Bernice Garza v. Omar Escobar, Jr.

Case: 19-40664 Document: 00515544304 Page: 1 Date Filed: 08/28/2020

United States Court of Appeals

for the Fifth Circuit

United States Court of Appeals

Fifth Circuit

FILED

August 28, 2020

No. 19-40664 Lyle W. Cayce

Clerk

Bernice Garza,

Plaintiff—Appellant,

versus

Omar Escobar, Jr., in his official capacity as District Attorney and in his

personal capacity; Starr County, Texas,

Defendants—Appellees.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:18-CV-249

Before Southwick, Costa, and Duncan, Circuit Judges.

Stuart Kyle Duncan, Circuit Judge:

Bernice Garza was the Crime Victims Unit Coordinator for the 229th

Judicial District Attorney’s Office, which covers Duval, Jim Hogg, and Starr

Counties in south Texas. She was fired because of political disagreements

with her boss, Omar Escobar, Jr., the District Attorney. The district court

dismissed her First Amendment claim, concluding Garza could be subjected

to patronage dismissal without violating the Constitution. We affirm.

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No. 19-40664

I.

Because the case was dismissed under Federal Rule of Civil Procedure

12(c), we accept all well-pled facts in Garza’s complaint as true. See Guidry

v. Am. Public Life Ins. Co., 512 F.3d 177, 180 (5th Cir. 2007).

A.

In happier times, Garza and Escobar “were friends and were aligned

with respect to local politics.” Garza and her sister, Leticia Garza Galvan

(“Galvan”), helped Escobar with his successful 2012 campaign for District

Attorney. In 2015, Escobar hired Garza to serve as the Coordinator of the

Crime Victims Unit (“CVU”) for the DA’s office. Her job was to help crime

victims, for instance by securing them counseling services and preparing

them to testify at trial. As CVU Coordinator, Garza led the department,

supervising five employees, onboarding interns, and managing the office’s

grant process. Garza received two raises during her tenure, both approved by

Escobar. While serving as CVU Coordinator, she worked on Escobar’s 2016

reelection campaign and was “placed in a position of confidence between

Escobar and the other persons working for his campaign.” Following his

reelection, Escobar continued to involve Garza in his political plans,

discussing with her which candidates to support for local offices.

Soon after, however, Garza’s relationship with Escobar “began to

deteriorate” because “Escobar objected to the political views and activities

of [Garza] and her family.” Specifically, Escobar did not want Garza’s sister,

Galvan, to run for office because it would disrupt his own political plans.

Escobar badgered Garza about this daily, to the point that she had to take

medication to quell her distress. In April 2017, after Garza told a co-worker

she wanted to quit, Escobar demanded to meet with her. At the meeting,

“Escobar continued criticizing [Galvan] and her decisions, and tried to

convince [Garza] that she should be the one running for office rather than her

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sister.” Garza told Escobar she wanted to do her job without politics

intruding.

Around this time, a separate dispute developed between Escobar and

Galvan over replacing a local school’s athletic director. Galvan, a member of

the school district’s Board of Trustees, voted in a way that rankled Escobar

and “[t]his was apparently too much for . . . Escobar to bear.” Escobar

warned Galvan that, if she ran for office, she would lose because he would not

help her. He also reminded her that he employed her sister, which Galvan

viewed as a threat to retaliate against Garza.

Things continued south. In August 2017, Escobar blamed Garza for an

assistant DA’s decision not to run for county judge. Escobar “did not speak

to [Garza] for several days,” blaming her for putting his political plans “in

tatters.” In September 2017, Escobar ordered Garza to “barge into” a

meeting between the County Auditor and two assistant DAs, but she refused.

She later denied knowing anything about the meeting, further angering

Escobar. Garza reminded Escobar that she would not discuss politics, but he

warned her that any work on her sister’s campaign had to be done outside the

office. After this, Escobar “ceased communication” with Garza and would

talk only to Garza’s subordinates. Escobar ordered her subordinates to help

him prepare for trial, work Garza used to do herself. Nonetheless, Garza

“would still help them prepare, but without Escobar’s knowledge.”

In October 2017, Galvan kicked off her campaign for county judge.

“Escobar suddenly decided to throw all in with [Galvan’s opponent’s]

slate,” and soon “began sending cryptic messages intended to intimidate

[Garza] from assisting her sister’s campaign.” In December 2017, Escobar

sent Garza a message referring to a new Texas Election Code amendment

that increased penalties for election offenses. “Escobar vaguely warned that

there would be arrests made.” “At this point, [Garza] . . . was working mostly

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half-days” and “[t]he atmosphere was tense and awkward around the office

with no communication with Escobar.” Garza then requested a two-and-a-

half month leave of absence, without pay, which Escobar approved. During

her time away, Garza worked on her sister’s campaign.

Garza returned to the office March 19, 2018, and immediately asked

to meet with Escobar. Escobar’s response was to order an investigator to bar

Garza from the office. Minutes later, a court officer escorted Garza off the

premises. The human relations department told Garza she had been

“suspended without pay pending the outcome of a current election fraud

investigation in Starr County.” Garza later learned her employment was

terminated on April 4, 2018.

B.

Garza sued both Escobar and Starr County (collectively,

“Defendants”) in federal district court under 42 U.S.C. § 1983, alleging

political retaliation in violation of the First Amendment. Defendants moved

for judgment on the pleadings, arguing that Garza’s government position was

subject to “patronage dismissal” and therefore not entitled to First

Amendment protection. Escobar also asserted qualified immunity.

The district court, in a careful and thorough opinion, granted

Defendants judgment on the pleadings, holding Garza was not entitled to

First Amendment protection. Specifically, the court concluded that political

loyalty was an appropriate requirement for Garza’s position as CVU

Coordinator and that she was therefore subject to patronage dismissal. See,

e.g., Wiggins v. Lowndes Cty., Miss., 363 F.3d 387, 390 (5th Cir. 2004)

(patronage dismissal may survive First Amendment challenge when

“political allegiance ‘is an appropriate requirement for the effective

performance of the public office involved’”) (quoting Branti v. Finkel, 445

U.S. 507, 518 (1980)). In the alternative, the court ruled that Escobar would

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be shielded by qualified immunity. See, e.g., Gentry v. Lowndes Cty., Miss., 337

F.3d 481, 487 (5th Cir. 2003) (qualified immunity may be warranted in

“political patronage” cases where controlling authority does not settle

propriety of dismissal in “sufficiently analogous” situations) (quoting

Gunaca v. Texas, 65 F.3d 467, 475 (5th Cir. 1995)). Finally, the court

dismissed Garza’s claim against Starr County given the lack of an underlying

constitutional violation, and also because Garza identified no official county

policy or policymaker as the moving force behind any alleged violation. See,

e.g., Delano-Pyle v. Victoria Cty., Tex., 302 F.3d 567, 574 (5th Cir. 2002)

(discussing prerequisites for municipal liability under § 1983); see also Monell

v. Dep’t of Social Servs., 436 U.S. 658, 694 (1978) (same).

Garza timely appealed. 1

II.

We review dismissal under Rule 12(c) de novo. Machete Prods., LLC v.

Page, 809 F.3d 281, 287 (5th Cir. 2015) (citing Bryant v. Military Dep’t of

Miss., 597 F.3d 678, 684 (5th Cir. 2010)). “A motion brought pursuant to

[Rule] 12(c) is designed to dispose of cases where the material facts are not

in dispute and a judgment on the merits can be rendered by looking to the

substance of the pleadings and any judicially noticed facts.” Great Plains Tr.

Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 312 (5th Cir.

2002) (quoting Hebert Abstract Co. v. Touchstone Props., Ltd., 914 F.2d 74, 76

1

Defendants contest our appellate jurisdiction because, they say, Garza’s

Notice of Appeal (“NOA”) was untimely. A motions panel of this court has rejected

that argument once, and we reject it again. Garza timely filed a NOA following denial

of her Rule 59(e) motion. See Fed. R. App. P. 4(a)(4)(A); see also United States v. One

1988 Dodge Pickup, 959 F.2d 37, 40 (5th Cir. 1992) (“Any motion that draws into

question the correctness of the judgment is functionally a motion under Rule 59(e).”

(cleaned up)).

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(5th Cir. 1990)); see also 5A WRIGHT & MILLER, FED. PRAC. AND PROC.

§ 1367, at 509–10 (1990). “The standard for dismissal under Rule 12(c) is the

same as that under Rule 12(b)(6).” Hale v. Metrex Research Corp., 963 F.3d

424, 427 (5th Cir. 2020). “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.” Id. (quoting Edionwe v. Bailey, 860 F.3d 287, 291

(5th Cir. 2017)). “[B]ut we are not bound to accept as true a legal conclusion

couched as a factual allegation.” Johnson v. Johnson, 385 F.3d 503, 529 (5th

Cir. 2004) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

III.

As a threshold matter, Garza contends the district court erred in

disposing of the case on a Rule 12(c) motion. She claims our decision in

Burnside v. Kaelin, 773 F.3d 624 (5th Cir. 2014), requires denying a Rule 12(c)

motion when the claim requires analysis under Pickering v. Board of Education,

391 U.S. 563 (1968). Pickering asks courts, when evaluating First Amendment

retaliation claims, to balance “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.” Connick v. Myers, 461 U.S. 138, 142 (1983)

(alteration in original) (quoting Pickering, 391 U.S. at 568). We disagree.

In Burnside—which also involved a First Amendment retaliation

claim—we said that “[i]n stating a prima facie case at the motion-to-dismiss

stage of a case, there is a rebuttable presumption that no balancing is required

to state a claim.” 773 F.3d at 628. But we immediately explained that

statement: “[t]he rebuttable presumption applies because reasonable

inferences drawn from a complaint, obviously drafted by the aggrieved

employee, will generally lead to a plausible conclusion that the employee’s

interest in commenting on matters of public concern outweighs the

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employer’s interest in workplace efficiency.” Id. (emphasis added). We then

determined that the complaint in that case contained nothing indicating that

the plaintiff’s interest in commenting on an election was outweighed by the

employer’s interest in an efficient workplace. Id.

Burnside does not preclude disposing of this case at the Rule 12(c)

stage. To begin with, unlike Burnside, this case does not involve a “pure”

Pickering analysis. As explained below, see infra IV(A)(2)–(3), because Garza

functioned as a policymaker, her dismissal was allowed as long as the

pleadings show her political activities “in some way adversely affect[ed]” the

functioning of the DA’s office. See Vojvodich v. Lopez, 48 F.3d 879, 887 (5th

Cir. 1995). Thus, there is more to the inquiry here than a pure weighing of

interests as was the case in Burnside, so Burnside is not on point.

And in any event, Burnside says only that there is a rebuttable

presumption at the motion-to-dismiss stage that no balancing is needed to

state a First Amendment retaliation claim. But, as Burnside explains, that

presumption may be rebutted when “reasonable inferences drawn from a

complaint” do not plausibly show that the employee’s interests outweigh the

employer’s. 773 F.3d at 628. In such a case, Pickering balancing can be

performed at the motion-to-dismiss stage. That makes sense because

“[a]pplication of the Pickering balancing test is a question of law,” Bickel v.

Burkhart, 632 F.2d 1251, 1256 (5th Cir. 1980), and it would be “illogical to

say that something is a question of law, and that it is reviewed de novo, yet

that it can never be decided on the pleadings.” Weisbuch v. Cty. of Los Angeles,

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119 F.3d 778, 783 n.1 (9th Cir. 1997). For that reason, our court has previously

applied Pickering balancing at the pleading stage, as have other circuits. 2

To put things more bluntly: if a plaintiff pleads her way into Pickering

balancing, Burnside does not require courts to ignore the very facts she pled—

indeed, at this stage, the court must accept them as true. See Hale, 963 F.3d at

427. Here, the district court concluded that, based on the detail provided by

Garza’s allegations, balancing the parties’ interests was not precluded at the

Rule 12(c) stage. We agree, and thus proceed to the merits.

IV.

Garza argues that the district court erred in dismissing her case based

on the “patronage dismissal exception” to First Amendment retaliation

claims. She also argues that the court erred in dismissing her municipal

liability claims against Starr County. We hold that Garza’s position as CVU

Coordinator is one for which “party affiliation is an appropriate requirement

for effective performance,” Branti, 445 U.S. at 518, and the First

Amendment thus did not shield her from dismissal. Our second holding flows

from the first: because Garza has not plausibly alleged a constitutional claim,

her municipal liability claim was also properly dismissed. We therefore affirm

the district court’s judgment.

A.

1.

We assume, without deciding, that Garza plausibly pled a prima facie

claim of First Amendment retaliation. See Maldonado v. Rodriguez, 932 F.3d

2

See Phillips v. City of Dallas, 781 F.3d 772 (5th Cir. 2015); see also, e.g., Jackler

v. Byrne, 658 F.3d 225 (2d Cir. 2011) (Pickering analysis done on a Rule 12(c) motion);

Jordan v. Carter, 428 F.3d 67 (1st Cir. 2005) (same); Edwards v. City of Goldsboro, 178

F.3d 231 (4th Cir. 1999) (same).

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388, 391 (5th Cir. 2019) (“A First Amendment political retaliation claim

requires proof that a plaintif (a) suffered an adverse employement action

(b) because of (c) his ‘speech or activity related to a matter of public

concern.’”) (quoting Aucoin v. Haney, 306 F.3d 268, 274 (5th Cir. 2002)).

The dispute here is whether Garza’s former position nevertheless falls within

the patronage dismissal exception to the First Amendment’s protection.

“[B]ecause ‘political belief and association constitute the core of

those activities protected by the First Amendment,’ the practice of patronage

dismissals ‘clearly infringes First Amendment interests.’” Aucoin, 306 F.3d

at 272 (quoting Elrod v. Burns, 427 U.S. 347, 356, 360 (1976)). But if “an

employee’s private political beliefs would interfere with the discharge of his

public duties, his First Amendment rights may be required to yield to the

State’s vital interest in maintaining governmental effectiveness and

efficiency.” Branti, 445 U.S. at 517.

To find shelter under the First Amendment, Garza must show that

the speech or activity at issue—here, campaigning for her sister—implicated

an issue of public concern. Vojvodich, 48 F.3d at 884. Plainly it did. Id. at 885;

Aucoin, 306 F.3d at 274. Defendants “then must establish that [the

government’s] interest in promoting the efficiency of the services provided

by its employees outweighs [Garza]’s interest in engaging in the protected

activity.” Vojvodich, 48 F.3d at 885; see also Maldonado, 932 F.3d at 391.

“This analysis in reality is a sliding scale or spectrum upon which ‘public

concern’ is weighed against disruption.” Vojvodich, 48 F.3d at 885; see also

Maldonado, 932 F.3d at 392.

“When 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.”

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Id. at 392 (quoting Gentry, 337 F.3d at 485–86). On the other end of the

spectrum, though, “are cases where employees’ exercise of First

Amendment privileges clearly over-balanced [their] usefulness.” Id.

(alteration in original) (quoting Gentry, 337 F.3d at 485–86). When “public

employees . . . occupy policymaker or confidential positions . . . the

government’s interests more easily outweigh the employee’s.” Brady v. Fort

Bend Cty., 145 F.3d 691, 707–08 (5th Cir. 1998).

Policymakers are “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 (quoting

Stegmaier v. Trammell, 597 F.2d 1027, 1035 (5th Cir. 1979)). Employees may

be policymakers if they “control[] or exercise[] a role in a decision making

process as to the goals and general operating procedures of (an) office.” Id.

(quoting Stegmaier, 597 F.2d at 1035). Whether an employee’s

“responsibilities . . . are not well defined or are of broad scope” is also

illuminating. Elrod, 427 U.S. at 367–68.

A government employee may be “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.” Maldonado, 932 F.3d at 393 (quoting

Wiggins, 363 F.3d at 391).

Concluding an employee occupies a confidential or policymaking role,

however, does not completely answer whether the employee can properly be

subject to patronage dismissal. See Vojvodich, 48 F.3d at 884. While the labels

“policymaker” and “confidential” are helpful, “the [ultimate] question is

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whether the hiring authority can demonstrate that party affiliation is an

appropriate requirement for effective performance of the public office

involved.” Branti, 445 U.S. at 518. We make that determination based on the

specific facts of each case. See Maldonado, 932 F.3d at 392 (“The balancing

test is case-specific.”).

2.

Our first task is to determine whether Garza functioned as a

confidential employee or a policymaker when she worked as the CVU

Coordinator. We conclude that she did. Our court has not previously

examined this specific position, but our decisions guide our inquiry.

In McBee v. Jim Hogg County, we held that a sheriff’s law enforcement

staff—comprised of six deputies and four dispatchers—were subject to

patronage dismissal. 703 F.2d 834, 841 (5th Cir. 1983). This was so, we

reasoned, because they were “individuals . . . responsible for ensuring that

the sheriff’s policies were properly implemented,” they “were

representatives of [the] sheriff to the public,” they “were involved in

virtually every law enforcement activity, usually acting alone without

supervision,” and they performed work “closely on a personal and

confidential basis.” Id. at 842. We found “it difficult to imagine how such an

office could have effectively carried out its vitally important duties in the

public trust when the sheriff did not have absolute confidence in his small

staff.” Id.

In Aucoin v. Haney, we joined our sister circuits and held that “an

assistant district attorney falls within the Elrod-Branti policymaker

exception.” 306 F.3d at 276. We noted the “broad discretionary powers”

vested in district attorneys under Louisiana law and that assistant district

attorneys “may perform the duties of officials under whom they serve”—

i.e., the district attorney. Id. at 275. Further, the plaintiff oversaw and “had

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great discretion in handling the misdemeanor docket” and performed his

duties with little direct supervision from the district attorney. Id. at 276.

Given the breadth and independence of the plaintiff’s duties, we concluded

he functioned as a policymaker. Id.

In Maldonado v. Rodriguez, we held that the commander and assistant

commander of a drug trafficking area task force, as well as department

investigators, were likely not protected from patronage dismissal. 932 F.3d at

392. We noted that even though those positions were “perhaps not as

intimately connected with the DA’s duties as assistant prosecutors,” they

“held more responsible and discretionary positions than ordinary

investigators.” Id. at 395. We observed that our “case law strongly suggests

that certain employees in the District Attorney’s office, in addition to

assistant DAs, must be terminable for their political activity,” when they

“have significant discretion or input into deciding what kinds of crimes to

pursue with limited resources, which cases to pursue, how to conduct

investigations, executions of warrants and arrests, and whether to

recommend lenient or severe punishments.” Id. at 394. We also explained

that “the prosecutorial function of the [DA] is laden with ideological content

which is the subject of public debate and electoral choices,” that “the office

must be sensitive to [the elected DA]’s policy demands as represented to the

voters[,] . . . [a]nd the DA is ultimately responsible for every interaction

between his office and the public.” Id. (cleaned up).

In contrast, we have also examined positions that were not

confidential or policymaking. In Wiggins v. Lowndes County, for example, we

held that a county road foreman was neither. 363 F.3d at 392. We observed

that the plaintiff merely implemented projects determined by superiors;

assigned work to the road crew and supervised work in the field; inspected

equipment; maintained records; inspected roads and bridges; and performed

other assigned duties. Id. at 391. Likewise, he had no access to confidential

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documents, could not create personal liability for his superiors, and had a

measure of protection from the Board of Supervisors. Id. These factors

demonstrated that the employee did not function as a policymaker or

confidential employee. Id.

Applying our precedents thus leads us to conclude that Garza

functioned as a policymaker and confidential employee in her work as CVU

Coordinator. This position is a creature of Texas law. See TEX. CODE CRIM.

PROC. art. 56.04(a). 3 The coordinator’s duty is to ensure that victims of

crimes are “afforded the rights granted victims, guardians, and relatives” by

Texas law. 4 Id. (b). In discharging that responsibility, the coordinator is to

“work closely with appropriate law enforcement agencies, prosecuting

attorneys, the Board of Pardons and Paroles, and the judiciary.” Id.

Garza’s allegations underscore the breadth of her responsibilities. As

CVU Coordinator, she was “the head of that department” and supervised

five other employees. As department head, she ultimately “shoulder[ed] the

important responsibility of communicating with and assisting crime

victims.” This work included, “[a]mong other things, . . . assist[ing] these

vulnerable victims by securing counseling services and by preparing them for

trial.” Garza took the lead in these important roles. In addition to those

responsibilities, Garza was “the grant manager for the 229th Judicial District

Attorney’s Office,” and she “prepar[ed] and manag[ed] grant requests.”

These allegations, together with her statutory duties, establish that

Garza functioned as a policymaker and confidential employee as CVU

3

“The district attorney, criminal district attorney, or county attorney who

prosecutes criminal cases shall designate a person to serve as victim assistance

coordinator in that jurisdiction.”

4

Texas law dedicates an entire chapter of the Code of Criminal Procedure to

detailing the rights of crime victims. See TEX. CODE CRIM. PROC. art. 56.01 et seq.

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Coordinator. First, her responsibilities required much more than “simple

ministerial competence,” see Aucoin, 306 F.3d at 273, and were broad in

scope, see Elrod, 427 U.S. at 367; Aucoin, 306 F.3d at 276. This makes it

“more likely” that she functioned as a policymaker. See Elrod, 427 U.S. at

367–68. Although Garza tries on appeal to undersell the importance of her

former position, her allegations demonstrate that she enjoyed substantial

discretion in discharging her statutory duties. This supports a finding that

she was a policymaker. See Aucoin, 306 F.3d at 273.

Second, Garza represented the DA’s office to crime victims. State law

and Garza’s own allegations demonstrate that she took the lead in ensuring

that victims and their relatives enjoyed all the rights to which they are

entitled. See TEX. CODE CRIM. PROC. art. 56.04(b). Garza was “responsible

for ensuring that the [DA]’s policies were properly implemented” regarding

the office’s interaction with crime victims. See McBee, 703 F.2d at 842. The

importance of her duties is underscored by the allegation that, after the rift

developed between Garza and Escobar, “the proper preparation of crime

victims to testify at trial” was not executed as well as it should have been.

Third, Garza also represented the DA’s office in interactions with

other members of the law enforcement community to secure victims’ rights.

See TEX. CODE CRIM. PROC. art. 56.04(b). In her work with “law

enforcement agencies, prosecuting attorneys, the Board of Pardons and

Paroles, and the judiciary,” Garza was the public face of the DA’s office and

responsible for implementing Escobar’s policy choices in those interactions.

Escobar was thus entitled to expect, “without question, undivided loyalty.”

Stegmaier, 597 F.2d at 1040.

Fourth, Garza’s job responsibilities required her to work closely with

government attorneys and handle sensitive, confidential information. Garza

explained that her duties included preparing “vulnerable victims” for trial

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and “securing counseling services” for them. She was also required to ensure

that victims received the rights owed them under state law. See, e.g., TEX.

CODE CRIM. PROC. art. 56.02. In discharging these responsibilities, Garza

would have handled sensitive information from victims and their families,

and would have been required to maintain confidentiality in her work with

the office’s attorneys. That close work with government attorneys supports

the conclusion that she functioned as a confidential employee. See Aucoin,

306 F.3d at 275.

Finally, Garza’s other responsibilities also illustrate her policymaking

role. She was the office grant manager. She supervised several other

employees. She was in charge of accepting interns. She had input regarding

Escobar’s personnel decisions. These are responsibilities that we, as well as

other courts, view as supporting the conclusion that an employee functioned

as a policymaker. See Gentry, 337 F.3d at 488 (budgetary work supports

finding of policymaker); see also Peterson v. Dean, 777 F.3d 334, 347 (6th Cir.

2015) (“[B]udgetary decisions are among the most significant, and the most

political, actions which government officials take.”); Hobler v. Brueher, 325

F.3d 1145, 1147 (9th Cir. 2003) (secretary who advised prosecutor regarding

hiring decisions was confidential).

We conclude that Garza’s allegations, taken as true, together with the

statutory description of her position, show she functioned as a policymaker

and a confidential employee in her role as CVU Coordinator.

3.

The conclusion that Garza served a confidential and policymaking role

helps, but does not end, our analysis. As explained, the ultimate inquiry in

patronage dismissal cases is whether “party affiliation is an appropriate

requirement for the effective performance of the public office involved.”

Branti, 445 U.S. at 518. To answer that question, some of our cases also ask

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whether “the employee’s activities in some way adversely affect[ed] the

government’s ability to provide services.” Vojvodich, 48 F.3d at 887. We

conclude that, on the facts alleged, Garza’s activities could have adversely

affected—and did adversely affect—the DA’s ability to serve the public and

that political affiliation is thus an appropriate requirement for the position.

In conducting this inquiry, a lack of evidence that actual disruption

occurred is not dispositive because we do not require employers to wait until

their office is disrupted before taking action. See Connick, 461 U.S. at 152.

Rather, where close working relationships are involved, courts accord “a

wide degree of deference to the employer’s judgment.” Id. Close working

relationships are crucial in public attorneys’ offices. See id. at 151–52; see also

Lumpkin v. Aransas Cty., 712 F. App’x 350, 359 (5th Cir. 2017).

With those principles in mind, we conclude that Garza’s political

affiliation and actions disrupted the work of the DA’s office. After Garza’s

political actions, Escobar was unable to place absolute confidence in her

performance of her vital statutory duties. As discussed, Garza oversaw the

office’s work with victims and their families. See TEX. CODE CRIM. PROC.

art. 56.04(b). She was to “work closely with appropriate law enforcement

agencies, prosecuting attorneys, . . . and the judiciary.” Id. In performing

those duties, Garza was representing Escobar, the elected DA. He was thus

entitled to her loyalty and needed confidence in her representation. See

Aucoin, 306 F.3d at 276; see also Hobler, 325 F.3d at 1152 (prosecutor entitled

to loyal secretaries who would carry out his policies). But the rift between

them ruptured this trust. That breakdown would have impeded the DA’s

provision of services to the public. “[I]t [is] difficult to imagine how [the

DA’s] office could have effectively carried out its vitally important duties [to

crime victims] when the [DA] did not have absolute confidence” in his CVU

Coordinator. See McBee, 703 F.2d at 842. Further, Garza was tasked with

“work[ing] closely” with, among other groups, “the judiciary.” Yet she was

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actively seeking to unseat at least one judge by supporting her sister’s

candidacy. It is easy to see that such a conflicting position may have

hampered the ability of the DA’s office to discharge its duties.

Garza herself details how her activities “adversely affect[ed] the

government’s ability to provide services.” Vojvodich, 48 F.3d at 887. Garza—

a department head—alleges that communication with Escobar broke down

almost completely. After Escobar began shifting her work to other

employees, Garza defied his wishes and contined to prepare witnesses for

trial. This “undercurrent of duplicity” from a department head would

unavoidably “impede the ‘close working relationships[]’ which the Supreme

Court has specifically held to be crucial in public attorney’s offices.”

Lumpkin, 712 F. App’x at 359. Further, Garza worked half-days and took a

leave of absence that lasted over two months. Garza herself tells us what the

result of all this was: “the proper preparation of crime victims to testify at

trial” and “the efficient and effective functioning of the Crime Victims

Unit”—a key department in the DA’s Office—was “sacrificed.”

Further supporting our conclusion, we have recognized that “[t]he

political sensitivity of DA offices is reinforced in Texas law by statutory

provisions that enable the DA to hire all office personnel required for the

proper and efficient operation and administration of the office, render all

such personnel subject to removal at will, and render investigators under the

exclusive authority and direction of the prosecuting attorney.” Maldonado,

932 F.3d at 394. “Once the DA is [elected], the office must be sensitive to

that official’s policy demands as represented to the voters. . . . [T]he DA is

ultimately responsible for every interaction between his office and the

public.” Id. at 392. Here, Garza’s lack of loyalty led to a deterioration of her

working relationship with Escobar, and to her eventual defiance of his

instructions. As we have detailed, this disobedience contravened her

statutory duties, which included the obligation to “work closely with . . .

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prosecuting attorneys” in securing the rights of crime victims. See TEX.

CODE CRIM. PROC. art. § 56.04(b).

For these reasons, we conclude that Garza’s actions disrupted the

efficient and effective functioning of the DA’s office and thus that her

position is one for which political affiliation is an appropriate requirement.

See Branti, 445 U.S. at 518. Garza’s employment was therefore not shielded

by the First Amendment, and, as the district court correctly concluded, she

was subject to patronage dismissal. Judgment on the pleadings in favor of

Escobar on this issue was appropriate. See Fed. R. Civ. P. 12(c). 5

B.

Garza also asserted a municipal liability claim against Starr County

based on Escobar’s conduct, and an official capacity claim against Escobar.

The district court dismissed the municipal liability claim because Garza failed

to plausibly allege a constitutional violation. It also dismissed the official

capacity claim as duplicative of the claim against Starr County.

The district court was correct in both regards. See Hicks-Fields v.

Harris Cty., Tex., 860 F.3d 803, 808 (5th Cir. 2017) (“[E]very Monell claim

requires an underlying constitutional violation.” (quotation marks omitted));

Castro Romero v. Becken, 256 F.3d 349, 355 (5th Cir. 2001) (official capacity

claims properly dismissed where “allegations duplicate claims against the

respective governmental entities themselves.”). 6

5

Because we conclude that Garza was subject to the Elrod-Branti exception, we

do not address Escobar’s alternative argument that he is entitled to qualified immunity

from Garza’s § 1983 claims.

6

Garza briefly argues that her official capacity claim against Escobar was not

duplicative of the claim against Starr County because Escobar’s office embraces two

other counties. She cites no relevant legal authority supporting this proposition, and

other than pointing out that the office covers three counties, offers no arguments as to

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* * *

The judgment of the district court is AFFIRMED.

why the claims are not duplicative. She thus fails to demonstrate the district court

erred. See Osborne v. Coleman Co., 602 F.2d 725, 726 (5th Cir. 1979) (appellant bears

burden of convincing court of appeals that district court erred); see also Brinkmann v.

Dallas Cty. Sheriff, 813 F.2d 744, 748 (5th Cir. 1987) (failure to offer substantive legal

arguments “is the same as if [petitioner] had not appealed that judgment”).

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