those individuals who are in
highly intimate and sensitive positions of responsibility on the
staff of the elected official.' " Montgomery, 34 F.3d at 295
(quoting Teneyuca, 767 F.2d at 152).

7
attorney...."). Thus, Gunaca has conceded the first two Teneyuca

factors.

Gunaca contends, however, that investigators do not represent

the district attorney in the eyes of the public because only those

employees of the district attorney who are licensed to practice

law, such as the assistant district attorneys, can represent the

district attorney in the eyes of the public. In applying the third

Teneyuca factor in Clark v. Tarrant County, 798 F.2d 736 (5th

Cir.1986), we deemed relevant the fact that a probation officer did

not represent her appointing judge to the general public in the

same way that "[an] assistant district attorney represents the

district attorney in legal proceedings and in the eyes of the

public." Id. at 743. However, we discussed the scope of the

factor at greater length in Montgomery v. Brookshire, 34 F.3d 291

(5th Cir.1994), which concerned the application of the personal

staff exemption to sheriffs' deputies. We held in Montgomery that

"as uniformed officials, all deputies regardless of position or

rank represent the sheriff in the eyes of the public to some extent

because the public is often generally unaware of the hierarchy

within the sheriff's department." Id. at 296. While we noted that

"[o]ther considerations may arguably also be pertinent [in applying

the third Teneyuca factor] in the context of lawyers in a law

office representing an entity such as a city or county," id. at 297

n. 6, the consideration emphasized in Montgomery is equally

important in the present case. As Esparza stated in his motion for

summary judgment, investigators are statutorily authorized to make

8
arrests and to serve warrants, capiases, and subpoenas issued in

criminal cases. Tex.Gov't Code Ann. § 41.109(a). Investigators

are also authorized to execute search warrants. Glaze v. State,

165 Tex.Crim. 626, 310 S.W.2d 88 (1958). In performing these

functions, which necessarily involves interaction with the public,

investigators are no less representatives of the district attorney

for want of a law license than the deputies in Montgomery were

representatives of the sheriff despite their position in the office

hierarchy.

Gunaca also contends that the district attorney does not

exercise a considerable amount of control over investigators.

Esparza alleged in his motion for summary judgment, and the

district court held, that the language of section 41.109(b) of the

Texas Government Code, providing that the district attorney has

"exclusive authority and direction" over investigators, established

this degree of control. However, in our application of the fourth

Teneyuca factor in Montgomery, which we decided after the district

court issued its order granting summary judgment, we emphasized

instead the degree of control an employer actually exerts over the

employee's day-to-day activities. See Montgomery, 34 F.3d at 296

(stressing in its application of fourth Teneyuca factor that

defendant "barely exhibited any control over Montgomery's

day-to-day activities"). Because the relevant provisions of

section 41.109(b) are duly accounted for in our consideration of

the second Teneyuca factor, we follow the approach taken by the

court in Montgomery. Summary judgment evidence shows that Gunaca

9
spoke to the former district attorney "practically every day."

Gunaca stated in a deposition: "I would discuss certain activities

and my investigation activities with him, to make sure that I

wasn't overstepping something or doing something wrong or—we had

quite a few conversations like that." This evidence clearly

establishes that the former district attorney had considerable

day-to-day control over Gunaca's activities.

Gunaca argues that the working relationship between the

district attorney and the investigators is not intimate. In our

application of the sixth Teneyuca factor in Montgomery, we

considered the frequency with which Montgomery and his employer

discussed business and consulted each other regarding their work.

Id. at 296. In his motion for summary judgment, Esparza argued

that a district attorney must maintain an intimate working

relationship with investigators because "[i]n determining whether

or not to initiate a criminal prosecution, a district attorney must

confer, consult and rely upon the investigator assigned to gather

evidence in the case," making the investigator "privy to the

confidential communications and deliberations of the elected

official." He supported his claim with affidavits from himself and

an assistant that included essentially the same statements. Gunaca

offered as summary judgment evidence his own affidavit, in which he

stated that his working relationship with the former district

attorney involved "reporting, reviewing, and seeking approval of

investigative activities" but that he was "never included in

organizational meetings, planning sessions, policy-making

10
decisions, or case strategy meetings." That Gunaca was not

included in such meetings and decision-making does not detract from

the fact that he regularly discussed business with the former

district attorney, consulted the district attorney regarding work,

and was consulted by the district attorney regarding work.

The fifth Teneyuca factor is the level of the position within

the organization's chain of command. As we explained in

Montgomery: "Factor five concerns [plaintiff's] rank within the

organization's command structure. The "personal staff' exception

becomes less applicable the lower the particular employee's

position because the exception was primarily intended to exempt the

elected official's immediate subordinates or those "who are his

first line advisors.' " Montgomery, 34 F.3d at 296 (holding that

employee was not a member of employer's "personal staff" where four

levels of supervisors separated employee from employer). Unrefuted

summary judgment evidence established that in the organizational

structure of the district attorney's office, three levels of

supervisors separate investigators from the district attorney. The

district court acknowledged that "[t]he investigator's position

within the district attorney's chain of command is not at the top,"

but emphasized that "the district attorney and his assistants place

a great deal of trust in their investigators, and rely heavily upon

them."

Although the investigators' position in the office's

organizational structure provides Gunaca with his strongest

argument that investigators are not part of the district attorney's

11
personal staff, the argument does not have much force. Summary

judgment evidence established that there are about fifty-five

appointed positions in the district attorney's office, half the

number of appointed law enforcement officials in the sheriff's

office in Montgomery, see Montgomery, 34 F.3d at 297 (noting that

appointed law enforcement officials numbered 113). In a small

office, an employee's placement in the chain of command is less

significant to a consideration of the nature and circumstances of

the employment relationship between employee and employer. Thus,

while the placement of the position of investigator in the office's

organizational structure is evidence that Gunaca was not a member

of the former district attorney's personal staff, we cannot say

that it is very strong evidence that he was not.

Our inquiry into the nature and circumstances of the

employment relationship between Gunaca and the former district

attorney for the purpose of determining whether Gunaca is exempt

from the protection of the ADEA is highly factual. It would not

lend itself well to disposition by summary judgment were it not

that most of the necessary facts are provided by statute or by

Gunaca's testimony and summary judgment evidence. Our

consideration of the Teneyuca factors supports the district court's

judgment, and that judgment does not rely on the resolution of any

genuine issues of fact. Therefore, we conclude that the district

court properly granted Esparza's motion for summary judgment on

Gunaca's ADEA claim on the grounds that Gunaca is excluded from the

coverage of the ADEA.

12
 B

Gunaca argues next that the district court erroneously

granted Esparza's motion for summary judgment on the question of

whether Esparza violated the First Amendment by refusing to

re-appoint Gunaca in retaliation for Gunaca's political support of

the former district attorney.5 Although Esparza contended in his

motion for summary judgment that he is entitled to qualified

immunity from liability on Gunaca's First Amendment claim, the

district court granted Esparza's motion on the grounds that Gunaca

"undeniably engaged in protected political activity, [but] has

failed to come forward with credible evidence that such activity

was the reason for his non-employment."

5
Gunaca also argues that the district court erroneously
granted El Paso County and Judge Alicia Chacon summary judgment
on his § 1983 claim on the grounds that neither was a proper
party to the suit. The municipal defendants argued in their
motion for summary judgment that, under Texas law, the district
attorney possesses exclusive authority to hire and fire
investigators. "Accordingly," they concluded, "neither Defendant
Chacon nor Defendant the County of El Paso can be held legally
responsible for Defendant Esparza's decision to refuse to
reappoint Plaintiff...." On appeal, Gunaca claims that he "does
not dispute the fact that the decision to hire and fire was
possessed totally by Esparza," but contends instead, as he did in
his response to Esparza's motion for summary judgment, that the
municipal officials control investigators' salary and employment
benefits. We have previously held that such assertions do not
state a claim for municipal liability under § 1983. See Clark v.
Tarrant County, 798 F.2d 736, 747-48 (5th Cir.1986) (affirming
summary judgment dismissal of municipal defendants in § 1983
gender bias in pay and promotions suit because only alleged basis
for liability was that municipal defendants, who "did not set
salaries nor influence promotions," controlled other aspects of
the employment relationship). Because Gunaca provided no summary
judgment evidence to support any other theory of municipal
liability, we conclude that the district court properly granted
the municipal defendants summary judgment on Gunaca's § 1983
claim.

13
 Government officials performing discretionary functions are

entitled to qualified immunity from suit unless their conduct

violated clearly established statutory or constitutional rights of

which a reasonable person would have known. Gibson v. Rich, 44

F.3d 274, 277 (5th Cir.1995). A claim of immunity must be resolved

at the earliest possible stage of litigation because it entails an

entitlement to immunity from suit and not merely a defense to

liability. Hunter v. Bryant, 502 U.S. 224, 226, 112 S.Ct. 534,

536, 116 L.Ed.2d 589 (1991); accord Gibson, 44 F.3d at 277. In

reviewing Esparza's assertion of qualified immunity, we must first

determine whether Gunaca has alleged a violation of a

constitutional right. Siegert v. Gilley, 500 U.S. 226, 232, 111

S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991); Vojvodich v. Lopez, 48

F.3d 879, 886 (5th Cir.1995). In Elrod v. Burns, 427 U.S. 347,

357, 96 S.Ct. 2673, 2681, 49 L.Ed.2d 547 (1976), the Supreme Court

held that because "political belief and association constitute the

core of those activities protected by the First Amendment," id. at

356, 96 S.Ct. at 2681, the practice of patronage dismissals

"clearly infringes First Amendment interests," id. at 360, 96 S.Ct.

at 2683. Gunaca alleged in his complaint that "his discharge and

failure to be rehired by Defendant Jaime Esparza ... [was]

motivated by reasons of plaintiff's political preferences, and in

retaliation for said political preference." Thus, Gunaca has at

least alleged a violation of his constitutional rights.

Our second step is to determine whether the constitutional

right that Esparza allegedly violated was clearly established at

14
the time of the alleged violation. In Anderson v. Creighton, 483

U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987), the Supreme Court

emphasized that "[t]he operation of this standard ... depends

substantially upon the level of generality at which the relevant

"legal rule' is to be identified." Id. at 639, 107 S.Ct. at 3038-

39. The Court discussed the dangers of defining the relevant legal

right too generally, and held that "the right the official is

alleged to have violated must have been "clearly established' in a

more particularized, and hence more relevant sense: The contours

of the right must be sufficiently clear that a reasonable official

would understand that what he is doing violates that right." Id.

at 640, 107 S.Ct. at 3039; accord Matherne v. Wilson, 851 F.2d at

752, 756 (5th Cir.1988). Thus, in Anderson, which involved a

warrantless search of a residence, the Court held that "It simply

does not follow immediately from the conclusion that it was firmly

established that warrantless searches not supported by probable

cause and exigent circumstances violate the Fourth Amendment that

[the defendant's] search was objectively legally unreasonable," and

held that the lower court should have considered whether it was

"clearly established that the circumstances with which [the

defendant] was confronted did not constitute probable cause and

exigent circumstances." Anderson, 483 U.S. at 640-41, 107 S.Ct. at

3039 (emphasis added).

In Noyola v. Texas Department of Human Resources, 846 F.2d

1021 (5th Cir.1988), we considered the effect of Anderson on "the

qualified immunity of public officials whose actions are alleged to

15
have violated an employee's first amendment rights." Noyola, 846

F.2d at 1025. Because our consideration of such First Amendment

claims involves a case-specific balancing of the employee's First

Amendment rights and the government's interest in maintaining

discipline and efficiency in the work place, id., we held that

"[t]here will rarely be a basis for a priori judgment that the

termination or discipline of a public employee violated "clearly

established' constitutional rights." Id. In Noyola, reasoning

that "[n]o Fifth Circuit case [at the time of the alleged

violation] had found a first amendment violation on facts like

these," id. at 1026, we held that the defendant official was

entitled to qualified immunity because " "reasonable government

officials, knowing only that they must not infringe on [employee

free speech rights], would not necessarily know just what conduct

was prohibited.' " Id. at 1025 (quoting Hodorowski v. Ray, 844

F.2d 1210, 1217 (5th Cir.1988)).

Esparza took office in January of 1993. By that time, both

the Supreme Court and the Fifth Circuit had recognized a class of

public employees from whom political allegiance may be demanded:

public employees whose First Amendment interests are outweighed by

a governmental interest in the employees' political loyalty. See,

e.g., Branti v. Finkel, 445 U.S. 507, 518, 100 S.Ct. 1287, 1295, 63

L.Ed.2d 574 (1980) (holding that an employee is not protected from

political patronage dismissal if "the hiring authority can

demonstrate that party affiliation is an appropriate requirement

for the effective performance of the public office involved");

16
Vojvodich, 48 F.3d at 887 (holding that "by January 1992 at the

latest," law clearly established that "a public employer cannot act

against an employee because of the employee's affiliation or

support of a rival candidate unless the employee's activities in

some way adversely affect the government's ability to provide

services").6

The right that Gunaca asserts in his complaint and summary

judgment response was not clearly established at the time Esparza

allegedly violated it because neither the Fifth Circuit nor the

Supreme Court had addressed the issue of political patronage in the

hiring or firing of investigators in district attorneys' offices,

and neither had addressed an issue sufficiently analogous that a

reasonable official would understand from its resolution that it is

a First Amendment violation to dismiss or to not hire an

investigator on the grounds that the investigator supported the

campaign of the official's opponent. See Noyola, 846 F.2d at 1026

(reversing district court's rejection of defendant's claim of

qualified immunity in case involving discharge that allegedly

violated public employee's First Amendment rights because, at the

6
In Matherne, we considered whether a plaintiff's asserted
rights under Elrod were "clearly established" at the time the
plaintiff's employer allegedly violated them. The plaintiff had
provided summary judgment evidence that he did not fall into the
Branti exception, and we, taking the facts in the light most
favorable to the party responding to the motion for summary
judgment, took that fact as established for the purposes of our
inquiry. Matherne, 851 F.2d at 757. Gunaca did not address the
Branti exception in his response to Esparza's motion for summary
judgment, nor did he provide summary judgment evidence that would
have supported a claim that the position of investigator does not
fall under the exception.

17
time of the alleged violation, no Fifth Circuit case had found a

First Amendment violation on similar facts). "This is not to say

that an official action is protected by qualified immunity unless

the very action in question has previously been held unlawful, but

it is to say that in the light of preexisting law the unlawfulness

must be apparent." Anderson, 483 U.S. at 640, 107 S.Ct. at 3039.

Because reasonable public officials could have differed on the

lawfulness of Esparza's actions at the time they occurred, Esparza

is entitled to qualified immunity. See Blackwell, 34 F.3d at 303

(holding that defendant is entitled to qualified immunity if

reasonable officials could differ on the lawfulness of defendant's

actions).7 Thus, we affirm on the grounds of qualified immunity

the district court's grant of summary judgment on Gunaca's § 1983

claim against Esparza.

III

For the foregoing reasons, we AFFIRM the district court's

grant of summary judgment on Gunaca's ADEA and § 1983 claims.

7
The question " "is not whether the law was settled, viewed
abstractly, but whether, measured by an objective standard, a
reasonable officer would know that his action [was] illegal.' "
Click v. Copeland, 970 F.2d 106, 109 (5th Cir.1992) (quoting
Matherne, 851 F.2d at 756).

18