Montgomery v. Brookshire ( 1994 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 93-8034
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ALTON MONTGOMERY,
Plaintiff-Appellant,
versus
O.A. "BOB" BROOKSHIRE, Sheriff of
Ector County, Texas, and ECTOR COUNTY,
TEXAS,
Defendants-Appellees.
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Appeal from the United States District Court for the
Western District of Texas
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(September 23, 1994)
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. § 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. § 621, et seq.,
and the First Amendment to the United States Constitution. The
district court dismissed Montgomery's civil rights claims and
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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, 106 S. Ct. 2548, 2553 (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
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his claim, a genuine issue is presented and summary judgment must
be denied. Id.; Celotex Corp., 106 S. Ct. at 2555.
The ADEA makes it unlawful to discharge an employee because of
the employee's age. 29 U.S.C. § 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 [1] any person elected
to public office in any State or political subdivision of
any State by the qualified voters thereof, or [2] any
person chosen by such officer to be on such officer's
personal staff, or [3] an appointee on the policymaking
level or an immediate adviser . . .." 29 U.S.C. § 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. §
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
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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 Caldron 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
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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
1
We concluded summary judgment was appropriate in Teneyuca
because (1) several of the factors were statutorily determined;
(2) the actual situation did not appear to differ from that
provided by statute; and (3) the plaintiff wholly failed to meet
the requirements of FED.R.CIV.P. 56(e) in responding to the
defendants' motion for summary judgment. Teneyuca, 767 F.2d at
152-53. Because our conclusion rested so heavily on the
plaintiff's failure to respond, we cautioned that:
"This is not to say that as a matter of law a plaintiff
could never demonstrate that material facts exist such
that summary judgment would be inappropriate in another
similar case against this or another similar defendant.
This Court holds only that in this case Teneyuca failed
to demonstrate the presence of material factual issues
so as to defeat the defendants' motion for summary
judgment." Id. at 153.
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"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. § 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.SQEl Paso 1988,
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. § 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 because the public is often
generally unaware of the hierarchy within the sheriff's department.
2
Montgomery does not dispute the sheriff's ultimate
responsibility for the actions of the deputies. He challenges
factor three, however, on the basis that he was not personally
accountable only to the sheriff, but rather to several
intermediate supervisors, including Herbert Gibson and Mark
Donaldson. His argument misstates the purpose of factor three.
This factor requires that the plaintiff be personally accountable
only to the particular elected official, as opposed to being
accountable to the county, or a multi-person court, or some form
of board or panel. The existence of intermediaries does not
shield the sheriff from liability for the deputy's official
misconduct, nor does it remove the deputy's personal
accountability to the sheriff. See TEX. LOC. GOVT. CODE ANN. §
85.003 (d),(e). Of course, the layers of supervision separating
Montgomery and Sheriff Brookshire will be very relevant to our
consideration of the fifth Teneyuca factor.
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The evidence concerning Teneyuca factors four through six,
however, demonstrates that genuine issues of material fact remain,
and thus disposition by summary judgment is inappropriate at this
point. Teneyuca's fourth factor requires the Court to consider
whether the sheriff exercises a considerable amount of control over
deputies in Montgomery's position. Facts asserted in Montgomery's
affidavit indicate that Sheriff Brookshire barely exhibited any
control over Montgomery's day-to-day activities.3 Since Sheriff
Brookshire has offered nothing to rebut this assertion, there at
least exists a disputed issue of fact yet to be resolved. Factor
five concerns Montgomery's rank within the organization's command
structure. The "personal staff" exception becomes less applicable
the lower the particular employee's position because the exception
was primarily intended to exempt the elected official's immediate
subordinates or those "who are his first line advisors." See
Owens, 654 F.2d at 1375 (quoting 118 CONG. REC. 4492-92 (1972)).
The facts are undisputed that: (1) the Ector County Sheriff's
Department consisted of 113 officers plus various clerical workers;
(2) the managerial hierarchy, in descending order of authority,
consisted of Sheriff Brookshire at the top, followed by the
3
By its terms, factor four could be read to inquire whether
the sheriff had the power to exercise a considerable amount of
control over the deputySQwithout regard to whether customarily he
actually utilized this authority on a day-to-day basis. Such a
reading, however, would merely duplicate considerations addressed
in factors one and two. Construing factor four to inquire
whether customarily the sheriff actually exercises control over
one alleged to be a member of his "personal staff" seems more in
line with the narrow construction we are required to give this
exception.
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captains, inspectors, sergeants, lieutenants, and finally deputy
sheriffs; and (3) as a deputy sheriff, Montgomery occupied the
lowest rung on the chain of command and exercised no supervisory
authority over any other officers.4 In direct contrast to the
"undersheriff" in Owens, deputy sheriffs in Ector County could not
possibly be characterized as the Sheriff's first line advisors.
The sixth Teneyuca factor, the actual intimacy of the working
relationship between Montgomery and Sheriff Brookshire, strongly
militates against finding that Montgomery fell within the personal
staff exception. Montgomery asserts that at most he may have
discussed business with Sheriff Brookshire once a month and that
the two did not consult with each other regarding their work.5
Sheriff Brookshire does not dispute this testimony and even
concedes that due to the size of the Department there was no actual
intimacy in the working relationship.
Ultimately, under Sheriff Brookshire's construction, his
"personal staff" would encompass all 113 law enforcement officials
4
Sheriff Brookshire offers no evidence to challenge these
findings, but simply argues that section 85.003 of the Texas
Local Government Code somehow negates the relevance of the fifth
factor because the sheriff is given plenary power over all
deputies regardless of their position within the department. We
reject this argument. The concerns reflected in section 85.003
are aptly addressed in the first three factors of Teneyuca and
are at most marginally relevant to factor five.
5
This factor demonstrates the fundamental difference between
Owens and the instant case. The plaintiff in Owens admitted that
as undersheriff he had "a very close working relationship with
the sheriff." Owens, 654 F.2d at 1376. The Court recognized
that such an intimate relationship was necessary since the
undersheriff was second in authority to the sheriff and acted on
the sheriff's behalf when he was absent. Id.
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in the Ector County Sheriff's DepartmentSQthus exempting every
employee except the civilian clerical staff. Giving the personal
staff exception such a breadth is inconsistent with the
congressional intent that the exception be narrowly construed. See
Teneyuca, 767 F.2d at 150.6
Finally, we recognize that this Court may affirm a grant of
summary judgment on grounds other than those relied upon by the
district court when the record contains an adequate and independent
basis for the result. Chauvin v. Tandy Corp., 984 F.2d 695, 697
(5th Cir. 1993). While we disagree with the district court's order
granting summary disposition based on the personal staff exception,
some skepticism may be in order regarding this ADEA claim's chance
of success on the merits. To prove age discrimination, a plaintiff
must first establish a prima facie case, generally by showing (1)
that he was within the protected age group, (2) that he was
6
The broadest application of this exception we have found is
Monce v. City of San Diego, 895 F.2d 560 (9th Cir. 1990). In
Monce, the Ninth Circuit determined that a deputy city attorney
was a member of the City Attorney's "personal staff" because the
deputy "holds office 'at the pleasure of' the City Attorney,"
represented the principal in the eyes of the public, and "was
empowered to exercise the legal authority of that office;" even
though the deputy "did not have an immediate personal
relationship with the City Attorney and was not personally
entrusted with a great deal of responsibility." Id. at 561. Even
Monce does not stretch the exception as far as Brookshire
advocates. So far as is apparent from the Monce opinion, San
Diego's deputy city attorneys may rank just below the City
Attorney. By contrast, the deputy sheriffs in Ector County are
clearly bottom-level employees. In addition, the staff of a city
attorney's office consists of numerous employees other than
deputy city attorneys, including briefing attorneys,
investigators, paralegals, and clerical staff. Other
considerations may arguably also be pertinent in the context of
lawyers in a law office representing an entity such as a city or
county.
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adversely affected by an employment action (in this case,
discharged), (3) that he was replaced by a younger person, and (4)
that he was qualified for the job. Purcell v. Seguin State Bank
and Trust Co., 999 F.2d 950, 957 (5th Cir. 1993). Establishing a
prima facie case essentially creates a presumption that the
employer unlawfully discriminated against the employee. St. Mary's
Honor Center v. Hicks, 113 S. Ct. 2741, 2747 (1993). The burden of
production then shifts to the defendant to rebut this presumption
by presenting evidence that the employee was discharged for a non-
discriminatory reason. Purcell, 999 F.2d at 957. If the defendant
presents such evidence, the plaintiff has the burden of persuading
the factfinder that those reasons are pretexts for unlawful
discrimination. Id.; see St. Mary's Honor Center, 113 S. Ct. at
2747 ("although the . . . presumption shifts the burden of
production to the defendant, '[t]he ultimate burden of persuading
the trier of fact that the defendant intentionally discriminated
against the plaintiff remains at all times with the plaintiff'").
In the instant case, Montgomery's situation arguably satisfies
the requirements of a prima facie case of age discrimination.7
Sheriff Brookshire, however, appears to have clearly stated a non-
discriminatory reason for the employment decision, namely
Montgomery's outburst in Sheriff Brookshire's office. Montgomery,
a former sheriff himself, has admitted that had one of his deputies
7
Undisputed testimony reveals that Montgomery was fifty-nine
years old when he was terminated, and that he was replaced by a
slightly younger officerSQDon Stout, age fifty-two. There does
not appear to be any evidence, or even allegation, that
Montgomery was generally unqualified for his job.
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told him the Sheriff's Department could go to hell, he probably
would have fired him as well. This would leave Montgomery the
burden of persuading the trier of fact that Sheriff Brookshire's
claim of insubordination was a mere pretext for intentional age
discrimination. The present record does not appear to support any
such finding. The only evidence arguably implying a discriminatory
purpose is that Montgomery was within a few months of retirement at
the time of his termination. Had Sheriff Brookshire alleged, as an
alternate basis for granting summary judgment, that Montgomery's
insubordination constituted an adequate and non-discriminatory
ground for termination that was not a pretext for age
discrimination, we may have affirmed the grant of summary judgment
regardless of the reasons relied upon by the district court.
However, Sheriff Brookshire's decision not to advance this defense
in his motion for summary judgment denied Montgomery the
opportunity to respond with evidence possibly showing that the
insubordination charge was a pretext for age discrimination. The
only basis on which Brookshire sought summary judgment was the
personal staff exemption, and that was the sole ground of the
district court's decision; such a ground is wholly unrelated to and
distinct from whether the discharge was age discriminatory. We
therefore conclude that in this case we should not reach the merits
of any question other than that on which summary judgment was
sought and granted below. See FDIC v. Laguarta, 939 F.2d 1231,
1240 (5th Cir. 1991).
Conclusion
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We conclude that under the present record genuine issues of
fact remain unresolved regarding the plaintiff's status as an
employee under the ADEA; accordingly, the district court's grant of
summary judgment is REVERSED, and the cause is REMANDED for further
proceedings.
REVERSED and REMANDED
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