Montgomery v. Brookshire

• Decision Date: 23 September 1994
• Docket Number: No. 93-8034,93-8034
• Citation: 34 F.3d 291
• Parties: 65 Fair Empl.Prac.Cas. (BNA) 1866 Alton MONTGOMERY, Plaintiff-Appellant, v. O.A. "Bob" BROOKSHIRE, Sheriff of Ector County, Texas, and Ector County, Texas, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 291

34 F.3d 291

65 Fair Empl.Prac.Cas. (BNA) 1866

Alton MONTGOMERY, Plaintiff-Appellant, v. O.A. "Bob" BROOKSHIRE, Sheriff of Ector County, Texas, and Ector County, Texas, Defendants-Appellees.

No. 93-8034.

United States Court of Appeals, Fifth Circuit.

Sept. 23, 1994.

Rehearing Denied Oct. 20, 1994.

Gerald K. Fugit, Odessa, TX, for plaintiff-appellant.

Denis C. Dennis, Jack Q. Tidwell, McMahon, Cox, Tidwell, McCoy, Hansen & Atkins, P.C., Odessa, TX, for defendants-appellees.

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

Before GARWOOD, DAVIS and SMITH, Circuit Judges.

GARWOOD, Circuit Judge:

Defendant-appellee Ector County Sheriff O.A. "Bob" Brookshire (Sheriff Brookshire) fired plaintiff-appellant Deputy Alton Montgomery (Montgomery). Montgomery brought civil rights, age discrimination, and First Amendment claims against Sheriff Brookshire and Ector County. The district court dismissed the civil rights claims and granted summary judgment in favor of the defendants on the age discrimination and First Amendment claims. Montgomery appeals only the district court's order granting summary judgment on the age discrimination claim. We reverse the district court's grant of summary judgment on that claim and remand the cause.

Facts and Proceedings Below

Sheriff Brookshire hired Montgomery in 1982 as a deputy sheriff to investigate alleged hot check and fraud violations. In July 1991, after receiving a telephone call from his daughter complaining of unauthorized entry into her home by her ex-husband, Jimmy Browning, Montgomery prepared a crime report and had a warrant issued for his ex-son-in-law's arrest. On November 25, 1991, Jimmy Browning was served with the warrant for his arrest when he appeared in court concerning child support arrearage. That same day, Sheriff Brookshire called Montgomery into his office to discuss the Browning case and the Sheriff's Department's policy against officers working on cases for family members. Montgomery responded: "If you force me to make a choice, my family comes first, and the Sheriff's Department can go to hell." The following day, Sheriff Brookshire terminated Montgomery's employment with the Ector County Sheriff's Department.

Montgomery filed an action against Sheriff Brookshire and Ector County seeking damages for civil rights violations under 42 U.S.C. Sec. 1983 as a result of his termination, and thereafter he amended his complaint to include claims for damages under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Sec. 621, et seq., and the First Amendment to the United States Constitution. The district court dismissed Montgomery's civil rights claims and subsequently issued an order granting summary judgment in favor of the defendants on the remaining claims. Montgomery abandoned his appeal of the First Amendment claim, and thus only appealed the district court's grant of summary judgment concerning the ADEA. The district court based its summary judgment on the ADEA claim on the conclusion that Montgomery came within the "personal staff" exception to the ADEA. We find the record insufficient to support this determination, and, accordingly, we reverse the summary judgment on the ADEA claim and remand the cause for further proceedings.

Discussion

This Court reviews a grant of summary judgement de novo. Exxon Corp. v. Burglin, 4 F.3d 1294, 1297 (5th Cir.1993); Hanks v. Transcontinental Gas Pipe Line Corp., 953 F.2d 996, 997 (5th Cir.1992). Summary judgment is only appropriate when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c). As the party moving for summary judgment, Sheriff Brookshire carries the initial burden of pointing to an absence of evidence to support the non-movant's case. Burglin, 4 F.3d at 1297; Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). After consulting the applicable substantive law to determine what facts and issues are material, we review the evidence in a light most favorable to the non-movant relating to those issues. Burglin, 4 F.3d at 1297. If Montgomery, as the non-moving party, brings forth summary judgment evidence of specific facts in support of allegations essential to his claim, a genuine issue is presented and summary judgment must be denied. Id.; Celotex Corp., 477 U.S. at 327, 106 S.Ct. at 2555.

The ADEA makes it unlawful to discharge an employee because of the employee's age. 29 U.S.C. Sec. 623(a)(1). Section 630(f) of the ADEA defines "employee" as:

"[A]n individual employed by any employer except that the term 'employee' shall not include any 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...." 29 U.S.C. Sec. 630(f) (emphasis added).

The district court concluded that Montgomery could not prevail in his ADEA claim because he fell within the second exception to the ADEA definition of "employee," the personal staff exception. On this basis, the court granted the defendants' motion for summary judgment. We do not reach the same conclusion.

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. Monce v. City of San Diego, 895 F.2d 560, 561 (9th Cir.1990); E.E.O.C. v. Reno, 758 F.2d 581, 583-84 & n. 7 (11th Cir.1985); Ingram v. Dallas County, 688 F.Supp. 1146, 1160 (N.D.Tex.1988). We identified several factors in Teneyuca v. Bexar County, 767 F.2d 148 (5th Cir.1985), to guide the determination whether an employee falls within the personal staff exemption and thus is excluded from the coverage of Title VII "(1) [W]hether 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.

As we noted in Teneyuca, "[t]his list of factors is not intended to be exhaustive" and we are to "look to the 'nature and circumstances of the employment relationship between the complaining individual and the elected official.' " Id. at 151-52.

Consideration of the six factors is also tempered by the legislative intent that the exemption be narrowly construed. Clark v. Tarrant County, 798 F.2d 736, 742 (5th Cir.1986); Teneyuca, 767 F.2d at 152 ("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"). The determination of employee status in this respect is ultimately governed by federal rather than state law, and state law is relevant only insofar as it describes the plaintiff's position, including his duties and the way he is hired, supervised, and fired. Clark, 798 F.2d at 742; see also Calderon v. Martin County, 639 F.2d 271, 273 (5th Cir.1981). Courts generally concentrate on 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. We have also 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." Id. ¹

After considering the Teneyuca factors, the district court concluded the instant case presented "precisely the same" situation as Owens v. Rush, 654 F.2d 1370 (10th Cir.1981). In Owens, the Tenth Circuit determined that an undersheriff was on the "personal staff" of the elected sheriff for the purposes of Title VII because (1) the sheriff had plenary powers of appointment and removal, (2) the undersheriff was personally accountable only to the sheriff, (3) the sheriff was both politically and civilly liable for any misconduct by the undersheriff in his official duties, (4) the undersheriff had a very close working relationship with the sheriff, and (5) the undersheriff was second in authority under the sheriff, acted on the sheriff's behalf when he was not available, and served as sheriff in the event of a vacancy in that office. Id. at 1376. Review of the evidence in the present case reveals that the position of "deputy sheriff" in the Ector County Sheriff's Department could hardly be described as "precisely the same" as the "undersheriff" position in Owens. In fact, the differences between these two positions compel a different result.

We recognize that Montgomery's position as deputy sheriff appears to satisfy the first three factors from Teneyuca. The first factor, that Sheriff Brookshire is an elected official with plenary power to hire and fire deputy sheriffs, is statutorily determined and undisputed. TEX.LOC.GOVT.CODE ANN. Sec. 85.003(c) (West 1988) ("A deputy serves at the pleasure of the sheriff"); Samaniego v. Arguelles, 737 S.W.2d 88, 89 (Tex.App.--El Paso 1987, no writ) ("the sheriff can terminate the deputy's tenure at will"). As to factors two and three, a deputy is personally accountable to the sheriff because "[t]he sheriff is responsible for the official acts of his deputies." Samaniego, 737 S.W.2d at 89; see TEX.LOC.GOVT.CODE ANN. Sec. 85.003(d). ² Similarly, as uniformed officials, all deputies regardless of position or rank represent the sheriff in the eyes of the public to some extent...