Vojvodich v. Lopez
| Decision Date | 30 March 1995 |
| Docket Number | No. 93-8838,93-8838 |
| Citation | 48 F.3d 879 |
| Parties | Mark S. VOJVODICH, Plaintiff-Appellant, v. Ralph LOPEZ, Bexar County Sheriff, Individually and in his Official Capacity, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Philip M. Ross, San Antonio, TX, for appellant.
Kathleen Finck Watel, and Edward Schweninger, Bexar County Dist. Atty's Office, San Antonio, TX, for appellee.
Appeal from the United States District Court for the Western District of Texas.
Before HIGGINBOTHAM, SMITH and PARKER, Circuit Judges.
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.
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 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 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 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 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 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.
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
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, 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
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 3] 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 a sliding scale or spectrum upon which " 'public concern' is weighed against disruption." 16
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