Gunaca v. State of Tex.

• Decision Date: 03 October 1995
• Docket Number: No. 94-50599,94-50599
• Citation: 65 F.3d 467
• Parties: 68 Fair Empl.Prac.Cas. (BNA) 1678, 66 Empl. Prac. Dec. P 43,737 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.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 467

65 F.3d 467

68 Fair Empl.Prac.Cas. (BNA) 1678,

66 Empl. Prac. Dec. P 43,737

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.

No. 94-50599.

United States Court of Appeals, Fifth Circuit.

Oct. 3, 1995.

Charles E. McDonald, El Paso, TX, for appellant.

E. Dempsey Gunaca, El Paso, TX, pro se.

Jo Anne Bernal, Office of County Atty., El Paso, TX, for El Paso County, et al.

Thomas A. Spieczny, El Paso, TX, for Jaime Esparza.

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. Sec. 621 (1988), and First Amendment violations under 42 U.S.C. Sec. 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.

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. Sec. 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 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 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 Sec. 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. Sec. 623(a)(1); accord Montgomery, 34 F.3d at 294. However, Sec. 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. Sec. 630(f). ³ The district court held that Gunaca "was a 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.

"Because the personal staff exception in the ADEA is identical to the personal staff exemption found in Title VII, 42 U.S.C. Sec. 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 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. Sec. 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. Sec. 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. Sec. 41.109(b) ("An investigator is under the exclusive authority and direction of the prosecuting 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...