Teneyuca v. Bexar County

• Decision Date: 02 August 1985
• Docket Number: No. 85-2149,85-2149
• Citation: 767 F.2d 148
• Parties: 38 Fair Empl.Prac.Cas. 989, 38 Empl. Prac. Dec. P 35,524 Sharyl TENEYUCA, Plaintiff-Appellant, v. BEXAR COUNTY, Bill White, and Charles T. Conaway, Defendants-Appellees. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 148

767 F.2d 148

38 Fair Empl.Prac.Cas. 989,

38 Empl. Prac. Dec. P 35,524

Sharyl TENEYUCA, Plaintiff-Appellant, v. BEXAR COUNTY, Bill White, and Charles T. Conaway Defendants-Appellees.

No. 85-2149

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Aug. 2, 1985.

James A. Kosub, San Antonio, Tex., for plaintiff-appellant.

William R. Crow, San Antonio, Tex., for defendants-appellees.

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

Before GEE, JOHNSON, and DAVIS, Circuit Judges.

JOHNSON, Circuit Judge:

Sharyl Teneyuca appeals from the judgment of the district court granting the defendants' motion to dismiss or alternative motion for summary judgment in Teneyuca's sex discrimination suit against Bexar County, Bill White, and Charles T. Conaway. At the time of the alleged acts of discrimination, White was Bexar County Criminal District Attorney and Conaway was Chief Assistant Bexar County Criminal District Attorney. On appeal, Teneyuca asserts that the district court erred in dismissing Conaway from the action because Conaway was not specifically named in Teneyuca's charge filed with the Equal Employment Opportunity Commission (EEOC). Teneyuca also asserts that the district court erroneously granted summary judgment in favor of Bexar County and Bill White. Teneyuca challenges the district court's conclusion that an assistant district attorney is excepted from Title VII's definition of "employee" because a person holding that position would be a member of the "personal staff" of an elected official. For the reasons stated below, the judgment of the district court is affirmed.

I. BACKGROUND

In June of 1981 and again in September of 1981, Sharyl Teneyuca (Teneyuca) applied for the position of Assistant Bexar County Criminal District Attorney. Teneyuca asserts in her complaint that in both instances she was as qualified or better qualified than the other applicants, and that in each instance male applicants were hired.

Pursuant to the requirements of Title VII, 42 U.S.C. Sec. 2000e et seq., Teneyuca filed with the EEOC a charge of sex discrimination against the Bexar County District Attorney. In her charge, Teneyuca alleged that she had not been hired as an assistant criminal district attorney because of her sex. Teneyuca's filing of the charge was timely, and she received a notice of right to sue from the EEOC. She then commenced this action against Bexar County, Bill White, and Charles T. Conaway. In this action, Teneyuca asserted claims under Title VII and 42 U.S.C. Sec. 1983. Teneyuca has since abandoned her section 1983 claim.

The defendants filed a motion to dismiss or in the alternative a motion for summary judgment. The defendants asserted two grounds in support of their motions. First, the defendants argued that Teneyuca's complaint against defendants Bexar County and Charles T. Conaway must be dismissed because Teneyuca failed to specifically name those defendants in her original charge filed with the EEOC. ¹ Second, the defendants argued that they were entitled to summary judgment because a person filling the position sought by Teneyuca would not be an "employee" as defined in 42 U.S.C. Sec. 2000e(f) because "any person elected to public office ... or any person chosen by such officer to be on such officer's personal satff ..." is excepted from the definition of "employee." The district court dismissed Conaway from the suit because Conaway was not named in Teneyuca's EEOC charge. The district court also granted summary judgment in favor of the other two defendants on the second argument. Teneyuca appeals. For the reasons stated below, the judgment of the district court is affirmed.

II. THE "PERSONAL STAFF" EXCEPTION

The district court's judgment granted summary judgment in favor of two of the defendants. ² The district court based its ruling on the defendants' assertion that the person holding the position of assistant criminal district attorney is not an "employee" for purposes of Title VII because the assistant criminal district attorney is a member of the "personal staff" of the Bexar County Criminal District Attorney.

This Court reviews a grant of summary judgment under the following standard:

A grant of summary judgment is appropriate only where it appears from the pleadings, depositions, admissions, answers to interrogatories, and affidavits--considered in the light most favorable to the opposing party--that there is "no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."

Dorden v. C.H. Heist Corp., 743 F.2d 1135, 1137 (5th Cir.1984) (quoting Fed.R.Civ.P. 56(c)).

Our analysis begins with a discussion of the substantive law governing this appeal. Title VII provides:

The term 'employee' means an individual employed by an 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 policy making level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office. The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, governmental agency or political subdivision.

42 U.S.C. Sec. 2000e(f) (emphasis added).

In Calderon v. Martin County, 639 F.2d 271 (5th Cir.1981), this Court determined that a plaintiff's status as an "employee" for purposes of Title VII is a question of federal rather than state law. Status is a question of federal law because Congress amended Title VII specifically to bring " 'governmental agencies, [and] political subdivisions' under the Act's requirements," and that the purpose would be defeated "if state governments themselves [were able] to designate which of their workers will receive Title VII protection." Id. at 273 (quoting 42 U.S.C. Sec. 2000e(a)). This Court stated: "State law is relevant insofar as it describes the plaintiff's position, including [her] duties and the way [she] is hired, supervised and fired...." Id. ³

It is undisputed that the Bexar County Criminal District Attorney is an elected official as contemplated by section 2000e(f). Tex.Rev.Civ.Stat.Ann. art. 326k-50 Sec. 2. Moreover, Tex.Rev.Civ.Stat.Ann. art. 2372h-6 Sec. 10(b)(1) specifically exempts assistant criminal district attorneys from civil service protection. Nevertheless, while these two factors are requirements of the exception, they are not dispositive of this Court's determination.

In addition to these two requirements, this Court must determine whether the position of assistant district attorney is the type of position covered by the "personal staff" exemption of section 2000e(f). Title VII does not define the term "personal staff." Moreover, this Court has not had occasion to address the specific question presented in this appeal.

Nevertheless, other courts have addressed this issue, and we look to those cases for guidance. The Fourth Circuit in Curl v. Reavis, 740 F.2d 1323 (4th Cir.1984), the Eighth Circuit in Goodwin v. Circuit Court of St. Louis County, 729 F.2d 541 (8th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 112, 83 L.Ed.2d 55 (1984) and --- U.S. ----, 105 S.Ct. 1194, 84 L.Ed.2d 339 (1985), the Ninth Circuit in Ramirez v. San Mateo County, 639 F.2d 509 (9th Cir.1981), and the Tenth Circuit in Owens v. Rush, 654 F.2d 1370 (10th Cir.1981), have addressed the meaning of the section 2000e(f) exception to Title VII. ⁴ These cases have isolated a number of factors which courts have found significant in determining whether a complainant falls within the "personal staff" exception to Title VII's definition of employee.

These factors include: (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. See Goodwin, 729 F.2d at 548-49, ⁵ Ramirez, 639 F.2d at 511-13, ⁶ Owens, 654 F.2d at 1374-76. ⁷ This list of factors is not intended to be exhaustive, but it does indicate those factual considerations that courts have found helpful in making this determination. In short, the courts look to the "nature and circumstances of the employment relationship between the complaining individual and the elected official to determine if the exception applies." Owens, 654 F.2d at 1375. See Curl, 740 F.2d at 1328.

This Court's consideration of these factors must be tempered by the legislative history of this provision which indicates that the exception is to be narrowly construed. Owens, 654 F.2d at 1375. For example, the conference report on this legislation states: "It is the conferees [sic] intent that this exemption shall be construed narrowly." 1972 U.S.Code Cong. & Ad.News, 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." 118 Cong.Rec. 4492-93 (1972). These comments led the Tenth Circuit to conclude: "Thus it would appear that 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." Owens, 654 F.2d at...