Ronald Heggemeier v. Caldwell County, Texas , 826 F.3d 861 ( 2016 )

Case: 15-50485 Document: 00513563211 Page: 1 Date Filed: 06/23/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-50485
United States Court of Appeals
Fifth Circuit
FILED
RONALD R. HEGGEMEIER, June 23, 2016
Lyle W. Cayce
Plaintiff - Appellant Clerk
v.
CALDWELL COUNTY, TEXAS; CALDWELL COUNTY COMMISSIONERS
COURT; ALFRED MUNOZ, Individually and in his official capacity as
Commissioner; ERNESTO “NETO” MADRIGAL, Individually and in his
official capacity as Commissioner; JOE ROLAND, Individually and in his
official capacity as Commissioner,
Defendants - Appellees
Appeal from the United States District Court
for the Western District of Texas
Before CLEMENT and OWEN, Circuit Judges, and JORDAN, District
Judge.*
PER CURIAM:
Ronald Heggemeier, a white male, is a former employee of Caldwell
County, Texas. In general terms, he contends that a Hispanic voting bloc on
the Caldwell County Commissioners Court eliminated his position due to his
race, age, and age-related protected activities, violating his due-process rights
* District Judge of the Southern District of Mississippi, sitting by designation.
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along the way. Heggemeier therefore sued Caldwell County, the
Commissioners Court, and Commissioners Alfred Munoz, Ernesto “Neto”
Madrigal, and Joe Roland (“Appellees”), asserting federal claims for: (1) race
discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”); (2)
retaliation under the Age Discrimination in Employment Act of 1967
(“ADEA”); and (3) wrongful termination under 42 U.S.C. § 1983. He also
asserted a state-law claim under the Texas Whistleblower Act, Texas
Government Code § 554.002.
The district court granted Appellees’ motion to dismiss the § 1983 claim
and their subsequent motion for summary judgment on the remaining federal
claims. It then declined to exercise supplemental jurisdiction over
Heggemeier’s state-law whistleblower claim. Heggemeier timely appealed.
Finding no error, we AFFIRM.
I.
The County hired Heggemeier as an assistant district attorney in
March 2010. While serving in this capacity, Heggemeier complained that the
County’s health-insurance policy violated the ADEA because it provided
dependent health-benefit coverage for dependent children of County
employees. According to Heggemeier, older workers were less likely to have
children, so the older workers received “fewer County dollars per capita.”
Heggemeier reported this alleged discrimination to the Commissioners
Court—a body consisting of four commissioners and the County Judge—on
August 29, 2011.
About one month later, on October 1, 2011, the County promoted
Heggemeier to County Administrator, a position newly created by the
Commissioners Court to assist in the implementation and oversight of policy
directives for the County. As County Administrator, Heggemeier directly
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managed eight County departments, exercised authority for business and
service-delivery aspects of county government, and assisted the County Judge
in preparing each fiscal-year budget. In this capacity, Heggemeier reported
an alleged impropriety that forms the basis for his state-law whistleblower
claim.
In May 2013, the Commissioners Court discharged Heggemeier and one
other employee. First, on May 20, 2013, the Commissioners Court voted to
terminate Rhoda Chavira’s employment. Chavira, who is Hispanic, had
worked for the County for over twenty years and served as the head of the
Indigent Health Services Department. During the deliberations over
Chavira’s employment, a non-Hispanic member of the Commissioners Court
proposed giving her severance benefits through the end of the year, but the
Commissioners Court settled on forty-one days of severance pay.
Eight days later, the Commissioners Court convened a regular meeting,
during which Commissioner Roland moved to abolish Heggemeier’s County
Administrator position. He claimed the position was duplicative and
unnecessary for a county of Caldwell County’s size. Commissioners Madrigal
and Munoz voted for the motion, while the two non-Hispanic members,
Commissioner Fred Buckholz and County Judge Tom Bonn, unsuccessfully
opposed it.
Unlike the Chavira decision, no one recommended extending
Heggemeier’s pay or benefits, so his position ended May 31, 2013. As a
result, Heggemeier received just three-days’ notice and severance in contrast
to Chavira’s forty-one days. Aggrieved by the loss of his employment,
Heggemeier filed suit in the United States District Court for the Western
District of Texas and now appeals the dismissal of his claims.
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II.
This court reviews a grant of summary judgment de novo, applying the
same legal standard as the district court. Zastrow v. Hous. Auto Imports
Greenway Ltd., 789 F.3d 553, 558 (5th Cir. 2015). “Summary judgment is
appropriate only if, interpreting all facts and drawing all reasonable
inferences in favor of the non-moving party, ‘the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.’” Id. at 559 (quoting Fed. R. Civ. P. 56(a)). “A
genuine dispute as to a material fact exists ‘if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.’” Rogers v.
Bromac Title Servs., L.L.C., 755 F.3d 347, 350 (5th Cir. 2014) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
As for Rule 12(b)(6), de novo review again applies. Toy v. Holder, 714
F.3d 881, 883 (5th Cir. 2013). “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
III.
A. Title VII Race-Discrimination Claim
Heggemeier contends that the Hispanic members of the Commissioners
Court violated Title VII by terminating his employment because he is white.
Such a claim can be established with either direct or circumstantial evidence.
McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007). Where, as
here, a plaintiff relies on circumstantial evidence, the claim is analyzed under
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the familiar McDonnell Douglas burden-shifting framework. Id. (citing
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). 1
Under this framework, a Title VII plaintiff must first establish a prima
facie case of discrimination. Thomas v. Johnson, 788 F.3d 177, 179 (5th Cir.
2015). After this showing has been made, “a presumption of discrimination
arises, and the employer must ‘articulate a legitimate, non-discriminatory
reason’ for the adverse employment action.” Id. (quoting McCoy, 492 F.3d at
557). If the employer meets this burden of production, the plaintiff must then
“show the articulated reason is pretextual.” Id.
At the outset, we must clarify which prima facie test applies. As this
court has recognized, the prima facie case is “necessarily a flexible standard
that must be adapted to the factual circumstances of the case.” Turner v.
Kan. City S. Ry. Co., 675 F.3d 887, 892 (5th Cir. 2012). As such, there are
various formulations of the test, most of which differ at the fourth element.
While Heggemeier generally observed these variations in his district
court and appellate briefs, he argued his case under the test requiring proof
that:
(1) he is a member of a protected class, (2) he was qualified for
the position at issue, (3) he was the subject of an adverse
employment action, and (4) he was treated less favorably because
of his membership in that protected class than were other
similarly situated employees who were not members of the
protected class, under nearly identical circumstances.
Lee v. Kan. City S. Ry. Co., 574 F.3d 253, 259 (5th Cir. 2009).
According to Heggemeier, this test reflects the “proper expression of the
fourth element in this case.” Thus, according to him, he “simply must show
he was treated less favorably than another worker similarly situated under
1The magistrate judge analyzed Heggemeier’s claims under both direct- and circumstantial-
evidence standards, but the former has not been pursued on appeal.
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nearly identical circumstances.” He then offers Chavira as a similarly
situated comparator.
It is debatable whether this prima facie test should apply. 2
Nevertheless, the magistrate judge applied the test Heggemeier argued, and
Heggemeier never objected to that portion of the Report and
Recommendation. To the contrary, he argued: “The Magistrate correctly
observes that the only disputed issue in the prima facie analysis is whether
Plaintiff and Chavira were similarly situated in their employment with
Caldwell County.” Heggemeier likewise failed to specifically appeal the
district court’s adoption of that standard. Under these circumstances, review
is limited to whether the district court erred in its analysis of the test
Heggemeier argued. See FDIC v. Mijalis, 15 F.3d 1314, 1327 (5th Cir. 1994)
(holding that party wishing to preserve argument for appeal “must press and
not merely intimate the argument during the proceedings” below, allowing it
to be raised “to such a degree that the district court has an opportunity to
rule on it”).
Turning then to the district court’s analysis, there is no dispute that
Heggemeier satisfied the first three elements of the prima facie case.
Consequently, the only disputed issue at the prima facie stage is whether
Heggemeier and Chavira were similarly situated in their employment with
the County. The district court correctly concluded that they were not.
To satisfy the fourth element of the prima facie case as argued,
Heggemeier was required to demonstrate that “he was treated less favorably
because of his membership in that protected class than were other similarly
2 The parties have at times described this as a reduction-in-force case, but neither side urged
the district court to apply one of the more particularized prima facie tests that have been used in
that context. See, e.g., Pryor v. MD Anderson Cancer Ctr., 495 F. App’x 544, 546 (5th Cir. 2012);
Vaughn v. Edel, 918 F.2d 517, 521 (5th Cir. 1990).
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situated employees who were not members of the protected class, under
nearly identical circumstances.” Lee, 574 F.3d at 259. “The employment
actions being compared will be deemed to have been taken under nearly
identical circumstances when the employees being compared held the same
job or responsibilities, shared the same supervisor or had their employment
status determined by the same person, and have essentially comparable
violation histories.” Id. at 260 (footnotes omitted). On the other hand,
“[e]mployees with different supervisors, who work for different divisions of a
company or . . . who have different work responsibilities . . . are not similarly
situated.” Id. at 259–60. Significantly, if a difference between the plaintiff
and the proposed comparator “accounts for the difference in treatment
received from the employer, the employees are not similarly situated for the
purposes of an employment discrimination analysis.” Id. at 260 (internal
quotation marks omitted); see also Black v. Pan Am. Labs., L.L.C., 646 F.3d
254, 262 (5th Cir. 2011).
Here, Heggemeier has offered little evidence that Appellees treated
Chavira more favorably under “nearly identical” circumstances. With respect
to his termination claim, Heggemeier and Chavira were treated the same—
both lost their jobs during a reduction in force. See Washington v. Louisiana,
628 F. App’x 914, 918 (5th Cir. 2015) (affirming summary judgment where
employer treated plaintiff and similarly situated employees the same); see
also Johnson v. JP Morgan Chase Bank, 469 F. App’x 345, 348 (5th Cir. 2012)
(same). And as to the notice and severance they received, the district court
correctly held that the two were not similarly situated. Among other things
the district court addressed, Chavira had been employed by the County for
twenty years before her termination, whereas Heggemeier had been a County
employee for only three years. Because Heggemeier has failed to show he
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was treated less favorably than a similarly situated comparator, he has not
established a prima facie case of racial discrimination. His Title VII claim
was properly dismissed. 3
B. ADEA Retaliation Claim
In addition to his discrimination claim, Heggemeier asserts that the
County retaliated against him in violation of the ADEA. Specifically, he
contends that his opposition to the County’s health-benefit policy as
disparately impacting older employees was “a motivating factor in the
decision to terminate his employment.” 4
The ADEA makes it unlawful for an employer to discriminate, or
retaliate, against an employee “because such individual . . . has opposed any
practice made unlawful by [the Act].” 29 U.S.C. § 623(d). Like Title VII
discrimination claims, retaliation claims under the ADEA also utilize a
burden-shifting analysis at the summary-judgment stage, starting with the
prima facie case. See Patrick v. Ridge, 394 F.3d 311, 315 (5th Cir. 2004).
To state a prima facie retaliation claim under the ADEA, a plaintiff
must show: “(1) that he engaged in a protected activity, (2) that there was an
adverse employment action, and (3) that a causal link existed between the
protected activity and the adverse employment action.” Holtzclaw v. DSC
Commc’ns Corp., 255 F.3d 254, 259 (5th Cir. 2001).
It is undisputed that Heggemeier suffered an adverse employment
action, but whether he can satisfy the first and third elements of the prima
facie case remains in dispute. With regard to the first element, a plaintiff
has engaged in protected activity if he has “opposed any practice” forbidden
3 The district court held in the alterative that Heggemeier failed to show the County’s
legitimate, non-discriminatory reason for terminating his employment was pretextual, but we
decline to consider this issue given the lack of a prima facie case.
4 The ADEA requires “but-for causation.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177
(2009).
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by the ADEA. 29 U.S.C. § 623(d). Critically, the plaintiff need not establish
that the practice opposed was “actually unlawful, but only that he had a
‘reasonabl[e] belief that the employer was engaged in unlawful employment
practices.’” Byers v. Dall. Morning News, Inc., 209 F.3d 419, 428 (5th Cir.
2000) (quoting Payne v. McLemore’s Wholesale & Retail Stores, 654 F.2d
1130, 1140 (5th Cir. Unit A Sept. 1981)). Here, the district court found that
Heggemeier’s age-based-discrimination complaint was a “stretch,” but
assumed without deciding that it was sufficient because he otherwise failed
to prove causation. We take the same approach and reach the same
conclusion.
To begin, Heggemeier’s causation argument is substantially
undermined by the fact that the Commissioners Court—the body to which he
voiced his complaint—hired him as the County Administrator after he
complained about the alleged age-based discrimination. Appellees Roland
and Madrigal were both on the Commissioners Court when Heggemeier
complained and when he was promoted; Appellee Munoz became a
commissioner later. See Brady v. Hous. Indep. Sch. Dist., 113 F.3d 1419,
1424 (5th Cir. 1997) (holding that plaintiff’s retaliation case suffered from
“critical flaws” where two of four decision-makers recommended plaintiff’s
promotion after she engaged in protected activity); see also Oby v. Baton
Rouge Marriott, 329 F. Supp. 2d 772, 784 (M.D. La. 2004) (“Under the same
actor inference, if the same actor takes a positive employment action towards
an employee after that employee engages in protected activity, any inference
of retaliation dissipates.”). 5
Heggemeier’s argument is further undermined by the amount of time
that passed between his complaint to the Commissioners Court on August 29,
5 Heggemeier’s contention that the inference should not apply because the balance of power
on the Commissioners Court shifted after he was hired as County Administrator is too speculative.
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2011, and the vote to terminate his employment on May 31, 2013—a period of
twenty-one months. We have previously acknowledged that “[c]lose timing
between an employee’s protected activity and an adverse action against him
may provide the ‘causal connection’ required to make out a prima facie case of
retaliation.” Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th Cir.
1997) (emphasis omitted) (quoting Armstrong v. City of Dall., 997 F.2d 62, 67
n.18 (5th Cir. 1993)). But the Supreme Court has emphasized that the
proximity must be “very close,” and has held that a period of twenty months
between protected activity and adverse employment action “suggests, by
itself, no causality at all.” Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273
(2001) (collecting cases fulfilling this requirement based on three- and four-
month delays). Accordingly, we conclude that the period of twenty-one
months between Heggemeier’s complaint and his termination is simply too
substantial a gap to support an inference of causation.
Heggemeier attempts to overcome these deficiencies with Judge Bonn’s
deposition testimony that all of Heggemeier’s actions, including the insurance
complaint, were “cumulative” factors influencing the other commissioners’
votes to terminate his employment. The district court correctly noted that
these comments are unsubstantiated, conclusory, and speculative. See Clark
v. Am.’s Favorite Chicken Co., 110 F.3d 295, 297 (5th Cir. 1997) (holding that
“deposition testimony setting forth ultimate or conclusory facts and
conclusions of law [is] insufficient to defeat a motion for summary
judgment”). Absent any other evidence of causation, Judge Bonn’s statement
simply does not suffice to carry Heggemeier’s burden on this element of the
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prima facie case. We therefore conclude that the district court did not err in
granting summary judgment as to Heggemeier’s ADEA retaliation claim. 6
C. § 1983 Wrongful-Termination Claim
Heggemeier seeks damages under § 1983, contending that Appellees
violated his due-process rights when they terminated his employment as
County Administrator. The district court dismissed the claim finding that
Heggemeier failed to allege facts supporting a property interest in continued
employment. We agree.
A property interest “is not incidental to public employment and must
be located in an independent source, such as state law.” Bolton v. City of
Dall., 472 F.3d 261, 263–64 (5th Cir. 2006). As a general matter, “a property
interest is created where the public entity has acted to confer, or
alternatively, has created conditions which [imply], the existence of a
property interest by abrogating its right to terminate an employee without
cause.” Muncy v. City of Dall., 335 F.3d 394, 398 (5th Cir. 2003). This
inquiry is “guided by the specific nature and terms of the particular
employment at issue, and [is] informed by the substantive parameters of the
relevant state law.” Id.
“Texas law imposes a strong presumption in favor of at-will
employment.” Zenor v. El Paso Healthcare Sys., Ltd., 176 F.3d 847, 862 (5th
Cir. 1999). And that presumption remains unless the employment
“relationship has been expressly altered in one of two ways.” Muncy, 335
F.3d at 398. First, it may be altered by contract, id., but no such contract
exists in this case. Second, it may be altered by “express rules or policies
6 Even assuming a prima facie case, the County offered a legitimate, non-retaliatory reason
for the decision—cost savings. Absent some other evidence of causation, Judge Bonn’s testimony
that all of Heggemeier’s conflicts with the County had a cumulative effect would not be sufficient to
show “but-for” causation. See Gross, 557 U.S. at 177.
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limiting the conditions under which an employee may be terminated.” Id.
(emphasis added).
Heggemeier attempts to follow this second approach in two ways.
First, he relies on a Texas Attorney General opinion holding that “once the
salaries of county officers and employees are set, the salaries may not be
reduced, outside of the regular budget adoption and amendment process.”
Tex. Att’y Gen. Op. No. JC-0131, at 3 (1999). According to Heggemeier, this
creates a property interest that the Commissioners Court violated when it
reduced his salary to zero before the end of the budget year.
But to create a property interest, the rule or policy must be “express.”
Muncy, 335 F.3d at 398. “[A] limitation on at-will employment ‘cannot simply
be inferred.’” Cty. of Dall. v. Wiland, 216 S.W.3d 344, 354 (Tex. 2007)
(quoting Matagorda Cty. Hosp. Dist. v. Burwell, 189 S.W.3d 738, 739 (Tex.
2006)). Here, the Attorney General opinion upon which Heggemeier relies
addresses the authority to close governmental offices for “bad weather,
repairs, and the like” and whether employees should be paid during such
closures. Tex. Att’y Gen. Op. No. JC-0131, at 3 (1999). It says nothing of the
authority to terminate and never purports to expressly alter the at-will
status of employment. This argument has no merit. 7
Heggemeier next argues that elected officials enjoy a “‘sphere of
influence’ within which another officer may not interfere.” See Pritchard &
Abbott v. McKenna, 350 S.W.2d 333, 335 (Tex. 1961) (observing that officials
enjoy “the sphere that is delegated to [them] by law and within which the
Commissioners Court may not interfere or usurp”). Here, Caldwell County
Personnel Policy § 3.03 gave Judge Bonn the authority to hire the County
Administrator. So, according to Heggemeier, “[a]lthough the Commissioners
7 Heggemeier cites other Attorney General opinions throughout his brief, but they likewise
address dissimilar circumstances and fail to expressly create a limitation on at-will employment.
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Court had initial authority to determine what resources it would allocate for
the [County Administrator] department during the budget cycle,” it did not
have authority to reduce or eliminate the salary of employees who work
under another elected official “outside of the regular budget adoption and
amendment process.”
To begin, “Texas law ‘general[ly] reject[s] the claim that employment
manuals issued unilaterally by an employer can per se constitute written
employment contracts and create specific limitations which take the cases out
of the at-will doctrine.’” Zimmerman v. H.E. Butt Grocery Co., 932 F.2d 469,
471 (5th Cir. 1991) (alterations in original) (quoting Aiello v. United Air
Lines, Inc., 818 F.2d 1196, 1198 (5th Cir. 1987)). And we have previously
held that absent any express reciprocal agreement regarding discharge,
county personnel policies or employee handbooks “constitute no more than
general guidelines and do not create contractual rights in employees.” Garcia
v. Reeves Cty., 32 F.3d 200, 203–04 (5th Cir. 1994).
Regardless, Heggemeier gives § 3.03 more weight than it can bear.
That provision merely provides that “[t]he County Judge will select and
appoint the County Administrator/Manager even though the County
Administrator/Manager will report both to the Commissioners Court and the
County Judge.” While this language may give the County Judge initial
authority to hire, it is silent with respect to the authority to fire. Moreover, it
expressly states that the County Administrator reports equally to the
Commissioners Court. Again, any limitation on at-will employment in Texas
must be express and may not be inferred. Muncy, 335 F.3d at 398; Wiland,
216 S.W.3d at 354. So the district court correctly found this language
“insufficient to endow [Heggemeier] with a property interest in his
employment.”
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Heggemeier’s argument suffers one final defect. The Supreme Court
has emphasized that the “hallmark of property . . . is an individual
entitlement grounded in state law, which cannot be removed except for
cause.” Logan v. Zimmerman Brush Co., 455 U.S. 422, 430 (1982) (internal
quotation marks omitted). Here, Heggemeier acknowledges that at least
Judge Bonn possessed the authority to terminate his employment without
cause. Specifically, he stated in his brief that appointment by the County
Judge constitutes “a circumstance that takes his employment out of the at-
will category for all but the County Judge.” As such, he claims merely a
limited property right vis-à-vis one class of decision-makers—the
Commissioners Court. This limited right does not rise to the level of an
entitlement because Heggemeier’s employment remained at will with respect
to Judge Bonn. 8 He therefore fails to plead a constitutionally protected
property interest.
Absent any evidence or authority to the contrary, Heggemeier cannot
overcome the strong presumption of at-will employment under Texas law.
See Zenor, 176 F.3d at 862. And assuming an at-will relationship, his
employment was, by definition, terminable “at any time by either party with
or without cause.” See McDonald v. City of Corinth, 102 F.3d 152, 156 (5th
Cir. 1996). Accordingly, we agree with the district court’s finding that
Heggemeier’s complaint did not properly state a cause of action under § 1983.
D. Supplemental Jurisdiction over Whistleblower Claim
After dismissing all federal claims, the district court declined to
exercise supplemental jurisdiction over Heggemeier’s state-law whistleblower
claim. Under 28 U.S.C. § 1367(c)(3), a district court may decline to exercise
8Though he equivocated on this point during argument, Heggemeier conceded that if Judge
Bonn in fact had the authority to terminate his employment or otherwise abolish the County
Administrator’s department, Heggemeier could not have held a property interest in his position.
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supplemental jurisdiction if it “has dismissed all claims over which it has
original jurisdiction.” “District courts enjoy wide discretion in determining
whether to retain supplemental jurisdiction over a state claim once all federal
claims are dismissed.” Noble v. White, 996 F.2d 797, 799 (5th Cir. 1993).
Accordingly, we review a district court’s refusal to exercise supplemental
jurisdiction under § 1367 for abuse of discretion. Brookshire Bros. Holding,
Inc. v. Dayco Prods., Inc., 554 F.3d 595, 599 (5th Cir. 2009).
Whether a district court abuses its discretion after § 1367(c)(3) has
been satisfied depends on “common law factors of judicial economy,
convenience, fairness, and comity.” Enochs v. Lampasas Cty., 641 F.3d 155,
158–59 (5th Cir. 2011). And based on these factors, we have elucidated the
general rule that “a court should decline to exercise jurisdiction over
remaining state-law claims when all federal-law claims are eliminated before
trial.” Brookshire, 554 F.3d at 602. While this rule is “neither mandatory
nor absolute,” id., we find that the district court acted within its discretion to
dismiss the pendant state-law claims under § 1367(c)(3).
IV.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
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