United States Court of Appeals,
Fifth Circuit.
No. 93-8838.
Mark S. VOJVODICH, Plaintiff-Appellant,
v.
Ralph LOPEZ, Bexar County Sheriff, Individually and in his
Official Capacity, Defendant-Appellee.
March 30, 1995.
Appeal from the United States District Court for the Western
District of Texas.
Before HIGGINBOTHAM, SMITH and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
The plaintiff, Mark S. Vojvodich, brought this action against
Sheriff Ralph Lopez, claiming that he was transferred from his
previous position in the Bexar County Sheriff's Office because of
his political activity and affiliation in violation of his First
Amendment rights. The district court granted summary judgment in
favor of the sheriff, holding that, because the deputy occupied the
position of a "policymaker," his First Amendment rights were
outweighed by the sheriff's interest in having a loyal employee.
As it applied an incorrect legal standard in determining whether
the deputy's rights were infringed, we vacate the district court's
summary judgment, and remand for further proceedings.
I. BACKGROUND
Deputy Mark Vojvodich worked as a Bexar County Deputy Sheriff
for over ten years, during which time he worked his way up the
chain of command. In 1992, he was promoted to lieutenant and
1
assigned as commander of the Narcotics Unit of the Bexar County
Sheriff's Office (BCSO). The Narcotics Unit is a field command
within the Criminal Investigations Division.1
Over the years Deputy Vojvodich served as a delegate to the
Republican National Committee and as a member of several republican
organizations, including the Young Republicans Club and the
Republican Mens Club. In 1992, Deputy Vojvodich actively
campaigned for the re-election of then-incumbent republican
sheriff, Harlon Copeland. Deputy Vojvodich served on Sheriff
Copeland's campaign committee, attended political campaign events
and fundraisers, associated with campaign staff at campaign
1
Under Texas law, some sheriffs' departments, of which BCSO
is one, may establish a civil service system for their employees.
See Tex.Local Gov't Code Ann. § 158.032 (West Supp.1995). The
BCSO elected to do just that. Accordingly, the Bexar County
Civil Service System Commission was created. It adopted rules
regarding various aspects of employment with the BCSO, including
promotions, disciplinary, grievances, and "other matters"
relating to employee advancement and benefits. Id. § 158.035.
These rules announce, inter alia, a county policy to promote
employees and to administer "all other matters affecting [their
employment], including ... transfers [and] demotion[s] ...
without regard to ... political affiliation." Rules of Bexar
County Sheriff's Civil Service Comm'n § 4, at 12 (Mar. 14, 1985,
as revised through May 21, 1992). The rules also restrict
somewhat the political activities of civil service employees.
These rules apply to all department employees except
those positions that the sheriff specifically elects to
exempt from the civil service system. The Bexar County
Sheriff is entitled by law to exempt up to ten positions.
See Tex.Local Gov't Code Ann. § 158.038(b). The defendant,
Sheriff Ralph Lopez, did not choose to exempt Deputy
Vojvodich's position as Narcotics Commander. Accordingly,
Deputy Vojvodich held a "non-exempt" position within the
BCSO; thus, the terms and conditions of his employment were
governed by the rules. Sheriff Lopez does not allege that
Deputy Vojvodich violated any rules, even though the deputy
was active politically.
2
headquarters, donated money to the campaign fund, and urged friends
and associates to vote for Copeland. In the election, Sheriff
Copeland was opposed by Ralph Lopez, a democrat.
That Deputy Vojvodich supported Sheriff Copeland was well
known within the BCSO. In fact, on one occasion a Lopez supporter
within the sheriff's office tried to recruit Vojvodich to support
Lopez's candidacy, but the deputy refused. On election day,
however, Deputy Vojvodich's candidate was defeated. The voters of
Bexar County elected Mr. Lopez sheriff, and he assumed his duties
on January 1, 1993.
As part of the transition process, Sheriff Lopez asked Deputy
Vojvodich to prepare a report on the operations of the Narcotics
Unit. The deputy complied, preparing a forty-page report in which
he proffered several recommendations. Concurrently, Deputy
Vojvodich continued to direct the day-to-day operations of the
unit. Vojvodich claims that, although he had opposed the election
of Sheriff Lopez, he continued to serve loyally in his position as
narcotics commander.
Sheriff Lopez claims that upon taking office he evaluated the
performance of all units within the BCSO. This evaluation, Sheriff
Lopez claims, revealed that the narcotics unit was not operating
productively. Sheriff Lopez asserts that he and Deputy Vojvodich
disagreed as to the appropriate manner of improving productivity.
When the narcotics unit thereafter failed to demonstrate what the
sheriff believed to be satisfactory progress, the sheriff
transferred Deputy Vojvodich to head the Communications/Dispatch
3
Division. The sheriff insists that the position to which he
transferred Vojvodich was equal in prestige to the position
previously held by Vojvodich in the narcotics unit.
Deputy Vojvodich claims that he was unaware that the sheriff
was evaluating the unit. He also disputes the Sheriff's assertion
that the two disagreed on how to improve the operations of the
narcotics unit. Vojvodich claims that at no time while he headed
Narcotics did the Sheriff express dissatisfaction with his
performance or that of the unit. In fact, Vojvodich claims, it was
not until this litigation that he learned that he was transferred
for alleged unsatisfactory performance. Unlike the sheriff, Deputy
Vojvodich sees his transfer as a demotion.2
Deputy Vojvodich also claims that Sheriff Lopez either failed
or refused to promote him to Night Chief, a position that was
created during the tenure of the previous sheriff. According to
Vojvodich, the Night Chief position was declared by the Civil
Service Commission to be a non-exempt, Captain-level position. As
such, Deputy Vojvodich argues that, according to the civil service
system rules, he should have been promoted to the position because
he was the top candidate on the applicable promotion list. Deputy
Vojvodich was not promoted, however, and on Sheriff Lopez's
2
The former Chief of Criminal Investigations, James De
Lesdernier, affirmed that, based on his law enforcement
experience, "an involuntary transfer from the position of
Narcotics Lieutenant to Communications/Dispatching Lieutenant
would be a punitive transfer to a less desirable, less
prestigious position." Deputy Vojvodich also stated that his new
position offered less job satisfaction, fewer benefits, and that,
in his view, the transfer was a "career setback."
4
recommendation the position was subsequently abolished.
Vojvodich insists that he was transferred and denied the
promotion to Night Chief solely because he is a republican and
because he supported Lopez's opponent in the general election.
Vojvodich filed suit in federal district court alleging that
Sheriff Lopez had violated his state and federal constitutional
rights.
Lopez disputes any retaliatory motive for his decision to
transfer Deputy Vojvodich to Communications/Dispatch or for his
recommendation to abolish the Night Chief's position. The sheriff
states that he transferred Vojvodich from narcotics because he was
not satisfied with the performance of the Narcotics Unit, he
disagreed with Deputy Vojvodich regarding the organization of the
unit, and he wanted better to utilize Vojvodich's knowledge of and
interest in computers and communications technology. Sheriff Lopez
likewise denies that any political animus motivated his
recommendation to eliminate the Night Chief position, claiming that
he favored abolishing the position because he believed it would
cause an unnecessary expenditure of funds.
Sheriff Lopez moved for summary judgment on three grounds:
that he is entitled to qualified immunity; that Deputy Vojvodich
occupied the position of a "policymaker" and thus could be demoted
because of his political activities; and that Vojvodich failed to
produce evidence that he was transferred because of activities
protected by the First Amendment. The district court granted the
sheriff's motion based solely on the court's finding that the
5
deputy was a policymaker and thus was subject to the action taken
on the grounds of political activity. After so ruling, the court
dismissed without prejudice the deputy's supplemental state-law
claims. Deputy Vojvodich timely appealed the district court's
ruling.
II. DISCUSSION
On this appeal, we review only the district court's summary
dismissal of Deputy Vojvodich's federal-law claims. We review a
summary judgment by examining "the record under the same standards
which guided the district court."3 Summary judgment is appropriate
when no genuine issue of material fact exists, and the movant is
entitled to judgment as a matter of law.4 In determining whether
the grant was proper, we view all fact questions in the light most
favorable to the nonmovant. Questions of law are reviewed de
novo.5
A.
We may assume without deciding that the district court's
factual finding that Deputy Vojvodich was a "policymaker" was not
clearly erroneous.6 Even if this finding is supported, however,
3
Walker v. Sears, Roebuck & Co., 853 F.2d 355, 358 (5th
Cir.1988).
4
Celotex Corp. v. Catrett, 477 U.S. 317, 322-25, 106 S.Ct.
2548, 2552-53, 91 L.Ed.2d 265 (1986).
5
Walker, 853 F.2d at 358.
6
"Policymaker" has been defined, in part, as a public
employee "whose responsibilities require more than simple
ministerial competence, whose decisions create or implement
policy, and whose discretion in performing duties or in selecting
duties to perform is not severely limited by statute, regulation,
6
the district court erred by granting summary judgment in favor of
Sheriff Lopez based solely on its finding that Vojvodich had
occupied a policymaking position. The district court apparently
believed that Deputy Vojvodich's First Amendment interests were
necessarily outweighed by Sheriff Lopez's interests as a matter of
law simply because it classified Vojvodich as a policymaker. That
is not the case.
Although the fact that a public employee holds a policymaking
position is relevant to the required balancing of interests, it is
not the ultimate determination. In Branti v. Finkel,7 the Supreme
Court expressly rejected the categorical approach used here by the
district court. The Branti Court explained that "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."8 Indeed, the Supreme Court clearly indicated in
Branti that "party affiliation is not necessarily relevant to every
policymaking or confidential position."9
or policy determinations made by supervisors." Stegmaier v.
Trammell, 597 F.2d 1027, 1035 (5th Cir.1979). "[C]onsideration
should also be given to whether the employee acts as an advisor
or formulates plans for the implementation of broad goals."
Gonzalez v. Benavides, 712 F.2d 142, 149 (5th Cir.1983) (quoting
Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547
(1976)).
7
445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980).
8
Branti, 445 U.S. at 518, 100 S.Ct. at 1295.
9
Id.
7
In Connick v. Myers,10 the Supreme Court again addressed the
First Amendment rights of public employees, and expressly adopted
the balancing analysis first recognized in Pickering v. Board of
Education.11 Under Connick and Pickering, the court's task "is to
seek "a balance between the interests of the [employee], as a
citizen, in commenting upon matters of public concern and the
interest of the State, as an employer, in promoting the efficiency
of the public services it performs through its employees.' "12
To assert the protections of the First Amendment, the
employee must establish, as a threshold matter, that his speech or
activity related to a matter of public concern.13 In the present
case, there can be no question that the claimed activity,
associating with political organizations and campaigning for a
political candidate, related to a matter of public concern.14 If
the plaintiff meets this burden, the employer then must establish
that its interest in promoting the efficiency of the services
provided by its employees outweighs the employee's interest in
engaging in the protected activity.15 This analysis in reality is
10
461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983).
11
391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968).
12
Connick, 461 U.S. at 142, 103 S.Ct. at 1687 (alteration in
original) (quoting Pickering, 391 U.S. at 568, 88 S.Ct. at 1734).
13
Connick, 461 U.S. at 146, 103 S.Ct. at 1690.
14
Coughlin v. Lee, 946 F.2d 1152, 1158 (5th Cir.1991).
15
United States Dep't of Justice v. Federal Labor Relations
Auth., 955 F.2d 998, 1005 (5th Cir.1992).
8
a sliding scale or spectrum upon which " "public concern' is
weighed against disruption."16
We have repeatedly recognized that "a stronger showing of
disruption may be necessary if the employee's speech more
substantially involves matters of public concern."17 This Court has
also noted 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)."18 These general observations, however, do not negate the
oft repeated warning that because of the wide variety of situations
in which this issue might arise, each case should be considered on
its particular facts.19
In evaluating particular cases, this Court has looked to the
factors discussed by the Supreme Court in Connick. Although not
intended to be the exclusive considerations, these factors include
(1) the degree to which the employee's protected activity involved
16
Click v. Copeland, 970 F.2d 106, 112 (5th Cir.1992);
Matherne v. Wilson, 851 F.2d 752, 761 (5th Cir.1988); Gonzalez
v. Benavides, 774 F.2d 1295, 1302 (5th Cir.1985), cert. denied,
475 U.S. 1140, 106 S.Ct. 1789, 90 L.Ed.2d 335 (1986).
17
Gonzalez, 774 F.2d at 1302 (citing Connick, 461 U.S. at
152, 103 S.Ct. at 1693); see Kinsey v. Salado Ind. Sch. Dist.,
950 F.2d 988, 994 (5th Cir.) (en banc), cert. denied, --- U.S. --
--, 112 S.Ct. 2275, 119 L.Ed.2d 201 (1992); id. at 1000
(Goldberg, J., dissenting); Matherne, 851 F.2d at 761; McBee v.
Jim Hogg County, Tex., 730 F.2d 1009, 1017 (5th Cir.1984) (en
banc).
18
Kinsey, 950 F.2d at 994 (citing Rutan v. Republican Party
of Ill., 497 U.S. 62, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990));
see also id. at 998 (Higginbotham, J., concurring).
19
Connick, 461 U.S. at 154, 103 S.Ct. at 1694; Pickering,
391 U.S. at 569, 88 S.Ct. at 1735; McBee, 730 F.2d at 1014.
9
a matter of public concern, and the gravity of that concern, (2)
whether close working relationships are essential to fulfilling the
responsibilities of the public office and the extent to which the
employee's protected activities may have affected those
relationships, (3) the time, place, and manner of the employee's
activities, and (4) the context in which the employee's activities
were carried out.20 A proper consideration of these factors allows
a court to balance the plaintiff's interest in the claimed
protected activity against the alleged disruption caused by that
activity to the effective and efficient fulfillment of the
government's public responsibilities.
We have no doubt that the government has a "legitimate
interest in maintaining proper discipline in the public service, to
the end that its duties may be discharged with efficiency and
integrity."21 In addition, we recognize that "party affiliation may
be an acceptable requirement for some types of governmental
employment. Thus, if an employee's private political beliefs would
interfere with the discharge of his public duties, his First
Amendment rights may be required to yield to the State's vital
interest in maintaining governmental effectiveness and
efficiency."22 Likewise, a private citizen's right to freedom of
20
See Connick, 461 U.S. at 151-53, 103 S.Ct. at 1692-93;
Kinsey, 950 F.2d at 995-96; McBee, 730 F.2d at 1013.
21
McBee, 730 F.2d at 1013 (citing Connick, 461 U.S. at 150,
103 S.Ct. at 1691).
22
Branti, 445 U.S. at 517, 100 S.Ct. at 1294; see
Soderstrum v. Town of Grand Isle, 925 F.2d 135 (5th Cir.1991)
(police chief's personal secretary served in position of
10
speech, even political speech, "is not absolute, insofar as it
conflicts with his role as a public employee."23
In the present case, however, Sheriff Lopez has failed to
allege that the deputy's political activities had any effect
whatever on BCSO operations. In fact, the sheriff insists that
Deputy Vojvodich's political activities were wholly irrelevant, and
that his employment actions were based entirely on other,
nonpolitical factors. Because the sheriff has not alleged that
Vojvodich's activities actually or potentially affected the
Sheriff's Office's ability to provide services, there simply is no
countervailing state interest to weigh against the employee's First
Amendment rights. Thus, we cannot affirm the summary judgment in
favor of Sheriff Lopez on this basis.
B.
Sheriff Lopez also moved for summary judgment on the
alternative grounds that (1) Deputy Vojvodich failed to produce
evidence that his transfer was motivated by his political
affiliation or activities, and (2) the Sheriff was entitled to
qualified immunity. Because it granted summary judgment based
solely on the finding that Deputy Vojvodich was a policymaker, the
district court did not address either of these alternative grounds.
We may affirm a decision on grounds other than those upon
which the district court ruled, so we next consider each of the
arguments in turn. When we do so in light of the summary judgment
confidence requiring complete loyalty).
23
Kinsey, 950 F.2d at 992.
11
record before us, we conclude that Sheriff Lopez has not
established entitlement to summary judgment on either basis.
1. CAUSATION
Sheriff Lopez contends that Deputy Vojvodich failed to submit
sufficient evidence to establish that Sheriff Lopez's actions were
motivated by Deputy Vojvodich's protected activities. To be
entitled to summary judgment, Sheriff Lopez must show the absence
of a genuine issue of material fact on the causation element of
Vojvodich's claim. We hold that Deputy Vojvodich has presented
sufficient evidence on this issue to create a question of fact for
the jury.
To show that his political affiliation or activities motivated
the Sheriff, Vojvodich provides evidence that (1) he was a
republican, and Sheriff Lopez was a democrat, (2) he actively
campaigned for the incumbent whom Sheriff Lopez eventually
defeated, (3) his support of the incumbent's candidacy was well
known within the BCSO generally, and in particular by Sheriff
Lopez's supporters there, (4) within three and a half months after
Sheriff Lopez assumed office, the Deputy was transferred to a less
desirable position with diminished prestige and career opportunity,
even though his performance evaluations were satisfactory and the
Sheriff had expressed no dissatisfaction with his performance, and
(5) within the same timeframe, other BCSO employees who opposed
Sheriff Lopez's election were terminated. Based on this evidence,
we conclude that a reasonable factfinder could infer that Sheriff
Lopez's transfer of Deputy Vojvodich was substantially motivated by
12
the Deputy's party affiliation or his political activities or both.
2. QUALIFIED IMMUNITY
Finally, we address Sheriff Lopez's contention that he is
entitled to qualified immunity. State officials are protected by
qualified immunity for alleged constitutional torts if their
conduct does not violate clearly established law effective at the
time of the alleged tort.24 The first step in this analysis is to
determine whether the plaintiff has alleged a violation of a
constitutional right at all.25 As we have already discussed, absent
a sufficient showing of disruption of the government's ability to
provide services, Vojvodich's activity was constitutionally
protected. In addition, we hold that a reasonable factfinder could
find that political animus motivated the Sheriff's actions. Thus,
Deputy Vojvodich has sufficiently alleged the violation of a
constitutional right.
The second step in the qualified immunity analysis is
determining whether the constitutional rights allegedly violated
were clearly established at the time the events occurred. In Click
v. Copeland,26 we held that by January of 1988 the law was clearly
established that a retaliatory transfer to a less interesting, less
prestigious position could implicate the First Amendment, even if
24
Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727,
2738, 73 L.Ed.2d 396 (1982).
25
Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789,
1793, 114 L.Ed.2d 277 (1991).
26
970 F.2d 106 (5th Cir.1992).
13
the transfer did not result in a decrease in pay.27 As far back as
1985, the established law in this circuit has been that a public
employer cannot retaliate against an employee for expression
protected by the First Amendment merely because of that employee's
status as a policymaker.28
In addition, by January 1992 at the latest, the law was
equally clear that, regardless of whether an employee is a
policymaker, 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.29 Therefore,
prior to March 1993, it should have been readily apparent to a
reasonable sheriff that he could not retaliate against a
policymaking deputy for exercising his First Amendment rights
unless the deputy's activities had in some way disrupted the
sheriff's department. Since Sheriff Lopez has alleged no
disruption of governmental functions as a result of Vojvodich's
activities, we cannot hold that he is entitled to qualified
immunity in the face of Vojvodich's allegations, and we cannot
affirm the district court's summary judgment in favor of the
defendant on this basis.30
27
Id. at 109-11.
28
Gonzalez, 774 F.2d at 1301-02; McBee, 730 F.2d at 1016.
29
See Kinsey, 950 F.2d at 996; id. at 1000 (Goldberg, J.,
dissenting).
30
Click, 970 F.2d at 112-13 (sheriff's failure to allege
disruption fatal to his claim of qualified immunity).
14
III. CONCLUSION
For the reasons given above, the summary judgment of the
district court is VACATED and the case is REMANDED for further
proceedings consistent with this opinion.
15