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Maldonado v. Rodriguez

United States Court of Appeals, Fifth Circuit

August 6, 2019

DORA SALIA MALDONADO; DORA L. MUNOZ; ROGELIO CAZARES, JR.; JORGE SALAZAR; PALMIRA MUNOZ; CHRIS YATES; SANTOS LEAL, Plaintiffs-Appellees
v.
RICARDO RODRIGUEZ, JR., Defendant-Appellant

          Appeal from the United States District Court for the Southern District of Texas

          Before JOLLY, JONES, and DENNIS, Circuit Judges.

          EDITH H. JONES, CIRCUIT JUDGE

         A newly elected Hidalgo County, Texas district attorney, Ricardo Rodriguez, defeated the longtime incumbent and subsequently fired seven Plaintiff employees who worked in the DA's office. The Plaintiffs allege that Rodriguez fired them because they supported his political opponent, Rene Guerra. Rodriguez sought summary judgment pertaining to his qualified immunity, but the district court found material factual issues and held that qualified immunity offered no protection. Because we conclude that Rodriguez is entitled to qualified immunity as to four of the Plaintiffs but that genuine disputes of material fact exist as to the other three, we REVERSE in part and DISMISS in part.

         BACKGROUND

         In the 2014 Democratic primary election for Hidalgo County District Attorney, the Defendant Ricardo Rodriguez defeated Rene Guerra, the longtime DA. Rodriguez ran unopposed in the general election and assumed office on January 1, 2015. Rodriguez thus took charge of overseeing more than 150 employees in the DA's office. Shortly after taking office, Rodriguez fired the seven Plaintiff employees.

         Three of the Plaintiffs worked in the Hidalgo County High Intensity Drug Trafficking Area Task Force ("HIDTA"). HIDTA is "a consolidated group of investigators made up of federal, state, and local law enforcement agents." Those Plaintiffs are Dora Munoz, the HIDTA commander, Chris Yates, the HIDTA Assistant Commander, and Palmira Munoz, HIDTA's intelligence research specialist. Dora and Palmira Munoz are sisters.

         The four other fired Plaintiff-employees include two criminal investigators, Jorge Salazar and Santos Leal, as well as Rogelio Cazares, the DA's office Human Resources Coordinator, and Dora Maldonado, an administrative assistant.

         Dora Munoz was fired on January 2, the day after Rodriguez took office. Yates, Palmira Munoz, and Leal were all fired on January 8. Cazares was fired on January 28, Salazar on March 11, and Maldonado on August 8.

         All of the Plaintiffs openly supported Guerra in the election and campaigned for him. Their campaign activities included posting yard signs, wearing campaign T-shirts publicly, block-walking, attending Guerra's campaign kick-off party, volunteering at polling stations, and posting pictures of themselves wearing Guerra T-shirts on social media. In short, all of the Plaintiffs campaigned against Rodriguez in some way or another.

         The Plaintiffs sued Rodriguez in both his individual and official capacities under 42 U.S.C. § 1983, alleging that he fired them as an act of political retaliation violating the First Amendment. Considerable discovery ensued. Rodriguez moved for summary judgment on the basis of qualified immunity. In a thorough and careful 35-page opinion, the district court denied summary judgment on both the individual and official capacity claims. Rodriguez now appeals.

         STANDARD OF REVIEW

         "The denial of a motion for summary judgment based on qualified immunity is immediately appealable under the collateral order doctrine to the extent that it turns on an issue of law." Melton v. Phillips, 875 F.3d 256, 261 (5th Cir. 2017) (en banc) (quotation marks and internal citations omitted). "The Fifth Circuit reviews the denial of qualified immunity de novo." Gentry v. Lowndes County, Miss., 337 F.3d 481, 484 (5th Cir. 2003).

         Summary judgment is appropriate if there is no genuine issue of material fact and if the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). At this juncture, all facts in evidence are viewed in the light most favorable to the non-movants. And in qualified immunity appeals, this court may consider the materiality of an alleged fact issue as akin to a matter of law but may not review the genuineness of the factual dispute. Melton, 875 F.3d at 261. When the defense of qualified immunity is raised, a plaintiff must point to evidence creating material fact disputes as to whether a defendant has violated clearly established law. Id.

         DISCUSSION

         On appeal, Rodriguez makes three significant arguments. He spends most of his briefing on the contention that the Plaintiffs have not created fact issues that he even knew of the political activity of all but two of them, nor that he caused any of their dismissals as political payback. Second, he argues that because the Plaintiffs served in policymaking or confidential roles in the office, the applicable First Amendment balancing tests weigh in favor of the need for their political loyalty and thus support his authority to fire them for supporting the opposing candidate. Third, Rodriguez asserts qualified immunity because the law was not clearly established that he could not fire the Plaintiffs.[1]

         Rodriguez defends his position in a curious way. He denies his knowledge of most of the Plaintiffs' political activity and denies any intent to fire them in retaliation, but alternatively he contends he had a constitutional right to do so, or at least had qualified immunity for the decisions. In deposition, however, he acknowledged, as the district court noted, that no one "[has] to be a political supporter of Ricardo Rodriguez" to do his or her job in the DA's office. And he claimed not to have known the political preferences of his First Assistant DA or his chosen HIDTA Commander Juan Delgado to whom he delegated authority to replace several of the Plaintiffs.

         One reason for Rodriguez's adoption of alternative, self-contradictory positions is the existence of material fact disputes concerning the threshold inquiries in this First Amendment retaliation case. A First Amendment political retaliation claim requires proof that a plaintiff (a) suffered an adverse employment action (b) because of (c) his "speech or activity related to a matter of public concern." Aucoin v. Harvey, 306 F.3d 268, 274 (5th Cir. 2002). "Once the plaintiff demonstrates a matter of public concern, the employer must then 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." Id.; see Haverda v. Hays County, 723 F.3d 586, 591-92 (5th Cir. 2013); Gentry, 337 F.3d at 485-86; Aucoin, 306 F.3d at 273-74; Vojvodich v. Lopez, 48 F.3d 879, 887 (5th Cir. 1995).

         Here, there is no dispute that the Plaintiffs engaged in political activity against Rodriguez, and they were fired by or with the approval of the new DA. Of course, "campaigning for a political candidate relates to a matter of public concern." Aucoin, 306 F.3d at 274. We need not recite the voluminous record evidence, carefully assessed by the district court, that demonstrates material fact issues about Rodriguez's knowledge of each of the Plaintiffs' participation in the election and "on the ultimate question [] whether each Plaintiff's political support for Guerra motivated Rodriguez's decisions to terminate their employment." Accordingly, this court may not reach the disputed causation issues as a matter of summary judgment review. Haverda, 723 F.3d at 595- 96 ("Courts deciding the causation issues by summary disposition have generally done so only when the employer's reasons have not been controverted.").

         The ultimate issue thus requires balancing of the Plaintiffs' First Amendment right to participate in political activity against the legitimate needs of the employer, here, the DA's office, to provide efficient public service. This court's decisions have melded the Supreme Court's discussion of these principles in Branti v. Finkel, 445 U.S. 507, 517-20, 100 S.Ct. 1287, 1294-95 (1980), with the broader but similar Pickering-Connick test.[2] The result is that "[t]his circuit, interpreting the Court's decisions, places cases involving only political association, only speech, or a combination of the two on a spectrum. Kinsey v. Salado Indep. Sch. Dist., 950 F.2d 988, 993-94 (5th Cir. 1992) (en banc) (citing McBee v. Hogg County, 730 F.2d 1009, 1014 (5th Cir. 1984)). "Where nonpolicymaking, nonconfidential employees are discharged solely because of their private political views, little, if any weighing of an employee's First Amendment rights against an employer's right to loyal and efficient service is necessary, and the employee's rights will usually prevail. On the opposite end of the spectrum, however, are cases where employees' exercise of First Amendment privileges clearly over-balanced [their] usefulness." Gentry, 337 F.3d at 485-86 (citing Kinsey, 950 F.2d at 993-94) (quotation marks and internal citations omitted) (footnote omitted). Gentry adds that "where a public employee . . . occupies a confidential or policymaking role, the employer's interests more easily outweigh the employee's First Amendment rights." Id. at 486. The balancing test is case-specific.

         Rodriguez contends that each of the Plaintiffs he fired held policymaking or confidential positions for which his trust in their loyalty was required. There are no cases on point, but this court's past decisions describe the general parameters of such employment.

         In Aucoin, for instance, this court held, in line with other circuits, that assistant district attorneys "occupy positions requiring political loyalty and are not protected from political dismissals under the First Amendment." 306 F.3d at 275; see, e.g., Borzilleri v. Mosby, 874 F.3d 187, 193 (4th Cir. 2017) (listing cases). Generally, "policymakers may be public employees whose responsibilities require more than simple ministerial competence, whose decisions create or implement policy, and whose discretion in performing duties or in selecting duties to perform is not severely limited by statute, regulation, or policy determinations made by supervisors." Aucoin, 306 F.3d at 273 (quotation marks and citation omitted). In addition, "[a] policymaker also may be an individual who controls or exercises a role in a decision making process as to the goals and general operating procedures of [an] office." Id. (quotation marks and citation omitted). But as the court noted, "[i]n Branti, the [Supreme] 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.'" Id. (quoting Branti, 445 U.S. at 518, 100 S.Ct. at 1295).

         Two other cases juxtapose positions within the same county that were, respectively, held to require or not require political loyalty, with the result that the political officials, respectively, could or could not terminate employees for their political activity. Compare Gentry, 337 F.3d at 487-88 (county road manager, second highest non-elected county management position, may be fired for political opposition), with Wiggins v. Lowndes County, Miss., 363 F.3d 387, 391-92 (5th Cir. 2004) (county road foreman simply implements policy and may not be terminated for political reasons). Wiggins added to the previous descriptions that "[a]n employee is confidential if he or she stands in a confidential relationship to the policymaking process, e.g., as an advisor to a policymaker, or if he or she has access to confidential documents or other materials that embody policymaking deliberations and determinations, e.g., as a private secretary to a policymaker." Wiggins, 363 F.3d at 391 (quotation marks and citation omitted).

         In a series of cases, this court has applied the Branti/Pickering/Connick balancing test and concluded that the politically-motivated demotions or terminations of Texas Deputy Sheriffs by a newly elected Sheriff were actions not only afoul of the First Amendment but, as of 1993, so "clearly established" as to negate the defense of qualified immunity.[3] More pointedly, the court stated that "by January 1992 at the latest," it was clearly established that "a public employer cannot act against an employee because of the employee's affiliation or support of a rival candidate unless the employee's activities in some way adversely affect the government's ability to provide services." Vojvodich, 48 F.3d at 887. But this court explained in Gentry that "[t]he deputy sheriff cases are distinguishable from our other dismissal cases either because they do not hold policymaking or confidential positions . . . or because the sheriffs [did] not allege that the deputies' political activities actually or potentially could affect the Sheriff's Office ability to provide services." 337 F.3d at 487 n. 5.[4]

         More relevant is this court's decision in Gunaca v. State of Texas, not because the court ruled definitively on whether an investigator in the DA's office in El Paso had First Amendment protection from political termination but instead because the court did not so rule. 65 F.3d 467, 474-75 (5th Cir. 1995). The court granted qualified immunity, expressly because

[t]he right that Gunaca asserts in his complaint and summary judgment response was not clearly established at the time Esparza allegedly violated it because neither the Fifth Circuit nor the Supreme Court had addressed the issue of political patronage in the hiring or firing of investigators in district attorneys' offices, and neither had addressed an issue sufficiently analogous that a reasonable official would understand from its resolution that it is a First Amendment violation to dismiss ...

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